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Pblic Servantrs Mandatory Readingcenter859386An Instructional and Historical, Transparent and Accountability GuidecenterbottomPresented by Adam Alexander Piragowand Edited by Rachelle Hickman 1000000Presented by Adam Alexander Piragowand Edited by Rachelle Hickman An Incomplete Manuel for Ourt Great Coun PrefaceWritten By, Rachelle HickmanLance Corporal Adam A. Piragow, A Marine honorably discharged from the United States Marine Corps, and then attended the University of Delaware. He graduated with a Bachelor of Science Degree. He had never been married or had any children. He hoped to someday but, Adam is the type of man who wanted to make sure that he was financially stable and could be the best provider he could be when he started a family. Adam was very out-going and had somewhat of a competitive nature, but what Marine Grunt isn’t competitive. After he graduated college Adam was taking some time off and vacationing with his parents. They had a condominium in Florida. Adam was enjoying himself and also still making time to get his exercise in at the pool. Adam engaged a man at the pool in friendly conversation and asked him did he want to race to the end of the pool and back, and he yelled down to three other people in the pool and asked if they could be the judge and tell them who one Adam being fairly confident was shocked when he was beaten by the man, so the he asked him could he swim underwater the length of the pool three times. Adam brags I can. The man says I couldn’t do but probably once. The man started to exit the pool and Adam said, “Hey Man I’m Adam, I didn’t catch your name! The Man ignored Adam so he lunged in the water thinking he didn’t hear him and grabbed his arm, and he said man was your name so I can tell everybody who beat this Marine at a race. The man began swearing at Adam, Adams Corporal instincts kicked in feeling disrespected he swore back. The other people in the pool also began to exit and gathered there belongings. Adam just turned around and kept swimming. In a few minutes management came outside and asked him where he was staying he told them which condo, and who his parents was and assured her that they had been coming there for many years. Adam heard someone on the other side of the privacy fence yell police and then seen the group of people who had been in the pool all standing together around the corner. Adam yelled at them, “Dude did you call the fucking police”! “I should come over there and beat the fuck out of you, and give them a real reason to arrest me.” Adam quickly got out of the pool and hurried into his condo, and shut the door behind him and began to change clothes. The police somehow gained entry into the room and threatened to taze him if he didn’t let them hand cuff him.He was arrested and charged with assault and battery/touching. They took Adam to a mental facility where a psychiatrist deemed Adam incompetent to stand trial, and committed him. He was forced under court order to take all kinds of psychiatric medication. Adams was denied visits and phone calls and all sorts of rights. But being the head strong Marine that he is Adam, went to work. When he was finally able to speak with his mother he got her to send in his Florida Law books. Adam would spend the next forty six months researching Florida Law and the United States Constitution. Adam represented himself and began to file appeals. Finally Adam got his day in court after spending for long years in an Institution for the criminally insane. Honorable Adam Pigarow presented his case to the Florida Supreme Court and YES he won, and was released. Adam would like to share this story and all of the documents he used to fight for his freedoms. Adams moral definitely damaged and he has had a hard time picking up the pieces they left him. While incarcerated Adam joined the Simon City Royals and now lives the life of a convicted felon. His hopes his dreams his accomplishments all ripped away by an unjust and corrupt system. If you would like to show Adam your support, and help others like Adam you can make a donation to MS Royal Knights Inc. c/o Adam Piragow by check or money order and send it to P.O. Box 121 Gulfport, MS 39502. Public Servants Mandatory Readingcenter201549000An Instructional and Historical Transparent Accountability GuideThe Incomplete Manual for our Great CountryPresented buyThe Honorable Adam Alexander PiragowEdited ByRachelle HickmanMILLER v. STATE, 35 So.3d 162 (2010)WARNER, J.Ricky?Miller?appeals his conviction of possession of cocaine. At his trial, he requested that the court instruct the jury on his affirmative defense of lack of knowledge that the substance he possessed was cocaine. The trial court refused to give the instruction. We reverse.The possession of cocaine charge arose from?Miller’s?possession of a glass pipe which contained cocaine residue. When?Miller?testified in his own defense,?counsel had specifically asked?Miller?whether he knew that cocaine was in the pipe, and?Miller?denied knowing of any. During the charge conference, the defense requested a jury instruction on lack of knowledge of the illicit nature of a controlled substance, as it was an affirmative defense to the cocaine possession charge. The trial court declined to give the standard instruction on this affirmative defense, because there was no evidence that?Miller?did not know that cocaine was illegal. Defense counsel argued that the instruction was proper where evidence supported the contention that?Miller?did not know cocaine was in the pipe confiscated from him. The trial court disagreed and denied the request for the affirmative defense instruction. The court later instructed the jury as follows:[T]o prove the crime of possessing cocaine, the?State?must prove three elements beyond a reasonable doubt.First, they have to prove that Mr.?Miller?possessed a certain substance. Second, that the substance was cocaine. And third, that Mr.?Miller?had knowledge of the presence of the substance.A written copy of the instructions was provided to the jury for its deliberations. The jury convicted?Miller?of possession of cocaine, along with other charges. He appeals only his conviction for possession of cocaine.In 2002, the Florida Legislature enacted §893.101, Florida Statutes, which expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893. The statute superseded?Chicone v. State,?684 So.2d 736 (Fla. 1996),?which had held that the?state?was required to prove a fourth element of the offense, namely that the defendant knew of the illicit nature of the substance.?See?Barrientos v.?State,?1 So.3d 1209 (Fla. 2d DCA 2009). §893.101, Florida Statutes, thus makes possession of a controlled substance a general intent crime and provides that lack of knowledge of the illicit nature of a controlled substance is an affirmative defense.?See?Wright v.?State,?920 So.2d 21 (Fla. 4th DCA 2005).To prove a cocaine possession charge, the?state?must prove that the defendant knew that he possessed a substance, which was in fact cocaine, but the?state?does not have to prove that the defendant knew it was cocaine.?See?Fla. Std. Jury Instr. (Crim.) 25.7. Instead, the defendant may raise by affirmative defense the claim that he did not know the substance was cocaine.?See?Burnette v.?State,?901 So.2d 925 (Fla. 2d DCA 2005). The affirmative defense does not require that the defendant offer evidence that he did not know that the possession of cocaine was illegal.In this case,?Miller?presented at least some evidence in support of this affirmative defense. He testified that he did not know there was cocaine in the glass pipe. “A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is?any?evidence to support it, no matter how weak or flimsy.”?Gregory v.?State,?937 So.2d 180 (Fla. 4th DCA 2006);?Bozeman v.?State,?714 So.2d 570 (Fla. 1st DCA 1998). Thus, the trial court should have given the requested instruction on the affirmative defense of lack of knowledge of the illicit nature of the substance. Because the trial?court failed to properly instruct the jury, we reverse.Footnote:1.?As is so often incanted, ignorance of the law is not an excuse.?See?Davis v.?State,?928 So.2d 442 (Fla. 5th DCA 2006).JOHNSON v. McCULLOUGH, 306 S.W.3d 551 (Supreme Court of Missouri, 2010)The Supreme Court will not disturb the trial court’s ruling on a motion for a new trial based on juror nondisclosure unless the trial court abused its discretion; a trial court abuses its discretion if its ruling is clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and indicate lack of careful consideration.A member of the thin venire has a duty during voir dire examination to give full, fair, and truthful answers to all questions asked of him or her specifically, as well as those asked the panel generally, so that his or her qualifications may be determined and challenges may be posed.A venire person’s duty to disclose is triggered only after a clear question has been asked.The question asked during voir dire must clearly and unambiguously trigger the juror’s obligation to disclose the information requested.Question during voir dire in medical malpractice action as to whether, “not now including family law,” any venire member had ever been a plaintiff or a defendant in a lawsuit, and later question confirming that “no other people that have been, not including family law, a plaintiff or a defendant on any case,” was reasonably clear and triggered venire person’s duty to disclose multiple debt collection lawsuits against her and suit for personal injuries; the question remained a general question was not rendered confusing or ambiguous by surrounding context, question clearly indicated that counsel was not interested in disclosure of “family law” disputes, and, from the perspective of a reasonable person, debt collection lawsuits in suits for personal injuries were not excluded by counsel’s general inquiry into prior litigation experiences.When considering nondisclosure in response to a question during voir dire, the issue is whether a reasonable venire member would have understood what counsel intended.The duty of counsel alleging juror nondisclosure to show that the question asked during voir dire was clear is not satisfied when some venire members could reasonably think one thing, and some other venire members could reasonably think the opposite; the record must demonstrate that, from an objective standpoint, the question was clear in the total applicable context.Questions and answers pertaining to a prospective juror’s prior litigation experience are material.A finding of intentional concealment of material information during voir dire has become tantamount to a per se rule mandating a new trial.The determination of whether juror concealment during voir dire is intentional or unintentional is left to the sound discretion of the trial court.Patient’s juror nondisclosure argument was timely, even though it was brought after patient received an adverse verdict following a six-day jury trial on his medical malpractice claim; there was no evidence that it was practicable for the attorneys to have investigated the litigation history of all of the selected jurors prior to the jury being impaneled.Litigants seeking a new trial based on juror nondisclosure should not be allowed to wait until a verdict has been rendered to perform a search on the state’s online case management system for jurors’ prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empaneled; litigants should endeavor to prevent retrials like completing an early investigation.To preserve the issue of a juror’s nondisclosure, a party must use reasonable efforts to examine the litigation history on the state’s online case management system of those jurors selected but not impaneled and present to the trial court any relevant information prior to trial; the courts should ensure the parties have an opportunity to make a timely search prior to the jury being empaneled and shall provide the means to do so, if counsel indicates that such means are not reasonably otherwise available.…Until that time, a party must use reasonable efforts to examine the litigation history on ?of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial, as set out in this opinion.After the hearing concluded, the trial court granted Johnson’s motion and ordered a new trial. The court determined that counsel’s question during voir dire was clear and unambiguous and that Mims’ involvement in prior litigation was recent. As a result, her failure to respond constituted an intentional nondisclosure. The court inferred prejudice from the intentional concealment. The court reached no decision as to Johnson’s additional arguments in support of his motion for new trial, finding the issue of intentional nondisclosure dispositive. Defendants appeal.During voir dire, Johnson’s counsel asked the venire members, “Now not including family law, has anyone ever been a plaintiff or a defendant in a lawsuit before?” Several venire members disclosed?prior involvement in lawsuits. One venire member mentioned her involvement as a defendant in a personal injury suit against a limited liability company she owned with her husband. Another venire member disclosed a “dog-bite” lawsuit when, as a child, her parents sued the dog owner on her behalf. Numerous other venire members disclosed lawsuits in which they acted as a plaintiff or a defendant. Among the various disclosures were a class action lawsuit, a property dispute, a car accident case, and a discrimination lawsuit. After each individual disclosure, counsel merely asked the responding venire members whether the experience would affect his or her ability to be a fair and impartial juror in this case. Counsel did not delve further into each venire member’s response. Upon eliciting all of the preceding disclosures, counsel asked, “Now did I miss anyone here? I just want to make sure. No other people that have been, not including family law, a plaintiff or a defendant on any case? Let the record reflect that I see no additional hands.” Juror Mims remained silent throughout this line of questioning.Here, the inquiry into prior litigation experience is similar to counsel’s questioning in?Massey v. Carter,?in which counsel asked generally, “Have any of you ever filed a lawsuit?”?238 S.W.3d 198 (Mo. App.2007). After a venire member mentioned filing a claim “as a homeowner,” and after finding out the venire member was satisfied with how things were resolved in that case, counsel asked, “Have any of you ever been sued by anyone?”?The juror in question failed to disclose he had been sued five times in collection lawsuits.?The court in?Massey?pointed out that, after the question about having been “sued by anyone,” there were no follow-up questions “honing in” on a specific kind of lawsuit, as there was in?Payne. The court determined that counsel’s question “remained a general question.”…Because Mims’ nondisclosure was intentional, bias and prejudice are presumed.?See?Brines,?882 S.W.2d at 140. A finding of intentional concealment of material information has “become tantamount to a per se rule mandating a new trial.”?(Quoting?Wilford,?736 S.W.2d at 37). “[Q]uestions and answers pertaining to a prospective juror’s prior litigation experience are material.”?The trial court did not abuse its discretion in finding intentional nondisclosure and ordering a new trial.This Court cannot convict the trial court of error in following the law in existence at the time of trial.?See?McCracken v. Wal-Mart Stores East, LP,?298 S.W.3d 473 (Mo. banc 2009). Further, there was no evidence that it was practicable for the attorneys in this case to have investigated the litigation history of all of the selected jurors prior to the jury being empanelled. Accordingly, there was no error in the trial court’s determination that Johnson’s juror nondisclosure argument was timely.However, in light of advances in technology allowing greater access to information that can inform a trial court?about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage. Litigants should not be allowed to wait until a verdict has been rendered to perform a search for jurors’ prior litigation history when, in many instances, the search also could have been done in the final stages of jury selection or after the jury was selected but prior to the jury being empanelled. Litigants should endeavor to prevent retrials by completing an early investigation. Until a Supreme Court rule can be promulgated to provide specific direction, to preserve the issue of a juror’s nondisclosure, a party must use reasonable efforts to examine the litigation history on of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial.?To facilitate this search, the trial courts are directed to ensure the parties have an opportunity to make a timely search prior to the jury being empanelled and shall provide the means to do so, if counsel indicates that such means are not reasonably otherwise available.The judgment of the trial court is affirmed.Footnotes:2. can be accessed using the following web address: . (Site checked by author on February 28th, 2014… It does not work.)HUDSON v. MICHIGAN, 547 U.S. 586, 126 S.Ct. 2159 (2006)Scalia, J., delivered the opinion of the Court.Police must have a reasonable suspicion under the particular circumstances that one of the grounds for failing to knock and announce their presence before executing a search warrant exists, and this showing is not high. U.S.C.A. Const. Amend. 4.The exclusionary rule generates substantial social costs which sometimes include setting the guilty free and the dangerous at large.One of the interests protected by the knock-and-announce rule is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. U.S.C.A. Const. Amend. 4.The knock-and-announce rule gives individuals the opportunity to comply with the law and to avoid the destruction of property occasioned by forcible entry. U.S.C.A. Const. Amend. 4.The knock-and-announce rule gives residents the opportunity to prepare themselves for the entry of the police. U.S.C.A. Const. Amend. 4.Justice Scalia?delivered the opinion of the Court with respect to Parts I, II, and III, concluding that violation of the “knock-and-announce” rule does not require suppression of evidence found in a search.(a)?Because Michigan has conceded that the entry here was a knock-and-announce violation, the only issue is whether the exclusionary rule is appropriate for such a violation.(b)?This Court has rejected “[i]ndiscriminate application” of the exclusionary rule,?United States?v.?Leon,?468 U.S. 897, holding it applicable only “where its deterrence benefits outweigh its ‘substantial social costs,’”?Pennsylvania Bd. of Probation and Parole?v.?Scott,?524 U.S. 357. Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Attenuation can occur not only when the causal connection is remote, but also when suppression would not serve the interest protected by the constitutional guarantee violated. The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.(c)?The social costs to be weighed against deterrence are considerable here. In addition to the grave adverse consequence that excluding relevant incriminating evidence always entails - the risk of releasing dangerous criminals - imposing such a massive remedy would generate a constant flood of alleged failures to observe the rule, and claims that any asserted justification for a no-knock entry had inadequate support. Another consequence would be police officers’ refraining from timely entry after knocking and announcing, producing preventable violence against the officers in some cases, and the destruction of evidence in others. Next to these social costs are the deterrence benefits. The value of deterrence depends on the strength of the incentive to commit the forbidden act. That incentive is minimal here, where ignoring knock-and-announce can realistically be expected to achieve nothing but the prevention of evidence destruction and avoidance of life-threatening resistance, dangers which suspend the requirement when there is “reasonable suspicion” that they exist,?Richards?v.?Wisconsin,?520 U.S. 385. Massive deterrence is hardly necessary. Contrary to Hudson’s argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline.Police obtained a warrant authorizing a search for drugs and firearms at the home of petitioner Booker Hudson. They discovered both. Large quantities of drugs were found, including cocaine rocks in Hudson’s pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. Hudson was charged under Michigan law with unlawful drug and firearm possession.We recognized that the new constitutional rule we had announced is not easily applied.?Wilson?and cases following it have noted the many situations in which it is not necessary to knock and announce. It is not necessary when “circumstances presen[t] a threat of physical violence,” or if there is “reason to believe that evidence would likely be destroyed if advance notice were given,” or if knocking and announcing would be “futile,” Richards?v.?Wisconsin,?520 U.S. 385?(1997). We require only that police “have a reasonable suspicion…under the particular circumstances” that one of these grounds for failing to knock and announce exists, and we have acknowledged that “[t]his showing is not high.”When the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few? Our “reasonable wait time” standard, see United States?v.?Banks,?540 U.S. 31?(2003), is necessarily vague.?Banks?(a drug case, like this one) held that the proper measure was not how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs - but that such a time (15 to 20 seconds in that case) would necessarily be extended when, for instance, the suspected contraband was not easily concealed. If our?ex?post evaluation is subject to such calculations, it is unsurprising that, ex ante, police officers about to encounter someone who may try to harm them will be uncertain how long to wait.Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. The issue here is remedy.?Wilson specifically declined to decide whether the exclusionary rule is appropriate for violation of the knock-and-announce requirement. That question is squarely before us now.Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,”?United States?v.?Leon,?468 U.S. 897?(1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it,?Colorado?v.?Connelly,?479 U.S. 157 (1986), and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application,”?Pennsylvania Bd. of Probation and Parole?v.?Scott,?524 U.S. 357 (1998). We have rejected “[i]ndiscriminate application” of the rule,?Leon, at 908, and have held it to be applicable only “where its remedial objectives are thought most efficaciously served,”?United States?v.?Calandra,?414 U.S. 338?(1974) - that is, “where its deterrence benefits outweigh its ‘substantial social costs,’”?Scott, at 363 (quoting?Leon).Hudson complains that “it would be very hard to find a lawyer to take a case such as this,” but?42 U.S.C. §1988(b)?answers this objection. Since some civil-rights violations would yield damages too small to justify the expense of litigation, Congress has authorized attorney’s fees for civil-rights plaintiffs. This remedy was unavailable in the heydays of our exclusionary-rule jurisprudence, because it is tied to the availability of a cause of action. For years after?Mapp, “very few lawyers would even consider representation of persons who had civil rights claims against the police,” but now “much has changed. Citizens and lawyers are much more willing to seek relief in the courts for police misconduct.” M. Avery, D. Rudovsky, & K. Blum, Police Misconduct: Law and Litigation, p. v (3d ed. 2005); see generally N. Aron, Liberty and Justice for All: Public Interest Law in the 1980s and Beyond (1989) (describing the growth of public-interest law). The number of public-interest law firms and lawyers who specialize in civil-rights grievances has greatly expanded.Hudson points out that few published decisions to date announce huge awards for knock-and-announce violations. But this is an unhelpful statistic. Even if we thought that only large damages would deter police misconduct (and that police somehow are deterred by “damages” but indifferent to the prospect of large §1988 attorney’s fees), we do not know how many claims have been settled, or indeed how many violations have occurred that produced anything more than nominal injury. It is clear, at least, that the lower courts are allowing colorable knock-and-announce suits to go forward, unimpeded by assertions of qualified immunity. See?Green?v.?Butler, 420 F.?3d 689 (CA7 2005) (denying qualified immunity in a knock-and-announce civil suit);?Holland ex rel. Overdorff?v.?Harrington, 268 F.3d 1179 (CA10 2001);?Mena?v.?Simi Valley, 226 F.3d 1031 (CA9 2000);?Gould?v.?Davis, 165 F.3d 265 (CA4 1998). As far as we know, civil liability is an effective deterrent here, as we have assumed it is in other contexts. See?Correctional Services Corp.?v.?Malesko,?534 U.S. 61?(2001) (“[T]he threat of litigation and liability will adequately deter federal officers for?Bivens?purposes no matter that they may enjoy qualified immunity” (as violators of knock-and-announce do not)); see also?Nix?v.?Williams,?467 U.S. 431 (1984) .Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities,?United States?v.?Payner,?447 U.S. 727 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See?Canton?v.?Harris, 489 U.S. 378?