OCTOBER TERM, 1991
Syllabus
WYATT
v. COLE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 91-126. Argued January 14, 1992-Decided May 18, 1992
With the assistance of respondent Robbins, an attorney,
respondent Cole filed a complaint under the Mississippi replevin
statute against his partner, petitioner Wyatt. After Cole refused
to comply with a state court order to return to Wyatt property
seized under the statute, Wyatt brought suit in the Federal
District Court under 42 U. S. C. § 1983, challenging the state
statute's constitutionality and seeking injunctive relief and
damages. Among other things, the court held the statute
unconstitutional and assumed that Cole was subject to liability
under
Lugar v.
Edmondson Oil Co., 457 U. S. 922, in which
this Court ruled that private defendants invoking state replevin,
garnishment, and attachment statutes later declared
unconstitutional act under color of state law for § 1983 liability
purposes. The court also intimated that, but did not decide
whether, Robbins was subject to § 1983 liability. However,
Lugar had left open the question whether private defendants
are entitled to qualified immunity from suit in such cases, see
id., at 942, n. 23, and the District Court held that
respondents were entitled to qualified immunity at least for
conduct arising prior to the replevin statute's invalidation. The
Court of Appeals affirmed the grant of qualified immunity to
respondents without revisiting the question of their § 1983
liability.
Held:
1. Qualified immunity from suit, as enunciated by this Court
with respect to government officials, is not available to private
defendants charged with § 1983 liability for invoking state
replevin, garnishment, or attachment statutes. Immunity for private
defendants was not so firmly rooted in the common law and was not
supported by such strong policy reasons as to create an inference
that Congress meant to incorporate it into § 1983. See,
e. g.,
Owen v.
City of Independence, 445 U. S. 622, 637. Even
if there were sufficient common law support to conclude that
private defendants should be entitled to a good faith and/or
probable cause defense to suits for unjustified harm arising out of
the misuse of governmental processes, that would still not entitle
respondents to what they obtained in the courts below: the type of
objectively determined, immediately appealable, qualified
immunity from suit accorded government officials under,
e. g., Harlow v.
Fitzgerald, 457 U. S.
159
800, and
Mitchell v.
Forsyth, 472 U. S. 511. Moreover,
the policy concerns mandating qualified immunity for officials in
such cases-the need to preserve the officials' ability to perform
their discretionary functions and to ensure that talented
candidates not be deterred by the threat of damages suits from
entering public service-are not applicable to private parties.
Although it may be that private defendants faced with § 1983
liability under
Lugar, supra, could be entitled to an
affirmative good faith defense, or that § 1983 suits against
private, rather than governmental, parties could require plaintiffs
to carry additional burdens, those issues are neither before the
Court nor decided here. pp. 163-169.
2. On remand, it must be determined, at least, whether
respondents, in invoking the replevin statute, acted under color of
state law within the meaning of
Lugar, supra. P. 169.
928 F.2d
718, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined.
KENNEDY, J., filed a concurring opinion, in which SCALIA, J.,
joined,
post, p. 169. REHNQUIST, C. J., filed a dissenting
opinion, in which SOUTER and THOMAS, JJ., joined,
post, p.
175.
Jim Waide argued the cause for petitioner. With him on
the briefs were
Douglas M. Magee and
Alan B.
Morrison.
Joseph Leray McNamara argued the cause and filed a brief
for respondents.
JUSTICE O'CONNOR delivered the opinion of the Court.
In
Lugar v.
Edmondson Oil Co., 457 U. S. 922 (1982), we
left open the question whether private defendants charged with 42
U. S. C. § 1983 liability for invoking state replevin, garnishment,
and attachment statutes later declared unconstitutional are
entitled to qualified immunity from suit. 457 U. S., at 942, n. 23.
We now hold that they are not.
I
This dispute arises out of a soured cattle partnership. In July
1986, respondent Bill Cole sought to dissolve his partnership with
petitioner Howard Wyatt. When no agreement could be reached, Cole,
with the assistance of an
160
attorney, respondent John Robbins II, filed a state court
complaint in replevin against Wyatt, accompanied by a replevin bond
of $18,000.
At that time, Mississippi law provided that an individual could
obtain a court order for seizure of property possessed by another
by posting a bond and swearing to a state court that the applicant
was entitled to that property and that the adversary "wrongfully
took and detain[ed] or wrongfully detain[ed]" the property. 1975
Miss. Gen. Laws, ch. 508, § 1. The statute gave the judge no
discretion to deny a writ of replevin.
After Cole presented a complaint and bond, the court ordered the
county sheriff to seize 24 head of cattle, a tractor, and certain
other personal property from Wyatt. Several months later, after a
postseizure hearing, the court dismissed Cole's complaint in
replevin and ordered the property returned to Wyatt. When Cole
refused to comply, Wyatt brought suit in Federal District Court,
challenging the constitutionality of the statute and seeking
injunctive relief and damages from respondents, the county sheriff,
and the deputies involved in the seizure.
The District Court held that the statute's failure to afford
judges discretion to deny writs of replevin violated due process.
710 F. Supp. 180, 183 (SD Miss. 1989).1 It dismissed the suit
against the government officials involved in the seizure on the
ground that they were entitled to qualified immunity. App. 17-18.
