Held: Title 42 U.S.C. § 1983 (1976 ed., Supp. V) does
not authorize a convicted state defendant to assert a claim for
damages against a police officer for giving perjured testimony at
the defendant's criminal trial. Pp.
460 U. S.
329-346.
(a) The common law provided absolute immunity from subsequent
damages liability for all persons -- governmental or otherwise --
who were integral parts of the judicial process. Section 1983 does
not authorize a damages claim against private witnesses. Similarly,
judges,
Pierson v. Ray, 386 U. S. 547, and
prosecutors,
Imbler v. Pachtman, 424 U.
S. 409, may not be held liable for damages under § 1983
for the performance of their respective duties in judicial
proceedings. When a police officer appears as a witness, he may
reasonably be viewed as acting like any witness sworn to tell the
truth, in which event he can make a strong claim to witness
immunity. Alternatively, he may be regarded as an official
performing a critical role in the judicial process, in which event
he may seek the benefit afforded to other governmental participants
in the same proceeding. Nothing in § 1983's language suggests that
a police officer witness belongs in a narrow, special category
lacking protection against damages suits. Pp.
460 U. S.
329-336.
(b) Nor does anything in the legislative history of the statute
indicate that Congress intended to abrogate common law witness
immunity in order to provide a damages remedy under § 1983 against
police officers or any other witnesses. Pp.
460 U. S.
336-341.
(c) There is some force to the contentions that the reasons
supporting common law witness immunity -- the need to avoid
intimidation and self-censorship -- apply with diminished force to
police officers, and that police officers' perjured testimony is
likely to be more damaging to constitutional rights than such
testimony by ordinary citizens. But immunity analysis rests on
functional categories, not on the defendant's status. A police
officer witness performs the same functions as any other witness.
Moreover, to the extent that traditional reasons for witness
immunity are less applicable to governmental witnesses, other
considerations of public policy support absolute immunity for such
witnesses more emphatically than for ordinary witnesses. Subjecting
government officials, such as police officers, to damages liability
under § 1983 for their testimony might undermine not only their
contribution to the judicial
Page 460 U. S. 326
process but also the effective performance of their other public
duties. Pp.
460 U. S.
341-346.
663 F.2d 713, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ.,
joined. BRENNAN, J., filed a dissenting opinion,
post, p.
460 U. S. 346.
MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J.,
joined except as to Part I,
post, p.
460 U. S. 346.
BLACKMUN, J., filed a dissenting opinion,
post, p.
460 U. S.
369.
JUSTICE STEVENS delivered the opinion of the Court.
This case presents a question of statutory construction: whether
42 U.S.C. § 1983 (1976 ed., Supp. V) authorizes a convicted person
to assert a claim for damages against a police officer for giving
perjured testimony at his criminal trial. The Court of Appeals for
the Seventh Circuit held that witnesses are absolutely immune from
damages liability based on their testimony, and rejected the
petitioners' contention that government officials who testify about
the performance of their official duties may be held liable under §
1983 even if other witnesses may not. We agree with that
conclusion.
The Court of Appeals heard argument in three separate cases
raising the absolute immunity issue, and decided them in a single
opinion. Two of these cases are before us on a writ of certiorari.
Petitioner Briscoe was convicted in state court of burglarizing a
house trailer. He then filed a § 1983 complaint against respondent
LaHue, a member of the Bloomington, Indiana, police force, alleging
that LaHue had violated his constitutional right to due process by
committing perjury in the criminal proceedings leading to his
conviction. [
Footnote 1] LaHue
had testified that, in his opinion, Briscoe was one of no more than
50 to 100 people in Bloomington whose prints would match a partial
thumbprint on a piece of glass found at the scene of the crime.
According to Briscoe, the testimony was false, because the Federal
Bureau of Investigation and the state police considered the partial
print too incomplete to be of value, and, without the print, there
was no evidence identifying him as the burglar. He sought $100,000
in damages. The District Court granted LaHue's motion for summary
judgment on four separate grounds: (1) the facts alleged in the
complaint did not suggest that LaHue had testified falsely; (2)
allegations of perjury alone are insufficient to state a
constitutional claim; (3) LaHue had not testified "under color of
law"; and (4) Briscoe's claim was collaterally estopped by his
criminal conviction.
Petitioners Vickers and Ballard were jointly tried and convicted
of sexual assault in state court. They subsequently brought a civil
action under § 1983 against respondent Hunley, a member of the
Cedar Lake, Indiana, police force, alleging that he had deprived
them of their constitutional rights to due process and a fair
trial. They alleged that, by giving false testimony suggesting that
they had been able to harmonize their stories before making
exculpatory statements to police, he had prejudicially diminished
the credibility of those statements. Each plaintiff sought $150,000
in compensatory and $50,000 in punitive damages. The Federal
Magistrate granted a motion to dismiss the complaint on alternative
grounds: (1) Hunley had not testified "under color of law"; (2) he
was entitled to absolute witness immunity; and (3) petitioners had
failed to state a claim under § 1983 because they did not allege
that the prosecutor had knowingly used false testimony. The
District Court affirmed the dismissal on the first ground. Both
cases were appealed to the United States Court of Appeals for the
Seventh Circuit. [
Footnote
2]
Page 460 U. S. 328
Although other issues were argued in the Court of Appeals, its
holding in both cases was predicated squarely on the ground that,
in litigation brought under 42 U.S.C. § 1983 (1976 ed., Supp. V),
all witnesses -- police officers as well as lay witnesses -- are
absolutely immune from civil liability based on their testimony in
judicial proceedings. 663 F.2d 713 (1981). [
Footnote 3] Because of the importance of the immunity
question, which has given rise to divergent conclusions in the
Courts of Appeals, [
Footnote 4]
we granted certiorari. 455 U.S. 1016 (1982). [
Footnote 5]
Page 460 U. S. 329
Before confronting the precise question that this case presents
-- whether § 1983 creates a damages remedy against police officers
for their testimony as witnesses -- we begin by considering the
potential liability of lay witnesses, on the one hand, and of
judges and prosecutors who perform integral functions in judicial
proceedings, on the other hand. The unavailability of a damages
remedy against both of these categories sheds considerable light on
petitioners' claim that Congress intended police officer witnesses
to be treated differently.
I
There are two reasons why § 1983 does not allow recovery of
damages against a private party for testimony in a judicial
proceeding. First, § 1983 does not create a remedy for all conduct
that may result in violation of "rights, privileges, or immunities
secured by the Constitution and laws." Its reach is limited to
actions taken "under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory. . . ." [
Footnote 6] It is beyond question that, when
a private
Page 460 U. S. 330
party gives testimony in open court in a criminal trial, that
act is not performed "under color of law." [
Footnote 7]
Second, since 1951, when this Court decided
Tenney v.
Brandhove, 341 U. S. 367, it
has been settled that the all-encompassing language of § 1983,
referring to "[e]very person" who, under color of law, deprives
another of federal constitutional or statutory rights, is not to be
taken literally. [
Footnote
8]
"It is by now well settled that the tort liability created by §
1983 cannot be understood in a historical vacuum. . . . One
important assumption underlying the Court's decisions in this area
is that members of the 42d Congress were familiar with common law
principles, including defenses previously recognized in ordinary
tort litigation, and that they likely intended these common law
principles to obtain, absent specific provisions to the
contrary."
City of Newport v. Fact Concerts, Inc., 453 U.
S. 247,
453 U. S. 258
(1981).
See Pierson v. Ray, 386 U.
S. 547,
386 U. S. 554
(1967).
The immunity of parties and witnesses from subsequent damages
liability for their testimony in judicial proceedings [
Footnote 9]
Page 460 U. S. 331
was well established in English common law.
Cutler v.
Dixon, 4 Co.Rep. 14b, 76 Eng.Rep. 886 (Q.B. 1585);
Anfield
v. Feverhill, 2 Bulst. 269, 80 Eng.Rep. 1113 (K.B. 1614);
Henderson v. Broomhead, 4 H. & N. 569, 578, 157
Eng.Rep. 964, 968 (Ex. 1859); [
Footnote 10]
see Dawkins v. Lord Rokeby, 4 F.
& F. 806, 833-834, 176 Eng.Rep. 800, 812 (C. P. 1866). Some
American decisions required a showing that the witness' allegedly
defamatory statements were relevant to the judicial proceeding, but
once this threshold showing had been made, the witness had an
absolute privilege. [
Footnote
11] The
Page 460 U. S. 332
plaintiff could not recover even if the witness knew the
statements were false and made them with malice. [
Footnote 12]
In the words of one 19th-century court, in damages suits against
witnesses,
"the claims of the individual must yield to
Page 460 U. S. 333
the dictates of public policy, which requires that the paths
which lead to the ascertainment of truth should be left as free and
unobstructed as possible."
Calkins v. Sumner, 13 Wis.193, 197 (1860). A witness'
apprehension of subsequent damages liability might induce two forms
of self-censorship. First, witnesses might be reluctant to come
forward to testify.
See Henderson v. Broomhead, supra, at
578-579, 157 Eng.Rep. at 968. And once a witness is on the stand,
his testimony might be distorted by the fear of subsequent
liability.
See Barnes v. McCrate, 32 Me. 442, 446-447
(1851). Even within the constraints of the witness' oath, there may
be various ways to give an account or to state an opinion. These
alternatives may be more or less detailed, and may differ in
emphasis and certainty. A witness who knows that he might be forced
to defend a subsequent lawsuit, and perhaps to pay damages, might
be inclined to shade his testimony in favor of the potential
plaintiff, to magnify uncertainties, and thus to deprive the finder
of fact of candid, objective, and undistorted evidence.
See Veeder, Absolute Immunity in Defamation: Judicial
Proceedings, 9 Colum.L.Rev. 463, 470 (1909). [
Footnote 13] But the truthfinding process is
better
Page 460 U. S. 334
served if the witness' testimony is submitted to
"the crucible of the judicial process, so that the factfinder
may consider it, after cross-examination, together with the other
evidence in the case to determine where the truth lies."
Imbler v. Pachtman, 424 U. S. 409,
424 U. S. 440
(1976) (WHITE, J., concurring in judgment). [
Footnote 14]
At least with respect to private witnesses, it is clear that §
1983 did not abrogate the absolute immunity existing at common law,
and petitioners do not contend otherwise. Like the immunity for
legislators at issue in
Tenney v. Brandhove, the common
law's protection for witnesses is "a tradition so well grounded in
history and reason" that we cannot believe that Congress impinged
on it "by covert inclusion in the general language before us." 341
U.S. at
341 U. S.
376.
II
The Court has already addressed the question whether § 1983
permits damages recoveries from judges, prosecutors, and other
persons acting "under color of law" who perform official functions
in the judicial process. Again, we have found that, in light of
common law immunity principles, § 1983 did not impose liability on
these officials. We have held that state judges are absolutely
immune from liability for their judicial acts,
Pierson v.
Ray, 386 U. S. 547
(1967);
Stump v. Sparkman, 435 U.
S. 349 (1978), and that state prosecutors have absolute
immunity from liability for their actions in initiating
prosecutions,
Imbler v. Pachtman, supra.
The central focus of our analysis has been the nature of the
judicial proceeding itself. Thus, in his opinion concurring in the
judgment in
Imbler v. Pachtman, supra, JUSTICE WHITE
explained that the absolute immunity of public prosecutors was
"based on the policy of protecting the judicial process."
Page 460 U. S. 335
424 U.S. at
424 U. S. 439.
He explained that this protection extended equally to other
participants, including counsel and witnesses.
"The reasons for this rule are also substantial. It is precisely
the function of a judicial proceeding to determine where the truth
lies. The ability of courts, under carefully developed procedures,
to separate truth from falsity, and the importance of accurately
resolving factual disputes in criminal (and civil) cases are such
that those involved in judicial proceedings should be 'given every
encouragement to make a full disclosure of all pertinent
information within their knowledge.'"
Ibid.
The common law's protection for judges and prosecutors formed
part of a "cluster of immunities protecting the various
participants in judge-supervised trials," which stemmed "from the
characteristics of the judicial process."
Butz v.
