OCTOBER TERM, 1996
Syllabus
UNITED STATES
v. LANIER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 95-1717. Argued January 7, 1997-Decided March 31, 1997
Respondent Lanier was convicted under 18 U. S. C. § 242 of
criminally violating the constitutional rights of five women by
assaulting them sexually while he served as a state judge. The jury
had been instructed,
inter alia, that the Government had to
prove as an element of the offense that Lanier had deprived the
victims of their Fourteenth Amendment due process right to liberty,
which included the right to be free from sexually motivated
physical assaults and coerced sexual battery. The en banc Sixth
Circuit set aside the convictions for lack of any notice to the
public that § 242 covers simple or sexual assault crimes. Invoking
general interpretive canons and
Screws v.
United
States, 325 U. S.
91 (plurality opinion), the court held that § 242 criminal
liability may be imposed only if the constitutional right said to
have been violated is first identified in a decision of this Court,
and only when the right has been held to apply in a factual
situation "fundamentally similar" to the one at bar. The court
regarded these combined requirements as substantially higher than
the "clearly established" standard used to judge qualified immunity
in civil cases under 42 U. S. C. § 1983.
Held: The Sixth Circuit employed the wrong standard for
determining whether particular conduct falls within the range of
criminal liability under § 242. Section 242's general language
prohibiting "the deprivation of any rights ... secured ... by the
Constitution" does not describe the specific conduct it forbids,
but-like its companion conspiracy statute, 18 U. S. C. §
241-incorporates constitutional law by reference. Before criminal
liability may be imposed for violation of any penal law, due
process requires "fair warning ... of what the law intends."
McBoyle v.
United States, 283 U. S. 25, 27. The
touchstone is whether the statute, either standing alone or as
construed by the courts, made it reasonably clear at the time of
the charged conduct that the conduct was criminal. Section 242 was
construed in light of this due process requirement in
Screws,
supra. The Sixth Circuit erred in adding as a gloss to this
standard the requirement that a prior decision of this Court have
declared the constitutional right at issue in a factual situation
"fundamentally similar" to the one at bar. The
Screws
plurality referred in general terms to rights made specific by
"decisions interpreting" the Constitution, see 325 U. S., at 104;
no subsequent case has confined the
260
Syllabus
universe of relevant decisions to the Court's opinions; and the
Court has specifically referred to Court of Appeals decisions in
defining the established scope of a constitutional right under §
241, see
Anderson v.
United States, 417 U. S. 211, 223-227,
and in enquiring whether a right was "clearly established" when
applying the qualified immunity rule under § 1983 and
Bivens
v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388, see,
e. g., Mitchell v.
Forsyth, 472 U. S. 511,533. Nor
has this Court demanded precedents applying the right at issue to a
"fundamentally similar" factual situation at the level of
specificity meant by the Sixth Circuit. Rather, the Court has
upheld convictions under § 241 or § 242 despite notable factual
distinctions between prior cases and the later case, so long as the
prior decisions gave reasonable warning that the conduct at issue
violated constitutional rights. See,
e. g., United States v.
Guest, 383 U.
S. 745, 759, n. 17. The Sixth Circuit's view that due process
under § 242 demands more than the "clearly established" qualified
immunity test under § 1983 or
Bivens is error. In effect
that test is simply the adaptation of the fair warning standard to
give officials (and, ultimately, governments) the same protection
from civilliability and its consequences that individuals have
traditionally possessed in the face of vague criminal statutes. As
with official conduct under § 1983 or
Bivens, liability may
be imposed under § 242 if, but only if, in the light of
pre-existing law the unlawfulness of the defendant's conduct is
apparent. Pp. 264-272.
73 F.3d
1380, vacated and remanded.
SOUTER, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Waxman argued the cause for the United
States. On the briefs were Acting Solicitor General Dellinger,
Assistant Attorney General Patrick, Deputy Solicitor General
Bender, Paul R.
