howard wyatt v bill cole and john robbins private immunity when invoking state law 1992

8/14/2019 howard wyatt v bill cole and john robbins private immunity when invoking state law 1992

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05/18/92 HOWARD WYATT v. BILL COLE AND JOHN ROBBINS

[1]

SUPREME COURT OF THE UNITED STATES

[2]No. 91-126

[3]

1992.SCT.2593,112 S. Ct. 1827, 118 L. Ed.2d 504, 60 U.S.L.W. 4383

[4]May 18, 1992

[5]

HOWARD WYATT,

PETITIONER

v.

BILL COLE AND JOHN

ROBBINS, II

[6]

ON WRIT OF CERTIORARITO THE UNITED STATESCOURT OF APPEALS FORTHE FIFTH CIRCUIT.

[7]

O'connor, J., delivered theopinion of the Court, inwhich White, Blackmun,Stevens, Scalia, andKennedy, JJ., joined.Kennedy, J., filed a

Concurring opinion, in whichScalia, J., joined. Rehnquist,C. J., filed a Dissentingopinion, in which Souter andThomas, JJ., joined.

[8]The opinion of the court wasdelivered by: O'connor

With the assistance of
http://www.versuslaw.com/


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[9]

respondent Robbins, anattorney, respondent Colefiled a complaint under theMississippi replevin statute

against his partner, petitionerWyatt. After Cole refused tocomply with a state courtorder to return to Wyattproperty seized under thestatute, Wyatt brought suit inthe Federal District Courtunder 42 U.S.C. 1983,challenging the state statute'sconstitutionality and seekinginjunctive relief and damages.Among other things, the courtheld the statuteunconstitutional and assumedthat Cole was subject toliability under Lugar v.Edmondson Oil Co., 457 U.S.922, in which this Court ruledthat private defendantsinvoking state replevin,garnishment, and attachmentstatutes later declaredunconstitutional act under

color of state law for 1983liability purposes. The courtalso intimated that, but didnot decide whether, Robbinswas subject to 1983liability. However, Lugar hadleft open the questionwhether private defendantsare entitled to qualifiedimmunity from suit in suchcases, see id., at 942, n.23,and the District Court held

that respondents were entitledto qualified immunity at leastfor conduct arising prior tothe replevin statute'sinvalidation. The Court ofAppeals affirmed the grant ofqualified immunity torespondents without revisitingthe question of their 1983liability.


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[10]

Held: 1. Qualified immunityfrom suit, as enunciated bythis Court with respect togovernment officials, is not

available to privatedefendants charged with 1983 liability for invokingstate replevin, garnishment,or attachment statutes.Immunity for privatedefendants was not so firmlyrooted in the common lawand was not supported bysuch strong policy reasons asto create an inference thatCongress meant toincorporate it into 1983.See, e. g., Owen v. City ofIndependence, 445 U.S. 622,637. Even if there weresufficient common lawsupport to conclude thatprivate defendants should beentitled to a good-faith and/orprobable-cause defense tosuits for unjustified harmarising out of the misuse of

governmental processes, thatwould still not entitlerespondents to what theyobtained in the courts below:the type of objectivelydetermined, immediatelyappealable, qualifiedimmunity from suit accordedgovernment officials under, e.g., Harlow v. Fitzgerald, 457U.S. 800, and Mitchell v.Forsyth, 472 U.S. 511.

Moreover, the policyconcerns mandating qualifiedimmunity for officials in suchcases -- the need to preservethe officials' ability toperform their discretionaryfunctions and to ensure thattalented candidates not bedeterred by the threat ofdamage suits from enteringpublic service -- are not

applicable to private parties.


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Although it may be thatprivate defendants faced with 1983 liability under Lugar,supra, could be entitled to an

affirmative good-faithdefense, or that 1983 suitsagainst private, rather thangovernmental, parties couldrequire plaintiffs to carryadditional burdens, thoseissues are neither before theCourt nor decided here. Pp.5-11.

[11]

2. On remand, it must be

determined, at least, whetherrespondents, in invoking thereplevin statute, acted undercolor of state law within themeaning of Lugar, supra. P.11.

[12]Justice O'CONNOR deliveredthe opinion of the Court.

[13]

In Lugar v. Edmondson OilCo., 457 U.S. 922 (1982), weleft open the questionwhether private defendantscharged with 42 U.S.C. 1983 liability for invokingstate replevin, garnishment,and attachment statutes laterdeclared unconstitutional areentitled to qualified immunityfrom suit. Id., at 942, n. 23.

We now hold that they arenot.

[14]I

This dispute arises out of asoured cattle partnership. InJuly 1986, respondent BillCole sought to dissolve hispartnership with petitioner

Howard Wyatt. When no


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[15]agreement could be reached,Cole, with the assistance ofan attorney, respondent JohnRobbins II, filed a state court

complaint in replevin againstWyatt, accompanied by areplevin bond of $18,000.

[16]

At that time, Mississippi lawprovided that an individualcould obtain a court order forseizure of property possessedby another by posting a bondand swearing to a state courtthat the applicant was entitled

to that property, and that theadversary wrongfully tookand detained or wrongfullydetained" the property. 1975Miss. Gen. Laws, ch. 508, 1.The statute gave the Judge nodiscretion to deny a writ ofreplevin.

[17]

After Cole presented a

complaint and bond, the courtordered the County Sheriff toseize 24 head of cattle, atractor, and certain otherpersonal property fromWyatt. Several months later,after a post-seizure hearing,the court dismissed Cole'scomplaint in replevin andordered the property returnedto Wyatt. When Cole refusedto comply, Wyatt brought suit

in Federal District Court,challenging theconstitutionality of the statuteand seeking injunctive reliefand damages fromrespondents, the CountySheriff, and the deputiesinvolved in the seizure.

