Lead Opinion
delivered the opinion of the Court.
In Lugar v. Edmondson Oil Co.,
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
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 detained] 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.
II
Title 42 U. S. C. § 1983 provides a cause of action against “[ejvery 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,
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
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.
III
Section 1983 “creates a species of tort liability that on its face admits of no immunities.” Imbler v. Pachtman,
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, thesе 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 Non-Contract 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
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,
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,
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
That Harlow “completеly reformulated qualified immunity along principles not at all embodied in the common law,” Anderson v. Creighton,
It is this type of objectively determined, immediately ap-pealable immunity that respondents asserted below.
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,
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,
For these reasons, we can offer no relief today. The question on which we granted certiorari is a very narrow one: “[Wjhether 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,
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.
Notes
The State amended the statute in 1990. Miss. Code Ann. §11-37-101 (Supp. 1991).
In arguing that respondents are entitled to qualified immunity under Harlow v. Fitzgerald,
Concurrence Opinion
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
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,
Our immunity doctrine is rooted in historical analogy, based on the existence of common-law rules in 1871, rather than in “freewheeling poliсy choice[s].” Malley v. Briggs,
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.
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 common-law 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,
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 good-faith 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.
Thе 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
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,
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
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,
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 (“[W]e 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
So I agree the case must be remanded for further proceedings.
Dissenting Opinion
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
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.
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 рrincipally 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
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,
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 Non-Contract 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
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 рarties 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
Second,, as with the police officer making an arrest, I believe the private plaintiff’s lqt 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,
Because I find today’s decision dictated neither by our own precedent nor by any sound considerations of public policy, I dissent.
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.
Thеre is perhaps one small difference between the historic common-law 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,