(1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.Like today’s case,?Segura?involved a concededly illegal entry. Police conducting a drug crime investigation waited for Segura outside an apartment building; when he arrived, he denied living there. The police arrested him and brought him to the apartment where they suspected illegal activity. An officer knocked. When someone inside opened the door, the police entered, taking Segura with them. They had neither a warrant nor consent to enter, and they did not announce themselves as police - an entry as illegal as can be. Officers then stayed in the apartment for?19 hours awaiting a search warrant. Once alerted that the search warrant had been obtained, the police - still inside, having secured the premises so that no evidence could be removed - conducted a search. We refused to exclude the resulting evidence. We recognized that only the evidence gained from the particular violation could be excluded, and therefore distinguished the effects of the illegal entry from the effects of the legal search: “None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners’ apartment....” It was therefore “beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged.”If the search in Segura could be “wholly unrelated to the prior entry,” when the only entry was warrantless, it would be bizarre to treat more harshly the actions in this case, where the only entry was?with?a warrant. If the probable cause backing a warrant that was issued?later in time?could be an “independent source” for a search that proceeded after the officers illegally entered and waited, a search warrant obtained?before?going in must have at least this much effect.United States?v.?Ramirez, involved a claim that police entry violated the?Fourth Amendment?because it was effected by breaking a window. We ultimately concluded that the property destruction was, under all the circumstances, reasonable, but in the course of our discussion we unanimously said the following: “[D]estruction of property in the course of a search may violate the?Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression.” Had the breaking of the window been unreasonable, the Court said, it would have been necessary to determine whether there had been a “sufficient causal relationship between the breaking of the window and the discovery of the guns to warrant suppression of the evidence.” What clearer expression could there be of the proposition that an impermissible manner of entry does not necessarily trigger the exclusionary rule?Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg?join, dissenting.In?Wilson?v.?Arkansas,?514 U.S. 927?(1995), a unanimous Court held that the?Fourth Amendment?normally requires law enforcement officers to knock and announce their presence before entering a dwelling. Today’s opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed.The first set of cases describes the constitutional knock-and-announce requirement, a requirement that this Court initially set forth only 11 years ago in?Wilson?v.?Arkansas. Sabbath v.?United States,?391 U.S. 585?(1968) (suppressing evidence seized in violation of federal statutory knock-and-announce requirement);?Miller?v.?United States,?357 U.S. 301?(1958). In?Wilson, tracing the lineage of the knock-and-announce rule back to the 13th century, 514 U.S., at 932, we wrote that:“[A]n examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.”Boyd?v.?United States,?116 U.S. 616?(1886). In this seminal Fourth Amendment?case, decided 120 years ago, the Court wrote, in frequently quoted language, that the?Fourth Amendment’s prohibitions apply “to all invasions on the part of the government and its employés of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.”Weeks. This case, decided 28 years after?Boyd, originated the exclusionary rule. The Court held that the Federal Government could not retain evidence seized unconstitutionally and use that evidence in a federal criminal trial. The Court pointed out that “[i]f letters and private documents” could be unlawfully seized from a home “and used in evidence against a citizen accused of an offense, the protection of the?Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and…might as well be stricken from the Constitution.” 232 U.S., at 393.Reading our knock-and-announce cases, Part I-A, in light of this foundational?Fourth Amendment?caselaw, Part I-B, it is clear that the exclusionary rule should apply. For one thing, elementary logic leads to that conclusion. We have held that a court must “conside[r]” whether officers complied with the knock-and-announce requirement “in assessing the reasonableness of a search or seizure.”?Wilson, 514 U.S., at 934; see?Banks, 540 U.S., at 36. The?Fourth Amendment?insists that an unreasonable search or seizure is, constitutionally speaking, an illegal search or seizure. And ever since?Weeks?(in respect to federal prosecutions) and?Mapp?(in respect to state prosecutions), “the use of evidence secured through an illegal search and seizure” is “barred” in criminal trials.?Wolf, at 28.For another thing, the driving legal purpose underlying the exclusionary rule, namely, the deterrence of unlawful government behavior, argues strongly for suppression. See?Elkins?v.?United States,?364 U.S. 206?(1960) (purpose of the exclusionary rule is “to deter - to compel respect for the constitutional guaranty…by removing the incentive to disregard it”). In?Weeks, Silverthorne, and?Mapp, the Court based its holdings requiring suppression of unlawfully obtained evidence upon the recognition that admission of that evidence would seriously undermine the Fourth Amendment’s promise. All three cases recognized that failure to apply the exclusionary rule would make that promise a hollow one, see?Mapp, at 657, reducing it to “a form of words,”?Silverthorne,?at 392, “of no value” to those whom it seeks to protect,?Weeks, at 393. Indeed, this Court in Mapp?held that the exclusionary rule applies to the States in large part due to its belief that alternative state mechanisms for enforcing the?Fourth Amendment’s guarantees had proved “worthless and futile.” 367 U.S., at 652.Why is application of the exclusionary rule any the less necessary here? Without such a rule, as in?Mapp, police know that they can ignore the Constitution’s requirements without risking suppression of evidence discovered after an unreasonable entry. As in?Mapp, some government officers will find it easier, or believe it less risky, to proceed with what they consider a necessary search immediately and without the requisite constitutional (say, warrant or knock-and-announce) compliance. Mericli, The Apprehension of Peril Exception to the Knock and Announce Rule - Part I, 16 Search and Seizure L. Rep. 129 (1989) (noting that some “[d]rug enforcement authorities believe that safety for the police lies in a swift, surprising entry with overwhelming force - not in announcing their official authority”).Of course, the State or the Federal Government may provide alternative remedies for knock-and-announce violations. But that circumstance was true of?Mapp?as well. What reason is there to believe that those remedies (such as private damages actions under?42 U.S.C. §1983), which the Court found inadequate in Mapp, can adequately deter unconstitutional police behavior here? See Kamisar, In Defense of the Search and Seizure Exclusionary Rule, 26 Harv.J.L. & Pub.Pol’y 119 (2003) (arguing that “five decades of post-Weeks?’freedom’ from the inhibiting effect of the federal exclusionary rule failed to produce any meaningful alternative to the exclusionary rule in any jurisdiction” and that there is no evidence that “times have changed” post-Mapp).The cases reporting knock-and-announce violations are legion. See 34 Geo.L.J.Ann.Rev.Crim.Proc. 31-35 (2005) (collecting Court of Appeals cases); Annot., 85 A.L.R. 5th 1 (2001) (collecting state-court cases); Brief for Petitioner 16-17 (collecting federal and state cases). Indeed, these cases of reported violations seem sufficiently frequent and serious as to indicate “a widespread pattern.” Yet the majority, like Michigan and the United States, has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation. Even Michigan concedes that, “in cases like the present one…, damages may be virtually non-existent.” And Michigan’s?amici?further concede that civil immunities prevent tort law from being an effective substitute for the exclusionary rule at this time. Brief for Criminal Justice Legal Foundation 10; see also?Hope?v.?Pelzer,?536 U.S. 730?(2002) (difficulties of overcoming qualified immunity defenses).As Justice Stewart, the author of a number of significant?Fourth Amendment?opinions, explained, the deterrent effect of damage actions “can hardly be said to be great,” as such actions are “expensive, time-consuming, not readily available, and rarely successful.” Stewart, The Road to?Mapp v. Ohio?and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum.L.Rev. 1365 (1983). The upshot is that the need for deterrence - the critical factor driving this Court’s?Fourth Amendment?cases for close to a century - argues with at least comparable strength for evidentiary exclusion here.To argue, as the majority does, that new remedies, such as?42 U.S.C. §1983?actions or better trained police, make suppression unnecessary is to argue that?Wolf,?not?Mapp,?is now the law. (The Court recently rejected a similar argument in?Dickerson?v.?United States,?530 U.S. 428 (2000)). To argue that there may be few civil suits because violations may produce nothing “more than nominal injury” is to confirm, not to deny, the inability of civil suits to deter violations. And to argue without evidence (and despite myriad reported cases of violations, no reported case of civil damages, and Michigan’s concession of their nonexistence) that civil suits may provide deterrence because claims?may?”have been settled” is, perhaps, to search in desperation for an argument.?Rather, the majority, as it candidly admits, has simply “assumed” that, “[a]s far as [it] know[s], civil liability is an effective deterrent,”?a support-free assumption that?Mapp?and subsequent cases make clear does not embody the Court’s normal approach to difficult questions of Fourth Amendment?law.It is not surprising, then, that after looking at virtually every pertinent Supreme Court case decided since?Weeks, I can find no precedent that might offer the majority support for its contrary conclusion. The Court has, of course, recognized that not every Fourth Amendment?violation necessarily triggers the exclusionary rule.?Illinois?v. Gates,?462 U.S. 213?(1983) (application of the exclusionary rule is a separate question from whether the?Fourth Amendment?has been violated). But the class of?Fourth Amendment?violations that do not result in suppression of the evidence seized, however, is limited.The Court has declined to apply the exclusionary rule only:(1) where there is a specific reason to believe that application of the rule would “not result in appreciable deterrence,”?United States?v.?Janis,?428 U.S. 433?(1976); see?United States v.?Leon,?468 U.S. 897 (1984) (exception where searching officer executes defective search warrant in “good faith”); Arizona?v. Evans,?514 U.S. 1?(1995) (exception for clerical errors by court employees);?Walder?v. United States,?347 U.S. 62 (1954) (exception for impeachment purposes), or(2) where admissibility in proceedings other than criminal trials was at issue, see?Pennsylvania Bd. of Probation and Parole v.?Scott,?524 U.S. 357?(1998) (exception for parole revocation proceedings);?INS?v. Lopez-Mendoza,?468 U.S. 1032?(1984) (exception for deportation proceedings);?Janis, at 458 (exception for civil tax proceedings);?United States v. Calandra,?414 U.S. 338 (1974) (exception for grand jury proceedings);?Stone?v.?Powell,?428 U.S. 465 (1976) (exception for federal habeas proceedings).Neither of these two exceptions applies here. The second does not apply because this case is an ordinary criminal trial. The first does not apply because (1) officers who violate the rule are not acting “as a reasonable officer would and should act in similar circumstances,”?Leon,?at 920, (2) this case does not involve government employees other than police,?Evans, and (3), most importantly, the key rationale for any exception, “lack of deterrence,” is missing, see?Pennsylvania Bd. of Probation, at 364 (noting that the rationale for not applying the rule in noncriminal cases has been that the deterrence achieved by having the rule apply in those contexts is “minimal”?because?”application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches”);?Michigan?v. Tucker,?417 U.S. 433 (1974) (noting that deterrence rationale would not be served if rule applied to police officers acting in good faith, as the “deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct”). That critical latter rationale, which underlies?every?exception, does not apply here, as there is no reason to think that, in the case of knock-and-announce violations by the police, “the exclusion of evidence at trial would not sufficiently deter future errors,”?Evans, at 14, or “further the ends of the exclusionary rule in any appreciable way,”?Leon.I am aware of no other basis for an exception. The Court has decided more than 300?Fourth Amendment?cases since?Weeks. The Court has found constitutional violations in nearly a third of them. See W. Greenhalgh, The?Fourth Amendment?Handbook: A Chronological Survey of Supreme Court Decisions 27-130 (2d ed. 2003) (collecting and summarizing 332 post-Weeks?cases decided between 1914 and 2002). The nature of the constitutional violation varies. In most instances officers lacked a warrant; in others, officers possessed a warrant based on false affidavits; in still others, the officers executed the search in an unconstitutional manner. But in every case involving evidence seized during an illegal search of a home (federally since?Weeks, nationally since Mapp), the Court, with the exceptions mentioned, has either explicitly or implicitly upheld (or required) the suppression of the evidence at trial. In not one of those cases did the Court “questio[n], in the absence of a more efficacious sanction, the continued application of the [exclusionary] rule to suppress evidence from the State’s case” in a criminal trial. Franks?v. Delaware,?438 U.S. 154 (1978).I can find nothing persuasive in the majority’s opinion that could justify its refusal to apply the rule. It certainly is not a justification for an exception here (as the majority finds) to find odd instances in?other?areas of law that do not automatically demand suppression. (Suspect confesses, police beat him up?afterwards;?suspect confesses,?then?police apparently arrest him, take him to station, and refuse to tell him of his right to counsel). Nor can it justify an exception to say that?some police may knock at the door anyway (to avoid being mistaken for a burglar), for other police (believing quick entry is the most secure, effective entry) will not voluntarily do so. Mericli, The Apprehension of Peril Exception to the Knock and Announce Rule - Part I, 16 Search and Seizure L. Rep. 129 (1989) (describing Special Weapons and Tactics (SWAT) team practices); R.Balko, No SWAT (Apr. 6, 2006), available at (all Internet materials as visited June 7, 2006, and available in Clerk of Court’s case file [Checked June 6th, 2014 by author]).Neither can the majority justify its failure to respect the need for deterrence, as set forth consistently in the Court’s prior caselaw, through its claim of “substantial social costs” - at least if it means that those “social costs” are somehow special here. The only costs it mentions are those that typically accompany?any?use of the?Fourth Amendment’s exclusionary principle: (1) that where the constable blunders, a guilty defendant may be set free (consider?Mapp?itself); (2) that defendants may assert claims where?Fourth Amendment?rights are uncertain (consider the Court’s qualified immunity jurisprudence), and (3) that sometimes it is difficult to decide the merits of those uncertain claims. In fact, the “no-knock” warrants that are provided by many States, by diminishing uncertainty, may make application of the knock-and-announce principle less “cost[ly]” on the whole than application of comparable?Fourth Amendment?principles, such as determining whether a particular warrantless search was justified by exigency. The majority’s “substantial social costs” argument is an argument against the?Fourth Amendment’s exclusionary principle itself. And it is an argument that this Court, until now, has consistently rejected.This claim, however, misunderstands the inevitable discovery doctrine. Justice Holmes in?Silverthorne, in discussing an “independent source” exception, set forth the principles underlying the inevitable discovery rule. That rule does not refer to discovery that would have taken place if the police behavior in question had (contrary to fact) been lawful. The doctrine does not treat as critical what?hypothetically could?have happened had the police acted lawfully in the first place. Rather, “independent” or “inevitable” discovery refers to discovery that did occur or that would have occurred (1)?despite?(not simply?in the absence of) the unlawful behavior and (2)?independently?of that unlawful behavior. The government cannot, for example, avoid suppression of evidence seized without a warrant (or pursuant to a defective warrant) simply by showing that it could have obtained a valid warrant had it sought one. See Coolidge?v.?New Hampshire,?403 U.S. 443 (1971). Instead, it must show that the same evidence “inevitably?would have been discovered?by lawful means.”?Nix?v.?Williams, 467 U.S., at 444. “What a man?could?do is not at all the same as what he?would?do.” Austin, Ifs And Cans, 42 Proceedings of the British Academy 109 (1956).Over a century ago this Court wrote that “it is not the breaking of his doors” that is the “essence of the offence,” but the “invasions on the part of the government…of the sanctity of a man’s home and the privacies of life.”?Boyd, 116 U.S., at 630. And just this Term we have reiterated that “it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.”?Georgia?v.?Randolph, 547 U.S. 103 (2006). The knock-and-announce requirement is no less a part of the “centuries-old principle” of special protection for the privacy of the home than the warrant requirement. The Court is therefore wrong to reduce the essence of its protection to “the right not to be intruded upon in one’s nightclothes.” See?Richards, 520 U.S., at 393 (“[I]ndividual privacy interest[s]” protected by the rule are “not inconsequential” and “should not be unduly minimized”).Second, whether the interests underlying the knock-and-announce rule are implicated in any given case is, in a sense, beside the point. As we have explained, failure to comply with the knock-and-announce rule renders the related search unlawful. Wilson,?at 936. And where a search is unlawful, the law insists upon suppression of the evidence consequently discovered, even if that evidence or its possession has little or nothing to do with the reasons underlying the unconstitutionality of a search. The?Fourth Amendment?does not seek to protect contraband, yet we have required suppression of contraband seized in an unlawful search. See?Kyllo?v.?United States,?533 U.S. 27?(2001); Coolidge, 403 U.S., at 473. That is because the exclusionary rule protects more general “privacy values through deterrence of future police misconduct.”?James?v.?Illinois,?493 U.S. 307 (1990). The same is true here.To argue that police efforts to assure compliance with the rule may prove dangerous, however, is not to argue against evidence suppression. It is to argue against the validity of the rule itself. Similarly, to argue that enforcement means uncertainty, which in turn means the potential for dangerous and longer-than-necessary delay, is (if true) to argue against meaningful compliance with the rule.The answer to the first argument is that the rule itself does not require police to knock or to announce their presence where police have a “reasonable suspicion” that doing so “would be dangerous or futile” or “would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”?Richards; see?Banks, 540 U.S., at 36;?Wilson.The answer to the second argument is that States can, and many do, reduce police uncertainty while assuring a neutral evaluation of concerns about risks to officers or the destruction of evidence by permitting police to obtain a “no-knock” search warrant from a magistrate judge, thereby assuring police that a prior announcement is not necessary. While such a procedure cannot remove all uncertainty, it does provide an easy way for officers to comply with the knock-and-announce rule.Of course, even without such a warrant, police maintain the backup “authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” “[I]f circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in.”?Banks. And “[r]easonable suspicion is a less demanding standard than probable cause….” Alabama?v.?White,?496 U.S. 325?(1990); see?Terry?v.?Ohio, 392 U.S. 1 (1968) (no?Fourth Amendment?violation under the reasonable suspicion standard if “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate”).Justice Scalia?first argues that, if the “search in?Segura?could be ‘wholly unrelated to the prior entry,…when the only entry was warrantless, it would be bizarre to treat more harshly the actions in this case, where the only entry was?with?a warrant.” Then it says that, “[i]f the probable cause backing a warrant that was issued?later in time?could be an ‘independent source’ for a search that proceeded after the officers illegally entered and waited, a search warrant obtained?before?going in must have at least this much effect.”?I do not understand these arguments. As I have explained, the presence of a warrant that did not authorize a search that fails to comply with knock-and-announce requirements is beside the point. See Part III-B. And the timing of the warrant in?Segura?made no difference to the case. The relevant fact about the warrant there was that it was lawfully obtained and arguably set off an independent chain of events that led the police to seize the evidence. 468 U.S., at 814; (“The valid warrant search was a ‘means sufficiently distinguishable’ to purge the evidence of any ‘taint’ arising from the entry”). As noted, there is no such independent event, or intervening chain of events that would purge the taint of the illegal entry, present here. The search that produced the relevant evidence here is the very search that the knock-and-announce violation rendered unlawful. There simply is no “independent source.”Segura’s police officers would have been foolish to have entered the apartment unlawfully with the?ex ante?hope that an independent causal chain of events would later occur and render admissible the evidence they found. By way of contrast, today’s holding will seriously undermine deterrence in knock-and-announce cases. Officers will almost always know?ex ante?that they can ignore the knock-and-announce requirement without risking the suppression of evidence discovered after their unlawful entry. That fact is obvious, and this Court has never before today - not in Segura?or any other post-Weeks?(or post-Mapp) case - refused to apply the exclusionary rule where its absence would so clearly and so significantly impair government officials’ incentive to comply with comparable?Fourth Amendment?requirements.How can?Justice Scalia?maintain that the evidence here - a gun and drugs seized in the home - is “‘not the fruit’” of the illegal entry? The officers’ failure to knock and announce rendered the entire search unlawful,?Wilson, 514 U.S., at 936, and that unlawful search led to the discovery of evidence in petitioner’s home. Thus,?Harris?compels the opposite result than that reached by the Court today. Like the?Payton?rule at issue in Harris, the knock-and-announce rule reflects the “reverence of the law for the individual’s right of privacy in his house.”?Miller, 357 U.S., at 313;?Harris, 495 U.S., at 17 (“Payton?itself emphasized that our holding in that case stemmed from the ‘overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic’”). Like the confession that was “excluded, as it should have been,” the evidence in this case was seized in the home, immediately following the illegal entry. And like?Harris, nothing in petitioner’s argument would require the suppression of evidence obtained?outside?the home following a knock-and-announce violation should be suppressed, precisely because officers have a remaining incentive to follow the rule to avoid the suppression of any evidence obtained from the very place they are searching.?(“Even though we decline to suppress statements made outside the home following a?Payton?violation, the principle incentive to obey?Payton?still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found, or statements taken, inside the home”).There is perhaps one additional argument implicit in the majority’s approach. The majority says, for example, that the “cost” to a defendant of “entering this lottery,”?i.e., of claiming a “knock-and-announce” violation, “would be small, but the jackpot enormous” - namely, a potential “get-out-of-jail-free card.” It adds that the “social costs” of applying the exclusionary rule here are not worth the deterrence benefits. Leaving aside what I believe are invalid arguments based on precedent or the majority’s own estimate that suppression is not necessary to deter constitutional violations, one is left with a simple unvarnished conclusion, namely, that in this kind of case, a knock-and-announce case, “[r]esort to the massive remedy of suppressing evidence of guilt is unjustified.”