Economou, 438 U. S. 478,
438 U. S. 512
(1978);
cf. King v. Skinner, Lofft 54, 56, 98 Eng.Rep. 529
(K. B. 1772) ("[N]either party, witness, counsel, jury, or judge
can be put to answer, civilly or criminally, for words spoken in
office"). The common law recognized that
"controversies sufficiently intense to erupt in litigation are
not easily capped by a judicial decree. The loser in one forum will
frequently seek another. . . . Absolute immunity is thus necessary
to assure that judges, advocates, and witnesses can perform their
respective functions without harassment or intimidation."
Butz, supra, at
438 U. S.
512.
In short, the common law provided absolute immunity from
subsequent damages liability for all persons -- governmental or
otherwise -- who were integral parts of the judicial process. It is
equally clear that § 1983 does not authorize a damages claim
against private witnesses, on the one hand, or against judges or
prosecutors in the performance of their respective duties, on the
other. When a police officer appears as a witness, he may
reasonably be viewed as acting like any
Page 460 U. S. 336
other witness sworn to tell the truth -- in which event, he can
make a strong claim to witness immunity; [
Footnote 15] alternatively, he may be regarded as an
official performing a critical role in the judicial process, in
which event he may seek the benefit afforded to other governmental
participants in the same proceeding. Nothing in the language of the
statute suggests that such a witness belongs in a narrow, special
category lacking protection against damages suits. We must ask,
however, whether anything in the legislative history of § 1983
points to a different conclusion.
III
Petitioners point to a number of references throughout the
debates on the 1871 Act to widespread perjury by Ku Klux Klan
witnesses in state criminal trials. [
Footnote 16] They urge that, because perjury was one of
the specific evils with which Congress was concerned, recognizing
an absolute immunity for witnesses would conflict with
congressional intent. We find this argument unpersuasive. The Act
consisted of several sections establishing different remedies for
disorder and violence in the Southern States. [
Footnote 17] The legislative history and
statutory language indicate that Congress intended perjury
Page 460 U. S. 337
leading to unjust acquittals of Klan conspirators to be
prohibited by § 2, the civil and criminal conspiracy section of the
statute, now codified in relevant part at 42 U.S.C. § 1985(3) (1976
ed., Supp. V) and 18 U.S.C. § 241. But the language of § 1 -- now
codified as § 1983 -- differs from that of § 2 in essential
respects, and we find no evidence that Congress intended to
abrogate the traditional common law witness immunity in § 1983
actions.
The Ku Klux Act, 17 Stat. 13, was enacted on April 20, 1871,
less than a month after President Grant sent a dramatic message to
Congress describing the breakdown of law and order in the Southern
States. Cong.Globe, 42d Cong., 1st Sess., 236, 244 (1871). During
the debates, supporters of the bill repeatedly described the reign
of terror imposed by the Klan upon black citizens and their white
sympathizers in the Southern States. Hours of oratory were devoted
to the details of Klan outrages -- arson, robbery, whippings,
shootings, murders, and other forms of violence and intimidation --
often committed in disguise and under cover of night. These acts of
lawlessness went unpunished, legislators asserted, because Klan
members and sympathizers controlled or influenced the
administration of state criminal justice. In particular, it was
alleged that Klan members were obligated, by virtue of membership
in the organization, to protect fellow members who were charged
with criminal activity. They had a duty to offer themselves for
service on grand and petit juries, and to violate their jurors'
oaths by refusing to indict or to convict regardless of the
strength of the evidence. They also were bound to appear as
witnesses, and again to violate their oaths by committing perjury,
if necessary, to exculpate their Klan colleagues. [
Footnote 18] Perjury was thus one of
the
Page 460 U. S. 338
means by which the Klan prevented state courts from gaining
convictions of Klan members for crimes against blacks and
Republicans.
It is clear from the legislative debates that, in the view of
the Act's sponsors, the victims of Klan outrages were deprived of
"equal protection of the laws" if the perpetrators systematically
went unpunished. [
Footnote
19] Proponents of the measure repeatedly argued that, given the
ineffectiveness of state law enforcement and the individual's
federal right to "equal protection of the laws," an independent
federal remedy was necessary and Congress had the power to provide
it. [
Footnote 20]
See
Monroe v. Pape, 365 U. S. 167,
365 U. S. 174
(1961).
Section 2 was designed specifically to provide criminal and
civil remedies in federal court for the conspiratorial activities
of the Klan. Indeed, the provision singles out those who "go in
disguise upon the public highway." Earlier versions of the section
enumerated precisely the activities that had been attributed to the
Klan -- murder, manslaughter, mayhem, robbery, assault and battery,
perjury, subornation of perjury, criminal obstruction of legal
process or resistance of officers
Page 460 U. S. 339
in discharge of official duty, arson, or larceny. Cong.Globe,
supra, at 317. The more general language in the final
version of § 2 was also intended to apply to the abuses that had
been described repeatedly in congressional debate. [
Footnote 21] Part of the provision is
particularly well tailored to reach conspiracies to commit perjury
in order to prevent punishment of fellow Klansmen. It provides
penalties whenever two or more persons shall
"conspire together . . . for the purpose of preventing or
hindering the constituted authorities of any State from giving or
securing to all persons within such State the equal protection of
the laws, or shall conspire together for the purpose of in any
manner impeding, hindering, obstructing, or defeating the due
course of justice in any State or Territory, with intent to deny to
any citizen of the United States the due and equal protection of
the laws. . . . [
Footnote
22]"
This evidence does not, however, tend to show that Congress
intended to abrogate witness immunity in civil actions under § 1,
which applied to wrongs committed "under color of . . . law." The
bill's proponents were exclusively concerned with perjury resulting
in unjust
acquittals -- perjury likely to be committed by
private parties acting in furtherance of a conspiracy -- and not
with perjury committed "under color of
Page 460 U. S. 340
law" that might lead to unjust
convictions. In hundreds
of pages of debate, there is no reference to the type of alleged
constitutional deprivation at issue in this case: perjury by a
government official leading to an unjust conviction.
Indeed, the legislative history is virtually silent even with
regard to perjury by
private persons leading to
convictions of innocent defendants. [
Footnote 23] There is a simple enough reason for this
lacuna: the Klan had other, more direct, means of dealing with its
victims. A "reign of terrorism and bloodshed" did not require the
formal processes of law; at most, drumhead tribunals were convened
at dead of night. [
Footnote
24] Even when the organization's intended victims had been
taken into custody and charged with crimes, the evidence before
Congress suggested that the Klan resorted to vigilante justice,
rather than courtroom perjury. [
Footnote 25]
In summary, the legislative history supports criminal punishment
under § 2 for a witness who conspired to give perjured testimony
favorable to a defendant, with the effect of preventing effective
enforcement of the laws, and liability in a civil suit against the
perjured witness by the defendant's victim. But these are not the
issues before us today. We are asked to extrapolate from
pro-defendant perjury to pro-prosecution perjury, and if willing to
make that step, we are further invited to apply legislative history
relating to § 2 -- a section specifically directed toward private
conspiracies -- to § 1 -- a section designed to provide remedies
for abuses under
Page 460 U. S. 341
color of law. We decline the invitation. The debates of the 42d
Congress do not support petitioners' contention that Congress
intended to provide a § 1 damages remedy against police officers or
any other witnesses. [
Footnote
26]
IV
Petitioners, finally, urge that we should carve out an exception
to the general rule of immunity in cases of alleged perjury by
police officer witnesses. [
Footnote 27] They assert that the reasons supporting
common law immunity -- the need to
Page 460 U. S. 342
avoid intimidation and self-censorship -- apply with diminished
force to police officers. Policemen often have a duty to testify
about the products of their investigations, and they have a
professional interest in obtaining convictions which would
assertedly counterbalance any tendency to shade testimony in favor
of potentially vindictive defendants. In addition, they are subject
to § 1983 lawsuits for the performance of their other duties, as to
which they have only qualified immunity, and their defense is
generally undertaken by their governmental employers. Further,
petitioners urge that perjured testimony by police officers is
likely to be more damaging to constitutional rights than such
testimony by ordinary citizens, because the policeman in uniform
carries special credibility in the eyes of jurors. And, in the case
of police officers, who cooperate regularly with prosecutors in the
enforcement of criminal law, prosecution for perjury is alleged to
be so unlikely that it is not an effective substitute for civil
damages.
These contentions have some force. But our cases clearly
indicate that immunity analysis rests on functional categories, not
on the status of the defendant. [
Footnote 28] A police officer on the witness stand
performs the same functions as any other witness; he is subject to
compulsory process, takes an oath, responds to questions on direct
examination and cross-examination, and may be prosecuted
subsequently for perjury.
Moreover, to the extent that traditional reasons for witness
immunity are less applicable to governmental witnesses,
Page 460 U. S. 343
other considerations of public policy support absolute immunity
more emphatically for such persons than for ordinary witnesses.
Subjecting government officials, such as police officers, to
damages liability under § 1983 for their testimony might undermine
not only their contribution to the judicial process, but also the
effective performance of their other public duties.
Section 1983 lawsuits against police officer witnesses, like
lawsuits against prosecutors, "could be expected with some
frequency."
Cf. Imbler v. Pachtman, 424 U.S. at
424 U. S. 425.
Police officers testify in scores of cases every year, and
defendants often will transform resentment at being convicted into
allegations of perjury by the State's official witnesses. As the
files in this case show, even the processing of a complaint that is
dismissed before trial consumes a considerable amount of time and
resources. [
Footnote 29]
This category of § 1983 litigation might well impose significant
burdens on the judicial system and on law enforcement resources. As
this Court noted when it recognized absolute immunity for
prosecutors in
Imbler, if the defendant official
"could be made to answer in court each time [a disgruntled
defendant] charged him with wrongdoing, his energy and
attention
Page 460 U. S. 344
would be diverted from the pressing duty of enforcing the
criminal law."
424 U.S. at
424 U. S. 425.
To some degree, the individual's burden might be alleviated by the
government's provision of counsel, but a case that goes to trial
always imposes significant emotional and other costs on every party
litigant.
It is not sufficient to assert that the burdens on defendants
and the courts could be alleviated by limiting the cause of action
to those former criminal defendants who have already vindicated
themselves in another forum, either on appeal or by collateral
attack. We rejected a similar contention in
Imbler.
Petitioner contended that
"his suit should be allowed, even if others would not be,
because the District Court's issuance of the writ of habeas corpus
shows that his suit has substance."
Id. at
424 U. S. 428,
n. 27. We declined to carve out such an exception to prosecutorial
immunity, noting that petitioner's success in a collateral
proceeding did not necessarily establish the merits of his civil
rights action. Moreover, we noted that
"using the habeas proceeding as a 'door-opener' for a subsequent
civil rights action would create the risk of injecting extraneous
concerns into that proceeding."
Ibid. We emphasized that, in determining whether to
grant postconviction relief, the tribunal should focus solely on
whether there was a fair trial under law.
"This focus should not be blurred by even the subconscious
knowledge that a post-trial decision in favor of the accused might
result in the prosecutor's being called upon to respond in damages
for his error or mistaken judgment."
Id. at
424 U. S. 427.
The same danger exists in the case of potential liability for
police officer witnesses. [
Footnote 30]
Page 460 U. S. 345
There is, of course, the possibility that, despite the
truthfinding safeguards of the judicial process, some defendants
might indeed be unjustly convicted on the basis of knowingly false
testimony by police officers. [
Footnote 31] The absolute immunity for prosecutors
recognized in
Imbler bars one possible avenue of redress
for such defendants. Similarly, in this case, the absolute witness
immunity bars another possible path to recovery for these
defendants. But we have recognized, again and again, that in some
situations, the alternative of limiting the official's immunity
would disserve the broader public interest. As Judge Learned Hand
wrote years ago:
"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). [
Footnote 32]
In short, the rationale of our prior absolute immunity cases
governs the disposition of this case. In 1871, common law immunity
for witnesses was well settled. The principles set forth in
Pierson v. Ray to protect judges and in
Imbler v.
Pachtman to protect prosecutors also apply to witnesses, who
perform a somewhat different function in the trial process, but
whose participation in bringing the litigation to a
Page 460 U. S. 346
just -- or possibly unjust -- conclusion is equally
indispensable.
The decision of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
The Court has held that the prosecutor's knowing use of perjured
testimony violates due process, but has not held that the false
testimony of a police officer, in itself, violates constitutional
rights.
