Presented to President Clinton with the request to investigate corruption in Ohio and in the judicial system
Additional presentation in 1995 as the supporting document in the Letter to the President to order investigation into Ohio and federal corruption
NOTE Mr. President, that the Courts of these United States have gone to great length to instill English Law upon this Nation, one of the very Countries from which the Citizens whom formed this nation fled, partially for religious and other freedoms, but also because of the Laws to which they were being subjected.
You will note also that the U.S. Legislature attempted to ensure that NO party was above the Law of this United States, could deliberately violate citizens Rights, or participate in conspiracy to violate Law or citizens Rights.
42 USC 1980-2000, Amend. XIV sec.1, sec.2, indicating specific
need for Federal involvement and protection.
The Courts have apparently determined that they have the legal
right to now do so, the federal government apparently under the
assumption that because it is the government it need not supply
its duties. You should also note the Court states Criminal Action
is to addressed for deliberate violations of United States Law.
Which makes the Governments refusal to provide its legal duties a
violation of Law, in violation of its legal duties to its
citizens, and a fraudulent presentation to this American
Citizen.
partial legal search reference : public cdrom :::
This is presented as representative of what now occurs within
Americas legal system, note the references towards other
renderings. This is, of course, why the State of Ohio has gone to
such lengths to claim and protect its jurisdiction. If it had no
jurisdiction, then these partys who violated the law are common
criminals. By State and Federal Law, they are, they have
conspired to commit crimes against this Nation, its citizens, and
the parties involved.
____________________________________
ANNOTATION
SUPREME COURT'S VIEWS AS TO CIVIL LIABILITY OF JUDGES
55 L. Ed. 2d 850
TOTAL CLIENT-SERVICE LIBRARY(R) REFERENCES
15 Am Jur 2d, Civil Rights @ 269; 46 Am Jur 2d, Judges @@ 72 et seq.
10 Am Jur Pl & Pr Forms (Rev), False Imprisonment, Form 123 42 USCS
@ 1983 US L Ed Digest, Civil Rights @ 12.5; Judges @@ 14 et seq. ALR Digests,
Civil Rights @ 1.3; Judges @@ 32 et seq. L Ed Index to Annos, Judges ALR
Quick Index, Judges Federal Quick Index, Immunity from Prosecution; Judges
--------------------
CONTENTS:
To view a section or subsection, transmit p* and its number. Ex.,p*1 or
p*1a To view the Table-of-Cases, transmit p*cases
To view the Index (where available), transmit p*index
<pre>@ 1. Introduction
[a] Scope
[b] Related matters
@ 2. Summary
@ 3. Judges of courts of general or superior jurisdiction
[a] immunity for acts not done in "clear absence" of all
jurisdiction over subject matter
[b] --Effect of malice or corruption
@ 4. Judges of courts of limited or inferior
jurisdiction
@ 5. Requirement of "judicial" act for immunity
@ 6. Effect of Civil Rights Act of 1871 (42 USCS
@ 1983)
@ 7. Liability in particular cases
[*1] Introduction
[*1a] Scope
This annotation collects and analyzes decisions of the United States
Supreme Court in which the court has considered when, and to what extent,
a judge n1 is subject to civil liability because of acts performed in his
status as a judge.
- - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - -
PAGE 3 55 L. Ed. 2d 850, *1a
n1 For purposes of the annotation a "judge" is a public officer who
conducts or presides over a court of justice.
- - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -
[*1b]
Related matters
Supreme Court's construction of Civil Rights Act of 1871 (42 USCS @
1983) providing private right of action for violation of federal rights.
43 L Ed 2d 833.
Liability in damages under 8 USCS @ 47 for conspiring to deprive a
person of his civil rights. 95 L Ed 1261.
Civil liability of judicial officer for malicious prosecution or abuse
of process. 64 ALR3d 1251.
Allowance of damages to successful plaintiff or relator in mandamus.
73 ALR2d 903.
Libel and slander: findings, report, or the like of judge or person
acting in judicial capacity as privileged. 42 ALR2d 825.
--SUPP--
When is prosecutor entitled to absolute immunity from civil suit for
damages under 42 USCS @ 1983: post-Imbler cases. 67 ALR Fed 640.
Civil liability of witness in action under 42 USCS @ 1983 for
deprivation of civil rights, based on testimony given at pretrial
criminal proceeding. 94 ALR Fed 892.
Manner or extent of trial judge's examination of witnesses in civil
cases. 6 ALR4th 951.
Applicability of judicial immunity to acts of clerk of court under
state law. 34 ALR4th 1186.
Sowle, Qualified immunity in Section 1983 Cases: The Unresolved Issues
of the Conditions for its Use and the Burden of Persuasion. 55 Tulane L
Rev 326, February, 1981.
Auto-Cite(R): Cases and annotations referred to herein can be further
researched through the Auto-Cite(R) computer-assisted research service.
Use Auto-Cite to check citations for form, parallel references, prior and
later history, and annotation references.
[*2] Summary
The general rule of common law, which the Supreme Court early recognized,
is that judicial officers in general are not subject to civil liability
for judicial acts done within their jurisdiction (@ 3[a], infra). In the
several decisions of the Supreme Court involving a judge's immunity from
civil liability on the basis of his status as a judge, the Supreme Court
has drawn a distinction between judges of courts of general or superior
jurisdiction and those who are
PAGE 4 55 L. Ed. 2d 850, *2
judges of limited or inferior authority.
The court has often recognized that judges of courts of general or
superior jurisdiction are not subject to liability in a civil action for
judicial acts, even if done in excess of jurisdiction, so long as such judges
have not acted in the clear absence of all jurisdiction over the subject
matter (@ 3[a], infra). Moreover, the court has clearly settled that the
rule as to judges of courts of general jurisdiction is not subject to a
qualification which would abrogate immunity in instances where a judge
acted maliciously or corruptly (@ 3[b], infra).
With respect to judges of courts of limited or inferior jurisdiction,
on the other hand, the Supreme Court has indicated that judges of such
authority are immunized from civil liability for their judicial conduct
only when they act within their jurisdiction (@ 4, infra).
Whether under the rule for judges of courts of general jurisdiction or
under the rule for judges of courts of limited authority, a judge, in
order to be entitled to immunity from civil liability must have acted in
a "judicial" capacity (@ 5, infra); and, in regard to such "judicial" act
requirement the court has indicated that the factors to be taken into
account are twofold, involving consideration of, first, the nature of
the act itself, and, second, the expectation of the parties (@ 5, infra).
Of further note in regard to the immunity of judges from civil liability
is the Supreme Court's holding that the judicial immunity principle is
fully applicable in actions under @ 1 of the Civil Rights Act of 1871 (42
USCS @ 1983), which makes liable "every person" who, under color of state
law, deprives another person of his civil rights.