?Why is that judicial judgment, taken on its own, inappropriate? Could it not be argued that the knock-and-announce rule, a subsidiary?Fourth Amendment?rule, is simply not important enough to warrant a suppression remedy? Could the majority not simply claim that the suppression game is not worth the candle?UNITED STATES v. BOOKER, 543 U.S. 220, 125 S.Ct. 738 (2005)Justice STEVENS delivered the opinion of the Court in part, concluding that the Sixth Amendment as construed in Blakely applies to the Federal Sentencing Guidelines.The Constitution protects every criminal defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged. U.S.C.A. Const. Amend. 6.When a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.Sixth Amendment requirement that any fact, other than a prior conviction, which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt was incompatible with Federal Sentencing Act, which called for promulgation of federal sentencing guidelines and made such guidelines mandatory, so Act could not remain valid in its entirety, and provisions of Act that made guidelines mandatory and set forth standard of review on appeal would be severed and excised. U.S.C.A. Const. Amend. 6; 18 U.S.C.A. §§3553(b)(1), 3742(e); U.S.S.G. §1B1.1 et seq., 18 U.S.C.A.Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker’s drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month, sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt. The Seventh Circuit held that this application of the Guidelines conflicted with the Apprendi v. New Jersey, 530 U.S. 466, holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Relying on Blakely v. Washington, 542 U.S. 296 (2004), the court held that the sentence violated the Sixth Amendment and instructed the District Court either to sentence Booker within the sentencing range supported by the jury’s findings or to hold a separate sentencing hearing before a jury.…“[t]he Framers would not have thought it too much to demand that, before depriving a man of [ten] more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbors,’ rather than a lone employee of the State.” Blakely, 542 U.S., at 313.“[T]he historical foundation for our recognition of these principles extends down centuries into the common law. ‘[T]o guard against a spirit of oppression and tyranny on the part of rulers,’ and ‘as the great bulwark of [our] civil and political liberties,’ trial by jury has been understood to require that ‘the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbors….’” 530 U.S., at 477.Finally, in Edwards v. United States, 523 U.S. 511 (1998), the Court held that a jury’s general verdict finding the defendants guilty of a conspiracy involving either cocaine or crack supported a sentence based on their involvement with both drugs. Even though the indictment charged that their conspiracy embraced both, they argued on appeal that the verdict limited the judge’s sentencing authority. We recognize that the defendants’ statutory and constitutional claims might have had merit if it had been possible to argue that their crack-related activities were not part of the same conspiracy as their cocaine activities. But they failed to make that argument, and, based on our review of the record which showed “a series of interrelated drug transactions involving both cocaine and crack,” we concluded that no such claim could succeed.…Compare Welsh v. United States, 398 U.S. 333 (1970) (explaining that when a statute is defective because of its failure to extend to some group a constitutionally required benefit, the court may “either declare it a nullity” or “extend” the benefit “to include those who are aggrieved by exclusion”;……Prosecutors and defense attorneys would still resolve the lion’s share of criminal matters through plea bargaining, and plea bargaining takes place without a jury……We believe our inference a fair one linguistically, and one consistent with Congress’ intent to provide appellate review…Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.Justice STEVENS, with whom Justice SOUTER joins, and with whom Justice SCALIA joins except for part III and footnote 17, dissenting in part. hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.Invalidating §3553(b)(1), the Guidelines listed above, and Rule 32(c)(1) as applied to Booker by the District Court leaves the question whether the scheme’s unconstitutional application to Booker to be severed from the scheme’s many other constitutional applications to defendants like Fanfan. Severability doctrine is grounded in a presumption that Congress intends statutes to have effect to the full extent the Constitution allows. The Regan v. Time, Inc., 468 U.S. 641 (1984); Vermeule, Saving Constructions, 85 Geo.L.J. 1945 (1997). The severability issue may arise when a court strikes either a provision of a statute or an application of a provision. Severability of provisions is perhaps more visible than severability of application in our caselaw. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) (severing unconstitutional legislative veto provision from other provisions).…21 U.S.C. §901 (“If a provision of this chapter is held invalid, all valid provisions that are severable shall remain in effect”).…See Regan, 468 U.S., at 653. This presumption is a manifestation of Salerno’s general rule that we should not strike a statute on its face unless it is invalid in all its applications. Unless the Legislature clearly would not have enacted the constitutional applications independently of the unconstitutional application, the Court leaves the constitutional applications standing.Justice BREYER, with whom THE CHIEF JUSTICE, Justice O’CONNOR, and Justice KENNEDY join, dissenting in part.…McMillan, at 88 (upholding a Pennsylvania statute in part because it gave “no impression of having been tailored to permit the [sentencing factor] finding to be a tail which wags the dog of the substantive offence”).Footnotes:4. Memorandum from Christopher A. Wray, Assistant Attorney General, U.S. Department of Justice, Criminal Division, to All Federal Prosecutors, re: Guidance Regarding the Application of Blakely v. Washington to Pending Cases, available at (hereinafter Application of Blakely) (checked by author on February 17, 2014); see also Brief for National Association of Federal Defenders as Amicus Curiae 9-12.BALLARD v. WALL, et al., 413 F.3d 510 (2005)CARL E. STEWART, Circuit Judge.Whether judge’s challenged actions are judicial in nature, thus foreclosing non-jurisdictional claim of exception from judicial immunity, depends on whether: (1) precise act complained of is normal judicial function; (2) acts occurred in courtroom or appropriate adjunct spaces such as judge’s chambers; (3) controversy centered around case pending before court; and (4) acts arose directly out of visit to judge in his official capacity.Louisiana state-court judge was judicially immune against judgment debtor’s §1983 due process action alleging that judge had conspired with judgment creditor and its counsel to operate debtor’s prison, based on judge’s issuance of bond and accompanying bench warrant for judgment debtor’s failure to appear at judgment debtor rule hearing, and based on judge’s ordering judgment debtor arrested after debtor appeared post-hearing in hallway outside judge’s chambers and averred inability to pay bond; judge’s acts were judicial in nature since they were normally performed by judge and occurred in courthouse in controversy centered on case pending before her, and judge acted within her jurisdiction since bench warrant was issued for nonappearance in matter in which judge had original jurisdiction and judge was not completely outside scope of her authority in ordering arrest. U.S.C.A. Const. Amend. 14; 42 U.S.C.A. §1983; LSA-C.C.P. Art. 2451.If judge merely acts in excess of his authority, as opposed to acting without jurisdiction, he is still protected by judicial immunity.Whether deprivation of federal right can fairly be attributed to state, for purposes of §1983, depends on whether: (1) deprivation was caused by exercise of some right or privilege created by state or by person for whom state is responsible, and (2) party charged with deprivation is person who may fairly be said to be state actor, based on his identity as state official, his acting together with or obtaining significant aid from state officials, or fact that his conduct is otherwise chargeable to state. 42 U.S.C.A. §1983.Ballard did not pursue an appeal through the state courts concerning his complaints about the Judgment Debtor Rule procedure in Judge Lambert’s court. Instead, Ballard filed this suit under 42 U.S.C. §1983 in federal court, claiming federal constitutional violations. Ballard’s complaint specifically alleges that the defendants deprived him of his liberty without due process of law by conspiring to operate a debtor’s prison. His claim further states that Judge Lambert “had no jurisdiction to operate a [d]ebtor’s [p]rison for Judgment Debtors who did not appear timely for court appearances” and that “[s]ince 1840 [d]ebtor’s [p]rison has been forbidden in Louisiana.” Ballard further asserted that the proper penalty under Louisiana law for failing to pay a debt at a Judgment Debtor Rule is to order a rule to show cause hearing for contempt after proper notice is given.In response to the allegations in Ballard’s complaint, Judge Lambert filed a motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6), contending she was entitled to absolute judicial immunity from the claims in Ballard’s suit because “[s]he was merely setting a bond for a bench warrant that involved a hearing of which she was the presiding judge.” The attorneys also filed a motion to dismiss pursuant to FED. R.CIV.P. 12(b), arguing that they were not “state actors” within the meaning of §1983.In opposition to the defendants’ motions, Ballard contended that Judge Lambert was not entitled to judicial immunity because she acted beyond the scope of her jurisdiction when she ordered him jailed until he paid the debt. He also contended that the attorney defendants were state actors under §1983 because they conspired with Judge Lambert to operate a debtor’s prison. Ballard sought compensatory and exemplary damages, as well as attorney’s fees for the deprivation of his civil rights. Ballard also requested a permanent injunction enjoining the defendants “from operating a [d]ebtor’s [p]rison and incarcerating debtors until they pay debts.”Judicial immunity is an immunity from suit and not just from the ultimate assessment of damages.?Mireles v. Waco,?502 U.S. 9 (1991). “Although unfairness and injustice to a litigant may result on occasion, ‘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 consequences to himself.’” Judicial immunity is not overcome by allegations of bad faith or malice and “applies even when the judge is accused of acting maliciously and corruptly.”?“It is the Judge’s actions alone, not intent, that we must consider.”?Malina v. Gonzales,?994 F.2d 1121 (5th Cir.1993). Notwithstanding the aforementioned, judicial immunity can be overcome in two sets of circumstances: (1) “a judge is not immune from liability for nonjudicial actions,?i.e., actions not taken in the judge’s judicial capacity”; and (2) “a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.”?Mireles,?502 U.S. at 11.In determining whether a judge acted outside the scope of his or her judicial capacity, the first set of circumstances articulated in?Mireles,?a District Court is required to consider four factors to discern whether a judge’s actions are in fact “judicial in nature”:(1) Whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity.Malina,?994 F.2d at 1124. These factors are broadly construed in favor of immunity.Footnotes:2. Ballard has not appealed the part of the District Court’s ruling denying his motion to amend pursuant to FED.R.CIV.P. 59 on the basis that Judge Lambert was not immune from his claim for injunctive relief. This claim is accordingly waived.DAWSON v. NEWMAN, et al., 419 F.3d 656 (2005)SYKES, Circuit Judge.Unless a claim is frivolous, a court cannot sua sponte enter summary judgment or dismiss a complaint without notifying the parties of its intentions and allowing them an opportunity to cure the defect in the complaint or respond.Assertion by defendant, who was county clerk of court, that she was entitled to absolute immunity and breached no duty to former probationer could not be raised on appeal from dismissal of claims against defendant, who was granted dismissal sua sponte by District Court in probationer’s §1983 action after court granted other defendants’ motion for dismissal; rather, such arguments had to be raised first in the District Court. 42 U.S.C.A. §1983.Doctrine of “judicial immunity” confers complete immunity from suit, not just a mere defense to liability, and is applicable in suits under §1983 because the legislative record gave no clear indication that Congress meant to abolish wholesale all common-law immunities. 42 U.S.C.A. §1983.If a judge errs through inadvertence or otherwise, a party’s remedy is through appellate process, given judge’s judicial immunity from suit.Judicial immunity from suit extends to acts performed by the judge in the judge’s judicial capacity, but not to ministerial or administrative acts.Absolute judicial immunity is not limited to government officials with the title of judge; officials performing functionally comparable acts in other contexts, such as administrative agencies, are also accorded absolute immunity.We affirm in part and reverse in part. Judge Newman is entitled to absolute judicial immunity, and the claims against him were properly dismissed. The claims against the parole officials should not have been dismissed, however. The dismissal motion raised only the issue of absolute immunity - not the liability merits - and the parole officials are not entitled to absolute immunity. Finally, the District Court’s follow-up order summarily dismissing the claims against the court clerk was improper, as she had not moved to dismiss.But while the wheels of Dawson’s imminent release ostensibly were moving forward, he remained in custody for another fourteen months. He did not question his incarceration, as he had not been informed of the Court of Appeals’ decision and believed his appeal was still pending. On September 6, 2002, Dawson was finally released, but not as a completely free man; he was instead ordered to report for parole supervision. He reported as ordered, but by this time he had learned about the Indiana Court of Appeals’ decision and Judge Newman’s docket order and protested to parole officials that his placement on parole supervision was improper. Dawson’s protests apparently fell on deaf ears. Dawson told his parole officer, Betty Weist, that he had been ordered released and should not be on parole. This prompted Weist to contact Judge Newman’s court staff for advice, but none was forthcoming. Weist’s supervisor, Victoria Fafata, told her to continue Dawson’s parole supervision. Dawson’s attorney got involved, and the matter was referred up the chain of command to Arthur Hegewald, Supervisor of Parole Services. Hegewald seemed unconcerned and declined to meet with Dawson’s attorney, indicating that the snafu “did not matter” because Dawson’s parole would soon expire of its own accord.Dawson filed this lawsuit in state court under 42 U.S.C. §1983 against Judge Newman, the DOC, and DOC parole officials Weist, Fafata, and Hegewald. The defendants removed the case to federal court and Dawson amended the complaint to add Madison County Clerk of Court Kathy Stoops-Wright as a defendant. Dawson filed a second amended complaint, alleging due process, equal protection, wrongful imprisonment, and cruel and unusual punishment violations, and also asserting state law claims for false imprisonment. The State defendants - Judge Newman, the DOC, and the parole officials - moved to dismiss pursuant to Rule 12(b)(6), asserting absolute immunity. As noted, Stoops-Wright filed an answer and did not join the motion to dismiss.On appeal, the parties argue the immunity question, and Dawson also argues that the District Court should not have dismissed his claims against Stoops-Wright sua sponte. We take this last argument first. Stoops-Wright has not responded to it, which ordinarily means the point is deemed waived.?Holman v. Indiana,?211 F.3d 399 (7th Cir. 2000). In any event, Dawson is correct that the District Court’s sua sponte dismissal of Dawson’s claims against Stoops-Wright was entirely inappropriate. “Unless a claim is frivolous, it is rudimentary that a court cannot sua sponte enter summary judgment or dismiss a complaint without notifying the parties of its intentions and allowing them an opportunity to cure the defect in the complaint or respond.”?English v. Cowell,?10 F.3d 434 (7th Cir. 1993). The District Court gave no notice that it intended to give Stoops-Wright the benefit of an order granting a dismissal motion she had neither filed nor joined. Dawson had no notice of the grounds invoked for the dismissal and was given no opportunity to respond. The court’s “clarification” order did not identify any legal basis whatsoever for dismissing the claims against Stoops-Wright. Although Stoops-Wright contends on appeal that she is entitled to absolute immunity and breached no duty, these arguments must be raised first in the District Court. (“English was entitled to an opportunity to be heard before dismissal of his claims. This opportunity must be afforded, not on appeal, but at the District Court....”). The order dismissing Dawson’s claims against Stoops-Wright must be reversed.The dismissal of the claims against Judge Newman, however, was entirely appropriate, as the judge is entitled to absolute immunity. The doctrine of judicial immunity has been embraced “for centuries.”?Lowe v. Letsinger,?772 F.2d 308 (7th Cir. 1985). It confers complete immunity from suit, not just a mere defense to liability, and “is applicable in suits under §1983 because the ‘legislative record [gave] no clear indication that Congress meant to abolish wholesale all common-law immunities.’”?Dellenbach v. Letsinger,?889 F.2d 755 (7th Cir. 1989). If a judge errs “through inadvertence or otherwise, a party’s remedy is through appellate process.” Judicial immunity extends to acts performed by the judge “in the judge’s judicial capacity.” That is, judicial immunity applies “to judicial acts, but not to ministerial or administrative acts.” The Supreme Court has acknowledged the imprecision inherent in “attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges.”?Forrester v. White,?484 U.S. 219 (1988).Absolute immunity for acts by nonjudicial government officers is determined on the basis of “a functional approach.”?Wilson v. Kelkhoff,?86 F.3d 1438 (7th Cir. 1996). “Absolute immunity is only accorded for limited functions; ‘[t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.’” Absolute judicial immunity “is not limited to government officials with the title of...judge; officials performing ‘functionally comparable’ acts in other contexts, such as administrative agencies, are also accorded absolute immunity.” (Quoting?Butz v. Economou,?438 U.S. 478 (1978)). Thus, we have held that parole officials are entitled to absolute immunity “for their activities that are analogous to those performed by judges.” These include, for example, acts associated with the decision to grant, revoke, or deny parole, or the signing of an arrest warrant.?Because such activities involve decision-making that is “judicial” in nature, it follows that absolute immunity should shield such acts.UNITED STATES v. HAMMOUD, 381 F.3d 316, 65 Fed.R.Evid.Serv. 338 (2004)Affirmed by published opinion. Chief Judge WILKINS wrote the opinion.Where defendant failed to bring constitutionality challenges to statute of conviction before the District Court, Court of Appeals would review for plain error; to establish plain error, defendant would have to show that an error occurred, that the error was plain, and that the error affected his substantial rights. Fed. Rules Cr.Proc. Rule 52(b), 18 U.S.C.A.Under plain error standard of review, even if defendant can show that error occurred, that error was plain, and that error affected his substantial rights, correction of the error remains within appellate court’s discretion, which appellate court should not exercise unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Fed. Rules Cr.Proc. Rule 52(b), 18 U.S.C.A.It is a violation of the First Amendment to punish an individual for mere membership in an organization that has legal and illegal goals, and any statute prohibiting association with such an organization must require a showing that the defendant specifically intended to further the organization’s unlawful goals. U.S.C.A. Const. Amend. 1.Statute prohibiting the provision of material support or resources to a designated foreign terrorist organization (FTO) did not impermissibly restrict defendant’s First Amendment right to free association; statute did not prohibit mere association, but certain conduct, and was within government’s constitutional power, government had substantial interest in curbing spread of international terrorism, government’s interest was unrelated to suppression of free expression, and statute’s incidental effect on expression was no greater than necessary. U.S.C.A. Const. Amends. 1; 18 U.S.C.A. §2339B.The “void-for-vagueness doctrine” requires that penal statutes define crimes so that ordinary people can understand the conduct prohibited and so that arbitrary and discriminatory enforcement is not encouraged.In evaluating whether a penal statute is impermissibly vague, a court must consider both whether it provides notice to the public and whether it adequately curtails arbitrary enforcement.Statute permitting Secretary of State to designate an organization as a foreign terrorist organization (FTO) did not violate nondelegation doctrine, although criminal defendant charged with providing material support to FTO could not challenge that designation; even if doctrine required some form of judicial review for such designation, designation could be challenged by organization itself. Immigration and Nationality Act, §219(a,b); 18 U.S.C.A. §2339B.Foreign Intelligence Surveillance Act (FISA) was enacted to create a framework whereby the Executive could conduct electronic surveillance of foreign intelligence purposes without violating the rights of citizens. Foreign Intelligence Surveillance Act of 1978, §101 et seq., 50 U.S.C.A. §1801 et seq.Probable cause to support surveillance under the Foreign Intelligence Surveillance Act (FISA) is a fluid concept, turning on the assessment of probabilities in particular factual contexts, not readily, or even usefully, reduced to a neat set of legal rules, and in evaluating whether probable cause exists, it is the task of the issuing judge to make a practical, common-sense decision whether, given all the circumstances set forth in affidavit, there is a fair probability that the search will be fruitful. Foreign Intelligence Surveillance Act of 1978, §§102, 104, 50 U.S.C.A. §§1802, 1804.Even if Foreign Intelligence Surveillance Act (FISA) required that collection of foreign intelligence information be primary purpose of electronic surveillance authorized under FISA, information provided in affidavit supporting application for wiretap aimed at defendant’s telephone conversations supported conclusion that FBI was primarily interested in obtaining foreign intelligence information, despite defendant’s claim that purpose of surveillance was to obtain evidence for use in criminal investigation. Foreign Intelligence Surveillance Act of 1978, §104(a)(7), 50 U.S.C.A. §1804(a)(7).Court of Appeals would not consider claim for which appellant provided no supporting argument. F.R.A.P. Rule 28(a)(9)(A), 28 U.S.C.ernment’s mere act of keeping defendant and District Court informed of its continuing efforts to secure expert on foreign terrorist organization (FTO) to which defendant allegedly provided material support did not alone demonstrate compliance with criminal discovery rule; District Court set clear deadline for discovery, and deadline passed before the government identified its expert. Fed. Rules Cr.Proc. Rule 16, 18 U.S.C.A.In determining what sanction, if any, to impose for a discovery violation by the government in a criminal prosecution, the District Court must weigh the reasons for the violation and whether it acted intentionally or in bad faith, the degree of prejudice, if any, suffered by the defendant, and whether any less severe sanction will remedy the prejudice and wrongdoing of government; the court must impose the least severe sanction that will adequately punish the government and secure future compliance, and a continuance is the preferred sanction. Fed. Rules Cr.Proc. Rule 16, 18 U.S.C.A.In determining whether proffered expert testimony is reliable, the court should be conscious of two guiding, and sometimes competing, principles: (1) that governing rule was intended to liberalize the introduction of relevant expert evidence; and (2) that due to difficulty of evaluating their testimony, expert witnesses have the potential to be both powerful and quite misleading. Fed. Rules Evid. Rule 702, 28 U.S.C.ernment expert was qualified to give expert testimony on terrorist organizations and particular foreign terrorist organization (FTO) to which defendant allegedly provided material support; expert identified his methodology as one generally employed in the social sciences, defendant did not challenge this testimony, and expert also testified that he actually applied this methodology in reaching his conclusions regarding the case. 18 U.S.C.A. §2339B, Fed. Rules Evid. Rule 702, 28 U.S.C.A.The main and essential purpose of confrontation is to secure for the defendant the opportunity of cross-examination; indeed, cross-examination is the principle means by which the believability of a witness and the truth of testimony are tested. U.S.C.A. Const. Amend. 