The court also held that Cole and Robbins, even if otherwise liable
under § 1983, were entitled to qualified immunity from suit for
conduct arising prior to the statute's invalidation.
Id., at
12-14. The Court of Appeals for the Fifth Circuit affirmed the
District Court's grant of qualified immunity to the private
defendants.
928 F.2d
718 (1991).
IThe State amended the statute in 1990. Miss. Code Ann. §
11-37-101 (Supp. 1991).
161
We granted certiorari, 502 U. S. 807 (1991), to resolve a
conflict among the Courts of Appeals over whether private
defendants threatened with 42 U. S. C. § 1983 liability are, like
certain government officials, entitled to qualified immunity from
suit. Like the Fifth Circuit, the Eighth and Eleventh Circuits have
determined that private defendants are entitled to qualified
immunity. See
Buller v.
Buechler, 706 F. 2d 844,
850-852 (CA8 1983);
Jones v.
Preuit &
Mauldin, 851 F.2d
1321, 1323-1325 (CA111988) (en bane), vacated on other grounds,
489 U. S. 1002 (1989). The First and Ninth Circuits, however, have
held that in certain circumstances, private parties acting under
color of state law are not entitled to such an immunity. See
Downs v.
Sawtelle, 574 F.2d
1, 15-16 (CA1), cert. denied, 439 U. S. 910 (1978);
Conner v.
Santa Ana, 897 F.2d
1487, 1492, n. 9 (CA9), cert. denied, 498 U. S. 816 (1990);
Howerton v.
Gabica, 708 F.2d
380, 385, n. 10 (CA9 1983). The Sixth Circuit has rejected
qualified immunity for private defendants sued under § 1983 but has
established a good faith defense.
Duncan v.
Peck,
844 F.2d
1261 (1988).
II
Title 42 U. S. C. § 1983 provides a cause of action against
"[e]very person who, under color of any statute ... of any State
... subjects, or causes to be subjected, any citizen ... to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws .... " 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.
Carey v.
Piphus, 435 U.
S. 247, 254-257 (1978).
In
Lugar v.
Edmondson Oil Co., supra, the Court
considered the scope of § 1983 liability in the context of
garnishment, prejudgment attachment, and replevin statutes. In that
case, the Court held that private parties who attached a debtor's
assets pursuant to a state attachment statute were subject to §
1983 liability if the statute was constitutionally
162
infirm. Noting that our garnishment, prejudgment attachment, and
replevin cases established that private use of state laws to secure
property could constitute "state action" for purposes of the
Fourteenth Amendment,
id., at 932-935, the Court held that
private defendants invoking a state-created attachment statute act
"under color of state law" within the meaning of § 1983 if their
actions are "fairly attributable to the State,"
id., at 937.
This requirement is satisfied, the Court held, if two conditions
are met. First, the "deprivation must be caused by the exercise of
some right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the State is
responsible."
Ibid. Second, the private party must have
"acted together with or ... obtained significant aid from state
officials" or engaged in conduct "otherwise chargeable to the
State."
Ibid. The Court found potential § 1983 liability in
Lugar because the attachment scheme was created by the State
and because the private defendants, in invoking the aid of state
officials to attach the disputed property, were "willful
participant[s] in joint activity with the State or its agents."
Id., at 941 (internal quotation marks omitted).
Citing
Lugar, the District Court assumed that Cole, by
invoking the state statute, had acted under color of state law
within the meaning of § 1983, and was therefore liable for damages
for the deprivation of Wyatt's due process rights. App. 12. With
respect to Robbins, the court noted that while an action taken by
an attorney in representing a client "does not normally constitute
an act under color of state law, ... an attorney is still a person
who may conspire to act under color of state law in depriving
another of secured rights."
Id., at 13. The court did not
determine whether Robbins was liable, however, because it held that
both Cole and Robbins were entitled to qualified immunity from suit
at least for conduct prior to the statute's invalidation.
Id., at 13-14.
163
Although the Court of Appeals did not review whether, in the
first instance, Cole and Robbins had acted under color of state law
within the meaning of § 1983, it affirmed the District Court's
grant of qualified immunity to respondents. In so doing, the Court
of Appeals followed one of its prior cases,
Folsom Investment
Co. v.
Moore, 681 F.2d
1032 (CA5 1982), in which it held that "a § 1983 defendant who
has invoked an attachment statute is entitled to an immunity from
monetary liability so long as he neither knew nor reasonably should
have known that the statute was unconstitutional."
Id., at
1037. The court in
Folsom based its holding on two grounds.
First, it viewed the existence of a common law, probable cause
defense to the torts of malicious prosecution and wrongful
attachment as evidence that "Congress in enacting § 1983 could not
have intended to subject to liability those who in good faith
resorted to legal process."
Id., at 1038. Although it
acknowledged that a defense is not the same as an immunity, the
court maintained that it could "transfor[m] a common law defense
extant at the time of § 1983's passage into an immunity."