See United States v. Agurs, 427 U. S.
97,
427 U. S. 103,
and nn. 8, 9 (1976) (citing cases).
[
Footnote 2]
At the time of the Court of Appeals' decision, petitioner
Briscoe's conviction had been set aside by the Indiana Court of
Appeals on the ground that the evidence was insufficient to prove
Briscoe's guilt beyond a reasonable doubt. The opinion did not
question the veracity of LaHue's testimony, but found that the
State's evidence, including testimony that Briscoe was one of 50 to
100 persons who might have robbed the trailer, did not meet the
State's burden of proof.
Briscoe v. State, 180 Ind.App.
450, 460,
388 N.E.2d
638, 644 (1979). Petitioners Vickers and Ballard were still
serving their sentences when the Court of Appeals affirmed the
dismissal of their complaint.
[
Footnote 3]
On review of pretrial orders dismissing petitioners' complaints,
the Court of Appeals assumed that the complaints' factual
allegations of perjury were true. It also assumed that petitioners
had alleged a constitutional violation -- that they had been
deprived of their liberty without due process of law by
respondents' perjury in the judicial proceedings that resulted in
their convictions. Because we granted certiorari to review the
Court of Appeals' holding, we make the same assumptions for
purposes of deciding this case, without implying that they are
valid. In light of its resolution of the immunity question the
Court of Appeals did not determine whether the respondents had
acted "under color of law," though it suggested that it might have
answered in the affirmative. 663 F.2d at 721, n. 4.
[
Footnote 4]
A rule of absolute witness immunity has been adopted by the
majority of Courts of Appeals.
Brawer v. Horowitz, 535
F.2d 830, 836-837 (CA3 1976) (lay witness in federal court;
Bivens action);
Burke v. Miller, 580 F.2d 108
(CA4 1978) (state medical examiner; § 1983 action),
cert.
denied, 440 U.S. 930 (1979);
Charles v. Wade, 665
F.2d 661 (CA5 1982) (police officer victim; § 1983 suit),
cert.
pending, No. 81-1881;
Myers v. Bull, 599 F.2d 863,
866 (CA8) (police officer witness; § 1983 suit),
cert.
denied, 444 U.S. 901 (1979);
Blevins v. Ford, 572
F.2d 1336 (CA9 1978) (private witnesses and former Assistant U.S.
Attorney; action under § 1983 and the Fifth Amendment).
But see
Briggs v. Goodwin, 186 U.S.App.D.C. 179, 569 F.2d 10 (1977)
(dicta rejecting absolute immunity for government official witness;
Bivens action),
cert. denied, 437 U.S. 904
(1978);
Hilliard v. Williams, 516 F.2d 1344, 1350 (CA6
1975) (rejecting absolute immunity for agent of state bureau of
investigation; § 1983 action),
cert. denied sub nom. Clark v.
Hilliard, 423 U.S. 1066 (1976).
[
Footnote 5]
The petition for writ of certiorari presents the following
question:
"Whether a police officer who commits perjury during a state
court criminal trial should be granted absolute immunity from civil
liability under 42 U.S.C. § 1983."
Pet. for Cert. i. The petition does not raise the question of
immunity for testimony at pretrial proceedings such as probable
cause hearings, nor does petitioners' brief discuss whether the
same immunity considerations that apply to trial testimony also
apply to testimony at probable cause hearings. We therefore do not
decide whether respondent LaHue is entitled to absolute immunity
for allegedly false testimony at two probable cause hearings
regarding petitioner Briscoe.
[
Footnote 6]
Thus, even though the defective performance of defense counsel
may cause the trial process to deprive an accused person of his
liberty in an unconstitutional manner,
Cuyler v. Sullivan,
446 U. S. 335,
446 U. S.
342-345 (1980), the lawyer who may be responsible for
the unconstitutional state action does not himself act under color
of state law within the meaning of § 1983.
Polk County v.
Dodson, 454 U. S. 312
(1981). This conclusion is compelled by the character of the office
performed by defense counsel.
See id. at
454 U. S.
317-319;
Ferri v. Ackerman, 444 U.
S. 193,
444 U. S. 204
(1979). It is equally clear that the office of the lay witness who
merely discharges his duty to testify truthfully is not performed
under color of law within the meaning of § 1983.
[
Footnote 7]
It is conceivable, however, that nongovernmental witnesses could
act "under color of law" by conspiring with the prosecutor or other
state officials.
See Dennis v. Sparks, 449 U. S.
24,
449 U. S. 27-29
(1980);
Adickes v. S. H. Kress & Co., 398 U.
S. 144,
398 U. S. 152
(1970). It is therefore necessary to go beyond the "color of law"
analysis to consider whether private witnesses may ever be held
liable for damages under § 1983.
[
Footnote 8]
Nor is this the only piece of 19th-century legislation in which
the word "every" may not be given a literal reading.
See
National Society of Professional Engineers v. United States,
435 U. S. 679,
435 U. S.
687-688 (1978).
[
Footnote 9]
The availability of a common law action for false accusations of
crime
see post at
460 U. S. 350-351, is inapposite because petitioners
present only the question of § 1983 liability for false testimony
during a state court criminal trial.
See n 5,
supra.
[
Footnote 10]
"We have therefore a large collection of cases where from time
to time parties have attempted to get damages in cases like the
present, but in no one instance has the action ever been held to be
maintainable. If for centuries many persons have attempted to get a
remedy for injuries like the present, and there is an entire
absence of authority that such remedy exists, it shews the
unanimous opinion of those who have held the place which we do now
that such an action is not maintainable."
Henderson v. Broomhead, 4 H. & N. at 578, 157
Eng.Rep. at 968.
[
Footnote 11]
See generally M. Newell, Law of Defamation, Libel and
Slander 425, 450-459 (1890); J. Townshend, A Treatise on the Wrongs
Called Slander and Libel 353-354 (2d ed. 1872).
See, e.g.,
Lawson v. Hicks, 38 Ala. 279, 285-288 (1862);
Myers v.
Hodges, 53 Fla.197, 208-210, 44 So. 357, 361 (1907);
Smith
v. Howard, 28 Iowa 51, 56-57 (1869);
Gardemal v.
McWilliams, 43 La.Ann. 454, 457-458, 9 So. 106, 108 (1891);
Burke v. Ryan, 36 La.Ann. 951, 951-952 (1884);
McLaughlin v. Cowley, 127 Mass. 316, 319-320 (1879);
Barnes v. McCrate, 32 Me. 442, 446-447 (1851);
Cooper
v. Phipps, 24 Ore. 357, 363-364, 33 P. 985, 986-987 (1893);
Shadden v. McElwee, 86 Tenn. 146, 149-154, 5 S.W. 602,
603-605 (1887);
Cooley v. Galyon, 109 Tenn. 1, 13-14, 70
S.W. 607, 610 (1902);
cf. Hoar v. Wood, 44 Mass.193,
197-198 (1841) (statements by counsel);
Marsh v.
Ellsworth, 50 N.Y. 309, 312-313 (1872) (same). Other courts
appear to have taken a position closer to the English rule, which
did not require any showing of pertinency or materiality.
See,
e.g., Chambliss v. Blau, 127 Ala. 86, 89-90, 28 So. 602, 603
(1899);
cf. Calkins v. Sumner, 13 Wis.193, 197-198 (1860)
(in absence of objection and ruling by court, lack of pertinency of
responses to questions does not remove immunity, because witnesses
are not in a position to know what statements are pertinent to the
case).
Although some cases used the words "good faith,"
see, e.g.,
White v. Carroll, 42 N.Y. 161, 166 (1870);
Shadden v.
McElwee, supra, at 149-150, 5 S.W. at 603, good faith was
established as a matter of law if the statements were pertinent and
material to the judicial proceeding and given in response to
questions. Indeed, even if the testimony was not pertinent, the
plaintiff had the burden of proving bad faith. The testimony by
respondents in this case would have received absolute protection at
common law, because it was directly relevant to the criminal
charges against petitioners. If the testimony had not been
relevant, it is unlikely that petitioners would have stated a claim
that their constitutional rights had been violated. Therefore, for
purposes of § 1983 analysis, there is no material difference
between the English rule and the American rule.
[
Footnote 12]
JUSTICE MARSHALL's dissent relies heavily on an opinion rendered
by this Court,
White v.
Nicholls, 3 How. 266,
44 U. S.
286-288 (1845). The Court's discussion of privileged
statements in judicial proceedings was purely dictum. The plaintiff
sought damages for defendants' allegedly defamatory assertions in a
petition to the President of the United States requesting the
plaintiff's removal from office as a customs collector, a statement
entitled, at most, to a qualified privilege.
White v.
Nicholls cannot be considered authoritative. In 1909, a
leading commentator stated:
"[T]he demands of public policy on which the rule [of absolute
immunity] is based are so controlling that there is only one
considered case in the English or American reports in which the
existence of the general doctrine of absolute immunity under the
common law has ever been questioned. Strangely enough, this
isolated instance was a decision of the Supreme Court of the United
States, in the course of which Mr. Justice Daniel, speaking for the
court, denied both the rule and its policy; but this expression of
opinion was
obiter, since the case in issue was one of
qualified immunity."
Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9
Colum.L.Rev. 463, 465-466 (footnotes omitted). In 1860, a New York
court asserted that
"the reasoning of Judge Daniel's opinion, and the propositions
which he deduces where he goes beyond the case in hand, are clearly
unsustained by principle or authority."
Perkins v. Mitchell, 31 Barb. 461, 468 (N.Y.Sup.Ct.).
In 1878, the West Virginia Supreme Court severely criticized
White v. Nicholls, stating:
"We have reviewed all the authorities cited by Justice Daniel,
and have seen that none of them are in conflict with the position
that express malice may be shielded by its being expressed in
judicial proceedings in certain forms. . . . And the review of the
American authorities will show that the overwhelming weight of
authority is opposed to Justice Daniel's idea, that there is no
case in which an action of slander or libel will not lie for
libelous matter spoken or written in the course of regular judicial
proceedings. . . . The authorities, both English and American,
fully establish the position that there is a class of absolutely
privileged communications. . . ."
Johnson v. Brown, 13 W.Va. 71, 128-129.
See also
McGehee v. Insurance Co. of North America, 112 F. 853 (CA5
1902) (declining to follow
White v. Nicholls);
Shelfer
v. Gooding, 47 N.C. 175, 181-182 (1855) (suggesting that
Justice Daniel miscited
Hodgson v. Scarlett, 1 Barn. &
Ald. 232, 106 Eng.Rep. 86 (K.B. 1818)). In short,
White v.
Nicholls was not even a reliable statement of the common law;
still less was it "the most salient feature in the landscape of the
common law at the time Congress acted" in 1871.
[
Footnote 13]
In addition, some courts expressed concern that, in the absence
of a privilege, honest witnesses might erroneously be subjected to
liability because they would have difficulty proving the truth of
their statements. This result seemed inappropriate in light of the
witness' duty to testify.
E.g., Calkins v. Sumner, 13 Wis.
at 198;
Barnes v. McCrate, 32 Me. at 446-447;
Chambliss v. Blau, 127 Ala. at 89, 28 So. at 603.
[
Footnote 14]
Cf. Marsh v. Ellsworth, 50 N.Y. at 312 (importance of
placing all relevant evidence before court and jury "to enable them
to arrive at the truth");
Hoar v. Wood, 44 Mass. at 197
(stressing impartiality of judge as sufficient antidote to
inaccuracies and exaggerations by adversaries).
[
Footnote 15]
The common law immunity that protected witnesses as well as
other participants in the judicial process drew no distinction
between public officials and private citizens.
See Veeder,
supra, n 12, at
468-469. The general purposes underlying witness immunity at common
law applied equally to official and private witnesses. Both types
of witness took the stand and testified under oath in response to
the questions of counsel. Both might be deterred by the prospect of
subsequent, vexatious litigation.
[
Footnote 16]
Brief for Petitioners 19-20, citing 1 B. Schwartz, Statutory
History of the United States: Civil Rights 599-606, 625 (1970).