The District Court held thatthe statute's failure to afford


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[18]

Judges discretion to denywrits of replevin violated dueprocess. 710 F. Supp. 180,183 (SD Miss. 1989). *fn1 It

dismissed the suit against thegovernment officials involvedin the seizure on the groundthat they were entitled toqualified immunity. App. 17-18. The court also held thatCole and Robbins, even ifotherwise liable under 1983, were entitled toqualified immunity from suitfor conduct arising prior tothe statute's invalidation. Id.,at 12-14. The Court ofAppeals for the Fifth Circuitaffirmed the District Court'sgrant of qualified immunityto the private defendants. 928F.2d 718 (1991).

[19]

We granted certiorari, 502U.S. (1991), to resolve aconflict among the Courts of

Appeals over whether privatedefendants threatened with 42U.S.C. 1983 liability are,like certain governmentofficials, entitled to qualifiedimmunity from suit. Like theFifth Circuit, the Eighth andEleventh Circuits havedetermined that privatedefendants are entitled toqualified immunity. SeeBuller v. Buechler, 706 F.2d

844, 850-852 (CA8 1983);Jones v. Preuit & Mauldin,851 F.2d 1321, 1323-1325(CA11 1988) (en banc),vacated on other grounds, 489U.S. 1002 (1989).

The First and Ninth Circuits,however, have held that incertain circumstances, private

parties acting under color of
http://www.versuslaw.com/plweb-cgi/fastweb.exe?getdoc+view1+SCT+191989+3+wAAA+%28Hafer%26v%26melo%26or%26112%26s.ct.%26358%26%281991%29%26%29#D*fn1


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state law are not entitled tosuch an immunity. SeeDowns v. Sawtelle, 574 F.2d1, 15-16 (CA1), cert. denied,

439 U.S. 910 (1978); Connerv. Santa Ana, 897 F.2d 1487,1492, n. 9 (CA9), cert.denied, 498 U.S. (1990);Howerton v. Gabica, 708 F.2d380, 385, n. 10 (CA9 1983).The Sixth Circuit has rejectedqualified immunity forprivate defendants sued under 1983 but has established agood faith defense. Duncan v.Peck, 844 F.2d 1261 (CA61988).

[21]II

Title 42 U.S.C. 1983provides a cause of actionagainst every person who,under color of any statute . . .of any State . . . subjects, or

causes to be subjected, anycitizen . . . to the deprivationof any rights, privileges, orimmunities secured by theConstitution and laws . . . ."The purpose of 1983 is todeter state actors from usingthe badge of their authority todeprive individuals of theirfederally guaranteed rightsand to provide relief tovictims if such deterrence

fails. Carey v. Piphus , 435U.S. 247, 254-257 (1978). InLugar v. Edmondson Oil Co.,457 U.S. 922 (1982), theCourt considered the scope of 1983 liability in the contextof garnishment, prejudgmentattachment, and replevinstatutes. In that case, theCourt held that private partieswho attached a debtor's assets

pursuant to a state attachment


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[22]

statute were subject to 1983liability if the statute wasconstitutionally infirm.Noting that our garnishment,

prejudgment attachment, andreplevin cases established thatprivate use of state laws tosecure property couldconstitute state action" forpurposes of the FourteenthAmendment, id., at 932-935,the Court held that privatedefendants invoking a state-created attachment statute actunder color of state law"within the meaning of 1983if their actions are fairlyattributable to the State." Id.,at 937. This requirement issatisfied, the Court held, iftwo conditions are met. First,the deprivation must becaused by the exercise ofsome right or privilegecreated by the State or by arule of conduct imposed bythe State or by a person for

whom the State isresponsible." Ibid. Second,the private party must haveacted together with or . . .obtained significant aid fromstate officials" or engaged inconduct otherwise chargeableto the State." Ibid. The Courtfound potential 1983liability in Lugar because theattachment scheme wascreated by the State and

because the privatedefendants, in invoking theaid of state officials to attachthe disputed property, werewillful participants in jointactivity with the State or itsagents." Id., at 941 (internalquotation marks omitted).

Citing Lugar, the District

Court assumed that Cole, by


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[23]

invoking the state statute, hadacted under color of state lawwithin the meaning of 1983,and was therefore liable for

damages for the deprivationof Wyatt's due process rights.App. 12. With respect toRobbins, the court noted thatwhile an action taken by anattorney in representing aclient does not normallyconstitute an act under colorof state law . . . an attorney isstill a person who mayconspire to act under color ofstate law in depriving anotherof secured rights." Id., at 13.The court did not determinewhether Robbins was liable,however, because it held thatboth Cole and Robbins wereentitled to qualified immunityfrom suit at least for conductprior to the statute'sinvalidation. Id., at 13-14.

Although the Court ofAppeals did not reviewwhether, in the first instance,Cole and Robbins had actedunder color of state lawwithin the meaning of 1983,it affirmed the District Court'sgrant of qualified immunityto respondents. In so doing,the Court of Appealsfollowed one of its priorcases, Folsom Investment Co.

v. Moore, 681 F.2d 1032(CA5 1982), in which it heldthat a 1983 defendant whohas invoked an attachmentstatute is entitled to animmunity from monetaryliability so long as he neitherknew nor reasonably shouldhave known that the statutewas unconstitutional." Id., at1037. The court in Folsom

based its holding on two


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grounds. First, it viewed theexistence of a common lawprobable cause defense to thetorts of malicious prosecution

and wrongful attachment asevidence that Congress inenacting 1983 could nothave intended to subject toliability those who in goodfaith resorted to legalprocess." Id., at 1038.Although it acknowledgedthat a defense is not the sameas an immunity, the courtmaintained that it couldtransform a common lawdefense extant at the time of 1983's passage into animmunity." Ibid. Second, thecourt held that whileimmunity for private partiesis not derived from officialimmunity, it is based on theimportant public interest inpermitting ordinary citizensto rely on presumptively validstate laws, in shielding

citizens from monetarydamages when theyreasonably resort to a legalprocess later held to beunconstitutional, and inprotecting a private citizenfrom liability when his role inany unconstitutional action ismarginal." Id., at 1037. Indefending the decision below,respondents advance botharguments put forward by the

Court of Appeals in Folsom.Neither is availing.