Q. Wolfson, Jessica Dunsay Silver, and
Thomas E. Chandler.
Alfred H. Knight, by appointment of the Court, 519 U. S.
804, argued the cause and filed a brief for respondent. *
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
Marjorie Heins
and
Steven R. Shapiro; for the NOW Legal Defense and
Education Fund et al. by
Lynn Hecht Schafran and
Martha F.
Davis; for the Southern Poverty Law Center
et al. by
Mary-Christine Sungaila, Gregory R. Smith,
J. Richard Cohen, and
Brian Levin; and for
Vivian Forsythe-Archie et al. by
Catharine A. MacKinnon.
261
JUSTICE SOUTER delivered the opinion of the Court. Respondent
David Lanier was convicted under 18 U. S. C. § 242 of criminally
violating the constitutional rights of five women by assaulting
them sexually while Lanier served as a state judge. The Sixth
Circuit reversed his convictions on the ground that the
constitutional right in issue had not previously been identified by
this Court in a case with fundamentally similar facts. The question
is whether this standard of notice is higher than the Constitution
requires, and we hold that it is.
I
David Lanier was formerly the sole state Chancery Court judge
for two rural counties in western Tennessee. The trial record, read
most favorably to the jury's verdict, shows that from 1989 to 1991,
while Lanier was in office, he sexually assaulted several women in
his judicial chambers. The two most serious assaults were against a
woman whose divorce proceedings had come before Lanier and whose
daughter's custody remained subject to his jurisdiction. When the
woman applied for a secretarial job at Lanier's courthouse, Lanier
interviewed her and suggested that he might have to reexamine the
daughter's custody. When the woman got up to leave, Lanier grabbed
her, sexually assaulted her, and finally committed oral rape. A few
weeks later, Lanier inveigled the woman into returning to the
courthouse again to get information about another job opportunity,
and again sexually assaulted and orally raped her. App. 44-67. On
five other occasions Lanier sexually assaulted four other women:
two of his secretaries, a Youth Services Officer of the juvenile
court over which Lanier presided, and a local coordinator for a
federal program who was in Lanier's chambers to discuss a matter
affecting the same court.
Id., at 13-43, 67-109.
Ultimately, Lanier was charged with 11 violations of § 242, each
count of the indictment alleging that, acting willfully and under
color of Tennessee law, he had deprived the victim
262
of "rights and privileges which are secured and protected by the
Constitution and the laws of the United States, namely the right
not to be deprived of liberty without due process of law, including
the right to be free from wilful sexual assault."
Id., at
5-12. Before trial, Lanier moved to dismiss the indictment on the
ground that § 242 is void for vagueness. The District Court denied
the motion.
The trial judge instructed the jury on the Government's burden
to prove as an element of the offense that the defendant deprived
the victim of rights secured or protected by the Constitution or
laws of the United States:
"Included in the liberty protected by the [Due Process Clause of
the] Fourteenth Amendment is the concept of personal bodily
integrity and the right to be free of unauthorized and unlawful
physical abuse by state intrusion. Thus, this protected right of
liberty provides that no person shall be subject to physical or
bodily abuse without lawful justification by a state official
acting or claiming to act under the color of the laws of any state
of the United States when that official's conduct is so demeaning
and harmful under all the circumstances as to shock one's
consci[ence]. Freedom from such physical abuse includes the right
to be free from certain sexually motivated physical assaults and
coerced sexual battery. It is not, however, every unjustified
touching or grabbing by a state official that constitutes a
violation of a person's constitutional rights. The physical abuse
must be of a serious substantial nature that involves physical
force, mental coercion, bodily injury or emotional damage which is
shocking to one's consci[ence]." Id., at 186-187.
The jury returned verdicts of guilty on seven counts, and not
guilty on three (one count having been dismissed at the close of
the Government's evidence). It also found that the two oral rapes
resulted in "bodily injury," for which Lanier was
263
subject to 10-year terms of imprisonment on each count, in
addition to 1-year terms under the other five counts of conviction,
see § 242. He was sentenced to consecutive maximum terms totaling
25 years.