[
Footnote 17]
In addition to § 1, codified as § 1983, and § 2, discussed in
text
infra, the Act permitted the President to use armed
force in response to insurrection and domestic violence (§ 3),
authorized the suspension of habeas corpus if the President deemed
it necessary (§ 4), required grand and petit jurors to take a test
oath (§ 5), and provided a civil penalty against persons who knew
of and failed to prevent § 2 violations. 17 Stat. 13.
[
Footnote 18]
Supporters of the bill repeatedly quoted the testimony before an
investigating committee of two former Klan members, who described a
Klan oath binding its members to commit perjury. Cong.Globe, 42d
Cong., 1st Sess., 152, 158, 173, 201, 320-321, 322, 340, 437, 439,
443-444, 457, 458, 503, 516, 518, 653, 654, 687 (1871).
[
Footnote 19]
See id. at 322 (remarks of Rep. Stoughton); 334
(remarks of Rep. Hoar); 375 (remarks of Rep. Lowe); 428 (remarks of
Rep. Beatty); 458, 459 (remarks of Rep. Coburn); 481-482 (remarks
of Rep. Wilson); 486 (remarks of Rep. Cook); 501 (remarks of Sen.
Frelinghuysen); 506 (remarks of Sen. Pratt); 608 (remarks of Sen.
Pool); 697 (remarks of Sen. Edmunds).
[
Footnote 20]
As Representative Coburn stated:
"The United States courts are further above mere local influence
than the county courts; their judges can act with more
independence, cannot be put under terror, as local judges can;
their sympathies are not so nearly identified with those of the
vicinage; the jurors are taken from the State, and not the
neighborhood; they will be able to rise above prejudices and bad
passions or terror more easily. The marshal, clothed with more
power than the sheriff, can make arrests with certainty, and, with
the aid of the General Government, can seize offenders in spite of
any banded and combined resistance such as may be expected."
Id. at 460.
See id. at 334 (remarks of Rep.
Hoar); 374 (remarks of Rep. Lowe); 428 (remarks of Rep. Beatty);
459-460 (remarks of Rep. Coburn); 486 (remarks of Rep. Cook); 501
(remarks of Sen. Frelinghuysen); 514 (remarks of Rep. Poland).
[
Footnote 21]
Compare id. at 317 (original version introduced by Rep.
Shellabarger)
with id. at 477-478 (more general language
in amended version);
see id. at 567, 702 (Senate amendment
adding language punishing conspiracy for obstructing the due course
of justice).
[
Footnote 22]
It is noteworthy that the imposition of criminal liability on
persons for conspiracy to give false evidence was not in derogation
of the common law as it existed in 1871. Witnesses were
traditionally subject to a prosecution for perjury committed in the
course of their evidence, "or for conspiracy in case of a
combination of two or more to give false evidence." Newell,
supra, n. 11, at 450, § 44. The offense of perjury had
been shaped in English law during the 16th and 17th centuries by
Parliament, the Court of Star Chamber, and common law judges. 4 W.
Holdsworth, A History of English Law 515-519 (1924); S. Milsom,
Historical Foundations of the Common Law 418 (2d ed.1981).
[
Footnote 23]
In several hundred pages of small triple-columned print, only
one Senator -- not a member of the Committee that reported the bill
-- referred to the possibility that perjury was being used to
convict the innocent.
See Cong.Globe, 42d Cong., 1st
Sess., 653 (1871) (remarks of Sen. Osborn). His comments were made
in connection with a proposal to retain a test oath for grand and
petit jurors.
[
Footnote 24]
The debates describe nocturnal Klan meetings passing decrees
condemning political enemies.
See id. at 157, 209, 320,
321, 504.
[
Footnote 25]
For references to lynch mobs attacking suspects held in custody,
see id. at 156, 157, 166, 200, 321, 444, 446, 447.
[
Footnote 26]
The legislative history of the Civil Rights Act of 1866,
discussed at length by JUSTICE MARSHALL's dissent, simply does not
speak to the question whether Congress intended witnesses --
private parties or public officials -- to be civilly liable for
false testimony resulting in an unjust criminal conviction. It
makes clear that judges and other "state officials integral to the
judicial process" are subject to
criminal liability for
violating the constitutional rights of individuals. But we have
never questioned that proposition, and we do not do so now.
Moreover, witnesses enjoyed no common law immunity from criminal
prosecution for perjury.
See n.
22 supra. Therefore, the
criminal
provisions of the 1866 Act and its successors apply to official
witnesses.
See n
32,
infra. But the 1866 legislative history, to the extent
that it sheds any light on the meaning of the 1871 Act, does not
support
civil liability for such witnesses, because it
does not show the requisite congressional intent to override the
clearly established common law immunity of witnesses from civil
liability. With respect to witnesses, the legislative history of
the 1866 Act is simply silent, and we are unwilling to assume that,
whenever legislators referred to "state judicial officials" or to
"the judicial power of the State," they were describing witnesses
as well as judges, sheriffs, and marshals.
Moreover, our decisions recognizing absolute immunity for judges
and prosecutors from civil liability under the 1871 Act implicitly
reject the position that the legislative history of the 1866 Act
defines the scope of immunity for purposes of the 1871 Act.
See
Pierson v. Ray, 386 U. S. 547
(1967);
Imbler v. Pachtman, 424 U.
S. 409 (1976).
[
Footnote 27]
The contours of the proposed exception are not clear. Similar
considerations would presumably apply to other government officials
and experts, including coroners, medical examiners, psychiatric
experts, and social workers.
[
Footnote 28]
See Butz v. Economou, 438 U. S. 478,
438 U. S.
513-514 (1978) (administrative law judges enjoy absolute
judicial immunity even though they are in the Executive Branch);
Imbler v. Pachtman, supra, at
424 U. S.
430-431 (reserving the question whether a prosecutor,
who is absolutely immune for decisions to initiate a prosecution or
put witnesses on the stand, has similar immunity for administrative
or investigative tasks);
cf. Hampton v. City of Chicago,
484 F.2d 602, 608 (CA7 1973) (prosecutor's immunity ceases when he
acts in a capacity other than his quasijudicial role),
cert.
denied, 415 U.S. 917 (1974).
[
Footnote 29]
Moreover, lawsuits alleging perjury on the stand in violation of
the defendant's due process rights often raise material questions
of fact, inappropriate for disposition at the summary judgment
stage. The plaintiff's complaint puts in issue the falsity and
materiality of the allegedly perjured statements, and the defendant
witness' knowledge and state of mind at the time he testified.
Sometimes collateral estoppel principles will permit dismissal at
the pretrial stage. But if the truth of the allegedly perjured
statement was not necessarily decided in the previous criminal
verdict, if there is newly discovered evidence of falsity, or if
the defendant concedes that the testimony was inaccurate, the
central issue will be the defendant's state of mind. Summary
judgment is usually not feasible under these circumstances. C.
Wright, Law of Federal Courts 493 (3d ed.1976). If summary judgment
is denied, the case must proceed to trial, and must traverse much
of the same ground as the original criminal trial.
[
Footnote 30]
We are not writing on a clean slate, and it is not for us to
craft a new rule designed to enable trial judges to dismiss
meritless claims before trial, but to allow recovery in cases of
demonstrated injustice, when an innocent plaintiff has already
obtained postconviction relief. The States remain free to grant
relief in such cases and, of course, Congress has the power to
fashion an appropriate remedy if it perceives the need for one.
[
Footnote 31]
There is no reason to believe, however, that this risk is any
greater than, or indeed as great as, the risk of an unjust
conviction resulting from a misidentification or other
unintentional mistake. There is no federal damages remedy for such
innocent persons, or for those who are acquitted after undergoing
the burdens of a criminal trial.
[
Footnote 32]
Finally, in those cases in which the judicial process fails, the
public is not powerless to punish misconduct. Like prosecutors and
judges, official witnesses may be punished criminally for willful
deprivations of constitutional rights under 18 U.S.C. § 242.
JUSTICE BRENNAN, dissenting.
JUSTICE MARSHALL's dissenting opinion,
post, presents
an eloquent argument that Congress, in enacting § 1983, did not
intend to create any absolute immunity from civil liability for
"government officials involved in the judicial process. . . ."
Post at this page and
460 U. S. 347.
Whatever the correctness of his historical argument, I fear that
the Court has already crossed that bridge in
Pierson v.
Ray, 386 U. S. 547
(1967), and
Imbler v. Pachtman, 424 U.
S. 409 (1976).
I entirely agree with JUSTICE MARSHALL, however, that the
policies of § 1983 and of common law witness immunity, as they
apply to witnesses who are police officers, do not justify any
absolute immunity for perjurious testimony. I therefore dissent for
the reasons stated in
460 U. S.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins, except as to
Part I, dissenting.
I cannot agree that police officers are absolutely immune from
civil liability under 42 U.S.C. § 1983 (1976 ed., Supp. V) for
testimony given in criminal proceedings. The extension of absolute
immunity conflicts fundamentally with the language and purpose of
the statute. I would therefore be reluctant in any case to conclude
that § 1983 incorporates common law tort immunities that may have
existed when Congress enacted the statute in 1871. But in this
case, the conclusion is especially unjustified. First, absolute
immunity for witnesses was by no means a settled legal proposition
in 1871. Most notably, in 1845, this Court had cast serious doubt
on the existence of absolute immunity for testimony given in
judicial proceedings. Second, the origins and history of § 1983
strongly suggest that Congress meant to abrogate any absolute
immunity for government officials involved
Page 460 U. S. 347
in the judicial process, including police officers. Finally,
considerations of public policy deemed necessary to justify
absolute immunity in our past cases do not support an absolute
immunity for officer-witnesses.
I
The majority opinion correctly states that this case presents a
question of statutory construction.
Ante at
460 U. S. 326.
Yet it departs from generally accepted principles for interpreting
laws.
In all other matters of statutory construction, this Court
begins by focusing on the language of the statute itself. [
Footnote 2/1] "Absent a clearly expressed
legislative intention to the contrary, that language must
ordinarily be regarded as conclusive."
Consumer Product Safety
Comm'n v. GTE Sylvania, Inc., 447 U.
S. 102,
447 U. S. 108
(1980). The language of § 1983 provides unambiguous guidance in
this case. A witness is most assuredly a "person," the word
Congress employed to describe those whose conduct § 1983
encompasses. [
Footnote 2/2] The
majority
Page 460 U. S. 348
turns the conventional approach to statutory interpretation on
its head. It assumes that common law tort immunities provide an
exemption from the plain language of the statute unless petitioners
demonstrate that Congress meant to override the immunity.
See
ante at
460 U. S. 336.
Thus, in the absence of a clearly expressed legislative intent to
the contrary, the Court simply presumes that Congress did not mean
what it said.
Absolute immunity for witnesses conflicts not only with the
language of § 1983, but also with its purpose. In enacting § 1983,
Congress sought to create a damages action for victims of
violations of federal rights; absolute immunity nullifies "
pro
tanto the very remedy it appears Congress sought to create."
Imbler v. Pachtman, 424 U. S. 409,
424 U. S. 434
(1976) (WHITE, J., concurring in judgment). The words of a statute
should always be interpreted to carry out its purpose. [
Footnote 2/3] Moreover, Members of the 42d
Congress explicitly stated that § 1983 should be read so as to
further its broad remedial goals. As the sponsor of the 1871 Act,
Representative Shellabarger, declared:
"This act is remedial, and in aid of the preservation of human
liberty and human rights. All statutes and constitutional
provisions authorizing such statutes are liberally and beneficently
construed. It would be most strange and, in civilized law,
monstrous were this not the rule of interpretation. As has been
again and again decided by your own Supreme Court of the United
States, and everywhere else where there is wise judicial
Page 460 U. S. 349
interpretation, the largest latitude consistent with the words
employed is uniformly given in construing such statutes and
constitutional provisions as are meant to protect and defend and
give remedies for their wrongs to all the people."
Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871). [
Footnote 2/4]
It might be appropriate to import common law defenses and
immunities into the statute if, in enacting § 1983, Congress had
merely sought to federalize state tort law. But Congress "intended
to give a broad remedy for violations of
federally
protected civil rights."
Monell v. New York City Dept. of
Social Services, 436 U. S. 658,
436 U. S. 685
(1978) (emphasis added). Different considerations surely apply when
a suit is based on a federally guaranteed right -- in this case,
the constitutional right to due process of law -- rather than the
common law. [
Footnote 2/5] The
Congress that enacted § 1983 had concluded that
"a deprivation of a constitutional right is significantly
different from, and more serious than, a violation of a state
right, and therefore deserves a different remedy, even though
Page 460 U. S. 350
the same act may constitute both a state tort and the
deprivation of a constitutional right."