Ibid. Second, the court held that while immunity for private
parties is not derived from official immunity, it is based on "the
important public interest in permitting ordinary citizens to rely
on presumptively valid state laws, in shielding citizens from
monetary damages when they reasonably resort to a legal process
later held to be unconstitutional, and in protecting a private
citizen from liability when his role in any unconstitutional action
is marginal."
Id., at 1037. In defending the decision below,
respondents advance both arguments put forward by the Court of
Appeals in
Folsom. Neither is availing.
III
Section 1983 "creates a species of tort liability that on its
face admits of no immunities."
Imbler v.
Pachtman,
424 U. S. 409,
417 (1976). Nonetheless, we have accorded certain government
officials either absolute or qualified immu-
164
nity from suit if the "tradition of immunity was so firmly
rooted in the common law and was supported by such strong policy
reasons that 'Congress would have specifically so provided had it
wished to abolish the doctrine.'"
Owen v.
City of
Independence, 445
U. S. 622, 637 (1980) (quoting
Pierson v.
Ray,
386 U. S. 547,
555 (1967)). If parties seeking immunity were shielded from tort
liability when Congress enacted the Civil Rights Act of 1871-§ 1 of
which is codified at 42 U. S. C. § 1983-we infer from legislative
silence that Congress did not intend to abrogate such immunities
when it imposed liability for actions taken under color of state
law. See
Tower v.
Glover, 467 U. S. 914, 920
(1984);
Imbler, supra, at 421;
Pulliam v.
Allen, 466 U.
S. 522, 529 (1984). Additionally, irrespective of the common
law support, we will not recognize an immunity available at common
law if § 1983's history or purpose counsel against applying it in §
1983 actions.
Tower, supra, at 920. See also
Imbler,
supra, at 424-429.
In determining whether there was an immunity at common law that
Congress intended to incorporate in the Civil Rights Act, we look
to the most closely analogous torts-in this case, malicious
prosecution and abuse of process. At common law, these torts
provided causes of action against private defendants for
unjustified harm arising out of the misuse of governmental
processes. 2 C. Addison, Law of Torts , 852, and n. 2, , 868, and
n. 1 (1876); T. Cooley, Law of Torts 187-190 (1879); J. Bishop,
Commentaries on NonContract Law §§228-250, pp. 91-103, §490, p. 218
(1889).
Respondents do not contend that private parties who instituted
attachment proceedings and who were subsequently sued for malicious
prosecution or abuse of process were entitled to absolute immunity.
And with good reason; although public prosecutors and judges were
accorded absolute immunity at common law,
Imbler v.
Pachtman, supra, at 421-424, such protection did not extend
to complaining witnesses who, like respondents, set the wheels of
government in motion by
165
instigating a legal action.
Malley v.
Briggs,
475 U. S. 335,
340-341 (1986) ("In 1871, the generally accepted rule was that one
who procured the issuance of an arrest warrant by submitting a
complaint could be held liable if the complaint was made
maliciously and without probable cause").
Nonetheless, respondents argue that at common law, private
defendants could defeat a malicious prosecution or abuse of process
action if they acted without malice and with probable cause, and
that we should therefore infer that Congress did not intend to
abrogate such defenses when it enacted the Civil Rights Act of
1871. We adopted similar reasoning in
Pierson v.
Ray,
386 U. S., at 555-557. There, we held that police officers sued for
false arrest under § 1983 were entitled to the defense that they
acted with probable cause and in good faith when making an arrest
under a statute they reasonably believed was valid. We recognized
this defense because peace officers were accorded protection from
liability at common law if they arrested an individual in good
faith, even if the innocence of such person were later established.
Ibid.
The rationale we adopted in
Pierson is of no avail to
respondents here. Even if there were sufficient common law support
to conclude that respondents, like the police officers in
Pierson, should be entitled to a good faith defense, that
would still not entitle them to what they sought and obtained in
the courts below: the qualified
immunity from suit accorded
government officials under
Harlow v.
Fitzgerald,
457 U. S. 800
(1982).
In
Harlow, we altered the standard of qualified immunity
adopted in our prior § 1983 cases because we recognized that "[t]he
subjective element of the good-faith defense frequently [had]
prove[d] incompatible with our admonition ... that insubstantial
claims should not proceed to trial."
Id., at 815-816.
Because of the attendant harms to government effectiveness caused
by lengthy judicial inquiry into subjective motivation, we
concluded that "bare allegations of malice
166
should not suffice to subject government officials either to the
costs of trial or to the burdens of broad-reaching discovery."
Id., at 817-818. Accordingly, we held that government
officials performing discretionary functions are shielded from
"liability for civil damages insofar as their conduct [did] not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known."
Id., at 818.
This wholly objective standard, we concluded, would "avoid
excessive disruption of government and permit the resolution of
many insubstantial claims on summary judgment."
Ibid.
That
Harlow "completely reformulated qualified immunity
along principles not at all embodied in the common law,"
Anderson v.
Creighton, 483 U. S. 635, 645
(1987), was reinforced by our decision in
Mitchell v.
Forsyth, 472
U. S. 511 (1985).
Mitchell held that
Harlow
established an
"immunity from suit rather than a mere
defense to liability," which, like an absolute immunity, "is
effectively lost if a case is erroneously permitted to go to
trial." 472 U. S., at 526 (emphasis supplied). Thus, we held in
Mitchell that the denial of qualified immunity should be
immediately appealable.