[25]III

Section 1983 creates aspecies of tort liability that onits face admits of noimmunities." Imbler v.

Pachtman, 424 U.S. 409, 417


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[26]

(1976). Nonetheless, we haveaccorded certain governmentofficials either absolute orqualified immunity from suit

if the tradition of immunitywas so firmly rooted in thecommon law and wassupported by such strongpolicy reasons that Congresswould have specifically soprovided had it wished toabolish the doctrine.'" Owenv. City of Independence, 445U.S. 622, 637 (1980) (quotingPierson v. Ray , 386 U.S. 547,555 (1967)). If parties seekingimmunity were shielded fromtort liability when Congressenacted the Civil Rights Actof 1871 -- 1 of which iscodified at 42 U.S.C. 1983 -- we infer from legislativesilence that Congress did notintend to abrogate suchimmunities when it imposedliability for actions takenunder color of state law. See

Tower v. Glover, 467 U.S.914, 920 (1984); Imbler,(supra) , at 421; Pulliam v.Allen, 466 U.S. 522, 529(1984). Additionally,irrespective of the commonlaw support, we will notrecognize an immunityavailable at common law if 1983's history or purposecounsel against applying it in 1983 actions. Tower,

(supra) , at 920. See alsoImbler, (supra) , at 424-429.

In determining whether therewas an immunity at commonlaw that Congress intended toincorporate in the CivilRights Act, we look to themost closely analogous torts -- in this case, malicious

prosecution and abuse of


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process. At common law,these torts provided causes ofaction against privatedefendants for unjustified

harm arising out of themisuse of governmentalprocesses. 2 C. Addison, Lawof Torts 1, p. 65, para. 852,and n. 2, p. 82, para. 868, andn. 1 (1876); T. Cooley, Lawof Torts 187-190 (1879); J.Bishop, Commentaries onNon-Contract Law 228-250, Pp. 91-103, 490, p. 218(1889).

[28]

Respondents do not contendthat private parties whoinstituted attachmentproceedings and who weresubsequently sued formalicious prosecution orabuse of process were entitledto absolute immunity. Andwith good reason; althoughpublic prosecutors and Judges

were accorded absoluteimmunity at common law,Imbler v. Pachtman, (supra) ,at 421-424, such protectiondid not extend to complainingwitnesses who, likerespondents, set the wheels ofgovernment in motion byinstigating a legal action.Malley v. Briggs, 475 U.S.335, 340-341 (1986) ( In1871, the generally accepted

rule was that one whoprocured the issuance of anarrest warrant by submitting acomplaint could be heldliable if "the complaint wasmade maliciously and withoutprobable cause").

Nonetheless, respondentsargue that at common law,

private defendants could


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defeat a maliciousprosecution or abuse ofprocess action if they actedwithout malice and with

probable cause, and that weshould therefore infer thatCongress did not intend toabrogate such defenses whenit enacted the Civil RightsAct of 1871. We adoptedsimilar reasoning in Piersonv. Ray, 386 U.S., at 555-557.There, we held that policeofficers sued for false arrestunder 1983 were entitled tothe defense that they actedwith probable cause and ingood faith when making anarrest under a statute theyreasonably believed wasvalid. We recognized thisdefense because peaceofficers were accordedprotection from liability atcommon law if they arrestedan individual in good faith,even if the innocence of such

person were later established.Ibid.

[30]

The rationale we adopted inPierson is of no avail torespondents here. Even ifthere were sufficient commonlaw support to conclude thatrespondents, like the policeofficers in Pierson, should beentitled to a good-faith

defense, that would still notentitle them to what theysought and obtained in thecourts below: the qualifiedimmunity from suit accordedgovernment officials underHarlow v. Fitzgerald, 457U.S. 800 (1982).

In Harlow, we altered the

standard of qualified


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[31]

immunity adopted in ourprior 1983 cases becausewe recognized that thesubjective element of the

good-faith defense frequentlyproven incompatible with ouradmonition . . . thatinsubstantial claims shouldnot proceed to trial." Id., at815-816. Because of theattendant harms togovernment effectivenesscaused by lengthy judicialinquiry into subjectivemotivation, we concluded thatbare allegations of maliceshould not suffice to subjectgovernment officials either tothe costs of trial or to theburdens of broad-reachingdiscovery." Id., at 817-818.Accordingly, we held thatgovernment officialsperforming discretionaryfunctions are shielded fromliability for civil damagesinsofar as their conduct not

violate clearly establishedstatutory or constitutionalrights of which a reasonableperson would have known."Id., at 818. This whollyobjective standard, weconcluded, would avoidexcessive disruption ofgovernment and permit theresolution of manyinsubstantial claims onsummary judgment." Ibid.

That Harlow "completelyreformulated qualifiedimmunity along principlesnot at all embodied in thecommon law" Anderson v.Creighton, 483 U.S. 635, 645(1987), was reinforced by ourdecision in Mitchell v.Forsyth, 472 U.S. 511 (1985).