Monroe v. Pape, 365 U. S. 167,
365 U. S. 196
(1961) (Harlan, J., concurring). Therefore, immunities that arose
in the context of tort actions against private parties provide
little guidance for actions against state officials for
constitutional violations.
"It would indeed be the purest coincidence if the state remedies
for violations of common law rights by private citizens were fully
appropriate to redress those injuries which only a state official
can cause and against which the Constitution provides
protection."
Id. at 196, n. 5.
Given the language and purpose of § 1983, I have serious doubts
about any further extension of absolute immunity to state officials
in actions under § 1983. At a minimum, I do not believe the Court
should extend absolute immunity to state officials "in the absence
of the most convincing showing that the immunity is necessary."
Imbler v. Pachtman, supra, at
424 U. S. 434
(WHITE, J., concurring in judgment). For the reasons elaborated
below, I believe that the case for absolute witness immunity is far
from convincing.
II
The majority's decision is predicated on its conclusion that
"[i]n 1871, common law immunity for witnesses was well settled."
Ante at
460 U. S. 345.
I disagree with this view of the law as it stood when Congress
enacted § 1983.
To begin with, some of petitioners' allegations would clearly
not have been barred by doctrines of immunity at common law. The
majority discusses only the immunities associated with actions for
defamation at common law.
Ante at
460 U. S.
330-331, n. 9. However, petitioner Briscoe did not
allege solely that Officer LaHue had testified falsely at his
trial, a claim resembling one for defamation. He also alleged that
Officer LaHue had made knowingly false charges at two probable
cause hearings, one of which resulted in Briscoe's arrest.
[
Footnote 2/6] At common law, such
an allegation would have
Page 460 U. S. 351
formed the basis of an action on the case for malicious
prosecution, [
Footnote 2/7] or the
related action known by its Latin name,
crimen feloniae
imposuit (imputing the crime of felony). [
Footnote 2/8] Both English and American courts
routinely permitted plaintiffs to bring actions alleging that the
defendant had made a false and malicious accusation of a felony to
a magistrate or other judicial officer. [
Footnote 2/9] No immunity barred these suits. Indeed, an
absolute immunity would have been illogical, for it would have
allowed a defendant to avoid the related common law action for
false imprisonment by the simple expedient of proffering false
charges before a magistrate, and thereby securing an arrest
warrant. [
Footnote 2/10]
Page 460 U. S. 352
Even with respect to the common law action for defamation which
the majority discusses, I cannot agree that an absolute immunity
for witnesses was well-settled law in 1871. In 1845, this Court had
rejected both the rule of absolute immunity
Page 460 U. S. 353
and its logical underpinnings, proposing instead that a
plaintiff allege and prove malice in the case of privileged
communications.
In
White v.
Nicholls, 3 How. 266 (1845), Justice Daniel wrote
for a unanimous Court in dicta a veritable treatise on the law of
defamation and privileged communications. [
Footnote 2/11] The Court began by noting the existence
of various exceptions
"which, in the elementary treatises, and in the decisions upon
libel and slander, have been denominated privileged communications
or publications."
Id. at
44 U. S. 286.
One of these "exceptions" was for "[w]ords used in the course of a
legal or judicial proceeding, however hard they may bear upon the
party of whom they are used."
Id. at
44 U. S. 287.
The Court then stated:
"But the term 'exceptions,' as applied to cases like those just
enumerated, could
never be interpreted to mean that there
is a class of actors or transactions placed above the cognisance of
the law, absolved from the commands of justice. It is difficult to
conceive how, in society where rights and duties are relative and
mutual, there can be tolerated those who are privileged to do
injury
legibus soluti, and still more difficult to imagine
how such a privilege could be instituted or tolerated upon the
principles of social good. The privilege spoken of in the books
should, in our opinion, be taken with strong and well-defined
qualifications. It properly signifies this, and nothing more. That
the excepted instances shall so far change the ordinary rule with
respect to slanderous or libelous matter as to remove the regular
and usual presumption of malice, and to make it incumbent on the
party complaining to show malice, either by the construction of the
spoken or written matter, or by the facts and circumstances
connected with that matter, or with the situation of the parties,
adequate to authorize the conclusion."
Ibid. (emphasis added).
Page 460 U. S. 354
The Court invoked these principles in discussing the specific
exception for words used in a judicial proceeding, relying on the
views of one English judge who had rejected absolute immunity.
[
Footnote 2/12]
"With respect to words used in a course of judicial proceeding,
it has been ruled that they are protected by the occasion, and
cannot form the foundation of an action of slander
without
proof of express malice; . . . in the case of
Hodgson v.
Scarlett, 1 Barn. & Ald. 247, it is said by Holroyd, J.,
speaking of the words of counsel in the argument of a cause,"
"If they be fair comments upon the evidence, and relevant to the
matter in issue, then
unless malice be shown, the occasion
justifies them. If, however, it be proved that they were not spoken
bona fide, or express malice be shown, then they may be
actionable."
Id. at 288 (emphasis added). [
Footnote 2/13]
If Congress in 1871 actually examined the subject of common law
witness immunity, it could hardly have overlooked
White v.
Nicholls, since that case was the sole pronouncement on the
subject from the highest Court in the land. Congress might well
have concluded -- as did the Tennessee Supreme Court in 1871 --
that the principles enunciated in
White were "settled
law."
Saunders v. Baxter, 53 Tenn. 369, 383. In an age
when federal common law prevailed,
See
Swift v.
Tyson, 16 Pet. 1 (1842), a Supreme Court decision
would have been the natural focus for a Congress establishing a
federal remedy which was accompanied by a new grant of federal
jurisdiction. [
Footnote 2/14] In
short, the most salient feature in the
Page 460 U. S. 355
landscape of the common law at the time Congress acted was an
opinion rebuffing absolute immunity in favor of a qualified
immunity based on the absence of malice. [
Footnote 2/15]
Page 460 U. S. 356
III
The majority's decision is also predicated on its conclusion
that there is "no evidence that Congress intended to abrogate the
traditional common law witness immunity in § 1983 actions."
Ante at
460 U. S. 337.
In fact, there is considerable evidence in the legislative history
that Congress did intend to abrogate the immunity of participants
in state judicial proceedings.
A
At petitioners' urging, [
Footnote
2/16] the Court has extensively examined the legislative
history of § 2 of the 1871 Ku Klux Klan Act, 17 Stat. 13, now
codified as 42 U.S.C. § 1985(3) (1976 ed., Supp. V). However, the
forerunner of § 1983 was § 1 of the 1871 Act, not § 2. As the
majority points out,
ante at
460 U. S. 337,
460 U. S.
340-341, the two sections differ significantly in their
language and purpose. It is thus hardly surprising that the debates
over § 2 shed little light on § 1. In my view, the inquiry should
focus on the history of § 1. Only by examining the
Page 460 U. S. 357
genesis of that provision can it be determined whether Congress
intended to abrogate certain common law immunities.
The origin of § 1 is not open to serious question. The language
and concept of the provision were derived in large part from § 2 of
the Civil Rights Act of 1866, 14 Stat. 27. [
Footnote 2/17] The author of § 1 clearly stated the
relationship between the two Acts in introducing the 1871
measure:
"My first inquiry is as to the warrant which we have for
enacting such a section as this [§ 1 of the 1871 Act]. The model
for it will be found in the second section of the act of April 9,
1866, known as the 'civil rights act.'
That section provides a
criminal proceeding in identically the same case as this one
provides a civil remedy for, except that the deprivation under
color of State law must, under the civil rights act, have been on
account of race, color, or former slavery. This section of the
bill,
on the same state of facts, not only provides a
civil remedy for
Page 460 U. S. 358
persons whose former condition may have been that of slaves, but
also to all people where, under color of State law, they or any of
them may be deprived of rights to which they are entitled under the
Constitution by reason and virtue of their national
citizenship."
Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871) (emphasis
added).
Because the two provisions are so intimately connected, a full
examination of the history of § 1 of the 1871 Act must begin with §
2 of the 1866 Act.
B
The Civil Rights Act of 1866 was the first federal statute to
provide broad protection in the field of civil rights. Its primary
purpose was to guarantee the newly emancipated Negro equality with
whites before the law. Section 2 of the Act provided criminal
liability for any person who, acting under color of law, deprived
another of his rights because of race. This provision was
extensively debated. Controversy centered in large part over its
intended application to state officials integral to the judicial
process.
The liability of state judicial officials and all official
participants in state judicial proceedings under § 2 was explicitly
and repeatedly affirmed. [
Footnote
2/18] The notion of immunity for such officials was thoroughly
discredited. The Senate sponsor of
Page 460 U. S. 359
the Act deemed the idea
"akin to the maxim of the English law that the King can do no
wrong. It places officials above the law. It is the very doctrine
out of which the rebellion [the Civil War] was hatched."
Cong.Globe, 39th Cong., 1st Sess., 1758 (1866) (Sen. Trumbull).
Thus, § 2 was "aimed directly at the State judiciary."
Id.
at 1155 (Rep. Eldridge).
See also id. at 1778 (Sen.
Johnson, member of the Senate Judiciary Committee) (§ 2 of the 1866
Act "strikes at the judicial department of the governments of the
States").
Two unsuccessful efforts were made to amend § 2. First,
Representative Miller introduced an amendment to exempt state
judges from criminal liability.
Id. at 1156. Second, and
of particular significance, Representative Bingham introduced an
amendment to substitute a civil action for the criminal sanctions
contained in the proposal.
Id. at 1266, 1271-1272. The
sponsor of the 1866 Act, Representative Wilson, opposed the
amendment largely on the ground that it would place the financial
burden of protecting civil rights on poor individuals, instead of
on the government.
Id. at 1295. At the same time, he
stressed that there was "no difference in the principle involved"
between a civil remedy and a criminal sanction.
Ibid.
After the 1866 bill passed the Senate and House, President
Andrew Johnson vetoed it. His opposition was based in part on the
fact that § 2 of the bill "invades the judicial power of the
State." Veto Message, in
id. at 1680. The President warned
that
"judges of the State courts . . . [and] marshals and sheriffs,
who should, as ministerial officers, execute processes, sanctioned
by State laws and issued by State judges, in execution of their
judgments, could be brought before other tribunals and there
subjected to fine and imprisonment for the performance of the
duties which such state laws might impose."
Ibid. Within two weeks, both the Senate and the House
overrode the veto. Various Congressmen responded to the President's
criticisms, and freely admitted that § 2 of the legislation was
aimed at state judicial systems. As a member of the House Judiciary
Committee, Representative
Page 460 U. S. 360
Lawrence, declared:
"I answer it is better to invade the judicial power of the State
than permit it to invade, strike down, and destroy the civil rights
of citizens. A judicial power perverted to such uses should be
speedily invaded. The grievance would be insignificant."
Id. at 1837.
See also id. at 1758 (response of
Sen. Trumbull to President's veto message);
id. at 1838
(statement of Rep. Clarke). The bill became law on April 9,
1866.
C
This Court has, from time to time, read § 1983 against the
"background" of common law tort liability. [
Footnote 2/19] Far more pertinent to this case,
however, is the background provided by the 1866 Civil Rights Act.
Representative Bingham, who had introduced the amendment to
substitute civil liability for criminal liability in the 1866 Act,
had become chairman of the House Judiciary Committee by the time of
the 42d Congress. Senator Trumbull, the Senate sponsor of the 1866
Act, was chairman of the Senate Judiciary Committee in 1871.
Representative Shellabarger, who had participated in the debates on
the 1866 legislation, [
Footnote
2/20] drafted the 1871 Act.
Congress was well aware that the "model" for § 1 of the 1871 law
could be found in the 1866 Civil Rights Act. Cong.Globe, 42d Cong.,
1st Sess., App. 68 (1871) (Rep. Shellabarger). The manager of the
bill in the Senate, George Edmunds, stressed that § 1 was merely
"carrying out the principles of the civil rights bill" that had
been passed in 1866.