Id., at 530.
It is this type of objectively determined, immediately
appealable immunity that respondents asserted below.2 But,
2 In arguing that respondents are entitled to qualified immunity
under
Harlow v.
Fitzgerald, 457 U. S. 800 (1982), the
dissent mixes apples and oranges. Even if we were to agree with the
dissent's proposition that elements a plaintiff was required to
prove as part of her case in chief could somehow be construed as a
"'defense,'"
post, at 176, n. 1, and that this "defense"
entitles private citizens to some protection from liability, we
cannot agree that respondents are entitled to
immunity from
suit under
Harlow. One could reasonably infer from the
fact that a plaintiff's malicious prosecution or abuse of process
action failed if she could not affirmatively establish both malice
and want of probable cause that plaintiffs bringing an analogous
suit under § 1983 should be required to make a similar showing to
sustain a § 1983 cause of action. Alternatively, if one accepts the
dissent's characterization of the common law as establishing an
affirmative "defense" for private defendants, then one could also
conclude that private parties sued under § 1983 should likewise be
entitled to
167
as our precedents make clear, the reasons for recognizing such
an immunity were based not simply on the existence of a good faith
defense at common law, but on the special policy concerns involved
in suing government officials.
Harlow, supra, at 813;
Mitchell, supra, at 526. Reviewing these concerns, we
conclude that the rationales mandating qualified immunity for
public officials are not applicable to private parties.
Qualified immunity strikes a balance between compensating those
who have been injured by official conduct and protecting
government's ability to perform its traditional functions.
Harlow, supra, at 819;
Pierson, supra, at 554;
Anderson, supra, at 638. Accordingly, we have recognized
qualified immunity for government officials where it was necessary
to preserve their ability to serve the public good or to ensure
that talented candidates were not deterred by the threat of damages
suits from entering public service. See,
e. g., Wood v.
Strickland, 420 U. S. 308, 319 (1975)
(denial of qualified immunity to school board officials" 'would
contribute not to principled and fearless decision-making but to
intimidation''') (quoting
Pierson, supra, at 554);
Butz v.
Economou,
438 U. S. 478, 506 (1978)
(immunity for Presidential aides warranted partly "to protect
officials who are required to exercise their discretion and the
related public interest in encouraging the vigorous exercise of
official authority");
Mitchell, supra, at 526 (immunity
designed to prevent the " 'distraction of officials from their
governmental duties, inhibition of discretionary action, and
deterrence of able people from public service'" (quoting
Harlow,
supra, at 816)). In
assert an affirmative defense based on a similar showing of good
faith and/ or probable cause. In neither case, however, is it
appropriate to make the dissent's leap: that because these common
law torts partially included an objective component-probable
cause-private defendants sued under § 1983 should be entitled to
the objectively determined, immediately appealable immunity from
suit accorded certain government officials under
Harlow.
168
short, the qualified immunity recognized in
Harlow acts
to safeguard government, and thereby to protect the public at
large, not to benefit its agents.
These rationales are not transferable to private parties.
Although principles of equality and fairness may suggest, as
respondents argue, that private citizens who rely unsuspectingly on
state laws they did not create and may have no reason to believe
are invalid should have some protection from liability, as do their
government counterparts, such interests are not sufficiently
similar to the traditional purposes of qualified immunity to
justify such an expansion. Unlike school board members, see
Wood, supra, or police officers, see
Malley v.
Briggs, 475 U.
S. 335 (1986), or Presidential aides, see
Butz, supra,
private parties hold no office requiring them to exercise
discretion; nor are they principally concerned with enhancing the
public good. Accordingly, extending
Harlow qualified
immunity to private parties would have no bearing on whether public
officials are able to act forcefully and decisively in their jobs
or on whether qualified applicants enter public service. Moreover,
unlike with government officials performing discretionary
functions, the public interest will not be unduly impaired if
private individuals are required to proceed to trial to resolve
their legal disputes. In short, the nexus between private parties
and the historic purposes of qualified immunity is simply too
attenuated to justify such an extension of our doctrine of
immunity.
For these reasons, we can offer no relief today. The question on
which we granted certiorari is a very narrow one: "[W]hether
private persons, who conspire with state officials to violate
constitutional rights, have available the good faith immunity
applicable to public officials." Pet. for Cert. i. The precise
issue encompassed in this question, and the only issue decided by
the lower courts, is whether qualified immunity, as enunciated in
Harlow, is available for private defendants faced with §
1983 liability for invoking a state replevin,
169
garnishment, or attachment statute. That answer is no. In so
holding, however, we do not foreclose the possibility that private
defendants faced with § 1983 liability under
Lugar v.
Edmondson Oil Co., 457 U. S. 922 (1982),
could be entitled to an affirmative defense based on good faith
and/or probable cause or that § 1983 suits against private, rather
than governmental, parties could require plaintiffs to carry
additional burdens. Because those issues are not fairly before us,
however, we leave them for another day. Cf.
Yee v.
Escondido, 503 U. S., 519, 534-538 (1992).
IV
As indicated above, the District Court assumed that under
Lugar v.