6.Notwithstanding protections afforded by confrontation clause, District Court retains wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant. U.S.C.A. Const. Amend. 6.“Double counting” under the sentencing guidelines occurs when a provision of the guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application of another guideline provision. U.S.S.G. §1B1.1 et seq., 18 U.S.C.A.Double counting of a particular consideration under the sentencing guidelines is permissible unless the guidelines is permissible unless the guidelines expressly prohibit it in a given circumstance; thus, an adjustment that clearly applies to the conduct of an offense must be imposed unless the guidelines expressly exclude its applicability. U.S.S.G. §1B1.1 et seq., 18 U.S.C.A.An obstruction of justice enhancement based on perjured trial testimony is proper when the defendant (1) gave false testimony; (2) concerning a material matter; (3) with the willful intent to deceive, rather than as a result of confusion, mistake, or fault memory. U.S.S.G. §3C1.1 et seq., 18 U.S.C.A.Hizballah is an organization founded by Lebanese Shi’a Muslims in response to the 1982 invasion of Lebanon by Israel. Hizballah provides various forms of humanitarian aid to Shi’a Muslims in Lebanon. However, it is also a strong opponent of Western presence in the Middle East, and it advocates the use of terrorism in support of its agenda. Hizballah is particularly opposed to the existence of Israel and to the activities of the American government in the Middle East. Hizballah’s general secretary is Hassan Nasserallah, and its spiritual leader is Sheikh Fadlallah.The District Court conducted a sentencing hearing at which it rejected all of Hammoud’s sentencing challenges. The court therefore concluded that the guidelines provided for a sentence of life imprisonment. Because none of the offenses of conviction carried a statutory maximum of life imprisonment, the District Court imposed the maximum sentence on each count and ordered all sentences to be served consecutively.?See?U.S.S.G. §5G1.2(d). This resulted in the imposition of a sentence of 155 years.Hammoud maintains that §2339B is unconstitutional in a number of respects. Because Hammoud failed to bring these challenges before the District Court, our review is for plain error.?See?Fed.R.Crim.P. 52(b);?United States v. Olano,?507 U.S. 725 (1993). To establish plain error, Hammoud must show that an error occurred, that the error was plain, and that the error affected his substantial rights.?See Olano,?507 U.S. at 732. Even if Hammoud makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise...unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”Hammoud’s argument fails because §2339B does not prohibit mere association; it prohibits the?conduct?of providing material support to a designated FTO. Therefore, cases regarding mere association with an organization do not control. Rather, the governing standard is found in?United States v. O’Brien,?391 U.S. 367 (1968), which applies when a facially neutral statute restricts some expressive conduct. Such a statute is valid:If it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.Fourth and finally, the incidental effect on expression caused by §2339B is no greater than necessary. In enacting §2339B and its sister statute, 18 U.S.C.A. §2339A, Congress explicitly found that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” AEDPA §301(a)(7). As the Ninth Circuit reasoned:[i]t follows that all material support given to [foreign terrorist] organizations aids their unlawful goals. Indeed,…terrorist organizations do not maintain open books. Therefore, when someone makes a donation to them, there is no way to tell how the donation is used. Further,…even contributions earmarked for peaceful purposes can be used to give aid to the families of those killed while carrying out terrorist acts, thus making the decision to engage in terrorism more attractive. More fundamentally, money is fungible; giving support intended to aid an organization’s peaceful activities frees up resources that can be used for terrorist acts.…See Hicks,?539 U.S. at 122 (“The overbreadth claimant bears the burden of demonstrating, from the text of the law and from actual fact, that substantial overbreadth exists.”Hammoud next argues that the term “material support” is unconstitutionally vague. “The void-for-vagueness doctrine requires that penal statutes define crimes so that ordinary people can understand the conduct prohibited and so that arbitrary and discriminatory enforcement is not encouraged.”?United States v. McLamb,?985 F.2d 1284 (4th Cir. 1993). In evaluating whether a statute is vague, a court must consider both whether it provides notice to the public and whether it adequately curtails arbitrary enforcement.?See Kolender v. Lawson,?461 U.S. 352, 103 S.Ct. 1855 (1983).Section 2339B easily satisfies this standard. As noted above, the term “material support” is specifically defined as a number of enumerated actions. Hammoud relies on?Humanitarian Law Project,?in which the Ninth Circuit ruled that two components of the material support definition -“personnel” and “training”- were vague.?See Humanitarian Law Project,?205 F.3d at 1137. The possible vagueness of these prongs of the material support definition does not affect Hammoud’s conviction, however, because he was specifically charged with providing material support in the form of currency.?See United States v. Rahman,?189 F.3d 88 (2d Cir. 1999) (rejecting vagueness challenge because allegedly vague term was not relevant to Appellant’s conviction). There is nothing at all vague about the term “currency.”Hammoud’s final challenge to the constitutionality of §2339B concerns his inability to challenge the designation of Hizballah as an FTO. Section 2339B(g)(6) defines “terrorist organization” as “an organization designated [by the Secretary of State] as a terrorist organization under [8 U.S.C.A. §1189 (West 1999 & Supp. 2004)].” Section 1189(a)(8) explicitly prohibits a defendant in a criminal action from challenging a designation. Hammoud argues that his inability to challenge the designation of Hizballah as an FTO is a violation of the Constitution.Before authorizing surveillance, a FISA judge must determine that there is probable cause to believe that, as is relevant here, “the target of the electronic surveillance is...an agent of a foreign power” and that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by...an agent of a foreign power.” 50 U.S.C.A. §1805(a)(3). A “foreign power” includes “a group engaged in international terrorism or activities in preparation therefor.”?§1801(a)(4). An “agent of a foreign power” is “any person who...knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power.”?§1801(b)(2)(C). Hammoud concedes that Hizballah is a foreign power under FISA, but he argues that the Government did not have probable cause to believe that he was an agent of Hizballah.“[P]robable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules.”?Illinois v. Gates,?462 U.S. 213 (1983). In evaluating whether probable cause exists, it is the task of the issuing judge “to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit..., there is a fair probability” that the search will be fruitful.?See Mason v. Godinez, 47 F.3d 852 (7th Cir. 1995) (“Probable cause means more than bare suspicion but less than absolute certainty that a search will be fruitful.”).Having conducted our own de novo review of the materials,?see Squillacote,?221 F.3d at 554, we reach the same conclusion as the magistrate judge and the District Court. Further, upon review of the materials we are satisfied that the probable cause finding was not based “solely upon...activities protected by the First Amendment to the Constitution of the United States.” 50 U.S.C.A. §1805(a)(3)(A). We will not elaborate on the contents of the materials in light of the Attorney General’s assessment that disclosure of the information contained in the application and supporting documents would endanger national security.In enacting FISA, Congress recognized that “no electronic surveillance can be so conducted that innocent conversations can be totally eliminated.” S.Rep. No. 95-701, at 39 (1978),?reprinted in?1978 U.S.C.C.A.N. 3973, 4008. The minimization requirement obligates the Government to make a good faith effort to minimize the acquisition and retention of irrelevant information. However, it is not always immediately clear into which category a particular conversation falls. A conversation that seems innocuous on one day may later turn out to be of great significance, particularly if the individuals involved are talking in code. United States v. Salameh,?152 F.3d 88 (2d Cir. 1998) (noting that two conspirators involved in the 1993 bombing of the World Trade Center in New York referred to the plot as the “study” and to relevant materials as “university papers”). In view of these considerations, the mere fact that innocent conversations were recorded, without more, does not establish that the government failed to appropriately minimize surveillance.During pretrial proceedings, the District Court ruled that the CSIS summaries were admissible as recorded recollections,?see?Fed.R.Evid. 803(5), and as public records,?see?Rule 803(8). At trial, Hammoud stipulated to the admissibility of the summaries.?See?J.A. 2827 (“Your Honor, with respect to these exhibits, there’s a stipulation among the parties that the Canadian Security Intelligence Service’s factual summaries are admissible pursuant to Federal Rule of Evidence 803(5), past recollection recorded exception to hearsay rules and that they are authentic and accurate.”).Hammoud now maintains that admission of the summaries was error. However, all of his arguments are negated by his stipulation; thus, Hammoud waived any objection.?See United States v. Aptt,?354 F.3d 1269 (10th Cir.2004) (explaining that “[a] defendant is free to waive objections to evidence by stipulation” and that “admission of a stipulated exhibit is not error..., even if it would not be admissible in the absence of such a stipulation”).The District Court ordered the Government to produce all discovery by October 31, 2001; the order stated that “[d]iscovery produced after that date will not be admitted at trial absent a showing of extreme need.” J.A. 347. On November 1, the Government filed a notice of compliance which included a section entitled “Discovery material not yet available to defendants.”?In this section, the Government informed the court that it was still seeking the aid of an expert on Hizballah. The Government also acknowledged that it would have to obtain leave of the court prior to offering such expert testimony at trial. In response to a motion filed by Hammoud’s codefendant (Chawki Hammoud, who is Hammoud’s brother), the Government informed the court on December 11 that it still had not obtained an expert on Hizballah; the Government stated that “[w]hen it has [found an expert], notice will be given and litigation, including the timeliness of disclosure, can commence.”?In the meantime, the Government requested that the motions deadline be extended to account for ongoing discovery.On April 10, 2002, the Government filed a notice of its intent to call Levitt,?see?Fed.R.Crim.P. 16(a)(1)(G), and requested leave of the court to admit Levitt’s testimony. The Government noted that Levitt expected to complete a summary of his testimony by April 26, at which point it would be submitted to the defense. The Government filed the notice and summary on May 3.At a hearing concerning the timeliness of the disclosure, Hammoud’s attorney argued that he did not have adequate time to prepare to cross-examine Levitt. However, defense counsel also told the court that neither he nor Hammoud wanted a continuance. Noting that the Government had kept the court and defense counsel apprised of its search for an expert, the District Court declined to sanction the Government by excluding Levitt’s testimony.Rule 16 grants the District Court substantial discretion in dealing with a violation of a discovery order. See?Fed.R.Crim.P. 16(d)(2) (providing that a failure to comply may be remedied by an order directing compliance, a continuance, exclusion of the evidence, or “any other order that is just under the circumstances”);?see also United States v. Lopez,?271 F.3d 472 (3d Cir.2001) (“[O]n its face, the Rule does not require a District Court to do anything—Rule 16 merely states that the court ‘may’ take [one of the enumerated] actions.”). In determining what sanction, if any, to impose for a discovery violation, the District Court:must weigh the reasons for the government’s delay and whether it acted intentionally or in bad faith; the degree of prejudice, if any, suffered by the defendant; and whether any less severe sanction will remedy the prejudice and the wrongdoing of the government.United States v. Hastings,?126 F.3d 310 (4th Cir. 1997). The court must impose the least severe sanction that will “adequately punish the government and secure future compliance.”?A continuance is the preferred sanction.?See United States v. Golyansky, 291 F.3d 1245 (10th Cir.2002) (“It would be a rare case where, absent bad faith, a District Court should exclude evidence rather than continue the proceedings.”). The sanction decision is reviewed for abuse of discretion.Here, the District Court acknowledged the Government’s discovery violation but elected not to impose a sanction after defense counsel declined to accept a continuance. Its refusal to exclude Levitt’s testimony was not an abuse of discretion. The Government made clear, well before the discovery deadline, that it was seeking an expert to testify that Hammoud was the leader of a Hizballah cell. Additionally, the Government detailed its difficulties in obtaining such an expert and promptly identified Levitt when he had been retained. Under these circumstances, the District Court did not abuse its discretion in refusing to exclude Levitt’s testimony.Federal Rule of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The Supreme Court has held that Rule 702 requires the District Court to perform a gatekeeping function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert,?509 U.S. at 589.When, as here, the proffered expert testimony is not scientific in nature, the District Court must still perform the gatekeeping function.?See Kumho Tire Co. v. Carmichael,?526 U.S. 137 (1999). In determining whether proffered expert testimony is reliable, the District Court has broad discretion to consider whatever factors bearing on validity that the court finds to be useful; the particular factors will depend upon the unique circumstances of the expert testimony involved. “The court, however, should be conscious of two guiding, and sometimes competing, principles”: (1) “that Rule 702 was intended to liberalize the introduction of relevant expert evidence”; and (2) “that due to the difficulty of evaluating their testimony, expert witnesses have the potential to be both powerful and quite misleading.”?Westberry v. Gislaved Gummi AB,?178 F.3d 257 (4th Cir. 1999).The District Court conducted a?Daubert?hearing, during which Levitt testified that his expertise regarding Hizballah derived from his previous experience with the FBI and his current employment with a think tank, at which he specialized in Middle Eastern terrorist groups. Levitt testified that as part of his duties, he spent “a lot of [his] time...on Hizballah.” J.A. 2357. Levitt described his general methodology as follows:Well, we’re talking about a social science here. This is not scientific research. Basic academic intellectual research combined with the techniques I was taught in...various courses I took as an analyst for the government both taught that the best way to go about making sense of something in the social sciences is to collect as much information as possible and to balance each new incoming piece of information against the body of information that you’ve built to that point....So it’s a constant vetting process. And the more rigorous you are, the better your information will be.J.A. 2344-45. Levitt further testified that his work was subject to “tremendous peer review,”?and that his regular practice was to discuss his findings and conclusions with others to ensure their soundness. Levitt stated that he followed this process in reaching his opinion in this case.In view of this testimony, the District Court did not abuse its discretion in qualifying Levitt as an expert. Levitt identified his methodology as one generally employed in the social sciences, and Hammoud did not challenge this testimony. Additionally, Levitt testified that he actually applied this methodology in reaching his conclusions regarding this case.Hammoud also argues that Levitt’s testimony should have been excluded on the grounds that it was not helpful to the jury. Again, the District Court did not abuse its discretion. Levitt testified regarding the structure of Hizballah and identified its leaders. Levitt also explained the significance of Hammoud’s contact with those leaders (most notably Sheikh Fadlallah, the spiritual leader of Hizballah). And, Levitt discussed the nature of Hizballah’s funding activities with specific reference to Hammoud’s activities. This testimony was critical in helping the jury understand the issues before it.TACHIONA, et al. v. UNITED STATES of America, 386 F.3d 205 (2004)JOHN M. WALKER, JR., Chief Judge.To claim standing, litigant must have suffered invasion of legally protected interest that is concrete and particularized and actual or imminent. U.S.C.A. Const., Art. 3, §2.Article III standing requirement must be met by persons seeking appellate review; appellant must demonstrate injury caused by underlying facts, and direct stake in outcome. U.S.C.A. Const., Art. 3, §2.There is no per se bar against appeals by parties not bound by District Court’s judgment; party can appeal if able to show legal injury from judgment, actual or threatened. U.S.C.A. Const., Art. 3, §2.Treaties are construed more liberally than private agreements; court may look beyond treaty’s written words to its history, negotiations, and practical construction adopted by parties.Under Vienna Convention and United Nations Convention on Privileges and Immunities, Zimbabwe President, who was in United States to participate in U.N. conference, enjoyed full measure of Vienna Convention’s diplomatic immunity against service of process in Zimbabwe nationals’ Alien Tort Claims Act and Torture Victim Protection Act class action, even though class plaintiffs’ service of process was attempted while President was engaged in ancillary activity, i.e. attending private fund-raising rally for his political party, not while he was engaged in his duties as U.N. representative. 28 U.S.C.A. §1350; Torture Victim Protection Act of 1991, §1 et seq., 28 U.S.C.A. §1350 note.Exception to Vienna Convention’s diplomatic immunity for “action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions” did not apply to Zimbabwe President, who was in United States to participate in U.N. conference, so as to permit service of process in Zimbabwe nationals’ Alien Tort Claims Act and Torture Victim Protection Act class action, even though class plaintiffs’ service of process was attempted while President was engaged in ancillary activity, i.e. attending private fund-raising rally for his political party; class action “related to” President’s alleged activities in Zimbabwe, not his activities in “receiving state,” i.e. at rally.The United States appeals from a default judgment entered by the United States District Court for the Southern District of New York (Victor Marrero, Judge) against defendant the Zimbabwe African National Union-Patriotic Front (“ZANU-PF”) for violations of the Alien Tort Claims Act (“ATCA”), 28 U.S.C. §1350 (2001), the Torture Victim Protection Act of 1991 (“TVPA”), Pub.L. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. §1350 note), and international human rights norms. Plaintiffs cross-appeal from the District Court’s dismissal, for lack of subject-matter jurisdiction, of a host of similar claims brought against individual defendants Robert Mugabe and Stan Mudenge. The appeal and cross-appeal both turn on questions of immunity. The District Court held that Mugabe and Mudenge were entitled to diplomatic and head-of-state immunity, but that their immunity did not protect them from service of process as agents for ZANU-PF - a non-immune, private entity. Accordingly, in the District Court’s view, ZANU-PF was properly served with process and thus subject to a default judgment upon failure to appear in this litigation. For the reasons that follow, we affirm the District Court’s dismissal of the claims against Mugabe and Mudenge but reverse its judgment against ZANU-PF and remand for entry of a judgment dismissing plaintiffs’ claims against ZANU-PF.ZANU-PF is a private political party whose members have ruled Zimbabwe since 1980. At all relevant times, Robert Mugabe was the President of Zimbabwe and the President and First Secretary of ZANU-PF, and Stan Mudenge was the Zimbabwean Foreign Minister and a ZANU-PF official. In September 2000, Mugabe and Mudenge visited New York City as delegates to the United Nations (“U.N.”) Millennium Summit. During their visit, they attended (and Mugabe spoke at) a private political rally and fund-raiser at a church in Harlem - an event that was sponsored by a non-governmental organization called “Friends of ZANU-PF.” Just before he entered the church, Mugabe was served with two copies of the complaint in this action, one in his personal capacity and the other on behalf of ZANU-PF. The next day, Mudenge was served with a copy of the same complaint on the street outside the Zimbabwe Mission building.The complaint sought redress against Mugabe, Mudenge, ZANU-PF, and others for alleged violations of the ATCA, the TVPA, and international human rights norms. Plaintiffs (all of whom are Zimbabwean nationals) allege that they and/or their family members were subjected to torture, assault, execution, and other acts of violence at the hands of ZANU-PF members and upon the orders of ZANU-PF officials, including Mugabe and Mudenge. Mugabe and Mudenge were sued in their individual, not official, capacities. None of the defendants appeared before the District Court at any stage of the ensuing litigation.Several months after Mugabe and Mudenge were served with process, the United States filed a “suggestion of immunity” pursuant to 28 U.S.C. §517, in which it asserted that the claims against the two men should be dismissed on grounds of diplomatic and head-of-state immunity. The Government further argued that the claims against ZANU-PF should be dismissed because “under both the head of state and diplomatic immunity doctrines, [Mugabe and Mudenge] had ‘personal inviolability’ and could not be served with legal process in any capacity, including on behalf of ZANU-PF.” J.A. at 326-35 (Suggestion of Immunity Submitted by the United States of America, dated February 23, 2001).In response to the Government’s suggestion, plaintiffs argued that: (1) the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§1330, 1602 to 1611-not the Government’s suggestion of immunity-governs immunity determinations concerning heads of state; (2) the FSIA does not afford Mugabe and Mudenge immunity in this case because the two are alleged to have committed human rights violations in their non-official capacities; and (3) Mugabe and Mudenge were not entitled to diplomatic immunity during the course of their U.N.-sponsored trip to New York City and, thus, could be both sued individually and served with process as agents for ZANU-PF.In its appeal, the Government argues that the District Court erred in determining that neither head-of-state immunity nor diplomatic immunity protected Mugabe and Mudenge from service of process as agents for ZANU-PF. Plaintiffs respond in the alternative, asserting that: (1) the Government lacks standing to appeal the District Court’s judgment against ZANU-PF in the absence of ZANU-PF’s own demand for review of the judgment; and (2) on the merits, the default judgment against ZANU-PF should be upheld. They also cross-appeal the District Court’s dismissal of the claims against Mugabe and Mudenge. Our authority to review the merits depends on whether the Government has standing to appeal; we therefore address that issue first.The Government sought the District Court’s permission to intervene for purposes of appeal pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, and the District Court granted that request. Although the Government’s motion was both proper and prudent,?see Marino v. Ortiz,?484 U.S. 301 (1988) (a non-party seeking to appeal a judgment of the District Court should first seek leave to intervene for purposes of appeal in the District Court), a District Court’s grant of a motion to intervene for purposes of appeal does not, by itself, confer standing on the intervenor to appeal “in the absence of the party on whose side intervention was permitted.”