A panel of the Court of Appeals for the Sixth Circuit affirmed
the convictions and sentence,
33 F.3d
639 (1994), but the full court vacated that decision and
granted rehearing en bane,
43 F.3d
1033 (1995). On rehearing, the court set aside Lanier's
convictions for "lack of any notice to the public that this
ambiguous criminal statute [i.
e., § 242] includes simple or
sexual assault crimes within its coverage."
73
F.3d 1380, 1384 (1996). Invoking general canons for
interpreting criminal statutes, as well as this Court's plurality
opinion in
Screws v.
United States, 325 U. S. 91 (1945), the
Sixth Circuit held that criminal liability may be imposed under §
242 only if the constitutional right said to have been violated is
first identified in a decision of this Court (not any other
federal, or state, court), and only when the right has been held to
apply in "a factual situation fundamentally similar to the one at
bar." 73 F. 3d, at 1393. The Court of Appeals regarded these
combined requirements as "substantially higher than the 'clearly
established' standard used to judge qualified immunity" in civil
cases under Rev. Stat. § 1979, 42 U. S. C. § 1983. 73 F. 3d, at
1393. Finding no decision of this Court applying a right to be free
from unjustified assault or invasions of bodily integrity in a
situation "fundamentally similar" to those charged, the Sixth
Circuit reversed the judgment of conviction with instructions to
dismiss the indictment. Two judges would not have dismissed the
felony counts charging the oral rapes but concurred in dismissing
the misdemeanor counts, while three members of the court dissented
as to all dismissals.
We granted certiorari to review the standard for determining
whether particular conduct falls within the range of criminal
liability under § 242. 518 U. S. 1004 (1996). We now vacate and
remand.
264
II
Section 242 is a Reconstruction Era civil rights statute making
it criminal to act (1) "willfully" and (2) under color of law (3)
to deprive a person of rights protected by the Constitution or laws
of the United States.1 18 U. S. C. § 242;
Screws v.
United States, supra. The en banc decision of the Sixth
Circuit dealt only with the last of these elements, and it is with
that element alone that we are concerned here.2
The general language of § 242,3 referring to "the deprivation of
any rights, privileges, or immunities secured or pro-
1 The present § 242 has its roots in portions of three
Reconstruction Era Civil Rights Acts, whose substantive criminal
provisions were consolidated in a single section in 1874. See 2
Congo Rec. 827-828 (1874) (describing derivation of consolidated
criminal civil rights law from §§ 1 and 2 of the Civil Rights Act
of 1866, 14 Stat. 27; §§ 16 and 17 of the Civil Rights Act of 1870,
16 Stat. 144; and § 1 of the Civil Rights Act of 1871, 17 Stat.
13). Although those statutory forebears created criminal sanctions
only for violations of some enumerated rights and privileges, the
consolidated statute of 1874 expanded the law's scope to apply to
deprivations of all constitutional rights, despite the "customary
stout assertions of the codifiers that they had merely clarified
and reorganized without changing substance."
United States
V.
Price, 383
U. S. 787,803 (1966). Since the 1874 recodification, Congress
has revisited § 242 on several occasions, without contracting its
substantive scope. See 35 Stat. 1092 (1909) (adding willfulness
requirement); 82 Stat. 75 (1968) (enhancing penalties for some
violations); 102 Stat. 4396 (1988) (same); 108 Stat. 1970, 2109,
2113, 2147 (1994) (same).
2 Thus, we do not address the argument, pressed by respondent,
that the actions for which he was convicted were not taken under
color of law. The Sixth Circuit discussed that issue only in the
original panel opinion, subsequently vacated, but did not reach the
question in the en banc decision under review here. To the extent
the issue remains open, we leave its consideration in the first
instance to the Court of Appeals on remand.