Edmondson Oil Co., supra, Cole was liable
under § 1983 for invoking the state replevin under bond statute,
and intimated that, but did not decide whether, Robbins also was
subject to § 1983 liability. The Court of Appeals never revisited
this question, but instead concluded only that respondents were
entitled to qualified immunity at least for conduct prior to the
statute's invalidation. Because we overturn this judgment, we must
remand, since there remains to be determined, at least, whether
Cole and Robbins, in invoking the replevin statute, acted under
color of state law within the meaning of
Lugar. The judgment
of the Court of Appeals is reversed, and the case is remanded for
proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY, with whom JUSTICE SCALIA joins, concurring.
I join the opinion of the Court but find that a further and
separate statement of my views is required.
I agree with what THE CHIEF JUSTICE writes in dissent respecting
the historical origins of our qualified immunity jurisprudence but
submit that the question presented to us requires that we reverse
the judgment, as the majority holds. Indeed, the result reached by
the Court is quite con-
170
sistent, in my view, with a proper application of the history
THE CHIEF JUSTICE relates.
Both the Court and the dissent recognize that our original
decisions recognizing defenses and immunities to suits brought
under 42 U. S. C. § 1983 rely on analogous limitations existing in
the common law when § 1983 was enacted. See
ante, at
163-164;
post, at 176-177. In
Tenney v.
Brandhove, 341
U. S. 367, 376 (1951), we held that § 1983 had not eradicated
the absolute immunity granted legislators under the common law. And
in
Pierson v.
Ray, 386 U. S. 547, 555-557
(1967), we recognized that under § 1983 police officers sued for
false arrest had available what we described as a "defense of good
faith and probable cause," based on their reasonable belief that
the statute under which they acted was constitutional.
Id.,
at 557.
Pierson allowed the defense because with respect to
the analogous common-law tort, the Court decided that officers had
available to them a similar defense. The good-faith and
probable-cause defense evolved into our modern qualified-immunity
doctrine.
Ante, at 165-166.
Our immunity doctrine is rooted in historical analogy, based on
the existence of common-law rules in 1871, rather than in
"freewheeling policy choice[s]."
Malley v.
Briggs,
475 U. S. 335,
342 (1986). In cases involving absolute immunity we adhere to that
view, granting immunity to the extent consistent with historical
practice.
Ibid.; Burns v.
Reed, 500 U. S. 478, 485
(1991);
Hafer v.
Melo, 502 U. S. 21, 28-29
(1991). In the context of qualified immunity for public officials,
however, we have diverged to a substantial degree from the
historical standards. In
Harlow v.
Fitzgerald,
457 U. S. 800
(1982), we "completely reformulated qualified immunity along
principles not at all embodied in the common law, replacing the
inquiry into subjective malice so frequently required at common law
with an objective inquiry into the legal reasonableness of the
official action."
Anderson v.
Creighton, 483 U. S. 635, 645
(1987). The transformation
171
was justified by the special policy concerns arising from public
officials' exposure to repeated suits.
Harlow, supra, at
813-814; ante, at 165-166. The dissent in today's case
argues that similar considerations justify a transformation of
common-law standards in the context of private-party defendants.
Post, at 179-180. With this I cannot agree.
We need not decide whether or not it was appropriate for the
Court in
Harlow to depart from history in the name of public
policy, reshaping immunity doctrines in light of those policy
considerations. But I would not extend that approach to other
contexts.
Harlow was decided at a time when the standards
applicable to summary judgment made it difficult for a defendant to
secure summary judgment regarding a factual question such as
subjective intent, even when the plaintiff bore the burden of proof
on the question; and in
Harlow we relied on that fact in
adopting an objective standard for qualified immunity. 457 U. S.,
at 815-819. However, subsequent clarifications to summary-judgment
law have alleviated that problem, by allowing summary judgment to
be entered against a nonmoving party "who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of
proof at trial."
Celotex Corp. v.
Catrett, 477 U. S. 317, 322
(1986). Under the principles set forth in
Celotex and
related cases, the strength of factual allegations such as
subjective bad faith can be tested at the summary-judgment
stage.
It must be remembered that unlike the common-law judges whose
doctrines we adopt, we are devising limitations to a remedial
statute, enacted by the Congress, which "on its face does not
provide for
any immunities."
Malley, supra, at 342
(emphasis in original). We have imported commonlaw doctrines in the
past because of our conclusion that the Congress which enacted §
1983 acted in light of existing legal principles.
Owen v.
City of Independence, 445 U. S. 622, 637-638
(1980). That suggests, however, that we may not
172
transform what existed at common law based on our notions of
policy or efficiency.
My conclusions are a mere consequence of the historical
principles described in the dissent of THE CHIEF JUSTICE. The
common-law tort actions most analogous to the action commenced here
were malicious prosecution and abuse of process.
Post, at
176. In both of the common-law actions, it was essential for the
plaintiff to prove that the wrongdoer acted with malice and without
probable cause.
Post, at 176, n. 1. As THE CHIEF JUSTICE
states, it is something of a misnomer to describe the common law as
creating a goodfaith
defense; we are in fact concerned with
the essence of the wrong itself, with the essential elements of the
tort. The malice element required the plaintiff to show that the
challenged action was undertaken with an unlawful purpose, though
it did not require a showing of ill will towards the plaintiff. J.