Thus far, in the several decisions in which it has determined the
question of the immunity of particular judges from civil liability, the
Supreme Court has found that under the facts and circumstances presented
in those cases, which cases have involved actions against judges arising
out of such matters as a judge's disbarment of an attorney and a judge's
ordering sterilization of a minor, judges were immune from civil suits.
[*3] Judges of courts of general or superior jurisdiction
[*3a] immunity for acts not done in "clear absence" of all jurisdiction
over subject matter
That judicial officers in general are not subject to civil liability
for judicial acts done within their jurisdiction was recognized by the
Supreme Court long ago, n2 and such rule, which is the common-law rule, n3
remains viable as a general statement of law. Regarding judges of courts
of general or superior jurisdiction, however, the court has subscribed to
a broad rule of judicial immunity, recognizing that such a judge is not
subject to liability in a civil action for his judicial acts, even if they
are in excess of his jurisdiction, so long as he has not acted in the
clear absence of all jurisdiction over the subject matter. Randall v Brigham
(1869) 74 US 523, 19 L Ed 285; Bradley v Fisher (1872) 80 US 335, 20 L Ed 646;
Spalding v Vilas (1896) 161 US 483, 40 L Ed 780, 16 S Ct 631; Alzua v
Johnson (1913) 231 US 106, 58 L Ed 142, 34 S Ct 27; Pierson v Ray (1967) 386
US 547, 18 L Ed 2d 288, 87 S Ct 1213; Stump v Sparkman (1978) 435 US 349,
55 L Ed 2d 331, 98 S Ct 1099, reh den (US) 56 L Ed 2d 795,
PAGE 5 55 L. Ed. 2d 850, *3a 98 S Ct 2862.
- - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n2 Wilkes v Dinsman (1849) 48 US 89, 12 L Ed 618; Randall v Brigham (1869)
74 US 523, 19 L Ed 285.
n3 Pierson v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct1213;
Imbler v Pachtman (1976) 424 US 409, 47 L Ed 2d 128, 96 SCt 984.
- - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -
Thus, in Bradley v Fisher (1872) 80 US 335, 20 L Ed 646, the Supreme
Court, observing that it is a general principle of the highest importance to
the proper administration of justice that a judicial officer, in exercising
the authority vested in him, shall be free to act upon his own convictions,
without apprehension of personal consequence to himself, noted that judges
of courts of superior or general jurisdiction are not liable to civil
actions for their judicial acts, even when such acts are in excess of their
jurisdiction. After explaining that such principle obtains in all countries
where there is any well-ordered system of jurisprudence, that it has been
the settled doctrine of the English courts for many centuries, and that it
has never been denied in the courts of the United States, the court
emphasized that the immunity granted to judges is not without limit, there
being a distinction between acts done in excess of jurisdiction and acts
performed in the clear absence of all jurisdiction over the subject matter.
Specifically, the court pointed out that where there is clearly no
jurisdiction over the subject-matter, any authority exercised is a usurped
authority, and for the exercise of such authority, when the want of jurisdiction
is known to the judge, no excuse is permissible, but that where jurisdiction
over the subject-matter is invested by law in the judge, or in the court
which he holds, the manner and extent to which the jurisdiction shall be
exercised are generally as much questions for his determination as any other
questions involved in the case, although upon the correctness of his
determination in these particulars the validity of his judgments may depend.
By way of illustration, the court stated that if a probate court,
invested only with authority over wills and the settlement of estates of
deceased persons, should proceed to try parties for public offenses,
jurisdiction over the subject of offenses being entirely wanting in the
court, and this being necessarily known to its judge, his commission would
afford no protection to him in the exercise of the usurped authority, but if,
on the other hand, a judge of a criminal court, invested with general criminal
jurisdiction over offenses committed within a certain district, should hold a
particular act to be a public offense, which is not by the law made an offense,
and proceed to the arrest and trial of a party charged with such act, or
should sentence a party convicted to a greater punishment than that authorized
by the law upon its proper construction, no personal civil liability for such
acts would attach to the judge, although those acts would be in excess of his
jurisdiction.
The court said that some of the most difficult and embarrassing questions
which a judicial officer is called upon to consider and determine relate to
his jurisdiction, or the manner in which the jurisdiction shall be exercised,
and that the same principle of exemption from liability which obtains for
errors committed in the ordinary prosecution of a suit, where there is
jurisdiction of both subject and person, applies in cases of this kind, and
for the same reasons.
PAGE 6 55 L. Ed. 2d 850, *3a
And noting that courts of superior or general jurisdiction are not liable
in civil actions for their judicial acts, even when such acts are in excess of
their jurisdiction, in Stump v Sparkman (1978) 435 US 349, 55 L Ed 2d 331, 98
S Ct 1099, reh den (US) 56 L Ed 2d 795, 98 S Ct 2862, the Supreme Court
explained that the necessary inquiry in determining whether a judge of such a
court is immune from suit is whether at the time he took the challenged action
he had jurisdiction over the subject matter before him.
Saying that the scope of the judge's jurisdiction must be construed broadly
where the issue is immunity from suit, the court explained that the judge will
not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority, but will be subject to liability
only when he has acted in the clear absence of all jurisdiction.
It was added that a judge of superior or general authority is absolutely
immune from liability for his judicial acts even if his exercise of authority
is flawed by the commission of grave procedural errors.
--SUPP--
Judicial immunity from suits for money damages can be overcome in only two
sets of circumstances, one of which is that judge is not immune for actions,
though judicial in nature, taken in complete absence of all jurisdiction.
Mireles v Waco (1991, US) 116 L Ed 2d 9, 112 S Ct 286.
[*3b] --Effect of malice or corruption
Although it was indicated in an early Supreme Court decision that the rule
immunizing judges of courts of general or superior jurisdiction from civil
liability for their judicial acts is subject to the possible qualification
that the judge must not have acted maliciously or corruptly, the court has
since expressly repudiated this language, and in the following cases recognized
that the rule of judicial immunity prevails even when malice or corruption is
alleged. Bradley v Fisher (1872) 80 US 335, 20 L Ed 646; Spalding v Vilas (1896)
161 US 483, 40 L Ed 780, 16 S Ct 631; Alzua v Johnson (1913) 231 US 106, 58 L
Ed 142, 34 S Ct 27; Pierson v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct
1213; Stump v Sparkman (1978) 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, reh den
(US) 56 L Ed 2d 795, 98 S Ct 2862.
Thus, although it had been stated in Randall v Brigham (1869) 74 US 523, 19 L
Ed 285, that judges of superior or general authority are not liable to civil
actions for their judicial acts, even when such acts are in excess of their
jurisdiction, "unless, perhaps, when done maliciously or corruptly," the court
in Bradley v Fisher (1872) 80 US 335, 20 L Ed 646, concluded that the quoted
qualifying words were inserted only to insure that the rule was not phrased
in terms broader than necessary for the case under consideration, that such
qualifying words were not necessary to a correct statement of the law, and
that judges of courts of superior or general jurisdiction are not liable to
civil actions for their judicial acts, even when such acts are in excess of
their jurisdiction and are alleged to have been done maliciously or corruptly.