Mitchell held that Harlow


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[32]established an immunity fromsuit rather than a meredefense to liability," which,like an absolute immunity, is

effectively lost if a case iserroneously permitted to goto trial." 472 U.S., at 526(emphasis supplied). Thus,we held in Mitchell that thedenial of qualified immunityshould be immediatelyappealable. Id., at 530.

[33]

It is this type of objectivelydetermined, immediately

appealable immunity thatrespondents asserted below.*fn2 But, as our precedentsmake clear, the reasons forrecognizing such animmunity were based notsimply on the existence of agood-faith defense atcommon law, but on thespecial policy concernsinvolved in suing government

officials. Harlow, (supra) , at813; Mitchell, (supra) , at526. Reviewing theseconcerns, we conclude thatthe rationales mandatingqualified immunity for publicofficials are not applicable toprivate parties.

Qualified immunity strikes abalance between

compensating those who havebeen injured by officialconduct and protectinggovernment's ability toperform its traditionalfunctions. Harlow, (supra) , at819; Pierson, (supra) , at 554;Anderson, (supra) , at 638.Accordingly, we haverecognized qualifiedimmunity for government

officials where it was


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[34]

necessary to preserve theirability to serve the publicgood or to ensure thattalented candidates were not

deterred by the threat ofdamage suits from enteringpublic service. See, e. g.,Wood v. Strickland, 420 U.S.308, 319 (1975) (denial ofqualified immunity to schoolboard officials wouldcontribute not to principledand fearless decision-makingbut to intimidation'") (quotingPierson, (supra) , at 554);Butz v. Economou, 438 U.S.478, 506 (1978) (immunityfor Presidential aideswarranted partly to protectofficials who are required toexercise their discretion andthe related public interest inencouraging the vigorousexercise of officialauthority"); Mitchell, (supra), at 526 (immunity designedto prevent the distraction of

officials from theirgovernmental duties,inhibition of discretionaryaction, and deterrence of ablepeople from public service'")(quoting Harlow, (supra) , at816). In short, the qualifiedimmunity recognized inHarlow acts to safeguardgovernment, and thereby toprotect the public at large, notto benefit its agents.

These rationales are nottransferable to private parties.Although principles ofequality and fairness maysuggest, as respondents argue,that private citizens who relyunsuspectingly on state lawsthey did not create and mayhave no reason to believe are

invalid should have some


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[35]

protection from liability, asdo their governmentcounterparts, such interestsare not sufficiently similar to

the traditional purposes ofqualified immunity to justifysuch an expansion. Unlikeschool board members, seeWood, (supra) , or policeofficers, see Malley v. Briggs,475 U.S. 335 (1986), orPresidential aides, see Butz,(supra) , private parties holdno office requiring them toexercise discretion; nor arethey principally concernedwith enhancing the publicgood. Accordingly, extendingHarlow qualified immunity toprivate parties would have nobearing on whether publicofficials are able to actforcefully and decisively intheir jobs or on whetherqualified applicants enterpublic service. Moreover,unlike with government

officials performingdiscretionary functions, thepublic interest will not beunduly impaired if privateindividuals are required toproceed to trial to resolvetheir legal disputes. In short,the nexus between privateparties and the historicpurposes of qualifiedimmunity is simply tooattenuated to justify such an

extension of our doctrine ofimmunity.

For these reasons, we canoffer no relief today. Thequestion on which we grantedcertiorari is a very narrowone: Whether private persons,who conspire with stateofficials to violate

constitutional rights, have


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[36]

available the good faithimmunity applicable to publicofficials." Pet. for Cert. i. Theprecise issue encompassed in

this question, and the onlyissue decided by the lowercourts, is whether qualifiedimmunity, as enunciated inHarlow, (supra) , is availablefor private defendants facedwith 1983 liability forinvoking a state replevin,garnishment or attachmentstatute. That answer is no. Inso holding, however, we donot foreclose the possibilitythat private defendants facedwith 1983 liability underLugar v. Edmondson Oil Co.,457 U.S. 922 (1982), couldbe entitled to an affirmativedefense based on good faithand/or probable cause or that 1983 suits against private,rather than governmental,parties could require plaintiffsto carry additional burdens.

Because those issues are notfairly before us, however, weleave them for another day.Cf. Yee v. Escondido, U.S.(1992) (draft op., at 13-17).

[37]IV

As indicated above, theDistrict Court assumed that

under Lugar v. EdmondsonOil Co., 457 U.S. 922 (1982),Cole was liable under 1983for invoking the state replevinunder bond statute, andintimated that, but did notdecide whether, Robbins alsowas subject to 1983liability. The Court ofAppeals never revisited thisquestion, but instead

concluded only that


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respondents were entitled toqualified immunity at leastfor conduct prior to thestatute's invalidation. Because

we overturn this judgment,we must remand since thereremains to be determined, atleast, whether Cole andRobbins, in invoking thereplevin statute, acted undercolor of state law within themeaning of Lugar, (supra) .The decision of the Court ofAppeals is reversed and thecase is remanded forproceedings consistent withthis opinion.

[39]It is so ordered.

[40]

JUSTICE KENNEDY, withwhom JUSTICE SCALIA

joins, Concurring.

[41]

I join the opinion of the Courtbut find that a further andseparate statement of myviews is required.

[42]

I agree with what THECHIEF JUSTICE writes inDissent respecting thehistorical origins of ourqualified immunity

jurisprudence but submit that

the question presented to usrequires that we reverse the

judgment, as the majorityholds. Indeed, the resultreached by the Court is quiteconsistent, in my view, with aproper application of thehistory THE CHIEFJUSTICE relates.