Bishop, Commentaries on Non-Contract Law § 232, p. 92 (1889). To
establish the absence of probable cause, a plaintiff was required
to prove that a reasonable person, knowing what the defendant did,
would not have believed that the prosecution or suit was well
grounded, or that the defendant had in fact acted with the belief
that the suit or prosecution in question was without probable
cause.
Id., § 239, at 95. Our cases on the subject,
beginning with
Harlow v.
Fitzgerald, diverge
from the common law in two ways. First, as THE CHIEF JUSTICE
acknowledges, modern qualified immunity does not turn upon the
subjective belief of the defendant.
Post, at 178, n. 2.
Second, the immunity diverges from the common-law model by
requiring the defendant, not the plaintiff, to bear the burden of
proof on the probable-cause issue.
Supra this page.
The decision to impose these requirements under a rule of
immunity has implications, though, well beyond a mere determination
that one party or the other is in a better position to bear the
burden of proof. It implicates as well the law's definition of the
wrong itself. At common law the ac-
173
tion lay because the essence of the wrong was an InJury caused
by a suit or prosecution commenced without probable cause or with
knowledge that it was baseless. To cast the issue in terms of
immunity, however, is to imply that a wrong was committed but that
it cannot be redressed. The difference is fundamental, for at stake
is the concept of what society considers proper conduct and what it
does not. Beneath the nomenclature lie considerations of
substance.
Harlow was cast as an immunity case, involving as it did
suit against officers of the Government. And immunity, as distinct,
say, from a defense on the merits or an element of the plaintiff's
cause of action, is a legal inquiry, decided by the court rather
than a jury, and on which an interlocutory appeal is available to
defendants.
Mitchell v.
Forsyth, 472 U. S. 511 (1985).
Whether or not it is correct to diverge in these respects from the
common-law model when governmental agents are the defendants, we
ought not to adopt an automatic rule that the same analysis applies
in suits against private persons. See
ante, at 166-167, n.
2. By casting the rule as an immunity, we imply the underlying
conduct was unlawful, a most debatable proposition in a case where
a private citizen may have acted in good-faith reliance upon a
statute. And as we have defined the immunity, we also eliminate
from the case any demonstration of subjective good faith. Under the
common law, however, if the plaintiff could prove subjective bad
faith on the part of the defendant, he had gone far towards proving
both malice and lack of probable cause. Moreover, the question of
the defendant's beliefs was almost always one for the jury.
Stewart v.
Sonneborn, 98 U. S. 187, 194
(1879).
It is true that good faith may be difficult to establish in the
face of a showing that from an objective standpoint no reasonable
person could have acted as the defendant did, and in many cases the
result would be the same under either test. This is why
Stewart describes the instances where the probable cause
turns on subjective intent as the exceptional
174
case.
Ibid.; post, at 178, n. 2. That does not mean,
however, that we may deprive plaintiffs of the opportunity to make
their case. In some cases eliminating the defense based on
subjective good faith can make a real difference, and again the
instant case of alleged reliance on a statute deemed valid provides
the example. It seems problematic to say that a defendant should be
relieved of liability under some automatic rule of immunity if
objective reliance upon a statute is reasonable but the defendant
in fact had knowledge of its invalidity. Because the burden of
proof on this question is the plaintiff's, the question may be
resolved on summary judgment if the plaintiff cannot come forward
with facts from which bad faith can be inferred. But the question
is a factual one, and a plaintiff may rely on circumstantial rather
than direct evidence to make his case.
Siegert v.
Gilley, 500 U.
S. 226, 236 (1991) (KENNEDY, J., concurring in judgment). The
rule, of course, also works in reverse, for the existence of a
statute thought valid ought to allow a defendant to argue that he
acted in subjective good faith and is entitled to exoneration no
matter what the objective test is.
The distinction I draw is important because there is support in
the common law for the proposition that a private individual's
reliance on a statute, prior to a judicial determination of
unconstitutionality, is considered reasonable as a matter of law;
and therefore under the circumstances of this case, lack of
probable cause can
only be shown through proof of subjective
bad faith.
Birdsall v.
Smith, 158 Mich. 390, 394, 122
N. W. 626, 627 (1909). Thus the subjective element dismissed as
exceptional by the dissent may be the rule rather than the
exception.
I join the opinion of the Court because I believe there is
nothing contrary to what I say in that opinion. See
ante, at
169 ("[WJe do not foreclose the possibility that private defendants
faced with § 1983 liability ... could be entitled to an affirmative
defense based on good faith and/or probable cause or that § 1983
suits against private ... parties could
175
require plaintiffs to carry additional burdens"). Though they
described the issue before them as "good-faith immunity," both the
District Court and the Court of Appeals treated the question as one
of law. App. 12-14;
928 F.2d
718,721-722 (CA5 1991). The Court of Appeals in particular
placed heavy reliance on the policy considerations favoring a rule
that citizens may rely on statutes presumed to be valid.