The court said that the exemption of such judges from civil liability cannot
be affected by the motives with which their judicial acts are performed, noting
that allegations of malicious or corrupt motives could always be made, and if
motives could be inquired into, judges would be subjected to vexatious
litigation, whether the motives had or had not any real existence. It was
observed that against the consequences of erroneous or irregular action by
judges, from whatever motives proceeding, the law has provided private parties
PAGE 7 55 L. Ed. 2d 850,
*3b
with numerous remedies, such as proceedings for suspension or removal, but
that if civil actions could be maintained against a judge because a losing
party should see fit to allege that the acts of the judge were done with
partiality, or that they were done maliciously or corruptly, the protection
essential to judicial independence would be entirely swept away.
In Pierson v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213, the court
observed that the immunity of judges from liability for damages for acts
committed within their judicial jurisdiction applies even when the judge is
accused of acting maliciously and corruptly, since the doctrine exists not for
the protection or benefit of a malicious or corrupt judge, but for the benefit
of the public, whose interest it is that the judges should be at liberty to
exercise their functions with independence and without fear of consequences.
It was said that a judge's errors may be corrected on appeal, but he should
not have to fear that unsatisfied litigants may hound him with litigation
charging malice or corruption.
And it was said in Stump v Sparkman (1978) 435 US 349, 55 L Ed 2d 331, 98
S Ct 1099, reh den (US) 56 L Ed 2d 795, 98 S Ct 2862, that judges of courts
of superior or general jurisdiction are not liable in civil actions for their
judicial acts, even when such acts are in excess of their jurisdiction and are
alleged to have been done maliciously or corruptly. Since it is only when such
a judge has acted in the clear absence of all jurisdiction that he loses this
immunity, the court noted, a judge will not be subject to liability simply
because the action he took was in error or was done maliciously.
--SUPP--
Because judicial immunity from suits for money damages is immunity from suit,
not just from ultimate assessment of damages, such immunity is not overcome by
allegations of bad faith or malice, existence of which cannot be resolved
without engaging in discovery or trial. Mireles v Waco (1991, US) 116 L Ed
2d 9, 112 S Ct 286.
[*4] Judges of courts of limited or inferior jurisdiction
In contrast to the rule regarding judges of courts of general or superior
jurisdiction, discussed in @ 3[a], supra, the Supreme Court has said that
judges of limited and inferior authority are immunized from civil liability
for their judicial conduct only when they act within their jurisdiction.
Thus, although noting that judges of superior or general authority are not
subject to civil liability for their judicial acts, even where those acts are
in excess of their jurisdiction, the court, in Randall v Brigham (1869) 74 US
523, 19 L Ed 285, subscribed to a different rule with respect to judges of
limited and inferior authority, observing that such judges are protected from
civil liability "only when they act within their jurisdiction."
See also Alzua v Johnson (1913) 231 US 106, 58 L Ed 142, 34 S Ct 27, where,
in rejecting the contention that a justice of the Supreme Court of the
Philippine Islands should be held civilly liable for rendering a false judgment,
in view of the existence of a statute insulating a "judge, justice of the
peace, or assessor" from civil liability only with respect to "any judicial
action or judgment rendered by him in good faith, and within the limits of his
legal powers and jurisdiction," the court observed that the statute had in
mind
PAGE 8 55 L. Ed. 2d 850, *4
judges of inferior courts, "as to whom a different rule has been held to
prevail."
[*5] Requirement of "judicial" act for immunity
It has been recognized in virtually every decision discussed in this
annotation, expressly or by necessary implication, that in order for a judge
to possess any sort of immunity from civil liability for his acts, the acts
must be "judicial" in nature. In the following decision, the court elaborated
upon this requirement of a "judicial" act.
Thus, observing that it is only for acts performed in his "judicial" capacity
that a judge is immune from civil liability, the court in Stump v Sparkman
(1978) 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, reh den (US) 56 L Ed 2d 795,
98 S Ct 2862, explained that the factors determining whether an act by a judge
is a "judicial" one relate first, to the nature of the act itself, that is,
whether it is a function normally performed by a judge, and second, to the
expectations of the parties, that is, whether they dealt with the judge in his
judicial capacity.
--SUPP--
Because a state-court judge was acting in an administrative capacity when he
demoted and discharged a female probation officer, the judge does not have
absolute immunity from a damages suit, under 42 USCS @ 1983, in which the former
probation officer alleges that the judge demoted and discharged her on account
of her sex, in violation of the equal protection clause of the Federal
Constitution's Fourteenth Amendment, for (1) although the judge's decisions at
issue may have been important in providing the necessary conditions of a sound
judicial adjudicative system, the decisions were not themselves judicial or
adjudicative;
(2) a judge who hires or fires a probation officer cannot be meaningfully
distinguished from an executive branch official who is responsible for making
such employment decisions; (3) the alleged influence on the quality of judicial
decisions, by the threat of vexatious lawsuits by disgruntled ex-employees, in
no way serves to distinguish judges from other public officials who hire and
fire subordinates, and does not create a great enough danger to justify absolute
immunity; and (4) it is not significant that, under the state's law, only a
judge can hire or fire probation officers, for it would lift form over substance
to conclude that, because the judge acted within the scope of his authority,
such employment decisions are brought within the court's "jurisdiction," or
converted into "judicial acts." Forrester v White (1988, US) 98 L Ed 2d 555,
108 S Ct 538.
With respect to allegations that an official act of a defendant judge was the
product of a corrupt conspiracy involving the bribery of the judge, private
parties who corruptly conspire with a judge in connection with such conduct are
acting under color of law, for purposes of 42 USCS @ 1983; it is of no
consequence in this respect that the judge himself is immune from damages
liability, for (1) immunity does not change the character of the judge's action
or that of the judge's alleged coconspirators, and (2) the judge's immunity is
dependent upon the challenged conduct being an official judicial act within the
judge's statutory jurisdiction, broadly construed. National Collegiate Athletic
Asso. v Tarkanian (1988, US) 102 L Ed 2d 469, 109 S Ct 454.
PAGE 9 55 L. Ed. 2d 850, *5
Judicial immunity from suits for money damages can be overcome in only two sets
of circumstances, one of which is that judge is not immune for nonjudicial actions,
that is, for actions not taken in judge's judicial capacity; judge will not be
deprived of immunity because action that judge took was in error or in excess of
authority; accordingly, relevant inquiry is into nature and function of act, not
act itself--that is, relevant inquiry is to look to particular act's relation to
general function normally performed by judge; it is nature of act performed, not
identity of actor who performed it, that informs court's analysis of judicial
immunity. Mireles v Waco (1991, US) 116 L Ed 2d 9, 112 S Ct 286.