Both the Court and the

Dissent recognize that our


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original decisions recognizingdefenses and immunities tosuits brought under 42 U.S.C. 1983 rely on analogous

limitations existing in thecommon law when 1983was enacted. See ante, at 5-6;post, at 1-2. In Tenney v.Brandhove, 341 U.S. 367,376 (1951) we held that 1983 had not eradicated theabsolute immunity grantedlegislators under the commonlaw. And in Pierson v. Ray,386 U.S. 547, 555-557(1967), we recognized thatunder 1983 police officerssued for false arrest hadavailable what we describedas a "defense of good faithand probable cause," basedon their reasonable belief thatthe statute under which theyacted was constitutional. Id.,at 557. Pierson allowed thedefense because with respectto the analogous

[44]

common-law tort, the Courtdecided that officers hadavailable to them a similardefense. The good faith andprobable cause defenseevolved into our modernqualified-immunity doctrine.Ante, at 7-8.

Our immunity doctrine isrooted in historical analogy,based on the existence ofcommon-law rules in 1871,rather than in "freewheelingpolicy choices." Malley v.Briggs, 475 U.S. 335, 342(1986). In cases involvingabsolute immunity we adhereto that view, grantingimmunity to the extent

consistent with historical


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practice. Id.; Burns v. Reed,500 U.S. , (1991) (slip op., at7); Haferv. Melo, 502 U.S. ,(1991) (slip op., at 7). In the

context of qualified immunityfor public officials, however,we have diverged to asubstantial degree from thehistorical standards. InHarlow v. Fitzgerald, 457U.S. 800 (1982), we"completely reformulatedqualified immunity alongprinciples not at all embodiedin the common law, replacingthe inquiry into subjectivemalice so frequently requiredat common law with anobjective inquiry into thelegal reasonableness of theofficial action." Anderson v.Creighton, 483 U.S. 635, 645(1987). The transformationwas justified by the specialpolicy concerns arising frompublic officials' exposure torepeated suits. Harlow,

(supra) , at 813-814; ante, at7-8. The Dissent in today'scase argues that similarconsiderations justify atransformation of common-law standards in the contextof private-party defendants.Post, at 4-5. With this Icannot agree.

We need not decide whether

or not it was appropriate forthe Court in Harlow to departfrom history in the name ofpublic policy, reshapingimmunity doctrines in light ofthose policy considerations.But I would not extend thatapproach to other contexts.Harlow was decided at a timewhen the standards applicableto summary judgment made it

difficult for a defendant to


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secure summary judgmentregarding a factual questionsuch as subjective intent,even when the plaintiff bore

the burden of proof on thequestion; and in Harlow werelied on that fact in adoptingan objective standard forqualified immunity. 457 U.S.,at 815-819. However,subsequent clarifications tosummary-judgment law havealleviated that problem, byallowing summary judgmentto be entered against anonmoving party "who failsto make a showing sufficientto establish the existence ofan element essential to thatparty's case, and on whichthat party will bear the burdenof proof at trial." CelotexCorp. v. Catrett, 477 U.S.317, 322 (1986). Under theprinciples set forth in Celotexand related cases, the strengthof factual allegations such as

subjective bad faith can betested at the summary-

judgment stage.

[47]

It must be remembered thatunlike the common-lawJudges whose doctrines weadopt, we are devisinglimitations to a remedialstatute, enacted by theCongress, which "on its face

does not provide for anyimmunities." Malley, (supra) ,at 342 (emphasis in original).We have imported common-law doctrines in the pastbecause of our Conclusionthat the Congress whichenacted 1983 acted in lightof existing legal principles.Owen v. City ofIndependence, 445 U.S. 622,

637-638 (1980). That


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suggests, however, that wemay not transform whatexisted at common law basedon our notions of policy or

efficiency.

[48]

My Conclusions are a mereconsequence of the historicalprinciples described in theopinion of THE CHIEFJUSTICE. The common-lawtort actions most analogous tothe action commenced herewere malicious prosecutionand abuse of process. Post, at

1. In both of the common-lawactions, it was essential forthe plaintiff to prove that thewrong doer acted with maliceand without probable cause.Post, at 1, n. 1. As THECHIEF JUSTICE states, it issomething of a misnomer todescribe the common law ascreating a good faith defense; we are in fact concerned

with the essence of the wrongitself, with the essentialelements of the tort. Themalice element required theplaintiff to show that thechallenged action wasundertaken with an unlawfulpurpose, though it did notrequire a showing of ill willtowards the plaintiff. J.Bishop, Commentaries onNon-Contract Law 232, p.

92 (1889). To establish theabsence of probable cause, aplaintiff was required toprove that a reasonableperson, knowing what thedefendant did, would nothave believed that theprosecution or suit was well-grounded, or that thedefendant had in fact actedwith the belief that the suit or

prosecution in question was


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without probable cause. Id., 239, at 95. Our cases on thesubject, beginning withHarlow v. Fitzgerald, diverge

from the common law in twoways. First, as THE CHIEFJUSTICE acknowledges,modern qualified immunitydoes not turn upon thesubjective belief of thedefendant. Post, at 3-4, n. 2.Second, the immunitydiverges from the common-law model by requiring thedefendant, not the plaintiff, tobear the burden of proof onthe probable cause issue.(supra) ,at 3.

[49]

The decision to impose theserequirements under a rule ofimmunity has implications,though, well beyond a meredetermination that one partyor the other is in a betterposition to bear the burden of

proof. It implicates as wellthe law's definition of thewrong itself. At common lawthe action lay because theessence of the wrong was aninjury caused by a suit orprosecution commencedwithout probable cause orwith knowledge that it wasbaseless. To cast the issue interms of immunity, however,is to imply that a wrong was

committed but that it cannotbe redressed. The differenceis fundamental, for at stake isthe concept of what societyconsiders proper conduct andwhat it does not. Beneath thenomenclature lieconsiderations of substance.