3 "Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in any State,
Territory, or District to the deprivation of any rights,
privileges, or immunities secured or protected by the Constitution
or laws of the United States, or to different punishments, pains,
or penalties, on account of such person being an alien, or by
reason of his color, or race, than are prescribed for the
punishment of citizens," shall be subject to specified criminal
penalties.
265
tected by the Constitution or laws of the United States," is
matched by the breadth of its companion conspiracy statute, § 241,4
which speaks of conspiracies to prevent "the free exercise or
enjoyment of any right or privilege secured to [any person] by the
Constitution or laws of the United States." Thus, in lieu of
describing the specific conduct it forbids, each statute's general
terms incorporate constitutional law by reference, see
United
States v.
Kozminski, 487 U. S. 931, 941
(1988); United States v.
Price, 383 U. S. 787, 797, 805
(1966), and many of the incorporated constitutional guarantees are,
of course, themselves stated with some catholicity of phrasing. The
result is that neither the statutes nor a good many of their
constitutional referents delineate the range of forbidden conduct
with particularity.
The right to due process enforced by § 242 and said to have been
violated by Lanier presents a case in point, with the irony that a
prosecution to enforce one application of its spacious protection
of liberty can threaten the accused with deprivation of another:
what Justice Holmes spoke of as "fair warning ... in language that
the common world will understand, of what the law intends to do if
a certain line is passed. To make the warning fair, so far as
possible the line should be clear."
McBoyle v.
United
States, 283 U. S.
25, 27 (1931). "'The ... principle is that no man shall be held
criminally responsible for conduct which he could not reasonably
understand to be proscribed.'"
Bouie v.
City of Columbia,
378 U. S. 347, 351 (1964) (quoting
United States v.
Harriss, 347 U. S. 612, 617 (1954)).5
4 Insofar as pertinent: "If two or more persons conspire to
injure, oppress, threaten, or intimidate any person in any State,
Territory, or District in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of
the United States, or because of his having so exercised the same,"
they shall be subject to specified criminal penalties.
5 The fair warning requirement also reflects the deference due
to the legislature, which possesses the power to define crimes and
their punishment. See
United States v.
Wiltberger, 5
Wheat. 76, 95 (1820);
United
266
There are three related manifestations of the fair warning
requirement. First, the vagueness doctrine bars enforcement of "a
statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application."
Connally v.
General Constr. Co., 269 U. S. 385, 391
(1926); accord,
Kolender v.
Lawson, 461 U. S. 352, 357
(1983); Lanzetta v.
New Jersey, 306 U. S. 451, 453
(1939). Second, as a sort of "junior version of the vagueness
doctrine," H. Packer, The Limits of the Criminal Sanction 95
(1968), the canon of strict construction of criminal statutes, or
rule of lenity, ensures fair warning by so resolving ambiguity in a
criminal statute as to apply it only to conduct clearly covered.
See,
e. g., Liparota v.
United States, 471 U. S. 419, 427
(1985);
United States v.
Bass, 404 U. S. 336, 347-348
(1971);
McBoyle, supra, at 27. Third, although clarity at
the requisite level may be supplied by judicial gloss on an
otherwise uncertain statute, see,
e. g., Bouie, supra, at
357-359; Kolender, supra, at 355-356;
Lanzetta,
supra, at 455-457; Jeffries, Legality, Vagueness, and the
Construction of Penal Statutes, 71 Va. L. Rev. 189, 207 (1985), due
process bars courts from applying a novel construction of a
criminal statute to conduct that neither the statute nor any prior
judicial decision has fairly disclosed to be within its scope, see,
e. g., Marks v.
United States, 430 U. S. 188, 191-192
(1977);
Rabe v.
Washington, 405 U. S. 313 (1972)
(per curiam); Bouie, supra, at 353-354; cf. U. S. Const.,
Art. I, § 9, cl. 3;
id., § 10, cl. 1;
Bouie, supra,
at 353-354
(Ex Post Facto
States v.