[*6] Effect of Civil Rights Act of 1871 (42 USCS @ 1983)
The Supreme Court has ruled that the rule of judicial immunity is applicable in
actions under @ 1 of the Civil Rights Act of 1871 (42 USCS @ 1983), which makes
liable "every person" who, under color of state law, deprives another person of
his civil rights.
Thus, in Pierson v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213, the
court said that it did not believe that the settled principle of law immunizing
judges from liability for damages for acts committed within their judicial
jurisdiction was abolished by 42 USCS @ 1983, noting that the legislative record
gave no clear indication that Congress meant to abolish wholesale all common-law
immunities. Observing that it had previously held that the immunity of legislators
for acts within the legislative role was not abolished, the court explained that
the immunity of judges for acts within the judicial role was equally well
established, and that it was to be presumed that Congress would have specifically
so provided had it wished to abolish the doctrine.
To the same effect, as recognizing that the doctrine of judicial immunity is
applicable in suits under @ 1983, is Stump v Sparkman (1978) 435 US 349, 55 L Ed
2d 331, 98 S Ct 1099, reh den (US) 56 L Ed 2d 795, 98 S Ct 2862.
--SUPP--
Virginia Supreme Court and its members was held subject to suit under 42 USCS
@ 1983 and to award of attorneys' fees under 42 USCS @ 1988 in its enforcement
capacity as to prohibition against attorney advertising, but immune from suit
and not subject to award of fees in its legislative capacity of promulgating
Code of Professional Responsibility rule strictly prohibiting advertising of
attorneys. Supreme Court of Virginia v Consumers Union of United States, Inc.
(1980) 446 US 719, 64 L Ed 2d 641, 100 S Ct 1967.
As also recognizing that doctrine of judicial immunity applies to 42 USCS @
1983 suit for money damages, see Mireles v Waco (1991, US) 116 L Ed 2d 9, 112 S
Ct 286.
[*7] Liability in particular cases
The Supreme Court has held that particular judges were immune from civil
liability because of their status as judges under the facts and circumstances
of the following cases.
Explaining that judges of courts of superior or general authority are not
liable to civil action for their judicial acts, even when such acts are in
excess of their jurisdiction, the Supreme Court, in Randall v Brigham (1869)
PAGE 10 55 L. Ed. 2d 850, *7
74 US 523, 19 L Ed 285, held that a justice of the Superior Court of
Massachusetts was immune from suit by an attorney who sued the judge for the
judge's allegedly wrongful removal of the attorney from the Massachusetts bar.
In support of its decision the Supreme Court noted that the Superior Court of
Massachusetts was a court of general jurisdiction, empowered by statute to admit
attorneys and counselors to practice in the courts of the state, and to remove
them, "for any deceit, malpractice, or other gross misconduct," and that both
the admission and the removal of attorneys are judicial acts.
A justice of the Supreme Court of the District of Columbia was not liable to
answer for damages in an action brought by an attorney alleging that he had
wrongfully been disbarred by the justice, held the Supreme Court, in Bradley v
Fisher (1872) 80 US 335, 20 L Ed 646. Explaining that the attorney--who had been
disbarred because of alleged threats of personal chastisement made to the
presiding justice of the criminal court of the district as the justice was
descending from the bench after a recess in a criminal trial in which the
attorney was a defense counsel--had been removed from the rolls of the
District's criminal court, not from the bar of the District's Supreme Court, and
elucidating the rule of judicial immunity to be that a judge of a court of
superior or general
authority is not liable in a civil action for judicial acts within his
jurisdiction, even when in excess of jurisdiction, and notwithstanding
allegations that the judge acted maliciously or corruptly, the Supreme Court
pointed out that the criminal court of the district, as a court of general
criminal jurisdiction, had the_power to strike the attorney's name from its
rolls, and that although the justice had erred in not citing the attorney,
before making an order striking the attorney's name, so that the attorney could
show cause why the order should not be made and could make an explanation,
defense, or apology, such erroneous manner in which jurisdiction was exercised,
although it might have affected the validity of the act, did not make the
justice's act any less a judicial act.
It was held, in Alzua v Johnson (1913) 231 US 106, 58 L Ed 142, 34 S Ct 27, that
the doctrine of immunity of judges from suit because of their judicial acts
protected a justice of the Supreme Court of the Philippine Islands against a suit
to recover damages upon the alleged grounds that, without jurisdiction, the judge
entered a judgment against the plaintiff contrary to an order of the full court,
made a false statement of fact in the opinion by which the full court ratified
the change, and inserted in the opinion of the full court in a second suit various
false statements, including one attributing to the first judgment an effect that
it could not have in the circumstances--all with full knowledge and intent to
injure the plaintiff.
Having noted various difficulties as to the suit against the judge that were
additional to the question of immunity, among others, that the justices of the
Supreme Court of the Philippines had expressed the view that the statements in
the former opinions at issue were right and had rejected the suggestion that
they were deceived when they rendered the judgments, the court stated that the
immunity of the justice from suit was the same as that of judges in the United
States, which was established beyond dispute.
The court also rejected a contention that the justice could be sued because of
a statute insulating a "judge, justice of the peace, or assessor" from civil
liability only with respect to "any judicial action or judgment rendered by him
in good faith, and within the limits of his legal powers and jurisdiction," the
court observing that the statute had in mind judges of inferior courts, "as to
whom a different rule has been held to prevail."
PAGE 11 55 L. Ed. 2d 850, *7
In Pierson v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213, it was held
that a Mississippi municipal police justice was immune from liability in an action
for damages brought against him and others under the common law of false arrest
and under @ 1 of the Civil Rights Act of 1871 (42 USCS @ 1983) by individuals whom
the judge had convicted of violating a state breach-of-peace statute, such damage
action having been brought when the individuals, on appeal from the municipal
judge's decision, had been vindicated in regard to their convictions.
Noting that the rule of immunity of judges from liability for acts committed
within their judicial jurisdiction applies even when the judge is accused of acting
maliciously and corruptly, the court pointed out that the record was barren of any
proof or specific allegation that the judge played any role other than to adjudge
the individuals guilty when their cases came before his court.
Additionally, the court_found that the rule of judicial immunity was not abolished
by the civil rights statute under which the judge had been sued.
Also, in Stump v Sparkman (1978) 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, reh
den (US) 56 L Ed 2d 795, 98 S Ct 2862, it was held that a judge of the Circuit Court
of DeKalb County, Indiana, a court of general jurisdiction, who had approved a
mother's petition to have her "somewhat retarded" minor daughter sterilized, was
immune from damages liability when sued a few years later by the daughter and her
husband in a federal court action under 42 USCS @ 1983.