Id. at 568. Representative Coburn
stated that § 1 "gives a civil remedy parallel to the penal
provision" in the Civil Rights Act. "If this penal section is
valid, and no one dares controvert it, the civil remedy is legal
and unquestionable."
Id. at 461.
See also id. at
429 (Rep. McHenry in opposition)
Page 460 U. S. 361
("The first section of the bill is intended as an amendment of
the civil rights act");
id. at 365 (Rep. Arthur in
opposition) (§ 1 is "cumulative, as far as it goes, with certain
provisions in the civil rights bill").
The fact that § 2 of the Civil Rights Act was the model for § 1
of the 1871 Act explains why the debates in the 42d Congress on § 1
were so perfunctory. [
Footnote
2/21] Of all the measures in the Ku Klux Klan Act, § 1
generated the least controversy, since it merely provided a civil
counterpart to the far more controversial criminal provision in the
1866 Act.
See id. at 568 (Sen. Edmunds) ("The first
section is one that I believe nobody objects to");
id. at
App. 313 (Rep. Burchard) ("To the first section, giving an injured
party redress by suit at law in the United States courts in the
cases enumerated, I can see no objections");
Monell v. New York
City Dept. of Social Services, 436 U.S. at
436 U. S. 665
(debate on § 1 was limited, and the section passed without
amendment); Developments in the Law -- Section 1983 and Federalism,
90 Harv.L.Rev. 1133, 1155 (1977).
Opponents of § 1 of the 1871 Act repeated the same arguments
that had been made against § 2 of the 1866 Act. They warned of the
liability for judicial officers that would result from enactment of
§ 1. [
Footnote 2/22] Indeed, in
portraying the inevitable consequences of the 1871 Act, Senator
Thurman pointed to criminal prosecutions of state judicial officers
that had already taken place under the 1866 Act. These statements
can hardly be dismissed as exaggerated rhetoric from opponents of
the 1871 Act. [
Footnote 2/23]
Instead, they simply reflect the fact that the battle over
liability for those integral to the judicial process had already
been fought in 1866 when Congress
Page 460 U. S. 362
adopted the far more serious criminal sanction aimed at state
judicial systems. Section 1, in contrast, provided for "the mild
remedy of a civil action." Cong.Globe, 42d Cong., 1st Sess., 482
(1871) (Rep. Wilson, member of the House Judiciary Committee). So
it was not surprising that the arguments of the opponents to the
1871 Act would fall on deaf ears. It is also noteworthy that
Representative Shellabarger, who was hardly reluctant to interrupt
speakers who were misconstruing his proposal, [
Footnote 2/24] never disputed the opponents'
characterizations with regard to the liability of state judicial
officers. [
Footnote 2/25]
To assume that Congress, which had enacted a criminal sanction
directed against state judicial officials, [
Footnote 2/26] intended
sub silentio to exempt
those same officials from the civil counterpart approaches the
incredible. [
Footnote 2/27]
Sheriffs and marshals, while performing a quintessentially judicial
function such as serving process, were clearly liable under the
1866 Act, notwithstanding President Johnson's objections.
Because,
Page 460 U. S. 363
as Representative Shellabarger stated, § 1 of the 1871 Act
provided a civil remedy "in identically the same case" or "on the
same state of facts" as § 2 of the 1866 Act, it obviously overrode
whatever immunity may have existed at common law for these
participants in the judicial process in 1871.
D
The lack of historical support for witness immunity sharply
contrasts with the substantial historical support for legislative
immunity which this Court recognized in
Tenney v.
Brandhove, 341 U. S. 367
(1951), a case on which the majority relies.
Ante at
460 U. S. 330,
460 U. S. 334.
Legislative immunity enjoyed a unique historical position, since it
had been conceived in the Parliamentary struggles of the 17th
century and enshrined in the Speech and Debate Clause of the
Constitution. The vast majority of States had adopted
constitutional provisions providing a parallel protection against
civil and criminal liability.
See 341 U.S. at
341 U. S.
372-375.
Moreover, the history of § 1 supports incorporation of
legislative immunity. For example, when the specter of holding
state legislators liable under § 2 of the 1866 Act was raised by
President Johnson's veto message, [
Footnote 2/28] the Senate sponsor of the Act was quick
to disavow any such intention. Senator Trumbull argued at some
length that legislators did not fall within the scope of the Act,
because they "enact" laws, rather than act "under color of" state
law. [
Footnote 2/29] Whatever the
validity of this distinction, it no doubt reflected the reluctance
of Congress to impinge on the immunity of state legislators. But
while the Radical Republican Congress was a "staunch advocate of
legislative freedom," 341 U.S. at
341 U. S. 376,
it displayed no solicitude for state courts. [
Footnote 2/30] The debates over the 1871 Act are
replete with hostile comments directed at state judicial
Page 460 U. S. 364
systems. [
Footnote 2/31] It is
entirely reasonable to conclude that Congress intended to make
state legislators immune from civil liability under § 1 of the 1871
Act. No similar evidence exists to support an immunity for police
officers testifying as witnesses. [
Footnote 2/32]
IV
The majority also bases its decision on considerations of public
policy, which purportedly mandate absolute immunity for police
officers sued under § 1983 for their testimony as witnesses.
Ante at
460 U. S.
341-345. This Court has recognized absolute immunity
only in "exceptional situations" where public policy makes it
"essential."
Butz v. Economou, 438 U.
S. 478,
438 U. S. 507
(1978). [
Footnote 2/33] In my
view, the case for official witness immunity falls far short of
this standard.
Page 460 U. S. 365
Police officers and other government officials differ
significantly from private citizens, around whom common law
doctrines of witness immunity developed. A police officer comes to
the witness stand clothed with the authority of the State. His
official status gives him credibility, and creates a far greater
potential for harm than exists when the average citizen testifies.
[
Footnote 2/34] The situation is
aggravated when the official draws on special expertise. A
policeman testifying about a fingerprint identification or a
medical examiner testifying as to the cause of a death can have a
critical impact on a defendant's trial. [
Footnote 2/35] At the same time, the threat of a
criminal perjury prosecution, which serves as an important
constraint on the average witness' testimony, is virtually
nonexistent in the police witness context. Despite the apparent
prevalence of police perjury, [
Footnote 2/36] prosecutors exhibit extreme
Page 460 U. S. 366
reluctance in charging police officials with criminal conduct
because of their need to maintain close working relationships with
law enforcement agencies. [
Footnote
2/37] The majority thus forecloses a civil sanction in
precisely those situations where the need is most pressing.
Moreover, the danger that official witnesses would be inhibited
in testifying by the fear of a damages action is much more remote
than would be the case with private witnesses. Policemen normally
have a duty to testify about matters involving their official
conduct. The notion that officials with a professional interest in
securing criminal convictions would shade their testimony in favor
of a defendant to avoid the risk of a civil suit can only be viewed
with skepticism. In addition, police officials are usually
insulated from any economic hardship associated with lawsuits based
on conduct within the scope of their authority. [
Footnote 2/38] In any event, if the Court truly
desires to give police officers "
every encouragement to make a
full disclosure of all pertinent information within their
knowledge,'" ante at 460 U. S. 335
(quoting Imbler v. Pachtman, 424 U.S. at 424 U. S. 439
(WHITE, J., concurring in judgment)), then, at the very least, it
should permit § 1983 suits which allege that officials withheld key
information while testifying. [Footnote 2/39]
Page 460 U. S. 367
The majority's primary concern appears to be that § 1983 suits
against police witnesses would impose "significant burdens on the
judicial system and on law enforcement resources."
Ante at
460 U. S. 343.
As an empirical matter, this contention is unfounded. Both the
Sixth Circuit and the District of Columbia Circuit have permitted
such suits for over five years,
see ante at
460 U. S.
328-329, n. 4, but there is no perceptible drain on
legal resources in those Circuits compared to other Circuits that
bar such lawsuits. Moreover, a comprehensive study of § 1983 suits
filed in the Central District of California, which includes Los
Angeles, indicates that only about 30 actions for false arrest were
filed annually in that District. [
Footnote 2/40] Police officers arrest much more
frequently than they testify, and an arrest will undoubtedly make
many individuals disgruntled. Yet lawsuits based on such
allegations constituted only 0.5% of all cases filed in the Central
District, [
Footnote 2/41] or an
average of only one for every 243 full-time police
Page 460 U. S. 368
officers in the city of Los Angeles. [
Footnote 2/42] This does not appear to be a
"significant burden." [
Footnote
2/43] The simple fact is that practical obstacles alone are
enough to deter most individuals from suing the police for official
misconduct. [
Footnote 2/44]
In considering the competing interests at stake in this area,
the majority strikes a very one-sided balance. It eschews any
qualified immunity in favor of an absolute one. Thus, the mere
inquiry into good faith is deemed so undesirable that we must
simply acquiesce in the possibility that government officials will
maliciously deprive citizens of their rights. [
Footnote 2/45] For my part, I cannot conceive in
this case how patent violations of individual rights can be
tolerated in the name of the public good.
"The very essence of civil liberty certainly consists in the
right of every individual to claim the protections of the laws,
whenever he receives an injury."
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 163
(1803).
Page 460 U. S. 369
V
For all of the above reasons, I believe that the majority has
failed to sustain the heavy burden required to justify an immunity
so plainly at odds with the language and purpose of § 1983. I
therefore respectfully dissent.
[
Footnote 2/1]
E.g., Jackson Transit Authority v. Transit Union,
457 U. S. 15,
457 U. S. 23
(1982);
Bread Political Action Comm. v. FEC, 455 U.
S. 577,
455 U. S. 580
(1982);
Universities Research Assn. v. Coutu, 450 U.
S. 754,
450 U. S. 771
(1981);
Dawson Chemical Co. v. Rohm & Haas Co.,
448 U. S. 176,
448 U. S. 187
(1980).
[
Footnote 2/2]
The majority criticizes a literal reading of the statute, and
refers to
National Society of Professional Engineers v. United
States, 435 U. S. 679
(1978).
Ante at
460 U. S. 330,
and n. 8. In
National Society, the Court noted that the
language of § 1 of the Sherman Act "cannot mean what it says." 435
U.S. at
435 U. S. 687.
But there is no logical reason why the word "person" in § 1983
should be read to exclude a witness. Moreover, on a number of
occasions, this Court has relied on the plain language of § 1983.
See, e.g., Maine v. Thiboutot, 448 U. S.
1,
448 U. S. 4 (1980)
("The question before us is whether the phrase
and laws,' as
used in § 1983, means what it says, or whether it should be limited
to some subset of laws. Given that Congress attached no modifiers
to the phrase, the plain language of the statute undoubtedly
embraces respondents' claim . . ."); Parratt v. Taylor,
451 U. S. 527,
451 U. S. 534
(1981) (relying in part on text of § 1983 to reject limitation of
statute to intentional deprivations); Owen v. City of
Independence, 445 U. S. 622,
445 U. S. 635
(1980) (relying on the "absolute and unqualified" language of §
1983 to reject a qualified immunity for municipalities); Monell
v. New York City Dept. of Social Services, 436 U.
S. 658, 436 U. S.
688-689 (1978) (relying on "plain meaning" of § 1983).
Cf. Jones v. Alfred H. Mayer Co., 392 U.
S. 409, 392 U. S. 420
(1968) (relying on the "plain and unambiguous terms" of 42 U.S.C. §
1982).
[
Footnote 2/3]
See Mastro Plastics Corp. v. NLRB, 350 U.
S. 270,
350 U. S. 285
(1956) (quoting
United States v. Boisdore's
Heirs, 8 How. 113,
49 U. S. 122
(1849));
SEC v. C. M. Joiner Leasing Corp., 320 U.
S. 344,
320 U. S.
350-351 (1943); H. Hart & A. Sacks, The Legal
Process 1411 (Tent. ed.1958).
[
Footnote 2/4]
See also Cong.Globe, 42d Cong., 1st Sess., App. 217
(1871) (Sen. Thurman in opposition) ("[T]here is no limitation
whatsoever upon the terms that are employed [in § 1983], and they
are as comprehensive as can be used");
id. at 800 (Rep.
Perry) ("Now, by our action on this bill, we have asserted as fully
as we can assert the mischief intended to be remedied");
id. at 476 (Rep. Dawes) (The person who "invades, trenches
upon, or impairs one iota or tittle of the least of [constitutional
rights], to that extent trenches upon the Constitution and laws of
the United States, and this Constitution authorizes us to bring him
before the courts to answer therefor").