Harlow was cast as an

immunity case, involving as


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[50]

it did suit against officers ofthe Government. Andimmunity, as distinct, say,from a defense on the merits

or an element of theplaintiff's cause of action, is alegal inquiry, decided by thecourt rather than a jury, andon which an interlocutoryappeal is available todefendants. Mitchell v.Forsyth, 472 U.S. 511 (1985).Whether or not it is correct todiverge in these respects fromthe common-law model whengovernmental agents are thedefendants, we ought not toadopt an automatic rule thatthe same analysis applies insuits against private persons.See ante, at 8, n. 2. Bycasting the rule as animmunity, we imply theunderlying conduct wasunlawful, a most debatableproposition in a case where aprivate citizen may have

acted in good-faith relianceupon a statute. And as wehave defined the immunity,we also eliminate from thecase any demonstration ofsubjective good faith. Underthe common law, however, ifthe plaintiff could provesubjective bad faith on thepart of the defendant, he hadgone far towards provingboth malice and lack of

probable cause. Moreover,the question of thedefendant's beliefs wasalmost always one for the

jury. Stewart v. Sonneborn,98 U.S. 187, 194 (1879).

It is true that good faith maybe difficult to establish in theface of a showing that from

an objective standpoint no


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reasonable person could haveacted as the defendant did,and in many cases the resultwould be the same under

either test. This is whyStewart describes theinstances where the probablecause turns on subjectiveintent as the exceptional case.Ibid.; post, at 3-4, n. 2. Thatdoes not mean, however, thatwe may deprive plaintiffs ofthe opportunity to make theircase. In some caseseliminating the defense basedon subjective good faith canmake a real difference, andagain the instant case ofalleged reliance on a statutedeemed valid provides theexample. It seemsproblematic to say that adefendant should be relievedof liability under someautomatic rule of immunity ifobjective reliance upon astatute is reasonable but the

defendant in fact hadknowledge of its invalidity.Because the burden of proofon this question is theplaintiff's, the question maybe resolved on summary

judgment if the plaintiffcannot come forward withfacts from which bad faithcan be inferred. But thequestion is a factual one, anda plaintiff may rely on

circumstantial rather thandirect evidence to make hiscase. Siegert v. Gilley, 500U.S. , (1991 (KENNEDY, J.,Concurring in judgment). Therule of course also works inreverse, for the existence of astatute thought valid ought toallow a defendant to arguethat he acted in subjectivegood faith and is entitled to

exoneration no matter what


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the objective test is.

[52]

The distinction I draw is

important because there issupport in the common lawfor the proposition that aprivate individual's relianceon a statute, prior to a judicialdetermination ofunconstitutionality, isconsidered reasonable as amatter of law; and thereforeunder the circumstances ofthis case, lack of probablecause can only be shown

through proof of subjectivebad faith. Birdsall v. Smith,158 Mich. 390, 394, 122N.W. 626, 627 (1909). Thusthe subjective elementdismissed as exceptional bythe Dissent may be the rulerather than the exception.

I join the opinion of the Court

because I believe there isnothing contrary to what Isay in that opinion. See ante,at 10-11 ("we do notforeclose the possibility thatprivate defendants faced with 1983 liability . . . could beentitled to an affirmativedefense based on good faithand/or probable cause or that 1983 suits against private . .. parties could require

plaintiffs to carry additionalburdens"). Though theydescribed the issue beforethem as "good faithimmunity," both the DistrictCourt and the Court ofAppeals treated the questionas one of law. App. 12-14;928 F.2d 718, 721-722 (CA51991). The Court of Appealsin particular placed heavy

reliance on the policy


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[53]

considerations favoring a rulethat citizens may rely onstatutes presumed to be valid.Ibid. The latter inquiry, as

Birdsall recognizes however,goes mainly to the questionof objective reasonableness. Ido not understand either theDistrict Court or the Court ofAppeals to make anunequivocal finding that therespondents before us actedwith subjective good faithwhen they filed suit under theMississippi replevin statute.Furthermore, the question onwhich we granted certiorariwas the narrow one ofwhether private defendants in 1983 suits are entitled to thesame qualified immunityapplicable to public officials,ante, at 10, which of coursewould be subject to theobjective standard of Harlowv. Fitzgerald. Under my viewthe answer to that question is

no. Though it might later bedetermined that there is notriable issue of fact to savethe plaintiff's case in thematter now before us, onremand it ought to be open tohim at least in theory to arguethat the defendant's bad faitheliminates any reliance on thestatute, just as it ought to beopen to the defendant toshow good faith even if some

construct of a reasonable manin the defendant's positionwould have acted in adifferent way.

[54]

So I agree the case must beremanded for furtherproceedings.

THE CHIEF JUSTICE, with


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[55]whom JUSTICE SOUTERand JUSTICE THOMAS

join, Dissenting.

[56]

The Court notes that we haverecognized an immunity inthe 1983 context in twocircumstances. The first iswhen a similarly situateddefendant would haveenjoyed an immunity atcommon law at the time 1983 was adopted (ante, at 5).The second is when importantpublic policy concerns

suggest the need for animmunity (ante, at 8-9).Because I believe that bothrequirements, as explained inour prior decisions, aresatisfied here, I Dissent.