Observing that judges of courts of superior or general jurisdiction are not liable
in civil actions for their judicial acts, even when such acts are in excess of their
jurisdiction and are alleged to have been done maliciously or corruptly, the court
ruled that the judge was immune from damages liability under 42 USCS @ 1983, even if
the approval of the sterilization petition was in error, since in view of the state
court's broad general jurisdiction under state statutes, the judge had jurisdiction
to act on the petition and did not act in the clear absence of all jurisdiction,
there being no state statute or case law prohibiting the state court from considering
sterilization petitions presented by the parents of minors, and neither any procedural
errors which the judge might have committed nor the lack of a special statute which
authorized his approval of the sterilization petition rendering him liable in damages.
Moreover, the court determined that the judge's approval of the sterilization
petition was a "judicial" act entitling him to immunity from liability, since even
though the petition had not been given a docket number, had not been placed on file
with the clerk's office, and had been approved in an ex parte proceeding without notice
to the minor, without a hearing, and without the appointment of a guardian ad litem,
nevertheless (1) the judge had performed the type of act normally performed only by
judges, (2) he had acted in his capacity as a judge, and (3) it was only because of
his position as a judge that the mother, on the advice of counsel, had submitted the
petition to him for his approval, the informality with which the judge had proceeded
not rendering his action nonjudicial so as to deprive him of his absolute immunity.
--SUPP--
Even if county public defender's allegations are taken as true--that (1) after
public defender failed to appear for initial call of state judge's morning calendar,
judge ordered two police officers to seize public defender forcibly and with
excessive force and to bring him into judge's courtroom, (2) officers, by means of
unreasonable force and violence, removed public defender from another courtroom and
brought him into judge's courtroom, and (3) judge knowingly approved and ratified
each of offciers' acts--judge is immune from 42 USCS @ 1983 suit for money damages,
because (1) judge's alleged actions were
PAGE 12 55 L. Ed. 2d 850, *7
taken in his judicial capacity; and (2) even though judge acted in excess of his
authority if he authorized and ratified officers' alleged use of excessive force,
such action, taken in very aid of judge's jurisdiction over case, cannot be said
to have been taken in absence of all jurisdiction. Mireles v Waco (1991, US) 116
L Ed 2d 9, 112 S Ct 286.
[*cases]
TABLE-OF-CASES CASES ARE IN CHRONOLOGICAL ORDER GROUPED BY JURISDICTION AND LEVEL
OF COURT
Sup Ct
Wilkes v Dinsman (1849) 48 US 89, 12 L Ed 618: @ 3
Randall v Brigham (1869) 74 US 523, 19 L Ed 285: @@ 3, 4, 7
Bradley v Fisher (1872) 80 US 335, 20 L Ed 646: @@ 3, 7
Spalding v Vilas (1896) 161 US 483, 40 L Ed 780, 16 S Ct 631: @ 3
Alzua v Johnson (1913) 231 US 106, 58 L Ed 142, 34 S Ct 27: @@ 3, 4, 7
Pierson v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213: @@ 3, 6, 7
Imbler v Pachtman (1976) 424 US 409, 47 L Ed 2d 128, 96 S Ct 984: @ 3
Stump v Sparkman (1978) 435 US 349, 55 L Ed 2d 331, 98 S Ct 1099: @@ 3, 5-7
Supreme Court of Virginia v Consumers Union of United States, Inc. (1980) 446
US 719, 64 L Ed 2d 641, 100 S Ct 1967: supp @ 6
Forrester v White (1988) 484 US 219, 98 L Ed 2d 555, 108 S Ct 538, 45 BNA FEP
Cas 1112, 45 CCH EPD P 37627: supp @ 5
National Collegiate Athletic Assn. v Tarkanian (1988) 488 US 179, 102 L Ed 2d
469, 109 S Ct 454: supp @ 5
Mireles v Waco (1991, US) 116 L Ed 2d 9, 112 S Ct 286, 91
Daily Journal DAR 12907: supp @@ 3, 5-7
___________________________
When is prosecutor entitled to absolute immunity from civil suit for damages
under 42 USCS @ 1983: post-Imbler cases. 67 ALR Fed 640.
Civil liability of witness in action under 42 USCS @ 1983 for deprivation of
civil rights, based on testimony given at pretrial criminal proceeding. 94 ALR
Fed 892.
Sowle, Qualified immunity in Section 1983 Cases: The Unresolved Issues of
the Conditions for its Use and the Burden of Persuasion. 55 Tulane L Rev 326,
February, 1981.
The court has often recognized that judges of courts of general or superior
jurisdiction are not subject to liability in a civil action for judicial acts,
even if done in excess of jurisdiction, so long as such judges have not acted
in the clear absence of all jurisdiction over the subject matter (@ 3[a], infra).
Moreover, the court has clearly settled that the rule as to judges of courts of
general jurisdiction is not subject to a qualification which would abrogate
immunity in instances where a judge acted maliciously or corruptly (@ 3[b],
infra).
Of further note in regard to the immunity of judges from civil liability is
the Supreme Court's holding that the judicial immunity principle is fully
applicable in actions under @ 1 of the Civil Rights Act of 1871 (42 USCS @
1983), which makes liable "every person" who, under color of state law, deprives
another person of his civil rights.
[*3] Judges of courts of general or superior jurisdiction
[*3a] immunity for acts not done in "clear absence" of all jurisdiction over
subject matter
That judicial officers in general are not subject to civil liability for
judicial acts done within their jurisdiction was recognized by the Supreme Court
long ago, n2 and such rule, which is the common-law rule, n3 remains viable as
a general statement of law. Regarding judges of courts of general or superior
jurisdiction, however, the court has subscribed to a broad rule of judicial
immunity, recognizing that such a judge is not subject to liability in a civil
action for his judicial acts, even if they are in excess of his jurisdiction,
so long as he has not acted in the clear absence of all jurisdiction over the
subject matter. Randall v Brigham (1869) 74 US 523, 19 L Ed 285; Bradley v Fisher
(1872) 80 US 335, 20 L Ed 646; Spalding v Vilas (1896) 161 US 483, 40 L Ed 780,
16 S Ct 631; Alzua v Johnson (1913) 231 US 106, 58 L Ed 142, 34 S Ct 27; Pierson
v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213; Stump v Sparkman (1978)
435 US 349, 55 L Ed 2d 331, 98 S Ct 1099, reh den (US) 56 L Ed 2d 795,
PAGE 5 55 L. Ed. 2d 850,
*3a 98 S Ct 2862.
- - - - - - - - -Footnotes- - - - - - - - - --- - - - - - -
n2 Wilkes v Dinsman (1849) 48 US 89, 12 L Ed 618; Randall v Brigham (1869)
74 US 523, 19 L Ed 285.
n3 Pierson v Ray (1967) 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213; Imbler
v Pachtman (1976) 424 US 409, 47 L Ed 2d 128, 96 SCt 984.
