CRAWFORD-EL v. BRITTON
No. 96-827
Supreme Court of the United States
Argued December 1, 1997-Decided May 4, 1998
523 U.S. 574
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
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
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
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
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
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
The en banc 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 unconstitutional-motive 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
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
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 banc 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 F. 3d, at 847.
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
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 federal law 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,8 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
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, 639-641 (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 503-504, we determined that the scope of that defense was the same in actions against state officials under
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-
“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
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.
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
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.
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
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-
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
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 639-640, 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
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
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
If the plaintiff‘s action survives these initial hurdles and is otherwise viable, the plaintiff ordinarily will be entitled to some discovery.
“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 numberof 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 determines 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.”
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
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:
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
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
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
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 evidence—no 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.
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.
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
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.
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-El 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
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
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
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
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.
As I have observed earlier, our treatment of qualified immunity under
We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified
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 partisan-political 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
Notes
“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).