[
Footnote 2/5]
See Note, 68 Harv.L.Rev. 1229, 1232 (1955) ("When a
suit is based on deprivation of a federally guaranteed right, the
need to enforce federal limitations on state action constitutes a
consideration in favor of recovery which is not present in suits
under state law"); P. Bator, P. Mishkin, D. Shapiro, & H.
Wechsler, Hart and Wechsler's The Federal Courts and the Federal
System 336 (2d ed.1973) ("[W]here constitutional rights are at
stake, the courts are properly astute, in construing statutes, to
avoid the conclusion that Congress intended to use the privilege of
immunity . . . in order to defeat them").
[
Footnote 2/6]
See Memorandum in Support of Complaint, App. 9-11.
[
Footnote 2/7]
The action for malicious prosecution grew out of the related
action for conspiracy. As early as 1293, various statutes were
enacted to aid persons who had been falsely and maliciously
indicted or accused of crimes by conspiracy among the defendants.
In such cases, a writ of conspiracy was employed in seeking
redress. By the 16th century, this action was replaced by an action
on the case in the nature of a conspiracy, but the allegation of a
conspiracy was soon treated as surplusage. The result was an action
on the case.
See M. Bigelow, Leading Cases on the Law of
Torts 190-191 (1875); 1 T. Street, The Foundations of Legal
Liability 328-329 (1906); 2 W. Holdsworth, A History of English Law
366 (4th ed.1936).
[
Footnote 2/8]
See, e.g., Blizard v. Kelly, 2 Barn. & Cress. 283,
284, 107 Eng.Rep. 389 (K.B. 1823) ("The legal sense and meaning of
those words is, that the party made the charge of felony before a
magistrate");
Davis v. Noak, 1 Stark. 377, 382, 171
Eng.Rep. 502, 504 (N.P. 1816).
[
Footnote 2/9]
See, e.g., Fuller v. Cook, 3 Leo. 100, 74 Eng.Rep. 567
(K.B. 1584);
Knight v. Jermin, Cro.Eliz. 134, 78 Eng.Rep.
391 (K.B. 1589);
Clarke v. Postan, 6 Car. & P. 423,
172 Eng.Rep. 1304 (N.P. 1834);
Wheeler v.
Nesbitt, 24 How. 544,
65 U. S. 546
(1861);
Bunton v. Worley, 4 Ky. 38 (1815);
Maddox v.
Jackson, 4 Munf. 462 (Va. 1815);
Hill v. Miles, 9
N.H. 9, 13 (1837) (permitting an action for "maliciously and
without reasonable or probable cause, charging a party with felony
before a magistrate");
Briggs v. Byrd, 34 N.C. 377, 380
(1851);
Center v. Spring, 2 Iowa 393 (1856);
Wilkinson
v. Arnold, 11 Ind. 45 (1858);
Rockwell v. Brown, 36
N.Y. 207, 209 (1867).
[
Footnote 2/10]
I reject the majority's conclusion that the issue of immunity
for testimony by a police officer at a probable cause hearing is
not before this Court. The majority emphasizes that the question
presented in the petition for certiorari only mentions testimony by
a police officer during a criminal trial.
Ante at
460 U. S. 329,
n. 5. This literal reading of the question presented is contrary to
our Rules, which provide that "[t]he statement of a question
presented will be deemed to comprise every subsidiary question
fairly included therein." This Court's Rule 21.1(a).
See also
Peters v. Kiff, 407 U. S. 493,
407 U. S. 495
(1972) (MARHSALL, J, announcing the judgment of the Court and an
opinion in which Douglas and Stewart, JJ., joined) (a challenge to
the composition of a grand jury in the questions presented
encompassed a challenge to the composition of the petit jury even
though the question presented did not mention petit juries).
I believe that the question of witness immunity in one state
court criminal proceeding, the trial, fairly includes the issue of
witness immunity in a related state court criminal proceeding, the
probable cause hearing. The petition for certiorari in this case
specifically referred to Officer LaHue's testimony at "several
judicial proceedings relating to the state criminal prosecution,"
Pet. for Cert. 7, and it spoke in general terms about absolute
witness immunity,
e.g., id. at 14, 16-18, 20. Both
petitioners and respondents obviously thought the issue was before
us since they quoted lengthy excerpts from Officer LaHue's
testimony at the probable cause hearings in their briefs before
this Court.
See Brief for Petitioners 3-5; Brief for
Respondents 2-4. Petitioner Briscoe has asserted respondent LaHue's
liability for testimony at the probable cause hearing throughout
this proceeding.
E.g.,App. 9-11, 17-22. Indeed, the
District Court appeared to believe that the
only issue
raised by Briscoe's complaint involved testimony at a probable
cause hearing.
See Briscoe v. LaHue, No. S 78-139 (ND
Ind., Oct. 3, 1978), App. to Pet. for Cert. A-47. The Court of
Appeals discussed the probable cause hearing testimony, 663 F.2d
713, 715, and its holding was framed in general terms regarding
testimony at judicial proceedings,
see ante at
460 U. S. 328,
which would certainly include probable cause hearings.
The majority nonetheless clearly leaves open the issue of
immunity for testimony at a probable cause hearing.
Ante
at
460 U. S. 329,
n. 5. The absence of any immunity in such cases at common law
should alone undermine any claim to absolute immunity under § 1983.
In addition, the policy considerations applicable to testimony at a
probable cause hearing differ substantially from those relevant to
testimony at a trial. For instance, the absence of
cross-examination at probable cause hearings increases the risk
that false testimony will go undetected.
[
Footnote 2/11]
The Court itself noted that its examination of the law was
"extended" because of the "importance of [the] subject." 3 How. at
44 U. S.
291.
[
Footnote 2/12]
Hodgson v. Scarlett, 1 Barn. & Ald. 232, 246-247,
106 Eng.Rep. 86, 91 (K.B. 1818) (Holroyd, J.).
See also
Kendillon v. Maltby, Car. & M. 402, 409, 174 Eng.Rep. 562,
566 (N.P. 1842) (Lord Denman C.J.),
Thomas v. Churton, 2
B. & S. 475, 477, 121 Eng.Rep. 1150, 1151 (Q.B. 1862)
(Cockburn, C.J.) (reserving the question).
[
Footnote 2/13]
The Court explained that "falsehood and the absence of probable
cause will amount to proof of malice." 3 How. at
44 U. S.
291.
[
Footnote 2/14]
This jurisdictional grant was contained in the Act of Apr. 20,
1871, § 1, 17 Stat. 13, and was the forerunner of 28 U.S.C. §
1343(3).
[
Footnote 2/15]
The views of the Supreme Court obviously conflicted with those
expressed by some state court judges. That is precisely the point:
federal common law diverged from state common law as to witness
immunity. The majority reasons as if state common law controlled
the matter.
See ante at
460 U. S.
331-333, and nn. 11, 12. Because federal common law
prevailed when Congress enacted § 1983, and because the federal
remedy provided in the Act was accompanied by a new grant of
federal jurisdiction, I believe
White v. Nicholl would
have been the natural focus of attention for the 42d Congress. The
majority does not explain why it thinks that the 42d Congress would
instead have focused on state common law.
In any event, the majority's analysis of state court decisions
is sorely deficient. The proper inquiry in this case, as defined by
the majority itself, is on common law principles as understood by
the Members of the 42d Congress.
See ante at
460 U. S. 330.
The 42d Congress enacted § 1983 in 1871. Yet the majority
inexplicably relies on 11 cases decided
after 1871. These
cases are plainly irrelevant to the question of the 42d Congress'
intent. Unless it was clairvoyant, the 42d Congress could not
possibly have had access to most of the decisions relied on by the
majority. By the same token, Congress certainly would not have had
the benefit of the views of Van Vechter Veeder,
ante at
460 U. S. 332,
n. 12, who wrote his article in 1909.
The only arguably relevant support that the majority cites for
the view that Congress extended absolute immunity to police
officers who give perjurious testimony consists of eight state
court cases decided before 1871. None of these cases involved
testimony by an official of the State, let alone a police officer,
and the only support the majority can muster for the notion that
the common law witness immunity drew no distinction between public
officials and private citizens is the 1909 article by Van Vechter
Veeder.
See ante at
460 U. S. 336,
n. 15. In three of the pre-1871 cases, plaintiffs suing for
defamation prevailed completely. In
Smith v. Howard, 28
Iowa 51 (1869), and
White v. Carroll, 42 N.Y. 161 (1870),
the State Supreme Courts
affirmed an award of damages
recovered against a defendant who had slandered the plaintiff from
the witness stand. Similarly, in
Perkin v. Mitchell, 31
Barb. 461 (N.Y. 1860), the state court affirmed a trial court order
rejecting a defendant's demurrer to a complaint. It held that a
plaintiff
could sue for defamatory statements made by a
physician to a Justice of the Peace that resulted in the
plaintiff's commitment as a lunatic. Whatever might have been said
about immunity in these cases was, to use the majority's language,
ante at
460 U. S. 332,
n. 12, "purely dictum." Two other cases,
Hoar v. Wood, 44
Mass.193 (1841), and
Shelfer v. Gooding, 47 N.C. 175
(1855), involved statements by counsel, and not statements by a
witness. This leaves three pre-1871 state cases upholding witness
immunity, and these only as to private witnesses.
As between a smattering of state court opinions and the extended
and well-reasoned analysis of a unanimous Supreme Court, I think
the latter would have commanded the attention of the Members of the
42d Congress. In fact, while Members of the 42d Congress displayed
little interest in or familiarity with state court decisions, they
often focused on cases from the United States Supreme Court in
their deliberations on the 1871 Act.
See, e.g.,
Cong.Globe, 42d Cong., 1st Sess., 375 (1871) (Cong.Globe) (Rep.
Lowe) (citing
Prigg v.
Pennsylvania, 16 Pet. 539 (1842)); Cong.Globe, at
459 (Rep. Coburn) (citing
Cohens v.
Virginia, 6 Wheat. 264 (1821)); Cong.Globe, at App.
84 (Rep. Bingham) (citing
Barron v. Mayor of
Baltimore, 7 Pet. 243 (1833), and
Moore v.
Illinois, 14 How. 13 (1852)); Cong.Globe, at App.
188 (Rep. Willard) (citing the majority and dissenting opinions in
the
Dred Scott case,
Dred Scott v.
Sandford, 19 How. 393 (1857)); Cong.Globe, at 242
(Sen. Bayard) (citing
Withers v.
Buckley, 20 How. 84 (1858)); Cong.Globe, at App.
311 (Rep. Shellabarger) (citing
Jones v.
Van Zandt, 5 How. 215 (1847)).
[
Footnote 2/16]
Brief for Petitioners 19-20.
[
Footnote 2/17]
As enacted, § 1 of the 1871 Act read in pertinent part:
"That any person who, under color of any law, statute,
ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person within the
jurisdiction of the United States to the deprivation of any rights,
privileges, or immunities secured by the Constitution of the United
States, shall, any such law, statute, ordinance, regulation,
custom, or usage of the State to the contrary notwithstanding, be
liable to the party injured in any action at law, suit in equity,
or other proper proceeding for redress. . . ."
Act of Apr. 20, 1871, § 1, 17 Stat. 13.
Section 2 of the 1866 Civil Rights Act read in pertinent
part:
"That any person who, under color of any law, statute,
ordinance, regulation, or custom, shall subject, or cause to be
subjected, any inhabitant of any State or Territory to the
deprivation of any right secured or protected by this act, or to
different punishment, pains, or penalties on account of such person
having at any time been held in a condition of slavery or
involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, or by reason of his color or
race, than is prescribed for the punishment of white persons, shall
be deemed guilty of a misdemeanor, and, on conviction, shall be
punished by fine not exceeding one thousand dollars, or
imprisonment not exceeding one year, or both, in the discretion of
the court."
[
Footnote 2/18]
See, e.g., Cong.Globe, 39th Cong., 1st Sess., 475-476
(1866) (exchange between Sen. Trumbull, the Senate sponsor of the
bill, and Sen. Cowan);
id. at 1155 (exchange between Rep.