- - - - - - - - - -End Footnotes- - - - - - - - --- - - - - - -
Thus, in Bradley v Fisher (1872) 80 US 335, 20 L Ed 646, the Supreme Court,
observing that it is a general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising the authority
vested in him, shall be free to act upon his own convictions, without apprehension
of personal consequence to himself, noted that judges of courts of superior or
general jurisdiction are not liable to civil actions for their judicial acts,
even when such acts are in excess of their jurisdiction.
After explaining that such principle obtains in all countries where there is
any well-ordered system of jurisprudence, that it has been the settled doctrine
of the English courts for many centuries, and that it has never been denied in
the courts of the United States, the court emphasized that the immunity granted
to judges is not without limit, there being a distinction between acts done in
excess of jurisdiction and acts performed in the clear absence of all
jurisdiction over the subject matter.
Specifically, the court pointed out that where there is clearly no jurisdiction
over the subject-matter, any authority exercised is a usurped authority, and for
the exercise of such authority, when the want of jurisdiction is known to the
judge, no excuse is permissible, but that where jurisdiction over the subject-
matter is invested by law in the judge, or in the court which he holds, the manner
and extent to which the jurisdiction shall be exercised are generally as much
questions for his determination as any other questions involved in the case,
although upon the correctness of his determination in these particulars the
validity of his judgments may depend.
By way of illustration, the court stated that if a probate court, invested only
with authority over wills and the settlement of estates of deceased persons,
should proceed to try parties for public offenses, jurisdiction over the subject
of offenses being entirely wanting in the court, and this being necessarily
known to its judge, his commission would afford no protection to him in the
exercise of the usurped authority, but if, on the other hand, a judge of a
criminal court, invested with general criminal jurisdiction over offenses
committed within a certain district, should hold a particular act to be a public
offense, which is not by the law made an offense, and proceed to the arrest and
trial of a party charged with such act, or should sentence a party convicted
to a greater punishment than that authorized by the law upon its proper
construction, no personal civil liability for such acts would attach to the
judge, although those acts would be in excess of his jurisdiction.
The court said that some of the most difficult and embarrassing questions
which a judicial officer is called upon to consider and determine relate to his
jurisdiction, or the manner_in which the jurisdiction shall be exercised, and
that the same principle of exemption from liability which obtains for errors
committed in the ordinary prosecution of a suit, where there is jurisdiction
of both subject and person, applies in cases of this kind, and for the same
reasons.
With respect to allegations that an official act of a defendant judge was
the product of a corrupt conspiracy involving the bribery of the judge,
private parties who corruptly conspire with a judge in connection with such
conduct are acting under color of law, for purposes of 42 USCS @ 1983; it is
of no consequence in this respect that the judge himself is immune from
damages liability, for (1) immunity does not change the character of the
judge's action or that of the judge's alleged coconspirators, and (2) the
judge's immunity is dependent upon the challenged conduct being an official
judicial act within the judge's statutory jurisdiction, broadly construed.
National Collegiate Athletic Asso. v Tarkanian (1988, US) 102 L Ed 2d 469,
109 S Ct 454.
PAGE 9 55 L. Ed. 2d 850, *5
Judicial immunity from suits for money damages can be overcome in only
two sets of circumstances, one of which is that judge is not immune for
nonjudicial actions, that is, for actions not taken in judge's judicial
capacity; judge will not be deprived of immunity because action that judge
took was in error or in excess of authority; accordingly, relevant inquiry
is into nature and function of act, not act itself--that is, relevant inquiry
is to look to particular act's relation to general function normally performed
by judge; it is nature of act performed, not identity of actor who performed
it, that informs court's analysis of judicial immunity. Mireles v Waco (1991,
US) 116 L Ed 2d 9, 112 S Ct 286.
_________________________________________________
BRISCOE ET AL. v. LaHUE ET AL.
No. 81-1404
SUPREME COURT OF THE UNITED STATES
460 U.S. 325; 103 S. Ct. 1108; 75 L.Ed. 2d 96;
51 U.S.L.W. 4247
November 9, 1982, Argued
March 7, 1983, Decided
PRIOR HISTORY:[***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT.
DISPOSITION: 663 F.2d 713, affirmed.
SYLLABUS: 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. 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 [***2] 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. 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. 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 [***3] than for ordinary
witnesses. Subjecting government officials, such as police_
PAGE 30 460 U.S.325,*;103 S.Ct.1108,**;1983 U.S.LEXIS 146,***3;75 L. Ed. 2d 96
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. Pp. 341-346.
COUNSEL: Edmund B. Moran, Jr., argued the cause for petitioners. With him on
the briefs was Robert A. Creamer.
Harriet Lipkin argued the cause for respondents. With her on the brief
was William T. Enslen.
JUDGES: 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. 346. MARSHALL, J., filed a dissenting
opinion, in which BLACKMUN, J., joined except as to Part I, post, p. 346.
BLACKMUN, J., filed a dissenting opinion, post, p. 369.
OPINION BY: STEVENS
OPINION:[*326] [**1110]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 [**1111] perjured
testimony at his criminal trial.
The Court of [***4] 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. n1 [*327] 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 [***5] 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.
- - - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n1 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_
PAGE 31 460U.S.325,*327;103 S.Ct.1108,**1111;1983 U.S.LEXIS146,***5;75 L.
Ed.2d 96
officer in itself violates constitutional rights. See United States v.
Agurs, 427 U.S. 97, 103, and nn. 8, 9 (1976) (citing cases).
- - - - - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -
Petitioners Vickers and Ballard were jointly tried and convicted of sexual
assault in state court.
They subsequently brought a civil action under [***6] @ 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. n2
- - - - - - - - - - - -Footnotes- - - - - - - - -- - - - - - - - -
n2 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. - - -
- - - - - - -End Footnotes- - - - - - - -- - - - - - - - -[***7]
[*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 [**1112] (1981). n3 Because of the importance
of the immunity question, which has given rise
to divergent conclusions in the Courts of Appeals, n4 we granted certiorari.
455 U.S. 1016 (1982). n5
- - - - - - - - -Footnotes- - - - - - - - -- - - - - - - - -
n3 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,_
PAGE 32 460 U.S. 325, *328; 103 S. Ct.1108, **1112; 1983
U.S. LEXIS 146, ***7; 75 L. Ed. 2d 96
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. [***8]
n4 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). [***9]
n5 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.
- - -End Footnotes- - - - - - - - -- - - - - - - - [*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 . . . ." n6
It is beyond question that, when a private [*330] party gives testimony
[**1113] in open court in a criminal trial, that act is not performed
"under color of law." n7
PAGE 33 460 U.S. 325, *330; 103 S. Ct. 1108, **1113;
1983 U.S. LEXIS 146, ***10; 75 L. Ed. 2d 96
- - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n6 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, 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 317-319;
Ferri v. Ackerman, 444 U.S. 193, 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. [***11]
n7 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, 27-29 (1980); Adickes v. S. H. Kress &
Co., 398 U.S. 144, 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.
- - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -
Second, since 1951, when this Court decided Tenney v. Brandhove, 341 U.S.
367, it has been settled that the allencompassing language of @ 1983, referring
to "[every] person" who, under color of law, deprives another of federal
constitutional or statutory rights, is not to be taken literally. n8
"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 [***12] 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, 258 (1981).
See Pierson v. Ray, 386 U.S. 547, 554 (1967).
- - - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n8 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, 687-688 (1978).
- - - - - - - - - - -End Footnotes- - - - - - - -- - - - - - - - -
The immunity of parties and witnesses from subsequent damages liability for
their testimony in judicial proceedings n9 [*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); n10 see Dawkins v. Lord Rokeby, 4 F. & F. 806, 833-834, 176 Eng.
Rep. 800, 812 (C. P. 1866). [***13] 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_
PAGE 34 460 U.S. 325, *331; 103 S. Ct. 1108, **1113;
1983 U.S. LEXIS 146, ***13; 75 L. Ed. 2d 96
absolute privilege. n11 The [*332] plaintiff could [**1114] not recover
even if the witness knew the statements were false and made them with malice. n12
- - - - - - - - - - - -Footnotes- - - - - - - - - -- - - - - -
n9 The availability of a common-law action for false accusations of crime,
see post, at 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.
n10 "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. [***14]
n11 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. [***15]
n12 JUSTICE MARSHALL's dissent relies heavily on an opinion rendered by this
Court, White v. Nicholls, 3 How. 266, 286-288 (1845).
The Court's discussion
PAGE 35 460 U.S. 325, *332; 103 S. Ct. 1108, **1114;
1983 U.S. LEXIS 146, ***15; 75 L. Ed. 2d 96
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:
"[The] 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.
- - - - - -End Footnotes- - - - - - - -- - - - - - - - -[***16]
In the words of one 19th-century court, in damages suits against witnesses,
"the claims of the individual must yield to [*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
PAGE 36 460 U.S. 325, *333; 103 S. Ct. 1108, **1114;
1983 U.S. LEXIS 146, ***16; 75 L. Ed. 2d 96
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 [***17] 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). n13 But [**1115] the truthfinding process is better [*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, 440 (1976) (WHITE, J., concurring in judgment). n14
- - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n13 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. [***18]
n14 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).
- - - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -
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 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, [***19] @ 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." [*335] 424 U.S., at 439. He
explained that this protection extended equally to other participants, including
counsel and witnesses.
PAGE 37 460 U.S. 325, *335; 103 S. Ct. 1108, **1115;
1983 U.S. LEXIS 146, ***19; 75 L. Ed. 2d 96
"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 [***20] 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, 512 (1978); cf. King v. Skinner, Lofft 54, 56, 98 Eng. Rep. 529 (K. B. 1772)
("[Neither] 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 512.
In short, the common law provided absolute immunity from [***21] subsequent [**1116]
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 [*336] other witness sworn to tell the truth -- in which event he can make
a strong claim to witness immunity; n15 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.
- - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n15 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.
- - - - - - -End Footnotes- - - - - - - -- - - - - - - - -[***22]
PAGE 38 460 U.S. 325, *336; 103 S. Ct. 1108, **1116;
1983 U.S. LEXIS 146, ***22; 75 L. Ed. 2d 96
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.n16
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. n17 The legislative history and statutory language indicate that
Congress intended perjury [*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.
- -- - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n16 Brief for Petitioners 19-20, citing 1 B. Schwartz, Statutory History of the
United States: Civil Rights 599-606, 625 (1970). [***23]
n17 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.
- - - - - - - - - - - -End Footnotes- - - - - - - -- - - - - - - - -
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 [***24] 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
[**1117] 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. n18
Perjury was thus one of the [*338] means by which the Klan prevented state
courts from gaining convictions of Klan members for crimes against blacks and
Republicans.
-- - - - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - -
PAGE 39 460 U.S. 325, *338; 103 S. Ct. 1108, **1117;
1983 U.S. LEXIS 146, ***24; 75 L. Ed. 2d 96
n18 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).
- - - - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -[***25]
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. n19 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. n20 See Monroe v. Pape, 365 U.S. 167, 174 (1961).
- - - - - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n19 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).
n20 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).
- - - - - - - - -End Footnotes- - - - - - - -- - - - - - - - -[***26]
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 [*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.
n21 Part of the provision is
PAGE 40 460 U.S. 325, *339; 103 S. Ct. 1108, **1117;
1983 U.S. LEXIS 146, ***26; 75 L. Ed. 2d 96
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 [***27] 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. . . ." n22
- - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n21 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).
n22 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).
- - - - - - -End Footnotes- - - - - - - - -- - - - - - - -[***28]
This [**1118] 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 [*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. n23 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, rumhead tribunals were convened at dead of night.
n24 Even when the organization's intended victims had been taken into custody
and [***29] charged with crimes, the evidence before Congress suggested that
the Klan resorted to vigilante justice rather than courtroom perjury. n25
- - - - - - - - - - - -Footnotes- - - - - - - ---- - - - - -
PAGE 41 460 U.S. 325, *340; 103 S. Ct. 1108, **1118;
1983 U.S. LEXIS 146, ***29; 75 L. Ed. 2d 96
n23 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.
n24 The debates describe nocturnal Klan meetings passing decrees condemning
political enemies. See id., at 157, 209, 320, 321, 504.
n25 For references to lynch mobs attacking suspects held in custody, see id.,
at 156, 157, 166, 200, 321, 444, 446, 447.
- - - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -
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, [***30] 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 [*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. n26
- - - - - - - - - -Footnotes- - - - - - - - -- - - - - - - - -
n26 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 PAGE
42 460 U.S. 325, *341; 103 S. Ct. 1108, **1118; 1983 U.S. LEXIS 146, ***30; 75
L. Ed. 2d 96 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).
- - - - - - -End Footnotes- - - - - - - - -- - - - - - - -[***31]
IV
[**1119] 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. n27 They assert that the reasons supporting common-law immunity
--the need to [*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 [***32] law, prosecution for perjury is alleged to be
so unlikely that it is not an effective substitute for civil damages.
- - - - - - - - - -Footnotes- - - - - - - - -- - - - - - - - -
n27 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.
- - - - - - - - -End Footnotes- - - - - - - -- - - - - - - - -
These contentions have some force. But our cases clearly indicate that immunity
analysis rests on functional categories, not on the status of the defendant.
n28 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.
- - - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n28 See Butz v. Economou, 438 U.S. 478, 513-514 (1978)_(administrative law
judges enjoy absolute judicial immunity even though they are in the Executive
Branch); Imbler v. Pachtman, supra, at 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
quasi-judicial role), cert. denied, 415 U.S. 917 (1974).