?Diamond,?476 U.S. at 68. (Here, of course, ZANU-PF is not appealing.) Resolution of the standing question entails a separate inquiry into whether the Government’s asserted injury and interest “fulfill the requirements of [Article] III.”The Government claims that the District Court’s judgment invaded its legally protected interests in two ways: (1) it placed the United States in violation of certain international treaties; and (2) it usurped the Executive Branch’s exclusive authority to set the terms upon which the United States receives foreign ambassadors. As to the first, the Government argues that the District Court’s decision interferes with its obligation to ensure that the United States complies with the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502 (entered into force in U.S. Dec. 13, 1972) [hereinafter Vienna Convention], and the Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. No. 6900 (ratified by the U.S. Apr. 29, 1970) [hereinafter U.N. Convention on Privileges and Immunities]. The existence of the asserted interest can hardly be disputed; pursuant to Article II of the Constitution, the President has “the Power, by and with the Advice and Consent of the Senate, to make Treaties.” U.S.Const. Art. II, §2, cl. 2. A corollary to the executive’s power to enter into treaties is its obligation to ensure that the United States complies with them.Plaintiffs contend nevertheless that the alleged injury to the Government’s authority to receive foreign ambassadors is too abstract to permit the Government to appeal the decision below. To support this proposition, they rely on the Supreme Court’s decision in?Raines v. Byrd,?521 U.S. 811 (1997), in which individual members of Congress were held to lack standing to challenge a line-item veto statute because they “alleged no injury to themselves as individuals [and] the institutional injury they alleg[ed] [was] wholly abstract and widely dispersed.” But?Raines?is distinguishable in crucial respects from the instant case. First,?Raines?involved a constitutional challenge to an action taken by one of the other two branches of the Federal Government-a fact that the Court believed merited an “especially rigorous” standing inquiry because it implicated the “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere.” Here, by contrast, we are not being asked to review the actions taken by another branch, but rather to determine whether a component of our own branch of government,?i.e.,?the District Court, has overstepped its bounds. That kind of review is the standard grist of appellate courts.The Government’s argument on appeal-that Mugabe and Mudenge were shielded from service of process as agents for ZANU-PF-presupposes the correctness of the District Court’s ruling that the two individuals enjoyed diplomatic and/or head-of-state immunity; if the two were not immune from suit, then they could not claim that their protected status also shielded them from service of process as agents for a non-immune entity. Logic therefore compels us to first consider the merits of plaintiffs’ cross-appeal challenging the District Court’s immunity finding before addressing the Government’s appeal.The District Court dismissed plaintiffs’ claims against Mugabe and Mudenge because,?inter alia,?it concluded that the two were entitled to diplomatic immunity under the U.N. Convention on Privileges and Immunities and the Vienna Convention. We affirm for substantially the same reasons articulated by the District Court.The immunities afforded temporary representatives like Mugabe and Mudenge who visit the United States for a U.N. conference are set forth in Article IV, section 11 of the U.N. Convention on Privileges and Immunities:Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities:a. immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind;b. inviolability for all papers and documents;c. the right to use codes and to receive papers or correspondence by courier or in sealed bags;d. exemption in respect of themselves and their spouses from immigration restrictions, alien registration or national service obligations in the state they are visiting or through which they are passing in the exercise of their functions;e. the same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions;f. the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys, and also;g. such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported (otherwise than as part of their personal baggage) or from excise duties or sales taxes.We join the District Court in declining to adopt plaintiffs’ overly narrow interpretation of section 11(g). “When interpreting a treaty, we begin with the text of the treaty and the context in which the written words are used.”?E. Airlines, Inc. v. Floyd,?499 U.S. 530 (1991) (quoting?Volkswagenwerk Aktiengesellschaft v. Schlunk,?486 U.S. 694 (1988)). “[T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” (Quoting?Air France v. Saks,?470 U.S. 392 (1985)). Further, in construing treaty language, “[r]espect is ordinarily due the reasonable views of the Executive Branch.”?El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,?525 U.S. 155 (1999);?see Sumitomo Shoji Am., Inc. v. Avagliano,?457 U.S. 176 (1982) (“Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”). “But where the text [of the treaty] is clear,... [courts] have no power to insert an amendment.”?Chan v. Korean Air Lines, Ltd.,?490 U.S. 122 (1989).Taking our cue from former U.N. Secretary-General Waldheim, we decline to read the prefatory language of section 11 so narrowly. Secretary-General Waldheim, recognizing that U.N. representatives traveling to U.N. conferences typically engage in activities ancillary to their actual representative functions, interpreted the words “while exercising their functions” to mean “during the entire period of presence in the State...for reasons of the conference in question.” 1976 U.N. Jurid. Y.B. 224, 228 (quoting 1967 Y.B. Int’l L. Comm. at 176). Waldheim explained that “to interpret [the prefatory words] so as to limit them to times when the person concerned is actually doing something as part of his functions as a representative...leads to absurd and meaningless results making such an interpretation wholly untenable.”We also disagree with the District Court’s interpretation of the interplay between Articles 29 and 31 of the Vienna Convention. The District Court reasoned that because Article 31 permits suit against-and, therefore, service of process upon-diplomats in certain limited circumstances, service of process does not violate the inviolability principle.?See Tachiona I,?169 F.Supp.2d at 307. But this reasoning turns controlling precedent on its head. In?767 Third Avenue Associates,?we explained that the inviolability principle “makes no provision for exceptions?other than those set forth in Article 31.” 988 F.2d at 298. Accordingly, the fact that service of process is allowed in order to initiate the actions permitted by the express exceptions to inviolability does not mean that service of process on a diplomat is otherwise permissible under Article 29. If anything, that fact indicates that service of process on a diplomat in any action not specified in Article 31 would be improper;?767 Third Avenue Associates?mandates that unless the Article 31 exceptions apply, the term “inviolable” must be accorded its fullest meaning, untempered by Article 31.“Personal inviolability is of all the privileges and immunities of missions and diplomats the oldest established and the most universally recognized.”?Satow’s Guide to Diplomatic Practice?120 (Lord Gore-Booth ed., 5th ed.1979). It is “essential to ensure inviolability of the person of the ambassador in order to allow him to perform his functions without hindrance from the government of the receiving state, its officials and even private persons.” Sen,?A Diplomat’s Handbook of International Law and Practice?107 (3d ed.1988);?see also 767 Third Ave. Assocs.,?988 F.2d at 298 (giving broad interpretation to the term “inviolab[le]”).YE, et al. v. ZEMIN, 383 F.3d 620 (2004)MANION, Circuit Judge.Beginning in 1999, the Chinese government and the Party took steps to crack down on Falun Gong. Falun Gong, formed in 1992 by a former Chinese soldier, Li Hongzhi, “combin[es] traditional Buddhist teachings and predictions about the end of the world with meditation and martial arts discipline as a prescription for physical and spiritual well-being. Falun Gong teaches that illness stems from evil and that by following the principles of ‘truth, compassion and forbearance,’ one can attain clairvoyance and other preternatural faculties.” The Chinese government and the Party see things differently. They have denounced the movement as a cult and have accused it of seeking to subvert or overthrow the government and the Party’s grip on power. According to at least one news report, President Jiang himself declared that suppressing Falun Gong was one of the “‘three major political struggles’ of 1999.”In 1976, Congress enacted the Foreign Sovereign Immunities Act of 1976 (the “FSIA”), 28 U.S.C. §§1602?et seq.?As an initial matter, the FSIA provides a foreign state with immunity from suit in courts of the United States or of any state. 28 U.S.C. §1604;?Saudi Arabia v. Nelson,?507 U.S. 349 (1993) (“Under the [FSIA], a foreign state is presumptively immune from the jurisdiction of United States courts....”). Such immunity is subject, however, to international agreements to which the United States was a party in 1976, as well as certain exceptions set forth in the FSIA.?These exceptions codify the restrictive theory of immunity. The responsibility for determining whether an exception applies is left to the courts.?See United States v. Noriega,?117 F.3d 1206 (11th Cir. 1997) (“[The FSIA] codified the State Department’s general criteria for making suggestions of immunity, and transferred the responsibility for case-by-case application of these principles from the Executive Branch to the Judicial Branch.”). Insofar as a foreign state is concerned, therefore, the pre-1976 practice of courts reflexively deferring to the Executive Branch’s immunity determinations has been eliminated.A?jus cogens?norm is a special type of customary international law. A?jus cogens?norm “‘is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’”?See Siderman de Blake v. Republic of Argentina,?965 F.2d 699 (9th Cir. 1992) (quoting?Vienna Convention on the Law of Treaties, Art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679). Most famously,?jus cogens?norms supported the prosecutions in the Nuremberg trials.?See Siderman,?965 F.2d at 715 (9th Cir. 1992) (“The universal and fundamental rights of human beings identified by Nuremberg - rights against genocide, enslavement, and other inhumane acts... - are the direct ancestors of the universal and fundamental norms recognized as?jus cogens.”).The appellants’ position, therefore, is that, in at least a particular class of cases (those involving?jus cogens?norms), a court cannot defer to the position of the Executive Branch with respect to immunity for heads of states. The Supreme Court has held, however, that the Executive Branch’s suggestion of immunity is conclusive and not subject to judicial inquiry. See Ex Parte Republic of Peru,?318 U.S. 578 (1943) (“The certification and the request that the vessel be declared immune?must be accepted by the courts as a conclusive determination?by the political arm of the Government that the continued retention of the vessel interferes with the proper conduct of our foreign relations.”);?Compa?ia Espa?ola de Navegacion Maritima, S.A. v. The Navemar,?303 U.S. 68 (1938) (“If [a claim of immunity by a foreign government] is recognized and allowed by the Executive Branch of the government,?it is then the duty of the courts?to release the vessel upon appropriate suggestion by the Attorney General of the United States, or other officer acting under his discretion.”); see also Spacil v. Crowe,?489 F.2d 614 (5th Cir. 1974) (“The precedents are overwhelming. For more than 160 years American courts have consistently applied the doctrine of sovereign immunity when requested to do so by the Executive Branch. Moreover, they have done so with no further review of the executive’s determination.”);?Isbrandtsen Tankers, Inc. v. President of India,?446 F.2d 1198 (2d Cir. 1971) (“The State Department is to make [an immunity determination] in light of the potential consequences to our own international position. Hence once the State Department has ruled in a matter of this nature, the Judiciary will not interfere.”);?Rich v. Naviera Vacuba S.A.,?295 F.2d 24 (4th Cir. 1961) (“[W]e conclude that the certificate and grant of immunity issued by the Department of State should be accepted by the court without further inquiry. We think that the doctrine of the separation of powers under our Constitution requires us to assume that all pertinent considerations have been taken into account by the Secretary of State in reaching his conclusion.”).The appellants present their argument as one of international law - under customary international law, a state cannot provide immunity to a defendant accused of violating?jus cogens?norms. Our first concern, however, is to ascertain the proper relationship between the Executive and Judicial Branches insofar as the immunity of foreign leaders is concerned. The obligation of the Judicial Branch is clear - a determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff.?See Spacil,?489 F.2d at 618 (“[W]e are analyzing here the proper allocation of functions of the branches of government in the scheme of the United States. We are not analyzing the proper scope of sovereign immunity under international law.”).Although our decision in?Sampson?was one of statutory interpretation, we believe it is also instructive here. In?Sampson?we held that the FSIA did not include an implied exception to its general grant of sovereign immunity to foreign states where a foreign state was accused of violating?jus cogens?norms. Because the FSIA contained no such exception, Germany was immune from suit brought by a survivor of Auschwitz in the Northern District of Illinois.Our interpretation of the FSIA confirmed that Congress could grant immunity to a foreign state for acts that amounted to violations of?jus cogens?norms. Just as the FSIA is the Legislative Branch’s determination that a nation should be immune from suit in the courts of this country, the immunity of foreign leaders remains the province of the Executive Branch. The Executive Branch’s determination that a foreign leader should be immune from suit even when the leader is accused of acts that violate?jus cogens?norms is established by a suggestion of immunity. We are no more free to ignore the Executive Branch’s determination than we are free to ignore a legislative determination concerning a foreign state.?Cf. Hoffman, 324 U.S. at 35 (1945) (“It is...not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.”). Pursuant to their respective authorities, Congress or the Executive Branch can create exceptions to blanket immunity. In such cases the courts would be obliged to respect such exceptions. In the present case the Executive Branch has recognized the immunity of President Jiang from the appellants’ suit. The District Court was correct to accept this recognition as conclusive.We agree with the Executive Branch that its power to recognize the immunity of a foreign head of state includes the power to preclude service of process in that same suit on the head of state even where that service is intended to reach third parties.…See also Spacil,?489 F.2d at 619 (“[I]n the chess game that is diplomacy only the executive has a view of the entire board and an understanding of the relationship between isolated moves. Will granting immunity serve as a bargaining counter in complex diplomatic negotiations? Will it preclude a significant diplomatic advance; perhaps a detente between this country and one with whom we are not on the best speaking terms? These are questions for the Executive, not the Judiciary.”)Also important to our decision is the treatment accorded the President of the United States in his travels abroad. The Executive Branch has stated that it would be a “great offense if foreign states and their courts were to encourage process servers to hound our President when he is abroad to conduct important negotiations with his foreign counterparts.” Such concerns must weigh heavily in our determination that service of process should not be permitted on foreign heads of state visiting this country in the circumstances of this case.We conclude by stating that we are not unsympathetic to the appellants’ claims. For the reasons stated above, however, we cannot permit this suit to go forward. The Executive Branch has stated it is working to persuade the government of China to put an end to the human rights violations it has inflicted on its people for more than half a century. Success depends on diplomacy, not United States courts.Footnotes:8. As the foregoing citations show, many cases concerned with foreign sovereign immunity involve libel actions or other actions involving commercial marine vessels rather than a head of state. This distinction does not make a difference to the question at issue: whether a suggestion of immunity by the Executive Branch is dispositive. These authorities support the conclusive nature of the Executive Branch’s determination of immunity with regard to heads of state. Courts appropriately accept an immunity determination as conclusive when it involves ships out of concern that the court might otherwise interfere with the foreign policy objectives of the Executive Branch. Clearly such concerns would be greater when the suggested immunity involves a foreign leader.9. Section 1605(a)(1) of the FSIA provides an exception to a nation’s sovereign immunity in cases where a “foreign state has waived its immunity...by implication.”MANDERS v. LEE, et al., 338 F.3d 1304 (2003)HULL, Circuit Judge.The Eleventh Amendment protects a state from being sued in federal court without the state’s consent; as a result, parties with claims against a nonconsenting state must resort to the state’s own courts. U.S.C.A. Const. Amend. 11.The Eleventh Amendment is a recognition that states, though part of a union, retain attributes of sovereignty, including immunity from being compelled to appear in the courts of another sovereign against their will. U.S.C.A. Const. Amend. 11.Eleventh Amendment immunity bars suits brought in federal court when the state itself is sued and when an arm of the state is sued. U.S.C.A. Const. Amend. 11.To receive Eleventh Amendment immunity, an individual defendant need not be labeled a “state officer” or “state official,” but instead need only be acting as an “arm of the state,” which includes agents and instrumentalities of the state. U.S.C.A. Const. Amend. 11.Whether an individual defendant is an “arm of the state” entitled to Eleventh Amendment immunity must be assessed in light of the particular functions in which the defendant was engaged when taking the actions out of which liability is asserted to arise. U.S.C.A. Const. Amend. 11.In Eleventh Amendment cases, court uses four factors to determine whether an entity is an “arm of the state” in carrying out a particular function: (1) how state law defines entity; (2) what degree of control the state maintains over the entity; (3) where the entity derives its funds; (4) who is responsible for judgments against the entity. U.S.C.A. Const. Amend. 11.U.S.Const. Amend. XI. The Eleventh Amendment protects a State from being sued in federal court without the State’s consent. As a result, parties with claims against a non-consenting State must resort to the State’s own courts. The Eleventh Amendment is “a recognition that states, though part of a union, retain attributes of sovereignty, including immunity from being compelled to appear in the courts of another sovereign against their will.”?McClendon v. Georgia Dep’t of Cmty. Health,?261 F.3d 1252 (11th Cir. 2001).In Eleventh Amendment cases, this Court uses four factors to determine whether an entity is an “arm of the State” in carrying out a particular function: (1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.?Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm.,?226 F.3d 1226 (11th Cir.2000); Shands,?208 F.3d at 1311;?Tuveson v. Fla. Governor’s Council of Indian Affairs, Inc.,?734 F.2d 730 (11th Cir. 1984).While Clinch County bears the major burden of funding Sheriff Peterson’s office and the jail, it is because the State so mandates. By state statutes, Clinch County must (1) maintain the jail structure, (2) appropriate funds for necessities to inmates (such as food, bedding, clothing, electricity, and sanitation) and the salaries of Sheriff Peterson and his deputies, and (3) pay the premium for the Sheriff’s official bond. O.C.G.A. §§36-9-5, 42-5-2(a), 15-16-20, 45-4-7.Manders relies on O.C.G.A. §42-5-2(a), which provides, in part, that “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention.” But Manders does not allege that Sheriff Peterson denied him necessities in O.C.G.A. §42-5-2. Rather, Manders challenges only Sheriff Peterson’s force policy at the jail and the training and disciplining of his deputies.Thereafter, this Court applied these principles in?Shands Teaching Hospital and Clinics, Inc. v. Beech Street Corp.,?granting immunity to private corporations that contracted with the state to administer its health insurance program and to provide a network of medical services. 208 F.3d at 1310. We stated that “although these are private corporations that are neither controlled nor funded by the state, they are protected by governmental immunity when they are clearly acting as agents of the state.” Noting that other circuits had not adopted an approach of total or no immunity,?Shands?looked to the relief sought and whether the judgment against the private corporation “would implicate the state treasury or interfere with the administration of [a] state...program.”?Given that the State could be sued for the negligence of the agent corporations in untimely paying claims, we determined that the judgment against the private corporations “would implicate state funds” and that the private corporations would indemnify the state was immaterial.Applying these principles to this case, we first determine that under Georgia law Clinch County would not pay a damages award against Sheriff Peterson. Georgia courts speak with unanimity in concluding that a defendant county cannot be held liable for the tortious actions or misconduct of the sheriff or his deputies and is not required to pay the resulting judgments. Likewise, Georgia courts have concluded that counties are not liable for, and not required to give sheriffs money to pay, judgments against sheriffs in civil rights actions. See Wayne County Bd. of Comm’rs v. Warren,?236 Ga. 150, 223 S.E.2d 133 (1976) (“[A] county has no liability in connection with the violations of the civil rights of any person by a county officer.”). The Georgia Supreme Court in?Warren?quoted a Georgia statute stating that “[a] county is not liable to suit for any cause of action unless made so by statute.” Thus, by statute, the county was not liable. In addition, the Georgia Supreme Court concluded that “there is no duty of the county to furnish the sheriff with money to settle a civil rights judgment entered against him.”Although Clinch County is not required to pay and although Sheriff Peterson argues that “the ‘legal liability’ for sheriffs in Georgia rests with the State of Georgia, not individual counties,” we can locate no Georgia law expressly requiring the State to pay an adverse judgment against Sheriff Peterson in his official capacity. Sheriff Peterson thus apparently would have to pay any adverse federal court judgment against him in his official capacity out of the budget of the sheriff’s office. In turn, this payment would reduce his budget, and the practical reality is that Sheriff Peterson must recoup that money from somewhere. If a significant adverse judgment occurs, both county and state funds are implicated because Sheriff Peterson would need to seek a greater total budget from the county for his office and a greater daily rate from the State for felony offenders serving their state sentences in the county jail.ANDERSON, Circuit Judge, dissenting, in which TJOFLAT, BIRCH and WILSON, Circuit Judges, join.I respectfully dissent. I submit that the opinion for the court misapplies the appropriate Eleventh Amendment analysis. In my judgment, the most favorable face that the sheriff might put on this case would paint this case as similar to?Hess v. Port Authority Trans-Hudson Corp.,?513 U.S. 30 (1994). In?Hess,?the “[i]indicators of immunity or the absence thereof do not...all point the same way.” In this case, the following immunity indicators point against Eleventh Amendment immunity: the sheriff’s geographic limitation to a single county, the sheriff’s accountability to the electorate of a single county, the state constitution’s treatment of sheriffs as county officers and not as state officials, the state’s delegation of broad policymaking autonomy to the sheriff as opposed to retaining hands-on control, and the fact that the state has no legal liability and no potential legal liability with respect to judgments against a sheriff. As in?Hess, the functions of the sheriff “are not readily classified as typically state or unquestionably local.”