Thayer and Rep. Eldridge);
id. at 1267 (Rep. Raymond)
("[I]f a judge or sheriff or any other officer of a State court
should take part in enforcing any State law making distinctions
among the citizens of the State on account of race or color, he
shall be deemed guilty of a misdemeanor and punished with fine and
imprisonment under this bill");
id. at 500 (Sen. Cowan in
opposition) (noting that "the judge, the constable, the sheriff,
the marshal, and everybody" was liable under § 2);
id. at
598 (Sen. Davis in opposition) ("All the parties" who participate
in the unjust conviction of a Negro would be liable, including "the
grand jury, the petit jury, the judge, and the officer of the law"
who executes the judgment).
[
Footnote 2/19]
E.g., Pierson v. Ray, 386 U. S. 547,
386 U. S.
556-557 (1967);
Monroe v. Pape, 365 U.
S. 167,
365 U. S. 187
(1961).
See Carey v. Piphus, 435 U.
S. 247,
435 U. S. 255
(1978); Nahmod, Section 1983 and the "Background" of Tort
Liability, 50 Ind.L.J. 5 (1974).
[
Footnote 2/20]
See, e.g., Cong.Globe, 39th Cong., 1st Sess., 1293-1295
(1866).
[
Footnote 2/21]
Because discussion of § 1 of the 1871 Act was so limited, it is
simply unrealistic to demand overwhelming evidence that the 42d
Congress meant to override a common law witness immunity. Surely
the majority does not mean to define an inquiry that is inherently
futile.
[
Footnote 2/22]
See, e.g., Cong.Globe, 42d Cong., 1st Sess., 365, 366,
(1871) (statements of Rep. Arthur);
id. at 385 (statement
of Rep. Lewis).
[
Footnote 2/23]
Id. at App. 217.
[
Footnote 2/24]
E.g., id. at 382, App. 46
[
Footnote 2/25]
On at least one of the occasions when such remarks were made,
Representative Shellabarger was present.
See Note,
Liability of Judicial Officers Under Section 1983, 79 Yale L.J.
322, 328, n. 40 (1969).
[
Footnote 2/26]
The majority does concede that witnesses can be punished
criminally for violations of 18 U.S.C. § 242, the modern successor
of § 2 of the 1866 Act.
See ante at
460 U. S. 345,
n. 32. It cannot go without mention that the classic English
formulation of absolute witness immunity by Lord Mansfield, which
even the majority quotes,
ante at
460 U. S. 335,
precluded civil or criminal liability.
King v. Skinner,
Lofft 54, 56, 98 Eng.Rep. 529 (K.B. 1772) ("[N]either party,
witness, counsel, jury, or judge can be put to answer, civilly
or criminally, for words spoken in office") (emphasis
added). Under early common law, perjury was not a punishable
offense. Jurors were merely a body of witnesses whose verdict was
based on their own personal knowledge, and not on the evidence of
others testifying before them. The only method of punishment was by
a writ of attaint.
See generally 4 W. Holdsworth, A
History of English Law 515-519 (3d ed.1924);
Damport v.
Sympson, Cro.Eliz. 520, 78 Eng.Rep. 769 (Q.B. 1596).
[
Footnote 2/27]
See Kates, Immunity of State Judges under the Federal
Civil Rights Acts, 65 Nw.U.L.Rev. 615, 622-623 (1970).
[
Footnote 2/28]
See Cong.Globe, 39th Cong., 1st Sess., 1680 (1866).
[
Footnote 2/29]
Id. at 1758.
[
Footnote 2/30]
See Developments in the Law -- Section 1983 and
Federalism, 90 Harv.L.Rev. 1133, 1150-1152 (1977).
[
Footnote 2/31]
See, e.g., Cong.Globe, 42d Cong., 1st Sess., App. 78
(Rep. Perry) ("Sheriffs, having eyes to see, see not; judges,
having ears to hear, hear not; witnesses conceal the truth or
falsify it; grand and petit juries act as if they might be
accomplices");
id. at 394 (Rep. Rainey) ("[T]he courts
are, in many instances, under the control of those who are wholly
inimical to the impartial administration of law and equity");
id. at App. 186 (Rep. Platt) (judges exercise their
"almost despotic powers . . . against Republicans without regard to
law or justice");
id. at App. 277 (Rep. Porter) ("The
outrages committed upon loyal men there are under the forms of law.
It can be summed up in one word: loyal men cannot obtain justice in
the courts. . . .");
id. at 429 (referring to "prejudiced
juries and bribed judges").
[
Footnote 2/32]
The history of § 1 of the 1871 Act casts some doubt on the
correctness of
Pierson v. Ray, 386 U.
S. 547 (1967), and
Imbler v. Pachtman,
424 U. S. 409
(1976).
Pierson and
Imbler are distinguishable,
however, on the ground that the policy considerations in those
cases are far more powerful. Most significantly, judges and
prosecutors must exercise a substantial amount of discretion in
performing their official functions, while witnesses sworn to tell
the truth do not.
See 460
U.S. 325fn2/39|>n. 39,
infra. In addition, we have
only extended qualified immunity to police officers for the
performance of many of their other duties.
See Pierson,
supra, at
386 U. S.
557.
[
Footnote 2/33]
Butz involved an action under
Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388
(1971). In my view, we should be even more reluctant to import
absolute immunities into § 1983 suits than into
Bivens
actions. First, with § 1983, we deal with explicit statutory
language indicating the broad scope of the action, whereas
Bivens actions have been implied by the federal courts.
Second, the need to restrain state action implicit in the
Fourteenth Amendment is implicated by § 1983 suits, while that
Amendment has no relevance to suits against federal officials.
[
Footnote 2/34]
See Nugent v. Sheppard, 318 F.
Supp. 314, 317 (ND Ind.1970).
Cf. Bivens v. Six Unknown
Fed. Narcotics Agents, supra, at
403 U. S. 392
(agent acting in the name of the United States possesses "far
greater capacity for harm" than individual trespasser acting on his
own).
[
Footnote 2/35]
Checks and balances built into the trial process may well have
limitations and strategic costs. For instance, lengthy
cross-examination of an official witness may expose weaknesses in
his testimony only at the cost of emphasizing the evidence in the
mind of the jury.
[
Footnote 2/36]
See United States v. Marshall, 488 F.2d 1169, 1171 (CA9
1973);
Veney v. United States, 120 U.S.App.D.C. 157,
157-158, 344 F.2d 542, 542-543 (1965) (Wright, J., concurring in
judgment);
People v. Berrios, 28 N.Y.2d 361, 370, 270
N.E.2d 709, 714 (1971) (Fuld, C.J., dissenting);
People v.
Dickerson, 273 Cal. App.
2d 645, 650, n. 4, 78 Cal. Rptr. 400, 403, n. 4 (1969); B.
Tarlow, Search Warrants 31-77 (1973); New York City Commission to
Investigate Alleged Police Corruption, Knapp Commission Report on
Police Corruption (1972); Sevilla, The Exclusionary Rule and Police
Perjury, 11 San Diego L.Rev. 839 (1974); Grano, A Dilemma for
Defense Counsel:
Spinelli-Harris Search Warrants and the
Possibility of Police Perjury, 1971 U.Ill.Law Forum 405, 408-409;
Younger, The Perjury Routine, 204 The Nation 596 (1967); Comment,
60 Geo.L.J. 507 (1971); Note, 4 Colum.J.Law & Soc.Probs. 87,
96, n. 40 (1968).
[
Footnote 2/37]
See Newman, Suing the Law Breakers, 87 Yale L.J. 447,
449-450 (1977).
[
Footnote 2/38]
Police officers are generally provided free counsel, and are
indemnified for conduct within the scope of their authority.
See Monell v. New York Cit Dept. of Social Services, 436
U.S. at
436 U. S. 713
(POWELL, J., concurring); Project, 88 Yale L.J. 781, 810 (1979).
This is certainly the state of the law with respect to respondents.
See Ind.Code Ann. §§ 34-4-16.5-5(b) and 34-4-16.5-18
(Burns Supp.1982).
[
Footnote 2/39]
Despite the differences between official witnesses and private
witnesses, the majority contends that "immunity analysis rests on
functional categories, not on the status of the defendant."
Ante at
460 U. S. 342.
However the cases cited for this proposition,
ante at
460 U. S. 342,
n. 28, all involve various types of
official conduct. The
fact that individuals within the government should be treated the
same because of the functions they perform does
not
necessarily mean that individuals within the government should be
treated the same as private parties.
While relying on functional categories, the majority ignores the
classic distinction embodied in immunity cases between acts
involving discretion and those that do not.
See Kendall v.
Stokes 3 How. 87,
44 U. S. 98
(1845);
McCray v. Maryland, 456 F.2d 1, 3-4 (CA4 1972)
("Where an official is not called upon to exercise judicial or
quasijudicial discretion, courts have properly refused to extend to
him the protection of absolute judicial immunity, regardless of any
apparent relationship of his role to the judicial system"). Here,
as the lower court noted, 663 F.2d 713, 719, a witness normally
exercises no discretion in the performance of his duty to answer
fully and truthfully all questions put to him. As a result, "the
need for absolute immunity seems correspondingly less compelling."
Id. at 720.
[
Footnote 2/40]
See Eisenberg, Section 1983: Doctrinal Foundations and
An Empirical Study, 67 Cornell L.Rev. 482, 550-551, 555 (1982). The
statistics are for 1975-1976. The estimate given in the text is
approximate, because Professor Eisenberg has grouped statistics for
prisoner 1983 actions involving false arrest, assault, and search
and seizure.
See id. at 555, Table VI.
[
Footnote 2/41]
A total of 5,810 cases were filed in the Central District of
California in 1976.
See Annual Report of the Director of
the Administrative Office of the United States Courts 177, Table
18, 350, Table D-3 (1976).
[
Footnote 2/42]
There were 7,294 full-time police officers employed by the city
of Los Angeles in 1976.
See generally U.S. Dept. of
Commerce, Bureau of the Census, City Employment in 1976, p. 8,
Table 4 (1977) (data for all police department employees).
[
Footnote 2/43]
Data from another State indicate that the California experience
may overstate the burden of false arrest cases. Over more than
seven years, a
total of only 32 § 1983 suits for false
arrest were brought in Federal District Court for all or part of
Connecticut.
See Project, 88 Yale L.J.,
supra, at
786, n. 23, 793.
[
Footnote 2/44]
Former criminal defendants may well wish to avoid further
entanglements with the legal system, and are unlikely to have the
resources needed to pursue such suits. Lawyers will probably have
little incentive to become involved in actions against the police,
and those that do face an uphill struggle.
See Amsterdam,
The Supreme Court and the Rights of Suspects in Criminal Cases, 45
N.Y.U.L.Rev. 785, 787 (1970) (civil actions against the police are
"very rare, and, until recently, were so rare as to be
insignificant, because the obstacles to their maintenance are
formidable").
[
Footnote 2/45]
Cf. 2 F. Harper & F. James, Law of Torts 1645
(1956) ("[I]t is stretching the argument pretty far to say that the
mere inquiry into malice would have worse consequences than the
possibility of actual malice. . . . Since the danger that official
power will be abused is greatest where motives are improper, the
balance here may well swing the other way") (emphasis deleted).
JUSTICE BLACKMUN, dissenting.
I join all of JUSTICE MARSHALL's dissenting opinion except
460 U. S. I
cannot join its Part I, for I adhere to the views I expressed for
the Court in
City of Newport v. Fact Concerts, Inc.,
453 U. S. 247,
453 U. S.
258-259 (1981), regarding the role played by history and
policy in determining whether § 1983 incorporates a particular
common law immunity. It is proper to assume -- indeed, the Court in
the past has assumed --
"that members of the 42d Congress were familiar with common law
principles . . . , and that they likely intended these common law
principles to obtain, absent specific provisions to the
contrary."
Id. at
453 U. S. 258.
If an immunity was well established in the common law in 1871,
careful analysis of the policies supporting it, and those
supporting § 1983, governs the determination whether that immunity
was retained.
In my view, JUSTICE MARSHALL's dissent convincingly demonstrates
that the Court finds little support for its decision in the present
case either in the language of the statute, the history of the
common law, the relevant legislative history, or policy
considerations.
I therefore dissent.