Ibid. The latter inquiry, as
Birdsall recognizes,
however, goes mainly to the question of objective reasonableness. I
do not understand either the District Court or the Court of Appeals
to make an unequivocal finding that the respondents before us acted
with subjective good faith when they filed suit under the
Mississippi replevin statute. Furthermore, the question on which we
granted certiorari was the narrow one whether private defendants in
§ 1983 suits are entitled to the same qualified immunity applicable
to public officials,
ante, at 168, which of course would be
subject to the objective standard of
Harlow v.
Fitzgerald. Under my view the answer to that question is no.
Though it might later be determined that there is no triable issue
of fact to save the plaintiff's case in the matter now before us,
on remand it ought to be open to him at least in theory to argue
that the defendants' bad faith eliminates any reliance on the
statute, just as it ought to be open to the defendants to show good
faith even if some construct of a reasonable person in the
defendants' position would have acted in a different way.
So I agree the case must be remanded for further
proceedings.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SOUTER and JUSTICE
THOMAS join, dissenting.
The Court notes that we have recognized an immunity in the §
1983 context in two circumstances. The first is when a similarly
situated defendant would have enjoyed an immunity at common law at
the time § 1983 was adopted.
Ante, at 163-164. The second is
when important public policy con-
176
cerns suggest the need for an immunity.
Ante, at 166-167.
Because I believe that both requirements, as explained in our prior
decisions, are satisfied here, I dissent.
First, I think it is clear that at the time § 1983 was adopted,
there generally was available to private parties a good-faith
defense to the torts of malicious prosecution and abuse of
process.1 See authorities cited
ante, at 164;
Malley
v.
Briggs, 475
U. S. 335, 340-341 (1986) (noting that the generally accepted
rule at common law was that a person would be held liable if "the
complaint was made maliciously and without probable cause");
Pierson v.
Ray, 386 U. S. 547, 555 (1967)
(noting that at common law a police officer sued for false arrest
can rely on his own good faith in making the arrest). And while the
Court is willing to assume as much,
ante, at 165, it thinks
this insufficient to sustain respondents' claim to an immunity
because the "qualified immunity" respondents' seek is not
equivalent to such a "defense,"
ante, at 165-166.
But I think the Court errs in suggesting that the availability
of a good-faith common-law defense at the time of § 1983's adoption
is not sufficient to support their claim to immunity. The case on
which respondents principally rely,
Pierson, considered
whether a police officer sued under § 1983 for false arrest could
rely on a showing of good faith in order to escape liability. And
while this Court concluded that the officer could rely on his own
good faith, based in large part on the fact that a good-faith
defense had been available at common law, the Court was at best
ambiguous as to whether it
1 Describing the common law as providing a "defense" is
something of a misnomer-under the common law it was plaintiff's
burden to establish as elements of the tort both that the defendant
acted with malice
and without probable cause. T. Cooley, Law
of Torts 184-185 (1879); J. Bishop, Commentaries on Non-Contract
Law §225, p. 90 (1889). Referring to the defendant as having a
good-faith defense is a useful shorthand for capturing plaintiff's
burden and the related notion that a defendant could avoid
liability by establishing
either a lack of malice or the
presence of probable cause.
177
was recognizing a "defense" or an "immunity." Compare 386 U. S.,
at 556 (criticizing Court of Appeals for concluding that no
"immunity" was available), with
id., at 557 (recognizing a
good-faith "defense"). Any initial ambiguity, however, has
certainly been eliminated by subsequent cases; there can be no
doubt that it is a qualified immunity to which the officer is
entitled. See
Malley, supra, at 340. Similarly, in
Wood v.
Strickland, 420 U. S. 308, 318
(1975), we recognized that, "[a]lthough there have been differing
emphases and formulations of the common-law immunity," the general
recognition under state law that public officers are entitled to a
good-faith defense was sufficient to support the recognition of a §
1983 immunity.
Thus, unlike the Court, I think our prior precedent establishes
that a demonstration that a good-faith defense was available at the
time § 1983 was adopted does, in fact, provide substantial support
for a contemporary defendant claiming that he is entitled to
qualified immunity in the analogous § 1983 context. While we refuse
to recognize a common-law immunity if § 1983's history or purpose
counsel against applying it,
ante, at 164, I see no such
history or purpose that would so counsel here.
Indeed, I am at a loss to understand what is accomplished by
today's decision-other than a needlessly fastidious adherence to
nomenclature-given that the Court acknowledges that a good-faith
defense will be available for respondents to assert on remand.
Respondents presumably will be required to show the traditional
elements of a good-faith defense-either that they acted without
malice
or that they acted with probable cause. See n. 1,
supra; Stewart v.
Sonneborn, 98 U. S. 187, 194 (1879);
w. Prosser, Law of Torts § 120, p. 854 (4th ed. 1971). The first
element, "maliciousness," encompasses an inquiry into subjective
intent for bringing the suit.
Stewart, supra, at 192-193;
Prosser,
supra, § 120, at 855. This quite often includes an
inquiry into the defendant's subjective belief as to whether he
be-
178
lieved success was likely. See,
e. g., 2 C.
Addison, Law of Torts' 854 (1876) ("Proof of the absence of belief
in the truth of the charge by the person making it ... is almost
always involved in the proof of malice"). But the second element,
"probable cause," focuses principally on
objective
reasonableness.