Aguilar, 515 U. S. 593, 600
(1995). See generally H. Packer, The Limits of the Criminal
Sanction 79-96 (1968) (discussing "principle of legality," "that
conduct may not be treated as criminal unless it has been so
defined by [a competent] authority ... before it has taken place,"
as implementing separation of powers, providing notice, and
preventing abuses of official discretion) (quotation at 80);
Jeffries, Legality, Vagueness, and the Construction of Penal
Statutes, 71 Va. L. Rev. 189 (1985).
267
Clauses bar legislatures from making substantive criminal
offenses retroactive). In each of these guises, the touchstone is
whether the statute, either standing alone or as construed, made it
reasonably clear at the relevant time that the defendant's conduct
was criminal.
We applied this standard in
Screws v.
United States,
325 U. S. 91 (1945), which recognized that the expansive
language of due process that provides a basis for judicial review
is, when incorporated by reference into § 242, generally ill suited
to the far different task of giving fair warning about the scope of
criminal liability. The
Screws plurality identified the
affront to the warning requirement posed by employing § 242 to
place "the accused ... on trial for an offense, the nature of which
the statute does not define and hence of which it gives no
warning."
Id., at 101. At the same time, the same Justices
recognized that this constitutional difficulty does not arise when
the accused is charged with violating a "right which has been made
specific either by the express terms of the Constitution or laws of
the United States or by decisions interpreting them."
Id.,
at 104. When broad constitutional requirements have been "made
specific" by the text or settled interpretations, willful violators
"certainly are in no position to say that they had no adequate
advance notice that they would be visited with punishment ....
[T]hey are not punished for violating an unknowable something."
Id., at 105. Accordingly,
Screws limited the
statute's coverage to rights fairly warned of, having been "made
specific" by the time of the charged conduct. See also
Kozminski, supra, at 941 (parallel construction of §
241).6
6 This process of "making specific" does not, as the Sixth
Circuit believed, qualify
Screws as "the only Supreme Court
case in our legal history in which a majority of the Court seems
[to have been] willing to create a common law crime."
73 F.3d
1380, 1391 (1996). Federal crimes are defined by Congress, not
the courts,
Kozminski, 487 U. S., at 939;
United
States v.
Wiltberger, supra, at 95, and
Screws
did not "create a common
268
The Sixth Circuit, in this case, added two glosses to the
made-specific standard of fair warning. In its view, a generally
phrased constitutional right has been made specific within the
meaning of
Screws only if a prior decision of this Court has
declared the right, and then only when this Court has applied its
ruling in a case with facts "fundamentally similar" to the case
being prosecuted. 73 F. 3d, at 1393. None of the considerations
advanced in this case, however, persuade us that either a decision
of this Court or the extreme level of factual specificity
envisioned by the Court of Appeals is necessary in every instance
to give fair warning.
First, contrary to the Court of Appeals, see
ibid., we
think it unsound to read
Screws as reasoning that only this
Court's decisions could provide the required warning. Although the
Screws plurality gave two examples involving decisions of
the Court, their opinion referred in general terms to rights made
specific by "decisions interpreting" the Constitution, see 325 U.
S., at 104 (plurality opinion), and no subsequent case has held
that the universe of relevant interpretive decisions is confined to
our opinions. While
United States v.
Kozminski,
487 U. S. 931
(1988), a case under § 241 for violat-
law crime"; it narrowly construed a broadly worded Act of
Congress, and the policies favoring strict construction of criminal
statutes oblige us to carry out congressional intent as far as the
Constitution will admit, see
Kozminski, supra, at 939;
Huddleston v.
United States, 415 U. S. 814, 831
(1974); United States v.
Morris, 14 Pet. 464, 475
(1840). Nor is §242's pedigree as an Act of Congress tainted by its
birth at the hands of codifiers who arguably made substantive
changes in the pre-existing law, see n. 1,
supra, as the
Sixth Circuit concluded from the statutory history, 73 F. 3d, at
1384-1387. The legislative intent of Congress is to be derived from
the language and structure of the statute itself, if possible, not
from the assertions of codifiers directly at odds with clear
statutory language. See,
e. g., United States v.