[57]

First, I think it is clear that atthe time 1983 was adopted,there generally was available

to private parties a good-faithdefense to the torts ofmalicious prosecution andabuse of process. *fn1 Seeauthorities cited ante, at 6;Malley v. Briggs, 475 U.S.335, 340-341 (1986) (notingthat the generally acceptedrule at common law was thata person would be held liableif the complaint was mademaliciously and without

probable cause"); Pierson v.Ray, 386 U.S. 547, 555(1967) (noting that atcommon law a police officersued for false arrest can relyon his own goodfaith inmaking the arrest). And whilethe Court is willing to assumeas much (ante, at 7), it thinksthis insufficient to sustainrespondents' claim to an

immunity because the


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"qualified immunity"respondents' seek is notequivalent to such a"defense" (ante, at 7-8).

[58]

But I think the Court errs insuggesting that theavailability of a good-faithcommon law defense at thetime of 1983's adoption isnot sufficient to support theirclaim to immunity. The caseon which respondentsprincipally rely, Pierson,considered whether a police

officer sued under 1983 forfalse arrest could rely on ashowing of good-faith inorder to escape liability. Andwhile this Court concludedthat the officer could rely onhis own goodfaith, based inlarge part on the fact that agood-faith defense had beenavailable at common law, theCourt was at best ambiguous

as to whether it wasrecognizing a "defense" or an"immunity." Compare 386U.S., at 556 (criticizing Courtof Appeals for concludingthat no immunity" wasavailable) with id., at 557(recognizing a good-faith"defense"). Any initialambiguity, however, hascertainly been eliminated bysubsequent cases; there can

be no doubt that it is aqualified immunity to whichthe officer is entitled. See,Malley, (supra) , at 340.Similarly, in Wood v.Strickland, 420 U.S. 308, 318(1975), we recognized that,"although there have beendiffering emphases andformulations of the common-law immunity," the general

recognition under state law


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that public officers areentitled to a good-faithdefense was sufficient tosupport the recognition of a

1983 immunity.

[59]

Thus, unlike the Court, Ithink our prior precedentestablishes that ademonstration that a good-faith defense was available atthe time 1983 was adopteddoes, in fact, providesubstantial support for acontemporary defendant

claiming that he is entitled toqualified immunity in theanalogous 1983 context.While we refuse to recognizea common law immunity if 1983's history or purposecounsel against applying it,ante, at 6, I see no suchhistory or purpose that wouldso counsel here.

Indeed, I am at a loss tounderstand what isaccomplished by today'sdecision -- other than aneedlessly fastidiousadherence to nomenclature --given that the Courtacknowledges that a good-faith defense will be availablefor respondents to assert onremand. Respondents

presumably will be requiredto show the traditionalelements of a good-faithdefense -- either that theyacted without malice or thatthey acted with probablecause. See n.1, (supra) ;Stewart v. Sonneborn, 98U.S. 187, 194 (1879); W.Prosser, Handbook of theLaw of Torts 120, p.854

(4th ed. 1971). The first


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[60]

element, "maliciousness,"encompasses an inquiry intosubjective intent for bringingthe suit. Stewart, supra, at

192-193; Prosser, (supra) , 120, p.855. This quite oftenincludes an inquiry into thedefendant's subjective beliefas to whether he believedsuccess was likely. See, e.g.,2 C. Addison, Law of Torts 1, para. 854 (1876) (" Proofof the absence of belief in thetruth of the charge by theperson making it . . . is almostalways involved in the proofof malice"). But the secondelement, probable cause,"focuses principally onobjective reasonableness.Stewart, supra, at 194;Prosser, (supra) , 120,p.854. Thus, respondents cansuccessfully defend this suitsimply by establishing thattheir reliance on theattachment statute was

objectively reasonable forsomeone with theirknowledge of thecircumstances. But this isprecisely the showing thatentitles a public official toimmunity. Harlow v.Fitzgerald, 457 U.S. 800, 818(1982) (official must showhis action did not "violateclearly established statutoryor constitutional rights of

which a reasonable personwould have known"). *fn2Nor do I see any reason thatthis "defense" may not beasserted early in theproceedings on a motion forsummary judgment, just as aclaim to qualified immunitymay be. Provided that thehistorical facts are not indispute, the presence or

absence of "probable cause"


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has long been acknowledgedto be a question of law.Stewart, supra, at 193-194; 2Addison, (supra) , 1, para.

853, n.(p); J. Bishop,Commentaries on Non-Contract Law 240, p.95(1889). And so I see noreason that the trial Judgemay not resolve a summary

judgment motion premised onsuch a good-faith defense,

just as we have encouragedtrial Judges to do with respectto qualified immunity claims.Harlow, supra, at 818. Thus,private defendants who haveinvoked a state attachmentlaw are put in the sameposition whether werecognize that they areentitled to qualified immunityor if we instead recognize agood-faith defense. Perhapsthe Court believes that thedefense" will be lessamenable to summary

Disposition than will the"immunity;" perhaps itbelieves the defense will bean issue that must besubmitted to the jury (seeante, at 11, referring to casessuch as this "proceeding totrial"). While I can see noreason why this would be so(given that probable cause isa legal question), if it is true,today's decision will only

manage to increase litigationcosts needlessly for haplessdefendants.

This, in turn, leads to thesecond basis on which wehave previously recognized aqualified immunity - - reasonsof public policy. Assumingthat some practical difference

will result from recognizing a


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[61]

defense but not an immunity,I think such a step is neitherdictated by our priordecisions nor desirable. It is

true, as the Court points out,that in abandoning a strictlyhistorical approach to 1983immunities we have oftenexplained our decision torecognize an immunity interms of the special needs ofpublic officials. But thosecases simply do not answer --because the question was notat issue -- whether similar (oreven completely unrelated)reasons of public policywould warrant immunity forprivate parties as well.