Stewart, supra, at 194; Prosser,
supra, § 120, at 854. Thus, respondents can successfully
defend this suit simply by establishing that their reliance on the
replevin statute was objectively reasonable for someone with their
knowledge of the circumstances. But this is precisely the showing
that entitles a public official to immunity.
Harlow v.
Fitzgerald, 457 U. S. 800, 818 (1982)
(official must show his action did not "violate clearly established
statutory or constitutional rights of which a reasonable person
would have known").2
Nor do I see any reason that this "defense" may not be asserted
early in the proceedings on a motion for summary judgment, just as
a claim to qualified immunity may be. Provided that the historical
facts are not in dispute, the presence or absence of "probable
cause" has long been acknowledged to be a question of law.
Stewart, supra, at 193-194; 2 Addison,
supra, , 853,
n. (p); J. Bishop, Commentaries on NonContract Law § 240, p. 95
(1889). And so I see no reason that the trial judge may not resolve
a summary judgment motion premised on such a good-faith defense,
just as we have encouraged trial judges to do with respect to
qualified
2 There is perhaps one small difference between the historic
commonlaw inquiry and the modern qualified immunity inquiry. At
common law, a plaintiff can show the lack of probable cause either
by showing that the actual facts did not amount to probable cause
(an objective inquiry) or by showing that the defendant lacked a
sincere belief that probable cause existed (a subjective inquiry).
Bishop, Commentaries on Non-Contract Law § 239, at 95. But relying
on the subjective belief, rather than on an objective lack of
probable cause, is clearly exceptional. See
Stewart v.
Sonneborn, 98
U. S. 187, 194 (1879) (describing subjective basis for finding
lack of probable cause as exception to general rule). I see no
reason to base our decision whether to extend a contemporary,
objectively based qualified immunity on the exceptional common-law
case.
179
immunity claims.
Harlow, supra, at 818. Thus, private
defendants who have invoked a state attachment law are put in the
same position whether we recognize that they are entitled to
qualified immunity or if we instead recognize a goodfaith defense.
Perhaps the Court believes that the "defense" will be less amenable
to summary disposition than will the "immunity"; perhaps it
believes the defense will be an issue that must be submitted to the
jury, see
ante, at 168 (referring to cases such as this
"proceed[ing] to trial"). While I can see no reason why this would
be so (given that probable cause is a legal question), if it is
true, today's decision will only manage to increase litigation
costs needlessly for hapless defendants.
This, in turn, leads to the second basis on which we have
previously recognized a qualified immunity-reasons of public
policy. Assuming that some practical difference will result from
recognizing a defense but not an immunity, I think such a step is
neither dictated by our prior decisions nor desirable. It is true,
as the Court points out, that in abandoning a strictly historical
approach to § 1983 immunities we have often explained our decision
to recognize an immunity in terms of the special needs of public
officials. But those cases simply do not answer-because the
question was not at issue-whether similar (or even completely
unrelated) reasons of public policy would warrant immunity for
private parties as well.
I believe there are such reasons. The normal presumption that
attaches to any law is that society will be benefited if private
parties rely on that law to provide them a remedy, rather than
turning to some form of private, and perhaps lawless, relief. In
denying immunity to those who reasonably rely on presumptively
valid state law, and thereby discouraging such reliance, the Court
expresses confidence that today's decision will not "unduly
impai[r],"
ibid., the public interest. I do not share that
confidence. I would have thought it beyond peradventure that there
is strong public
180
interest in encouraging private citizens to rely on valid state
laws of which they have no reason to doubt the validity.
Buller v.
Buechler, 706 F.2d
844, 851 (CA8 1983);
Folsom Investment Co. v.
Moore, 681 F.2d
1032, 1037-1038 (CA5 1982).
Second, as with the police officer making an arrest, I believe
the private plaintiff's lot is "not so unhappy" that he must forgo
recovery of property he believes to be properly recoverable through
available legal processes or to be "mulcted in damages,"
Pierson, 386 U. S., at 555, if his belief turns out to be
mistaken. For as one Court of Appeals has pointed out, it is at
least passing strange to conclude that private individuals are
acting "under color of law" because they invoke a state garnishment
statute and the aid of state officers, see
Lugar v.
Edmondson Oil Co., 457 U. S. 922 (1982), but
yet deny them the immunity to which those same state officers are
entitled, simply because the private parties are not state
employees.
Buller, supra, at 851. While some of the
strangeness may be laid at the doorstep of our decision in
Lugar, see 457 U. S., at 943 (Burger, C. J., dissenting);
and
id., at 944-956 (Powell, J., dissenting), there is no
reason to proceed still further down this path. Our § 1983
jurisprudence has gone very far afield indeed, when it subjects
private parties to greater risk than their public counterparts,
despite the fact that § 1983's historic purpose was "to prevent
state officials from using the cloak of their authority
under state law to violate rights protected against state
infringement."
Id., at 948 (emphasis added). See also
Monroe v.
Pape, 365 U. S. 167, 175-176
(1961).
Because I find today's decision dictated neither by our own
precedent nor by any sound considerations of public policy, I
dissent.
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