?Both states and municipalities engage in law enforcement activities, and in particular in the jailing function.In my judgment, the second Eleventh Amendment immunity factor - control - is the only one of the four indicators that might provide some support for the majority position. Even assuming?arguendo?that there are immunity indicators pointing in different directions, the Supreme Court has given us clear guidance in such situations: “When indicators of immunity point in different directions, the Eleventh Amendment’s twin reasons for being remain our prime guide.”?Hess,?513 U.S. at 47. The first of the twin reasons asked whether it would be “disrespectful” or a “threat to the dignity” of the state to require the state to answer the complaint in federal court. Of course, it is well established that an identical claim against a city or a county -?i.e.,?Manders’ §1983 excessive force claim for violating the Eighth Amendment by beating him while in jail - would not be barred by Eleventh Amendment immunity. I see no greater threat to the dignity of the state in the instant suit against the Sheriff of Clinch County.But ultimate control of every state-created entity resides with the State, for the State may destroy or reshape any unit it creates. “[P]olitical subdivisions exist solely at the whim and behest of their State,” yet cities and counties do not enjoy Eleventh Amendment immunity.In addition to the inappropriate emphasis discussed above, I also respectfully disagree with the opinion for the court in another respect. In my judgment, it asks the wrong question. It asks who has the most control, the state or the county. I submit that the proper question is whether the sheriff has carried his burden of proving that he is an arm of the state. In other words, the issue is not the state versus the county; rather, the issue is whether the sheriff is an arm of the state?vel non.?The mere fact that the sheriff is not the policymaker for the county commission, is not controlled by the county commission, and the fact that the county has no?respondeat superior?liability for judgments against the sheriff, do not, either singly or in combination, go very far toward establishing that a Georgia sheriff is an arm of the state. The Seventh Circuit recognized this in?Franklin v. Zaruba,?150 F.3d 682?(7th Cir. 1998). There, in holding that an Illinois sheriff was not entitled to Eleventh Amendment immunity, the court said:According to defendants, if sheriffs in Illinois are not agents of the county for purposes of holding the county liable under?respondeat superior,?then sheriffs must therefore be agents of the state. This argument overlooks a crucial third possibility... - namely, that the sheriff is an agent of the county sheriff’s department, an independently-elected office that is not subject to the control of the county in most respects.BARKETT, Circuit Judge, dissenting, in which TJOFLAT, BIRCH and WILSON, Circuit Judges, join, and in which ANDERSON, Circuit Judge, joins in part.In Georgia, county jails such as the one where Manders was held are quintessentially local institutions that exist separate and apart from the state’s integrated system of prisons. Their operation is among the responsibilities of the county and, specifically, the county sheriff. Longstanding authority clearly establishes that local governments such as counties may be held liable under 42 U.S.C. §1983 for policies they adopt or customary practices they tolerate in operating local governmental facilities.?See Jinks v. Richland County, 538 U.S. 456 (2003);?Monell v. New York City Dep’t of Social Servs.,?436 U.S. 658 (1978). In the past, therefore, plaintiffs such as Manders could be confident that violations of their constitutional rights in county jails would not go unremedied.Even more radically, this argument implies that Eleventh Amendment immunity extends beyond sheriffs to city police officers, county police officers, and even private security guards. All of these individuals, from the Chief of the Atlanta Police Department to the employee keeping watch over the cosmetics aisle of a department store, act on authority vested in them by state law when using force to effectuate arrests for violations of state law.?See Allen v. City of Atlanta,?235 Ga.App. 516, 510 S.E.2d 64 (1998) (striking down city police department’s policy governing officers’ discharge of their firearms on basis of conflict with Ga. Code Ann. §17-4-20); Ga. Code Ann. §36-8-5 (authorizing arrest by county police);?id.?§17-4-60 (authorizing arrest by private parties);?Cash v. State,?136 Ga.App. 149, 221 S.E.2d 63 (1975) (approving store security officer’s arrest of shoplifter). Yet it is settled law that city police, county police, and security guards hired by private entities are not entitled to Eleventh Amendment immunity.?City of Canton v. Harris,?489 U.S. 378 (1989);?Pembaur v. City of Cincinnati,?475 U.S. 469 (1986);?Farred v. Hicks,?915 F.2d 1530 (11th Cir. 1990). The majority proffers no test to distinguish these officers and individuals from the county sheriffs whose exercise of force it newly designates a state function.The second untenable argument offered by the majority is that the sheriff is entitled to Eleventh Amendment immunity simply because the General Assembly defines the powers and duties of his or her office. Yet on this theory of what makes a public office an “arm of the state” immune from suit,?Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,?429 U.S. 274 (1977), there can be no such thing as local government, because all local government is by definition a creature of the state’s authority to attach powers and duties to particular offices. Indeed, as I shall discuss at greater length below, the Georgia Constitution authorizes the state Legislature to define the powers and duties of the very officials most readily associated in Georgia with policy-making on behalf of local governments: county commissioners. To hold that county commissioners are entitled to Eleventh Amendment immunity plainly flouts established law. Nonetheless, this is precisely what the majority implies today.If the enactment of laws making sheriffs responsible for jails entitles the sheriff to Eleventh Amendment protection, a logical inference is that state laws imposing duties on county commissioners likewise bring these locally elected representatives within the amendment’s ambit. This is a result starkly in opposition to the line of precedent holding that local governments are not entitled to sovereign immunity under the Eleventh Amendment.?See Mt. Healthy,?429 U.S. at 280;?Lincoln County v. Luning,?133 U.S. 529 (1890). It likewise undermines the rule that local governments may be liable under §1983 for policies or customary practices that deprive individuals of federal rights.?Monell,?436 U.S. at 690. The majority fails to reckon with this opposition between established law and its argument that the mere existence of state laws tasking sheriffs with specific duties favors Eleventh Amendment immunity.Georgia’s own courts have recognized as much. In?Lowe v. Jones County,?231 Ga.App. 372, 499 S.E.2d 348 (1998), the court reached the merits of a claim that a sheriff’s training policies had violated the federal constitutional rights of the plaintiff’s decedent. The plaintiff had named the sheriff and the county as defendants. Thus, simply by reaching the merits, the court treated a §1983 suit against a county sheriff as not implicating the threshold immunity from suit to which state instrumentalities are entitled under the Eleventh Amendment. The court also stated explicitly that “local governments may be liable” for certain violations of federal rights, thereby conveying the view that a suit arising out of a sheriff’s policies implicates the liability of the county, not the state.By inventing a previously unknown function as the purported focus of its analysis, the majority trades the clarity to be found in the Georgia law of county jails for a blur of inference and speculation. The upshot is a substantial blow to established law assuring citizens’ ability to hold local governments accountable for violations of the United States Constitution.?See Jinks,?123 S.Ct. at 1673;?Monell,?436 U.S. at 690. A correct reading of Georgia law shows that county sheriffs operate county jails for the counties in which they serve. In every sense, a suit under 42 U.S.C. §1983 against a county sheriff alleging mistreatment in a county jail is a suit against a local government. The Eleventh Amendment, which protects states, is inapplicable, and the decision of the District Court should therefore be affirmed.Footnotes:1. We recount the evidence in the light most favorable to Manders, the nonmoving party, on a summary judgment motion Harbert Int’l, Inc. v. James,?157 F.3d 1271 (11th Cir. 1998).3. The parties and the District Court litigated this lawsuit against Sheriff Peterson as if all of Manders’s §1983 claims against Clinch County also were made against Sheriff Peterson in his official capacity. Thus, we decide the case as one in which the amended complaint purports to sue Sheriff Peterson in his official capacity for use-of-force policy and for failing to train and discipline Deputy Brown in that regard. See Marsh v. Butler County,?268 F.3d 1014 (11th Cir.2001).4. At no time has Manders made a claim against Sheriff Peterson’s official bond, which Georgia law requires sheriffs to post, O.C.G.A. §15-16-5, and we do not address such a claim.5. The District Court granted summary judgment (1) to Sheriff Peterson individually on all claims, (2) to Clinch County and Sheriff Peterson in his official capacity on Manders’s §1983 claim for the negligent hiring of Deputy Brown, and (3) to Clinch County and Sheriff Peterson on Manders’s injunctive relief claims. Manders did not appeal or cross-appeal these rulings.7. It is argued that the majority opinion “badly subverts the law,” makes sheriffs “immune from suit,” and renders a “substantial blow” to citizens being able to hold officials accountable for constitutional violations. As noted above, this case involves only the sheriff “in his official capacity” and does not affect in any way claims against sheriffs or their deputies in their individual capacities.?See Hafer v. Melo,?502 U.S. 21 (1991) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose ‘individual and personal liability’ on state officials under §1983.”);?Hobbs v. Roberts,?999 F.2d 1526 (11th Cir. 1993) (noting that Eleventh Amendment immunity does not extend to “‘individual’ or ‘personal’ capacity suits in federal court”);?Gamble v. Fla. Dep’t of Health & Rehabilitative Servs.,?779 F.2d 1509 (11th Cir. 1986) (“[T]he Eleventh Amendment provides no bar to federal court adjudication of suits against state officers individually.”).35. The dissent raises a parade of hypothetical scenarios from the Chief of the Atlanta Police Department to a security guard watching the cosmetics counter at a department store. Nowhere does this opinion in any way suggest or imply that a private security guard’s or a city or county police officer’s power to arrest or use force entitles that officer to Eleventh Amendment immunity. All certified peace officers in Georgia have certain arrest and force powers granted by the State. The key question is not what arrest and force powers sheriffs have, but for whom?sheriffs exercise that power. A city delegates and exercises its policing function through its city police officers and a county through county police officers, and thus city and county police officers act for and represent the city and county, respectively. In contrast, the State delegates and performs certain state policing and corrections functions through several law enforcement agencies, including sheriffs, and sheriffs act for and represent the State in those assigned tasks. As explained previously, under Georgia law counties lack power in the area of law enforcement except to operate a county police force.What additionally makes sheriffs distinct from city and county police officers is that the State expressly has vested in sheriffs specific state functions and that sheriffs utilize their arrest and force powers in executing state functions. As detailed above, sheriffs perform a variety of specific state functions in the State’s criminal justice system, from attending every session of state superior court, to taking custody of state offenders, both pre and post-conviction, in county jails. Sheriff Peterson’s authority over inmates and the duty to administer the jail flow from the State, not Clinch County, those functions and duties pertain chiefly to affairs of the State in Clinch County, and Clinch County plainly has no control or authority over Sheriff Peterson’s force policy at the jail or his deputies at the jail.43. We stress that this case does not involve medical care, which counties have a statutory obligation to provide to inmates in county jails. O.C.G.A. §42-5-2; see Epps v. Gwinnett County,?231 Ga.App. 664, 499 S.E.2d 657 (1998) (Gwinnett County contracted with Prison Health Services, Inc.);?Cherokee County v. North Cobb Surgical Assocs.,?221 Ga.App. 496, 471 S.E.2d 561 (1996);?Macon-Bibb County Hosp. Auth. v. Houston County,?207 Ga.App. 530, 428 S.E.2d 374 (1993) (concluding Houston County owed hospital for medical care provided to inmate in county jail).46. It is at the outset of its opinion in Hess?that the Supreme Court discusses “current” Eleventh Amendment jurisprudence and its emphasis on “the integrity retained by each State in our federal system.” The Eleventh Amendment’s role historically was to protect the State’s treasury from federal courts forcing the State to repay war debts.?The Court in?Hess?discussed the state treasury factor but only after first concluding that “[s]uit in federal court is not an affront to the dignity of a Compact Clause entity, for the federal court, in relation to such an enterprise, is hardly the instrument of a distant, disconnected sovereign; rather, the federal court is ordained by one of the entity’s founders.” The Supreme Court continued its focus on the importance of the sovereign integrity of the State under the Eleventh Amendment and pointed out why the States’ integrity was not compromised when a Compact Clause entity is sued in federal court, stating:Nor is the integrity of the compacting States compromised when the Compact Clause entity is sued in federal court. As part of the federal plan prescribed by the Constitution, the States agreed to the power sharing, coordination, and unified action that typify Compact Clause creations. Again, the federal tribunal cannot be regarded as alien in this cooperative, trigovernmental arrangement.The Supreme Court further stressed that “federal courts are not alien to a bistate entity Congress participated in creating.”The Court in?Hess?focused on the state treasury factor, but only after it concluded that the sovereign integrity of the State was not implicated when a Compact Clause entity is sued in federal court. In stark contrast, because sheriffs act for and represent the State, not the county, in promulgating force policy at the jail, the State’s integrity is heavily involved in this case.54. It has been suggested that the sheriff’s office is an independent, constitutional, elected office that is neither the State nor the county. Throughout this litigation the parties have briefed and framed the legal issue in this case solely?as whether Sheriff Peterson in his official capacity acts on behalf of the State?or?Clinch County in the context of the Eleventh Amendment. Thus, we decide that controversy. No other issue is before us. In addition, while we agree that the sheriff’s office is independent from and not controlled by the county, we conclude today only that the sheriff acts for the State in performing the particular functions at issue in this case.1. With respect to the first indicator - how the state defines the Sheriff’s Office with respect to the jail function - I agree with most of what Judge Barkett says in her dissent. See?Barkett, J., dissenting, at Part I. With respect to the third indicator - the source of defendant’s funding - I again agree with most of what Judge Barkett has written. With respect to the fourth indicator - the state’s liability for adverse judgments - no one has suggested that the state would be liable, and thus this most important factor, this core concern of the Eleventh Amendment, points strongly against immunity. In other words, I agree with most of what Judge Barkett has written, but I specifically decline to join her implication that the county governing body would bear §1983 liability for actions of the sheriff. All we need decide in this case is that the sheriff is not an arm of the state; we need not decide the county’s liability?vel non.3. To be sure, the majority endeavors to articulate such a distinction by stating that “[a] city delegates and exercises its policing function through its city police officers and a county through county police officers,” whereas “the State delegates and performs certain state policing and corrections functions through several law enforcement agencies, including sheriffs....” This purported distinction presupposes an answer to the very question at issue in this appeal, namely, whether county sheriffs in Georgia act for the state. Because the analysis by which the majority reaches its affirmative answer rests in part on an attribute common to all peace officers in Georgia - namely, the conferment by state law of a power to effect arrests by force - it would seem to follow that not only sheriffs but also city and county police officers could be regarded as state actors. Apparently this is not so. While the majority’s distinction escapes me, I certainly agree that city and county police officers do not generally act as arms of the state, and thus I am reassured by today’s promise that the “hypothetical scenarios” raised by the majority’s reasoning will remain, after all, merely hypothetical.TREATS v. MORGAN, et al., 308 F.3d 868 (2002)MURPHY, Circuit Judge.Civil Rights [Key] 214 (2) - Qualified immunity may protect government officials from liability for civil damages, but is not available if official’s conduct violated clearly established statutory or constitutional rights of which reasonable person would have known.Civil Rights [Key] 214 (1, 2) - There is proper sequence in analyzing interlocutory appeal from denial of qualified immunity: first question is whether facts, taken in light most favorable to party alleging injury, so violated a constitutional or statutory right, and if answer is yes, next question is whether that right was so clearly established that it would have been clear to reasonable officer that his conduct was unlawful in situation he confronted.Sentencing and Punishment [Key] 1548 - Eighth Amendment protects inmates from unnecessary and wonton infliction of pain by correctional officers, regardless of whether inmates suffer serious injury as a result. U.S.C.A. Const. Amend. 8.Sentencing and Punishment [Key] 1548 - under Eighth Amendment, officers are permitted to use force reasonably against prisoners in good-faith effort to maintain or restore discipline, but forces not to be used maliciously and sadistically to cause harm. U.S.C.A. Const. Amend. 8.Sentencing and Punishment [Key] 1548 - Factors to be considered in deciding whether particular use of force against inmate was reasonable under Eighth Amendment or whether there was objective need for force, relationship between any such need an amount of force used, threat reasonably perceived by correctional officers, any efforts by officers to temper severity of their forceful response, and extent of inmate’s injury. U.S.C.A. Const. Amend. 8.Federal Civil Procedure [Key] 2491.5 - Genuine issue of material fact as to whether correctional officer’s use of pepper spray and force against a prisoner who failed to obey commands, but had not jeopardized any person’s safety or threaten prison security, was reasonably precluded summary judgment for correctional officer, Lieutenant, and Gordon on qualified immunity in prisoner’s §1983 action alleging violation of Eighth Amendment. U.S.C.A. Const. Amend. 8; 42 U.S.C.A. §1983.Sentencing and Punishment [Key] 1548 - Resolution of Eighth Amendment issue turns on circumstances of individual case of use of force against prisoner, or particular prison setting. U.S.C.A. Const. Amend. 8.Prisons [Key] 13 (4), Sentencing and Punishment [Key] 1548 - Basis for Eighth Amendment claim exists when officer uses pepper spray without warning on inmate who may have questioned officer’s actions but who otherwise poses no threat. U.S.C.A. Const. Amend. 8.Civil Rights [Key] 214 (2) - Right is clearly established, as required to preclude qualified immunity for alleged violation of right, if it is sufficiently clear that reasonable government official would have fair warning of what type of action would violate that right.Civil Rights [Key] 214 (7) - It is well-established, as required to preclude qualified immunity, that malicious and sadistic use of force by prison official against a prisoner, done with intent to injure and causing actual injury, is enough to establish violation of Eighth Amendment’s cruel and unusual punishment clause. U.S.C.A. Const. Amend. 8.Civil Rights [Key] 214 (7) - Prison regulations governing conduct of correctional officers are relevant in determining whether inmate’s right was clearly established, as required to preclude qualified immunity for officers who allegedly violated right.Qualified immunity may protect government officials from liability for civil damages, but it is not available if an official’s conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”?Harlow v. Fitzgerald,?457 U.S. 800 (1982).?See also Yowell v. Combs,?89 F.3d 542 (8th Cir. 1996). There is a “proper sequence” in analyzing an interlocutory appeal from a denial of qualified immunity.?Saucier v. Katz,?533 U.S. 194 (2001). The first question is whether the facts, taken in a light most favorable to the party alleging an injury, show a violation of a constitutional or statutory right. If the answer is yes, the next question is whether that right was so clearly established that it would have been “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” An officer is entitled “to avoid the burden of trial” unless the answer to both questions is yes.The Eighth Amendment protects inmates from the unnecessary and wanton infliction of pain by correctional officers,?Whitley v. Albers,?475 U.S. 312 (1986), regardless of whether an inmate suffers serious injury as a result.?Hudson v. McMillian,?503 U.S. 1 (1992). Officers are permitted to use force reasonably “in a good-faith effort to maintain or restore discipline,” but force is not to be used “maliciously and sadistically to cause harm.”?Factors to be considered in deciding whether a particular use of force was reasonable are whether there was an objective need for force, the relationship between any such need and the amount of force used, the threat reasonably perceived by the correctional officers, any efforts by the officers to temper the severity of their forceful response, and the extent of the inmate’s injury. See also Hickey v. Reeder,?12 F.3d 754 (8th Cir. 1993).Treats testified that he did not intentionally disobey Morgan, use profanity or abusive language, or threaten any correctional officer, and that he was sprayed without warning, thrown down to the floor, and handcuffed. At this stage of the proceedings, the evidence must be taken in a light most favorable to Treats.?See Saucier,?533 U.S. at 201. Viewed in this way, the evidence does not show an objective need for the force which was used because Treats had not jeopardized any person’s safety or threatened prison security. Appellants argue that Treats did not obey Morgan’s commands and that this justified the force used, but the record at this stage does not suggest that Treats would have remained noncompliant if Morgan had given him clearer directions or issued a warning before spraying him in the face. Appellants have not pointed to any rule or given any reason why Treats was required to take a copy of the property confiscation form. The law recognizes that order and discipline are important in running a correctional institution, but that does not authorize the arbitrary use of force,?see Foulk,?262 F.3d at 702, nor does it justify punitive use of force on difficult inmates not posing a real threat to other persons or raising security concerns.?See Hickey,?12 F.3d at 759; ADC Force Regs. III.B; ADC Chem. Regs. I.Viewed in a light favorable to Treats, the evidence shows that there was no objective need for the degree of force used or the pain inflicted, that appellants could not reasonably have perceived Treats to be a threat to themselves or institutional security at the time, and that appellants failed to temper their forceful response. No lasting injury is necessary to make out an Eighth Amendment violation, for the infliction of pain is sufficient if it was inflicted for the purpose of causing harm.?Hudson,?503 U.S. at 9. Treats has presented sufficient evidence for a reasonable jury to conclude that appellants acted maliciously with the intent to cause injury when Morgan sprayed him with capstun pepper spray without warning and Beaty threw him down. Foulk,?262 F.3d at 702. Treats has thus satisfied his burden to show that the nature and manner of the force used was excessive under the circumstances and that his constitutional rights were violated by appellants.KYLLO v. UNITED STATES, 533 U.S. 27, 121 S.Ct. 2038 (2001)Justice Scalia delivered the opinion of the Court.With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. U.S.C.A. Const. Amend. 