Wells, 519 U.
S. 482, 496-497 (1997). Further, the Sixth Circuit's conclusion
that Congress never intended § 242 to extend to "newly-created
constitutional rights," 73 F. 3d, at 1387, is belied by the fact
that Congress has increased the penalties for the section's
violation several times since
Screws was decided, without
contracting its substantive scope, see n. 1,
supra.
269
ing Thirteenth Amendment rights, did characterize our task as
ascertaining the crime charged "by looking to the scope of the
Thirteenth Amendment prohibition ... specified in our prior
decisions,"
id., at 941, in at least one other case we have
specifically referred to a decision of a Court of Appeals in
defining the established scope of a constitutional right for
purposes of § 241 liability, see
Anderson v.
United
States, 417 U. S.
211, 223-227 (1974). It is also to the point, as we explain
below, that in applying the rule of qualified immunity under 42 U.
S. C. § 1983 and
Bivens v.
Six Unknown Fed. Narcotics
Agents, 403 U. S.
388 (1971), we have referred to decisions of the Courts of
Appeals when enquiring whether a right was "clearly established."
See
Mitchell v.
Forsyth, 472 U. S. 511, 533
(1985);
Davis v.
Scherer, 468 U. S. 183, 191192
(1984); see also
id., at 203-205 (Brennan, J., concurring in
part and dissenting in part);
Elder v.
Holloway,
510 U. S. 510,
516 (1994) (treating Court of Appeals decision as "relevant
authority" that must be considered as part of qualified immunity
enquiry). Although the Sixth Circuit was concerned, and rightly so,
that disparate decisions in various Circuits might leave the law
insufficiently certain even on a point widely considered, such a
circumstance may be taken into account in deciding whether the
warning is fair enough, without any need for a categorical rule
that decisions of the Courts of Appeals and other courts are
inadequate as a matter of law to provide it.
Nor have our decisions demanded precedents that applied the
right at issue to a factual situation that is "fundamentally
similar" at the level of specificity meant by the Sixth Circuit in
using that phrase. To the contrary, we have upheld convictions
under § 241 or § 242 despite notable factual distinctions between
the precedents relied on and the cases then before the Court, so
long as the prior decisions gave reasonable warning that the
conduct then at issue violated constitutional rights. See
United
States v.
Guest, 383 U. S. 745, 759, n. 17
(1966) (prior cases established right of interstate travel,
270
but later case was the first to address the deprivation of this
right by private persons);
United States v.
Saylor,
322 U. S. 385
(1944)
(pre-Screws; prior cases established right to have
legitimate vote counted, whereas later case involved dilution of
legitimate votes through casting of fraudulent ballots);
United
States v.
Classic, 313 U. S. 299, 321-324
(1941) (pre
Screws; prior cases established right to have
vote counted in general election, whereas later case involved
primary election); see also
Screws, 325 U. S., at 106
(stating that
Classic met the test being announced).
But even putting these examples aside, we think that the Sixth
Circuit's "fundamentally similar" standard would lead trial judges
to demand a degree of certainty at once unnecessarily high and
likely to beget much wrangling. This danger flows from the Court of
Appeals' stated view, 73 F. 3d, at 1393, that due process under §
242 demands more than the "clearly established" law required for a
public officer to be held civilly liable for a constitutional
violation under § 1983 or
Bivens, see
Anderson v.
Creighton, 483
U. S. 635 (1987)
(Bivens action);
Davis v.
Scherer, supra (§ 1983 action). This, we think, is
error.