- - - - - - - - - - -End Footnotes- - - - - - - - -- - - - - -
PAGE 43 460 U.S. 325, *342; 103 S. Ct. 1108, **1119;
1983 U.S. LEXIS 146, ***32; 75 L. Ed. 2d 96 - [***33]
Moreover, to the extent that raditional reasons for witness immunity are less
applicable to governmental witnesses, [*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 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. n29
- - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n29 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.
- - - - - - -End Footnotes- - - -- - - - - - - -[***34]
This [**1120] 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_[*344] would
be diverted from the pressing duty of enforcing the criminal law." 424 U.S., at
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
PAGE 44 460 U.S. 325, *344; 103 S. Ct. 1108, **1120;
1983 U.S. LEXIS 146, ***34; 75 L. Ed. 2d 96
not be, because the District Court's issuance of the writ of habeas corpus
shows that his [***35] suit has substance." Id., at 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 427. The same danger exists in the case of potential liability for
police officer witnesses. n30
- - - - - - - - -Footnotes- - - - - - - -- - - - - - - - -
n30 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.
- - - - - - - -End Footnotes- - - -- - - - - - - -[***36]
[*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. n31 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 [**1121] (CA2 1949), cert.
denied,_339 U.S. 949 (1950). n32
- - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n31 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. [***37]
PAGE 45 460 U.S. 325, *345; 103 S. Ct. 1108, **1121;
1983 U.S. LEXIS 146, ***37; 75 L. Ed. 2d 96
n32 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.
- - - - - - -End Footnotes- - - - - - - - -- - - - - - - -
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
[*346] just -- or possibly unjust -- conclusion is equally indispensable.
The decision of the Court of Appeals is affirmed.
It is so ordered.
DISSENTBY: BRENNAN; MARSHALL; BLACKMUN
DISSENT: 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 [***38] involved in the judicial
process. . . ." Post, at this page and 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 Part IV of JUSTICE MARSHALL's
opinion.
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 [***39] 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 [*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
PAGE 46 460 U.S. 325, *347; 103 S. Ct.1108, **1121;
1983 U.S. LEXIS 146, ***39; 75 L. Ed. 2d 96
support an absolute immunity for officer-witnesses.
I
The majority opinion correctly states that this case presents a question of
statutory construction. Ante, at 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. n1 "Absent a clearly expressed
legislative intention to the contrary, that language must ordinarily be
regarded as conclusive." [**1122] Consumer Product Safety Comm'n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980).
The language [***40] 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. n2 The majority [*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 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.
- - - - - - - - - -Footnotes- - - - - - - - -- - - - - - - - -
n1 E. g., Jackson Transit Authority v. Transit Union, 457 U.S. 15, 23 (1982);
Bread Political Action Comm. v. FEC, 455 U.S. 577, 580 (1982); Universities
Research Assn. v. Coutu, 450 U.S. 754, 771 (1981); Dawson Chemical Co. v. Rohm
& Haas Co., 448 U.S. 176, 187 (1980).
n2 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 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
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, 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, 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, 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, 688-689 (1978) (relying on "plain meaning" of @ 1983). Cf. Jones v. Alfred
H. Mayer Co., 392 U.S. 409, 420 (1968) (relying on the "plain and unambiguous
terms" of 42 U. S. C. @ 1982).
- - - - - -End Footnotes- - - -- - - - - - - -[***41]
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
PAGE 47 460 U.S. 325, *348; 103 S. Ct. 1108, **1122;
1983 U.S. LEXIS 146, ***41; 75 L. Ed. 2d 96
nullifies "pro tanto the very remedy it appears Congress sought to create."
Imbler v. Pachtman, 424 U.S. 409, 434 (1976) (WHITE, J., concurring in
judgment).
The words of a statute should always be interpreted to carry out its purpose.
n3 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
[*349] interpretation, the largest latitude consistent with [***42] 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).
n4
- - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n3 See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956) (quoting United
States v. Boisdore's Heirs, 8 How. 113, 122 (1849)); SEC v. C. M. Joiner
Leasing Corp., 320 U.S. 344, 350-351 (1943); H. Hart & A. Sacks, The Legal
Process 1411 (Tent. ed. 1958).
n4 See also Cong. Globe, 42d Cong., 1st Sess., App. 217 (1871) (Sen. Thurman in
opposition) ("[There] 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").
- - - - - - - -End Footnotes- - - - - - - - -- - - - - - - -[***43]
It [**1123] 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, 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. n5 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 [*350] the same act may constitute both a state tort and the
deprivation of a constitutional right." Monroe v. Pape, 365 U.S. 167, 196
(1961) (Harlan, J., concurring). Therefore, immunities that arose in the
context of tort actions against private parties provide little guidance for
PAGE 48 460 U.S. 325, *350; 103 S. Ct. 1108, **1123;
1983 U.S. LEXIS 146, ***43; 75 L. Ed. 2d 96
actions against state officials for constitutional violations. [***44] "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.
- - - - - - - - - - -Footnotes- - - - - - - - - -- - - - - - - -
n5 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) ("[Where] 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").
- - - - -End Footnotes- - - - - - - - -- - - - - - - -
Given the language and purpose of @ 1983, I have serious doubts about any
further extension [***45] 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 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 "[in] 1871,
common-law immunity for witnesses was well settled." Ante, at 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 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 [***46] arrest. n6 At common law, such an allegation
would have [*351] formed the basis of an action on the case for malicious
prosecution, n7 or the related action [**1124] known by its Latin name, crimen
feloniae imposuit (imputing the crime of felony). n8
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. n9 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. n10
- - - - - - - -Footnotes- - - - - - - - - -- - - - - - -
PAGE 49 460 U.S. 325, *351; 103 S. Ct. 1108, **1124;
1983 U.S. LEXIS 146, ***46; 75 L. Ed. 2d 96
n6 See Memorandum in Support of Complaint, App. 9-11.
n7 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). [***47]
n8 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).
n9 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, 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). [***48]
n10 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
329, n. 5. This literal reading of the question presented is contrary to our
Rules, which provide that "[the] 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, 495 (1972) (MARSHALL, 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
PAGE 50 460 U.S. 325, *351; 103 S. Ct. 1108, **1124;
1983 U.S. LEXIS 146, ***48; 75 L. Ed. 2d 96
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 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 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.
- - - - - - - - - - -End Footnotes- -- - - - - - - -[***49]
[*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 [*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 [**1125]
unanimous Court in dicta a veritable treatise on the law of defamation and
privileged communications.
n11 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 286. One
of these "exceptions" was for "[words] 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 287. The Court then stated:
"But the term 'exceptions,' as applied to cases like those just enumerated,
could never be interpreted to mean that [***50] 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 libellous matter, as to remove the regular and usual
presumption of malice, and to make it incumbent on the party complaining to
show malice, ei