4.Obtaining by sense-enhancing technology and information regarding the interior of a home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a “search” - at least where the technology in question is not in general public use. U.S.C.A. Const. Amend. 4.Police engaged in unlawful “search” when they use thermal imaging device without warrant to scan home to determine whether heat emanating from home was consistent with use of high-intensity lamps employed in indoor marijuana growing operation. U.S.C.A. Const. Amend. 4.Use of thermal imaging devices to gather information about heat in home’s interior is not removed from scope of Fourth Amendment search merely because device captures only heat radiating from external surface of house, and thus involves “off-the-wall” rather than “through-the-wall” observation. U.S.C.A. Const. Amend. rmation gathered through use of thermal imaging to measure heat emanating from exterior of home is product of a search even if relevant information regarding heat use in interior of home must be inferred from information provided by device. U.S.C.A. Const. Amend. 4.Where the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. U.S.C.A. Const. Amend. 4.Suspicions that marijuana was being grown in petitioner Kyllo’s home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo’s garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo’s home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo’s life, only amorphous hot spots on his home’s exterior.Held:?Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a?Fourth Amendment?”search,” and is presumptively unreasonable without a warrant.(a)?The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances, but the antecedent question whether a?Fourth Amendment?”search” has occurred is not so simple. This Court has approved warrantless visual surveillance of a home, see?California v.?Ciraolo,?476 U.S. 207, ruling that visual observation is no “search” at all, see?Dow Chemical Co.?v.?United States,?476 U.S. 227. In assessing when a search is not a search, the Court has adapted a principle first enunciated in?Katz?v.?United States,?389 U.S. 347: A “search” does not occur - even when its object is a house explicitly protected by the?Fourth Amendment - unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see California?v.?Ciraolo,?at 211.(b)?While it may be difficult to refine the?Katz?test in some instances, in the case of the search of a home’s interior - the prototypical and hence most commonly litigated area of protected privacy - there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that?exists, and that is acknowledged to be?reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the?Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,”?Silverman?v.?United States,?365 U.S. 505, constitutes a search - at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment?was adopted.(c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government’s argument that the thermal imaging must be upheld because it detected only heat radiating from the home’s external surface. Such a mechanical interpretation of the?Fourth Amendment?was rejected in?Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology - including imaging technology that could discern all human activity in the home. Also rejected is the Government’s contention that the thermal imaging was constitutional because it did not detect “intimate details.” Such an approach would be wrong in principle because, in the sanctity of the home,?all?details are intimate details. See United States?v.?Karo,?468 U.S. 705;?Dow Chemical,?at 238. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and?Fourth Amendment?interests. See?Oliver?v.?United States,?466 U.S. 170.(d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant was supported by probable cause - and if not, whether there is any other basis for supporting admission of that evidence.In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth - black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo’s home took only a few minutes and was performed from the passenger seat of Agent Elliott’s vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner’s home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner’s home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of?21 U.S.C. §841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.On the other hand, the antecedent question of whether or not a Fourth Amendment?”search” has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment?jurisprudence was tied to common-law trespass. See?Goldman?v.?United States,?316 U.S. 129 (1942);?Olmstead?v.?United States,?277 U.S. 438 (1928).?Silverman?v.?United States, at 510 (technical trespass not necessary for?Fourth Amendment?violation; it suffices if there is “actual intrusion into a constitutionally protected area”). Visual surveillance was unquestionably lawful because “‘the eye cannot by the laws of England be guilty of a trespass.’”?Boyd?v.?United States,?116 U.S. 616 (1886) (quoting?Entick?v.?Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K.?B. 1765)). We have since decoupled violation of a person’s Fourth Amendment?rights from trespassory violation of his property, see?Rakas?v.?Illinois,?439 U.S. 128 (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in?California?v.?Ciraolo,?476 U.S. 207 (1986), “[t]he?Fourth Amendment?protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search” despite the absence of trespass, is not an “unreasonable” one under the?Fourth Amendment. See?Minnesota v.?Carter,?525 U.S. 83 (1998). But in fact we have held that visual observation is no “search” at all - perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See?Dow Chemical Co.?v.?United States,?476 U.S. 227 (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in?Katz?v.?United States,?389 U.S. 347?(1967).?Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth - a location not within the catalog (“persons, houses, papers, and effects”) that the Fourth Amendment?protects against unreasonable searches. We held that the?Fourth Amendment?nonetheless protected Katz from the warrantless eavesdropping because he “justifiably relied” upon the privacy of the telephone booth. As Justice Harlan’s oft-quoted concurrence described it, a?Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. We have subsequently applied this principle to hold that a?Fourth Amendment?search does?not?occur - even when the explicitly protected location of a?house?is concerned - unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.”?Ciraolo, at 211. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home,?Smith?v.?Maryland, 442 U.S. 735 (1979), and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo;?Florida?v.?Riley,?488 U.S. 445?(1989).The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in?Dow Chemical, we noted that we found “it important that this is?not?an area immediately adjacent to a private home, where privacy expectations are most heightened.”The?Katz?test - whether the individual has an expectation of privacy that society is prepared to recognize as reasonable - has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure §2.1(d), pp. 393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S.Ct.Rev. 173, 188;?Carter, at 97. But see?Rakas, at 143-144. While it may be difficult to refine?Katz?when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes - the prototypical and hence most commonly litigated area of protected privacy - there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that?exists, and that is acknowledged to be?reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the?Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,”?Silverman, 365 U.S. at, 512, constitutes a search - at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the?Fourth Amendment?was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.The Government also contends that the thermal imaging was constitutional because it did not “detect private activities occurring in private areas.” It points out that in?Dow Chemical?we observed that the enhanced aerial photography did not reveal any “intimate details.”?Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment?sanctity of the home. The?Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained. In?Silverman, for example, we made clear that any physical invasion of the structure of the home, “by even a fraction of an inch,” was too much, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show,?all?details are intimate details, because the entire area is held safe from prying government eyes. Thus, in?Karo, the only thing detected was a can of ether in the home; and in?Arizona?v.?Hicks,?480 U.S. 321?(1987), the only thing detected by a physical search that went beyond what officers lawfully present could observe in “plain view” was the registration number of a phonograph turntable. These were intimate details because they were details of the home, just as was the detail of how warm - or even how relatively warm - Kyllo was heating his residence.We have said that the?Fourth Amendment?draws “a firm line at the entrance to the house,”?Payton, 445 U.S., at 590. That line, we think, must be not only firm but also bright - which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the?Fourth Amendment?forward.“The?Fourth Amendment?is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.”?Carroll?v. United States,?267 U.S. 132 (1925).Justice Stevens, with whom The Chief Justice, Justice O’Connor, and Justice Kennedy join, dissenting.There is no need for the Court to craft a new rule to decide this case, as it is controlled by established principles from our?Fourth Amendment?jurisprudence. One of those core principles, of course, is that “searches and seizures?inside a home?without a warrant are presumptively unreasonable.”?Payton?v.?New York,?445 U.S. 573 (1980). But it is equally well settled that searches and seizures of property in plain view are presumptively reasonable. Whether that property is residential or commercial, the basic principle is the same: “‘what a person knowingly exposes to the public, even in his own home or office, is not a subject of?Fourth Amendment protection.’”?California?v.?Ciraolo,?476 U.S. 207 (1986) (quoting?Katz?v.?United States,?389 U.S. 347 (1967)); see Florida?v.?Riley,?488 U.S. 445 (1989);?California?v. Greenwood,?486 U.S. 35 (1988);?Dow Chemical Co.?v. United States,?476 U.S. 227 (1986);?Air Pollution Variance Bd. of Colo.?v.?Western Alfalfa Corp.,?416 U.S. 861 (1974). That is the principle implicated here.Thus, the notion that heat emissions from the outside of a dwelling is a private matter implicating the protections of the Fourth Amendment?(the text of which guarantees the right of people “to be secure?in?their…houses” against unreasonable searches and seizures) is not only unprecedented but also quite difficult to take seriously. Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective expectation that they would remain private is not only implausible but also surely not “one that society is prepared to recognize as ‘reasonable.’”?Katz, 389 U.S., at 361.To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place within the home, and the Fourth Amendment’s protection against physical invasions of the home should apply to their functional equivalent. But the equipment in this case did not penetrate the walls of petitioner’s home, and while it did pick up “details of the home” that were exposed to the public, it did not obtain “any information regarding the?interior?of the home.” In the Court’s own words, based on what the thermal imager “showed” regarding the outside of petitioner’s home, the officers “concluded” that petitioner was engaging in illegal activity inside the home. It would be quite absurd to characterize their thought processes as “searches,” regardless of whether they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly) that “the lady of the house [was taking] her daily sauna and bath.” In either case, the only conclusions the officers reached concerning the interior of the home were at least as indirect as those that might have been inferred from the contents of discarded garbage, see?California?v.?Greenwood,?486 U.S. 35?(1988), or pen register data, see?Smith?v.?Maryland,?442 U.S. 735?(1979), or, as in this case, subpoenaed utility records, see 190 F.3d 1041 (CA9 1999). For the first time in its history, the Court assumes that an inference can amount to a?Fourth Amendment?violation.Notwithstanding the implications of today’s decision, there is a strong public interest in avoiding constitutional litigation over the monitoring of emissions from homes, and over the inferences drawn from such monitoring. Just as “the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public,” Greenwood, 486 U.S., at 41, so too public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions with “sense-enhancing technology,” and drawing useful conclusions from such monitoring, is an entirely reasonable public service.On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally are insulated to keep heat in, rather than to prevent the detection of heat going out, and it does not seem to me that society will suffer from a rule requiring the rare homeowner who both intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to conceal that production from outsiders, to make sure that the surrounding area is well insulated.?United States?v.?Jacobsen, 466 U.S. 109 (1984) (“The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities”). The interest in concealing the heat escaping from one’s house pales in significance to the “the chief evil against which the wording of the?Fourth Amendment?is directed,” the “physical entry of the home,”?United States?v.?United States Dist. Court for Eastern Dist. of Mich.,?407 U.S. 297 (1972), and it is hard to believe that it is an interest the Framers sought to protect in our Constitution.Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when “more sophisticated systems” gain the “ability to ‘see’ through walls and other opaque barriers.”?The newly minted rule encompasses “obtaining [1] by sense-enhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area… [4] at least where (as here) the technology in question is not in general public use.” In my judgment, the Court’s new rule is at once too broad and too narrow, and is not justified by the Court’s explanation for its adoption. As I have suggested, I would not erect a constitutional impediment to the use of sense-enhancing technology unless it provides its user with the functional equivalent of actual presence in the area being searched.Despite the Court’s attempt to draw a line that is “not only firm but also bright,” the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is “in general public use.” Yet how much use is general public use is not even hinted at by the Court’s opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion. In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.The two reasons advanced by the Court as justifications for the adoption of its new rule are both unpersuasive. First, the Court suggests that its rule is compelled by our holding in?Katz, because in that case, as in this, the surveillance consisted of nothing more than the monitoring of waves emanating from a private area into the public domain. Yet there are critical differences between the cases. In?Katz, the electronic listening device attached to the outside of the phone booth allowed the officers to pick up the content of the conversation inside the booth, making them the functional equivalent of intruders because they gathered information that was otherwise available only to someone inside the private area; it would be as if, in this case, the thermal imager presented a view of the heat-generating activity inside petitioner’s home. By contrast, the thermal imager here disclosed only the relative amounts of heat radiating from the house; it would be as if, in?Katz, the listening device disclosed only the relative volume of sound leaving the booth, which presumably was discernible in the public domain. Surely, there is a significant difference between the general and well-settled expectation that strangers will not have direct access to the contents of private communications, on the one hand, and the rather theoretical expectation that an occasional homeowner would even care if anybody noticed the relative amounts of heat emanating from the walls of his house, on the other. It is pure hyperbole for the Court to suggest that refusing to extend the holding of?Katz?to this case would leave the homeowner at the mercy of “technology that could discern all human activity in the home.”Footnotes:1. When the?Fourth Amendment?was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to?search?the house for a book; to?search?the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989).3. The ability to “see” through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development. The National Law Enforcement and Corrections Technology Center, a program within the United States Department of Justice, features on its Internet Website projects that include a “Radar-Based Through-the-Wall Surveillance System,” “Handheld Ultrasound Through the Wall Surveillance,” and a “Radar Flashlights” that “will enable law enforcement officers to detect individuals to interior building walls.” techproj/ (visited May 3, 2001). Some devices may emit low levels of radiation that travel “through-the-wall,” but others, such as more sophisticated thermal-imaging devices, are entirely passive, or “off-the-wall” as the dissent puts it.*The link is now (visited January 18, 2014) sensors/index.html.6. The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that whether or not the technology is in general public use may be a factor. That quarrel, however, is not with us but with this Court’s precedent. See?Ciraolo, at 215 (“In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet”). Given that we can quite confidently say that thermal imaging is not “routine,” we decline in this case to reexamine that factor.2. Thus, for example, we have found consistent with the?Fourth Amendment, even absent a warrant, the search and seizure of garbage left for collection outside the curtilage of a home, California?v.?Greenwood,?486 U.S. 35?(1988); the aerial surveillance of a fenced-in backyard from an altitude of 1,000 feet, California?v.?Ciraolo,?476 U.S. 207?(1986); the aerial observation of a partially exposed interior of a residential greenhouse from 400 feet above,?Florida?v.?Riley,?488 U.S. 445?(1989); the aerial photography of an industrial complex from several thousand feet above,?Dow Chemical Co.?v.?United States,?476 U.S. 227?(1986); and the observation of smoke emanating from chimney stacks,?Air Pollution Variance Bd. of Colo.?v.?Western Alfalfa Corp.,?416 U.S. 861?(1974).5.The record describes a device that numbers close to a thousand manufactured units; that has a predecessor numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product numbering from 5,000 to 6,000 units; and that is “readily available to the public” for commercial, personal, or law enforcement purposes, and is just an 800-number away from being rented from “half a dozen national companies” by anyone who wants one. Since, by virtue of the Court’s new rule, the issue is one of first impression, perhaps it should order an evidentiary hearing to determine whether these facts suffice to establish “general public use.”MARSH et al. v. BUTLER COUNTY, ALABAMA et al., 268 F.3d 1014, 14 Fla. L. Weekly Fed. C 1313 (11th Cir. U.S.C.A. 2001)EDMONDSON, Circuit plaint should not be dismissed for failure to state a claim unless it appears beyond a doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Fed. Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.plaint is subject to dismissal for failure to state a claim when its allegations, on their face, show that an affirmative defense bars recovery on the claim. Fed. Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.Unless plaintiff’s allegations state a claim of violation of clearly established law, defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.Caption of complaint is not part of the statement of the claim, but is something apart, and is governed by a different rule. Fed. Rules Civ.Proc. Rules 8, 10, 28 U.S.C.A.Although caption of complaint is chiefly for the court’s administrative convenience, it may sometimes be useful to look at the caption to settle pleading ambiguities, such as when the Rule 8 statement of a claim is ambiguous about a party’s capacity. Fed. Rules Civ.Proc. Rules 8, 10, 28 U.S.C.A.Court of Appeals would accept cases and decided as one in which the complaint purported to sue sheriff in both her official and individual capacities where, although complaint’s statement of claim did not purport to make a claim against sheriff in her individual capacity, both the parties and the District Court clearly litigated the case in that way. Fed. Rules Civ.Proc. Rule 8, 28 U.S.C.A.Eighth Amendment did not apply to protect pretrial detainee held in County jail. U.S.C.A. Const. Amend. 8.Inmates’ allegations that deteriorated conditions of County jail pose substantial risk of serious harm the prisoners, the county received many reports of the conditions but took no remedial measures, and that jail conditions such as lack of locks on cell doors resulted in inmate being assaulted by their fellow prisoners stated claim for violation of Eighth Amendment U.S.C.A. Const. Amend. 8; 42 U.S.C.A. §1983.In the qualified immunity analysis, courts generally first determine whether plaintiff has stated a claim for a constitutional violation at all.Inmates demonstrated an objectively substantial risk of serious harm to prisoners, as required to stay claim against sheriff for violation of Eighth Amendment, by alleging that there was no segregation of nonviolent inmates from violent inmates, pretrial detainees from convicted criminals, juveniles from adults, or inmates with mental disorders from those without, that County jail sometimes house more prisoners themselves could accommodate, that jail was routinely understaffed, that locks on cell doors or nonfunctional, that homemade weapons were readily available by using material torn from jail’s dilapidated structure, that cells are not visually inspected and no lockdown of prisoners in their cells occurred, and that prisoners were not disciplined when they attempted to escape, threaten jailers, destroyed property, or assaulted other inmates. U.S.C.A. Const. Amend. 8.For a court to conclude that, in the late of the clearly established law at the pertinent time, a hypothetical jury, considering all of complaint’s alleged facts is true, could decide that the defendant government official responded unreasonably, is not sufficient to overcome the qualified immunity defense raised in a motion to dismiss for failure to state a claim. Fed. Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.Because fair and clear notice to government officials is the cornerstone of qualified immunity, courts must diligently analyze the pre-existing caselaw to determine whether it really did provide plain notice to every reasonable government official that the pertinent conduct, in the specific circumstances, would clearly violate pre-existing federal law.Especially where the applicable legal standard is a highly general one, such as “to act reasonably” or “to act with probable cause,” pre-existing caselaw, that has applied the general law to specific circumstances, will almost always be necessary to draw the bright line that is capable of honestly giving fair and clear notice that an official’s conduct will violate federal law, for purposes of determining official’s entitlement to qualified immunity.If a public official is to be punished by an imposition of damages against him personally, the punishment must be for violating some clear, legal duty he, in the light of the specific circumstances before him, plainly already had at the time of the pertinent event, and not for violating what is, in effect, some new legal duty recognized or announced by the judge and jury in the official’s trial, long after the time of the pertinent event.When caselaw is needed to “clearly established” the law applicable to the pertinent circumstances, for purposes of determining whether a public official is entitled to qualified immunity, Eleventh Circuit looks to decisions of the U.S. Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state.Defense of qualified immunity was not available to Sheriff with respect to inmates’ allegations that their Eighth Amendment rights had been violated by unsafe conditions at Alabama County jail; pre-existing caselaw established that, at the pertinent time, the conditions of confinement alleged by the inmates did pose a substantial risk of serious harm to inmates, even though no serious injury was alleged to have occurred at the jail before the injuries suffered by plaintiffs, and that Sheriff’s lack of response was unreasonable. U.S.C.A. Const. Amend. 