In the civil sphere, we have explained that qualified immunity
seeks to ensure that defendants "reasonably can anticipate when
their conduct may give rise to liability,"
id., at 195, by
attaching liability only if "[t]he contours of the right [violated
are] sufficiently clear that a reasonable official would understand
that what he is doing violates that right,"
Anderson, supra,
at 640. So conceived, the object of the "clearly established"
immunity standard is not different from that of "fair warning" as
it relates to law "made specific" for the purpose of validly
applying § 242. The fact that one has a civil and the other a
criminal law role is of no significance; both serve the same
objective, and in effect the qualified immunity test is simply the
adaptation of the fair warning standard to give officials (and,
ultimately, governments) the same protection from civil liability
and its consequences
271
that individuals have traditionally possessed in the face of
vague criminal statutes. To require something clearer than "clearly
established" would, then, call for something beyond "fair
warning."
This is not to say, of course, that the single warning standard
points to a single level of specificity sufficient in every
instance. In some circumstances, as when an earlier case expressly
leaves open whether a general rule applies to the particular type
of conduct at issue, a very high degree of prior factual
particularity may be necessary. See,
e. g.,
Mitchell v.
Forsyth, supra, at 530-535, and n. 12.
But general statements of the law are not inherently incapable of
giving fair and clear warning, and in other instances a general
constitutional rule already identified in the decisional law may
apply with obvious clarity to the specific conduct in question,
even though "the very action in question has [not] previously been
held unlawful,"
Anderson, supra, at 640. As Judge Daughtrey
noted in her dissenting opinion in this case: "'The easiest cases
don't even arise. There has never been ... a section 1983 case
accusing welfare officials of selling foster children into slavery;
it does not follow that if such a case arose, the officials would
be immune from damages [or criminal] liability.'" 73 F. 3d, at 1410
(quoting
K. H. Through Murphy v.
Morgan, 914 F.2d
846, 851 (CA7 1990)); see also
Colten v.
Kentucky, 407
U. S. 104, 110 (1972) (due process requirements are not
"designed to convert into a constitutional dilemma the practical
difficulties in drawing criminal statutes both general enough to
take into account a variety of human conduct and sufficiently
specific to provide fair warning that certain kinds of conduct are
prohibited");
Williams v.
United States, 341 U. S. 97, 101 (1951)
(holding that beating to obtain a confession plainly violates §
242). In sum, as with civil liability under § 1983 or
Bivens, all that can usefully be said about criminal
liability under § 242 is that it may be imposed for deprivation of
a constitutional right if, but only if, "in the light of
pre-existing law the un-
272
lawfulness [under the Constitution is] apparent,"
Anderson,
supra, at 640. Where it is, the constitutional requirement of
fair warning is satisfied.
Because the Court of Appeals used the wrong gauge in deciding
whether prior judicial decisions gave fair warning that
respondent's actions violated constitutional rights, we vacate the
judgment and remand the case for application of the proper
standard.7
It is so ordered.
7We also leave consideration of other issues that may remain
open to the Court of Appeals on remand. Several of the arguments
tendered by respondent here are, however, plainly without merit and
need not be left open. First, Lanier's contention that
Screws excluded rights protected by the Due Process Clause
of the Fourteenth Amendment from the ambit of § 242 is contradicted
by the language of
Screws itself as well as later cases. See
Screws v.
United States, 325 U. S. 91, 100, 106
(1945);
United States v.
Price, 383 U. S., at 789,
and n. 2, 793 (§ 242 is enforcement legislation enacted under § 5
of the Fourteenth Amendment and encompasses violations of rights
guaranteed under the Due Process Clause). Second, although
DeShaney v.
Winnebago County Dept. of Social Servs.,
489 U. S. 189
(1989), generally limits the constitutional duty of officials to
protect against assault by private parties to cases where the
victim is in custody,
DeShaney does not hold, as respondent
maintains, that there is no constitutional right to be free from
assault committed by state officials themselves outside of a
custodial setting. Third, contrary to respondent's claim,
Graham v.
Connor, 490 U. S. 386, 394
(1989), does not hold that all constitutional claims relating to
physically abusive government conduct must arise under either the
Fourth or Eighth Amendments; rather,
Graham simply requires
that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment,
the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due
process.
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