[62]

I believe there are suchreasons. The normalpresumption that attaches toany law is that society will bebenefitted if private partiesrely on that law to provide

them a remedy, rather thanturning to some form ofprivate, and perhaps lawless,relief. In denying immunityto those who reasonably relyon presumptively valid statelaw, and thereby discouragingsuch reliance, the Courtexpresses confidence thattoday's decision will not"unduly impair," ibid., thepublic interest. I do not share

that confidence. I would havethought it beyondperadventure that there isstrong public interest inencouraging private citizensto rely on valid state laws ofwhich they have no reason todoubt the validity. Buller v.Buechler, 706 F.2d 844, 851(CA8 1983); FolsomInvestment Co. v. Moore, 681

F.2d 1032, 1037-1038 (CA5


35/38

1982).

[63]

Second, as with the police

officer making an arrest, Ibelieve the private plaintiff'slot is "not so unhappy" thathe must forgo recovery ofproperty he believes to beproperly recoverable throughavailable legal processes or tobe "mulcted in damages"Pierson, 386 U.S., at 555, ifhis belief turns out to bemistaken. For as one Court ofAppeals has pointed out, it is

at least passing strange toconclude that privateindividuals are acting " undercolor of law" because theyinvoke a state garnishmentstatute and the aid of stateofficers, see Lugar v.Edmonson Oil Co., 457 U.S.922 (1982), but yet denythem the immunity to whichthose same state officers are

entitled, simply because theprivate parties are not stateemployees. Buller, supra, at851. While some of thestrangeness may be laid at thedoorstep of our decision inLugar, see 457 U.S., at 943(Burger, C. J., Dissenting);and id., at 944-956 (Powell,J., Dissenting), there is noreason to proceed still furtherdown this path. Our 1983

jurisprudence has gone veryfar afield indeed, when itsubjects private parties togreater risk than their publiccounterparts, despite the factthat 1983's historic purposewas "to prevent state officialsfrom using the cloak of theirauthority under state law toviolate rights protectedagainst state infringement."

Id., at 948 (emphasis added).


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See also, Monroe v. Pape,365 U.S. 167, 175-176(1961).

[64]

Because I find today'sdecision dictated neither byour own precedent nor by anysound considerations ofpublic policy, I Dissent.

Opinion Footnotes

[65]

*fn1 The State amended thestatute in 1990. Miss. CodeAnn. 11-37-101 (Supp.1991).

*fn2 In arguing thatrespondents are entitled toqualified immunity underHarlow v. Fitzgerald, 457U.S. 800 (1982), the Dissentmixes apples and oranges.Even if we were to agree withthe Dissent's proposition thatelements a plaintiff wasrequired to prove as part ofher case-in-chief couldsomehow be construed as adefense,'" post, at 1, n. 1, andthat this defense" entitles

private citizens to someprotection from liability, wecannot agree that respondentsare entitled to immunity fromsuit under Harlow. One couldreasonably infer from the factthat a plaintiff's maliciousprosecution or abuse ofprocess action failed if shecould not affirmativelyestablish both malice andwant of probable cause that
http://www.versuslaw.com/plweb-cgi/fastweb.exe?getdoc+view1+SCT+191989+3+wAAA+%28Hafer%26v%26melo%26or%26112%26s.ct.%26358%26%281991%29%26%29#S*fn2http://www.versuslaw.com/plweb-cgi/fastweb.exe?getdoc+view1+SCT+191989+3+wAAA+%28Hafer%26v%26melo%26or%26112%26s.ct.%26358%26%281991%29%26%29#S*fn1


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[66]

plaintiffs bringing ananalogous suit under 1983should be required to make asimilar showing to sustain a

1983 cause of action.Alternatively, if one acceptsthe Dissent's characterizationof the common law asestablishing an affirmativedefense" for privatedefendants, then one couldalso conclude that privateparties sued under 1983should likewise be entitled toassert an affirmative defensebased on a similar showing ofgood faith and/or probablecause. In neither case,however, is it appropriate tomake the Dissent's leap: thatbecause these common lawtorts partially included anobjective component --probable cause -- privatedefendants sued under 1983should be entitled to theobjectively-determined,

immediately-appealableimmunity from suit accordedcertain government officialsunder Harlow.

[67]

1 Describing the common lawas providing a "defense" issomething of a misnomer --under the common law it wasplaintiff's burden to establishas elements of the tort both

that the defendant acted withmalice and without probablecause. T. Cooley, Law ofTorts 184-185 (1879); J.Bishop, Commentaries onNon-Contract Law 225, p.90 (1889). Referring to thedefendant as having a good-faith defense is a usefulshorthand for capturingplaintiff's burden and the

related notion that a


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defendant could avoidliability by establishing eithera lack of malice or thepresence of probable cause.

[68]

2 There is perhaps one smalldifference between thehistoric common law inquiryand the modern qualifiedimmunity inquiry. Atcommon law, a plaintiff canshow the lack of probablecause either by showing thatthe actual facts did notamount to probable cause (an

objective inquiry) or byshowing that the defendantlacked a sincere belief thatprobable cause existed (asubjective inquiry). J. Bishop,Commentaries on Non-Contract Law 239, p.95.But relying on the subjectivebelief, rather than on anobjective lack of probablecause, is clearly exceptional.

See Stewart v. Sonneborn, 98U.S. 187, 194 (1879)(describing subjective basisfor finding lack of probablecause as exception to generalrule). I see no reason to baseour decision whether toextend a contemporary,objectively based qualifiedimmunity on the exceptionalcommon law case.

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howard wyatt v bill cole and john robbins private immunity when invoking state law 1992

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