8.When plaintiffs have had ample opportunity to request to amend their complaint, but have failed to do so, nothing compels the Court of Appeals to remand to allow them to amend.In the light of the usual pleading requirements of the Federal Rules of Civil Procedure, unsupported conclusions of law or of mixed fact and law have long been recognized not to present a dismissal for failure to state a claim. Fed. Rules Civ.Proc. Rules 8(a), 12(b)(6), 28 U.S.C.A.We have applied the qualified immunity defense at the 12(b)(6) stage before. See Chesser v. Sparks,?248 F.3d 1117 (11th Cir. 2001); Denno v. School Board of Volusia County, 218 F.3d 1267 (11th Cir. 2000); Kyle v. Chapman,?208 F.3d 940 (11th Cir. 2000); Maggio v. Sipple,?211 F.3d 1346 (11th Cir. 2000) (reversing District Court’s failure to grant 12(b)(6) motion to dismiss because defendants entitled to qualified immunity). We apply the qualified immunity defense to dismiss a complaint at the 12(b)(6) stage where, (1) from the face of the complaint, (2) we must conclude that (even if a claim is otherwise sufficiently stated), (3) the law supporting the existence of that claim - given the alleged circumstances - was not already clearly established, (4) to prohibit what the government-official defendant is alleged to have done, (5) before the defendant acted.Two more points are worth mentioning preliminarily. The complaint was drafted by lawyers. Plaintiffs have at all times been represented by legal counsel. In addition, never in the District Court did Plaintiffs seek to amend the complaint (for example, by adding facts), even after the complaint’s sufficiency had been specifically challenged and the qualified immunity defense expressly advanced by opposing counsel and even after a recommendation to dismiss had been made by the magistrate judge.Inmates entering the Jail were not screened for mental impairments or for whether they had conflicts with other inmates in the Jail. No system of classification existed at the Jail: pretrial detainees were housed with convicted inmates, nonviolent offenders with violent offenders, juveniles with adults, and mentally ill persons with those in good mental health. Never were prisoners disciplined or segregated for assaulting other inmates, destroying jail property, or threatening jailers. The Jail contained four eight-person cells, one four-person cell, trustee cells, two holding cells, one isolation cell and a cell for female inmates; but sometimes more than 50 inmates were imprisoned at the Jail.To overcome a Rule 12(b)(6) motion based on the defense of qualified immunity, Plaintiffs must allege conditions that, in the light of the already clearly established law at the time of the incident, obviously amounted to cruel and unusual punishment under the Eighth Amendment. In the qualified immunity analysis, we generally first determine whether a plaintiff has stated a claim for a constitutional violation at all. See Stanley v. City of Dalton, 219 F.3d 1280 (11th Cir. 2000).A prison official’s deliberate indifference to a known, substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney, 113 S.Ct. 2475 (1993). An Eighth Amendment violation will occur when a substantial risk of serious harm, of which the official is subjectively aware, exists and the official does not “respond reasonably to the risk.”Farmer v. Brennan, 114 S.Ct. 1970 (1994). A plaintiff must also show that the constitutional violation caused his injuries.In Farmer, the Court was chiefly concerned with defining the level of intent required of an official to violate the Eighth Amendment - the subjective element of the tort; but Farmer also explained that two objective elements are part of an Eighth Amendment violation. First, an objectively substantial risk of serious harm to prisoners must exist. Second, once it is established that the official is aware of this substantial risk, the official must react to this risk in an objectively unreasonable manner.Plaintiffs also allege that Harris was aware of the risk: she was provided with faultfinding, inspection reports by state agencies, reports outlining the conditions that existed at the Jail; with many complaints from prisoners and requests for assistance; with correspondence from prisoners’ lawyers detailing the staffing problems and warning of a “serious threat to the safety of inmates”; and with a lawsuit filed in the District Court in May 1996, seeking injunctive and declaratory relief on behalf of the inmates at the Jail. In addition, the conditions at the Jail are alleged to be longstanding and pervasive. These allegations are sufficient to plead that the Sheriff was subjectively aware of the substantial risk to inmate safety at the Jail. See Farmer, 114 S.Ct. at 1979 (“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).To apply properly this “materially similar” principle, the court, surveying the relevant area of law, must discern the facts that were material to the federal law violation in similar preexisting cases. These facts then must be compared to the facts alleged in the case before the court. If there is an absence of a fact (or the presence of an additional fact) in the case before the court, the court must determine whether that fact might make a difference to any reasonable official who had to determine whether his conduct violated federal law in the circumstances in the immediate case. If the court determines that the variance might make a difference, the precedent - when factual particularity is needed to establish the law - cannot clearly establish the law applicable to the circumstances facing the defendant.We conclude, considering the preexisting caselaw of this circuit (which had cases with very similar facts) and of the Supreme Court (which made it plain that lack of physical injury did not mean that no Eighth Amendment violation had been established), that no reasonable sheriff could have concluded that the alleged conditions at the Jail failed to pose a substantial risk of serious harm, although no serious injury was alleged to have occurred at the Jail before the injuries suffered by Plaintiffs. That the alleged jail conditions posed no substantial risk of serious harm is incapable of being convincingly argued, considering the preexisting law.Plaintiff Owens’s claim against the Sheriff for deliberate indifference to his serious medical needs fails to state a claim upon which relief can be granted. We stress that the deputy who released Owens in the manner alleged in the complaint was not sued; so, his situation is not before us. We also stress that the Sheriff can have no respondeat superior liability for a §1983 claim. See Geter v. Wille,?846 F.2d 1352 (11th Cir. 1988) (“Supervisory officials cannot be held liable for the acts of employees solely on the basis of respondeat superior.”). See also Polk County v. Dodson, 102 S.Ct. 445 (1981) (“Section 1983 will not support a claim based on a respondeat superior theory of liability.”). Owens makes no allegation that the Sheriff personally participated in Owens’s release. Nor does Owens allege that the Sheriff was aware of the particular circumstances of Owens’s medical condition when he was released or of the manner of his release on the night of the assault. The Sheriff’s potential liability, therefore, can be only policymaker liability. But the complaint is insufficient to state a claim against the Sheriff as a policymaker.For similar reasons, Owens has failed to allege sufficient facts showing that the Sheriff can be held personally liable for inadequate training about the manner of releasing sick or injured inmates. Unless a policymaker knows of the need to train an officer in a particular subject area, no liability can arise from failure to train him. See Gold v. City of Miami,?151 F.3d 1346 (11th Cir. 1998).Owens never alleges that he was wrongfully released because Chief Deputy Hartley, the person who actually released him, was inadequately trained to deal with the usual and recurring situations of releasing sick or injured inmates. The complaint does say, when describing the general jail conditions, that the state corrections department had “recommended” that all jail employees be trained at jail management seminars and that, by 1996, “almost no one who worked at the jail - including the sheriff, the jail administrators, and most jailers” had been professionally trained. But the complaint allegations never say that Chief Deputy Hartley did not have the recommended professional training. And the complaint never says that the “on the job” training for release of inmates was inadequate. Moreover, the complaint does not say that Chief Deputy Hartley released Owens in the manner he did because of inadequate training. Furthermore, the complaint does not allege facts indicating that the Sheriff knew that Deputy Hartley’s lack of training (if any) about releasing inmates posed an excessive risk of serious harm to inmates. And from the well-pleaded factual allegations in the complaint, no inferences can be reasonably drawn to make up for the missing facts. “[P]leadings must be something more than an ingenious academic exercise in the conceivable.” United States v. Students Challenging Regulatory Ag. Proc., 93 S.Ct. 2405 (1973).Even if the complaint did state a claim against the Sheriff for a constitutional violation on account of the policy of releasing sick or injured inmates, we - in the alternative - conclude that the Sheriff would be entitled to qualified immunity. To defeat the Sheriff’s qualified immunity defense, Owens must show that the preexisting applicable law was so clearly established in July 1996 that every reasonable Sheriff would have known that releasing sick and injured inmates would violate the constitutional rights of inmates. This legal clarity did not exist.In Estelle, the Supreme Court interpreted the Eighth Amendment’s words against “cruel and unusual punishments,” and, for the first time, determined that governments - presented with an inmate with a serious medical condition - had an “obligation to provide medical care for those whom it is punishing by incarceration.” Estelle, 975 S.Ct. at 290. The Court reasoned that, “[a]n inmate must rely on prison authorities to treat his medical needs; if authorities fail to do so, those needs will not be met.” Under Estelle, the critical fact supporting the obligation on the government is the fact of incarceration: the prisoner cannot get his own care, nor can anyone from outside the jail get to him to help him.PEIA v. UNITED STATES of America, et al., 152 F.Supp.2d 226 (2001)DORSEY, Senior District Judge.A motion to dismiss for failure to state claim upon which relief may be granted looks to the sufficiency of the complaint only. Fed. Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.Claims against judges who were not named as defendants in caption of complaint were waived, even though judges were referred to as defendants in body of complaint.Doctrine of fraudulent concealment did not apply to preclude running of limitations period for civil claims against United States under Racketeer Influenced and Corrupt Organizations Act (RICO) and Federal Tort Claims Act (FTCA) when plaintiff’s allegations of separate acts of fraud and concealment of documents by United States served as basis for establishing his claims, rather than as conduct which led plaintiff reasonably to believe that he did not have a claim. 18 U.S.C.A. §1961 et seq.; 28 U.S.C.A. §§1346, 2671 et seq.Doctrine of fraudulent concealment is properly invoked to avoid statute of limitations only if plaintiff establishes affirmative conduct upon the part of defendant which would, under the circumstances of the case, lead a reasonable person to believe that he did not have a claim for relief.Doctrine of equitable estoppel is invoked in cases in which plaintiff knew of the existence of his cause of action, but defendant’s conduct caused plaintiff to delay bringing his lawsuit.Under doctrine of equitable tolling, statute of limitations may be tolled as necessary to avoid inequitable circumstances, and doctrine applies as a matter of fairness when party has been prevented in some extraordinary way from exercising his rights.Doctrine of equitable tolling did not apply to toll running of limitations period on plaintiff’s claims against United States under Racketeer Influenced and Corrupt Organizations Act (RICO) and Federal Tort Claims Act (FTCA) when plaintiff did not allege any circumstances that would have prevented him from filing claims at any time. 18 U.S.C.A. §1961 et seq.; 28 U.S.C.A. §§1346, 2671 et seq.Plaintiff,?pro se,?sues under the Racketeer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. §§1961-1968, and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§1291, 1346, 1402, 2401-2402, 2411-2412, 2671-2680. This court has subject matter jurisdiction pursuant to 18 U.S.C. §1964(a) and 28 U.S.C. §§1331, 1346(b)(1).A complaint may not be dismissed under Rule 12(b)(6) unless the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”?Conley v. Gibson,?355 U.S. 41 (1957);?see?FED.R.CIV.P. 12(b)(6). The factual allegations are presumed to be true, and all factual inferences are to be drawn in plaintiff’s favor.?See Hishon v. King & Spalding,?467 U.S. 69 (1984). As a?pro se?party, plaintiff is entitled to some deference in meeting pleading requirements.?See Haines v. Kerner,?404 U.S. 519 (1972).Plaintiff asserts that the pendency of his petition for a writ of certiorari to the U.S. Supreme Court from the Ninth Circuit’s affirmation of the dismissal of his California action precludes it from being a final judgment. His argument fails. The pendency of an appeal does not suspend the claim-preclusive effect of a final judgment from a lower court.?Prager v. El Paso Nat’l Bank,?417 F.2d 1111 (5th Cir. 1969).Plaintiff alleges that the United States, acting through the U.S. Bankruptcy Court for the District of Connecticut, engaged in a pattern of conduct that included?inter alia?money laundering, obstruction of justice, bribery, racketeering, theft, fraud, and misrepresentation. Plaintiff further alleges that these actions give rise to a private right of action against the United States under 18 U.S.C. §1964. His argument fails. The civil remedy provision of RICO, 18 U.S.C. §1964, grants a private right of action to a person whose property is injured by reason of a violation of 18 U.S.C. §1962. Violations of 18 U.S.C. §1962 must be committed by a person, as defined by 18 U.S.C. §1961(3). The United States is not considered a person under RICO and therefore as a matter of law is not a proper party to Plaintiff’s RICO claim.?See United States v. Bonanno Organized Crime Family of La Cosa Nostra,?879 F.2d 20 (2d Cir. 1989). Plaintiff’s civil RICO claim against the United States arising out of Judge Matz’s 1999 alleged misrepresentation of the record is dismissed.Judicial immunity may only be overcome if the actions complained of are nonjudicial in nature or are performed in “the complete absence of all jurisdiction.”?Mireles,?502 U.S. at 11. Judge Matz’s representation of the record of proceedings in Plaintiff’s California case, even if fraudulent and in furtherance of a massive cover-up, was clearly a judicial act performed within the jurisdiction of the court. Since Judge Matz’s acts cannot be tortious, the United States cannot be held liable for the result flowing from them. Plaintiff’s final FTCA claim against the United States arising out of Judge Matz’s 1999 alleged misrepresentation of the record is dismissed.BRICE v. NKARU, 220 F.3d 233 (2000)King, Circuit Judge.Under Virginia law, malicious prosecution is established by proof that a defendant: (1) instituted or procured a criminal prosecution of the plaintiff; (2) without probable cause; (3) acted maliciously; and (4) the prosecution was terminated in a manner not unfavorable to the plaintiff.A witness, by honestly providing information to a law enforcement official, may be not held responsible for the official’s execution of his independent duty to investigate, at the risk of being held liable for malicious prosecution under Virginia law.Fact that store security guard maintained his belief that he witnessed plaintiff commit an offense, when deposed in instant malicious prosecution case, did not support an inference of guard’s bad faith, for purposes of liability for malicious prosecution under Virginia law, though Commonwealth Attorney had entered nolle prosequi when confronted with evidence that plaintiff was not in the country at the time of the offense.We find no authority supporting Brice’s contention that a witness who provides the police with incorrect information during a criminal investigation ipso facto “institutes” or “procures” the prosecution if he provides that information unequivocally. As the King decision emphasized, the critical question is whether the witness provided the police with his honest or good faith belief of the facts. In King, the court distinguished the actions of Mr. King, a witness who acted in good faith and was thus shielded from civil liability, from those of a witness whose truthfulness was questionable because she demanded money from the suspect prior to reporting the matter to the police. See King, 142 S.E. at 361 (discussing Atkinson v. Birmingham, 116 A. 205 (R.I. 1922)).We find nothing to demonstrate that Nkaru prevented law enforcement officials from investigating Brice further, had they elected to do so. And we are aware of no authority supporting the novel proposition that a witness, by honestly providing information to a law enforcement official, may be held responsible for the official’s execution of his independent duty to investigate. See Gramenos v. Jewel Cos.,?797 F.2d 432 (7th Cir. 1986) (“Police often arrest suspects on the basis of oral reports from witnesses, and the state may prosecute against the wishes of all witnesses.”); King v. Massarweh,?782 F.2d 825 (9th Cir. 1986) (injuries from arrest are not proximately caused by private party, absent some showing that private party “had some control” over state officials’ decision). In this case, Nkaru simply provided the police with information within his knowledge, and the police reasonably believed him. (Explaining that police have reasonable grounds to believe a guard at a supermarket, because there are inherent safeguards against the making of false charges in the institutional employment setting), see also 66 A.L.R. 3d Summary 10 §3 (1975) (normally a malicious prosecution plaintiff must show that defendant did more than merely give information that included an identification, e.g., that he requested the initiation of proceedings, signed a complaint, or swore out an arrest warrant against plaintiff); 52 Am.Jur. 2d Malicious Prosecution §23 (1970) (plaintiff must show defendant was affirmatively active in instigating or participating in the prosecution); id. §24 (no liability for mistaken, but reasonable and in good faith, misidentification of perpetrator of crime). Cf. Cedars-Sinai Med. Center v. Superior Court, 253 Cal.Rptr. 561 (Cal. Ct. App. 1988) (employees did not initiate or procure the arrest where, in an investigation which had already focused on plaintiff, authorities requested employees to identify voice on tape, and they genuinely believed it was plaintiff’s voice). In this instance, there is simply no evidence that Nkaru controlled the decisions of the law enforcement officials with respect to the investigation and prosecution of Brice. And the lack of such evidence substantially undermines the effort to hold Nkaru civilly responsible for the prosecution of Brice.Brice further contends that Nkaru “refused to testify” during the civil trial, which permits the jury an adverse inference. See Restatement of Torts, Second, §1264 (“When it would be natural under the circumstances for a party to call a particular witness or take the stand as a witness in a civil case,...and the party fails to do so, tradition has allowed the adversary to use this failure as the basis for involving an adverse inference.”). First, we reject the characterization that Nkaru “refused” to testify. A party is not obligated to testify on his own behalf at trial, and he and his counsel may make a reasoned judgment of whether there is a need to do so. Of course, a party in a civil suit cannot generally refuse to testify if called by the opposing party. In this regard, it is significant that Brice could have, but did not, call Nkaru as a witness. See Teague v. Bakker,?35 F.3d 978 (4th Cir. 1994) (no adverse inference permitted when witness is equally available to either party).Footnotes:6. In any event, there could be no liability based on Nkaru’s testimony at the preliminary hearing, because witness absolute immunity applies to testimony given in a judicial proceeding. See Briscoe v. LaHue,?460 U.S. 325 (1983) (noting common law provided absolute witness immunity for all persons integral to the judicial process); Williams v. Hepting,?844 F.2d 138 (3d Cir. 1988) (holding that preliminary hearing testimony is within the scope of witness absolute immunity); 50 Am.Jur.2d Libel and Slander (1995) (“Publications made in the course of actions necessarily preliminary to judicial proceedings are absolutely privileged.”); 60A Am.Jur.2d Perjury §132 (1988) (false testimony in a criminal action does not furnish a basis for civil suit by the criminal defendant). Cf. 81 Am.Jur.2d Witnesses §79 (1992) (at common law, a right of action for damages exists against a witness who, without sufficient excuse, fails or refuses to give oral testimony in obedience to a subpoena). However, our decision today need not rest on a witness immunity determination, because only a portion of Nkaru’s conduct would be within its scope.9. Even if the witness were not equally available, without a forecast of material facts that were omitted from evidence by Nkaru’s failure to testify, we can find no support for an adverse inference. See Martinelli v. Bridgeport Roman Catholic Diocesan Corp.,?196 F.3d 409 (2d Cir. 1999) (adverse inference permitted when missing witness’s testimony would be material); United States v. Warwick,?695 F.2d 1063 (7th Cir. 1982) (negative inference may not be drawn where the unpresented testimony would be merely cumulative).ROBERTS, et al. v. CHILDREN’S MEDICAL SERVICES, et al., 751 So.2d 672 (2000)SALCINES, Judge.On a motion to dismiss, the trial court is required to confine itself strictly to the four corners of the complaint.A motion to dismiss may not act as a substitute for summary judgment.The parents brought an action against Children’s Medical Services, Interim, and the foster parents for medical malpractice, negligent supervision, and for violation of §409.175, Florida Statutes (Supp. 1996), relating to the licensure of family foster homes. Interim and the foster parents filed separate motions to dismiss asserting that they were immune from the civil lawsuit under the provisions of §768.28, Florida Statutes (Supp. 1996), because they were employees or agents of the State of Florida.A hearing was conducted and, in ruling on the motions, the judge stated, “There is a fact that these foster care workers are indeed agents of the State, just because you don’t plead it does not mean that the expense of litigation needs to continue and everything else.” The trial court held that the parents were barred from bringing the present action against Interim and the foster parents by the governmental immunity provisions of §768.28. The amended complaint was dismissed with prejudice. We conclude that this was error.A motion to dismiss tests the legal sufficiency of a complaint to state a cause of action and is not intended to determine issues of ultimate fact. A trial court is required to confine itself strictly to the four corners of the complaint.?See McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss,?704 So.2d 214 (Fla. 2d DCA 1998). There is a clear distinction between a motion to dismiss and a motion for summary judgment. A motion to dismiss may not act as a substitute for summary judgment.?See Holland v. Anheuser Busch, Inc.,?643 So.2d 621 (Fla. 2d DCA 1994).The trial court was clearly without authority to look beyond the amended complaint to reach conclusions on the sufficiency of the evidence which the parties had yet to produce. The trial court should not have inferred facts which had not been pleaded in the amended complaint. Because we are unable at this time to determine the likelihood of success by Interim or the foster parents on the issue of governmental immunity, the trial court was equally unable to reach the conclusion it did.RUSS v. CITY OF JACKSONVILLE, 734 So.2d 508 (1999)VAN NORTWICK, J.Until final judgment, a successor judge has the power to vacate or modified the interlocutory rulings or orders of any predecessor judge in the case.Although it is true that a judge should hesitate to undo his own work, and hesitate still more to undo the work of another judge because of the “code” of restraint based upon comity and courtesy, nevertheless when presented with a prior interlocutory ruling that is based on a clearly mistaken interpretation of the law it is indeed appropriate for the succeeding judge to vacate or modify the prior order.Where the credibility and bias of an officer is brought into question by virtue of that officer’s past acts, impeaching evidence of the officer’s past acts is admissible.The trial date was continued. The August 30, 1997 edition of?The Florida Times-Union?included an article stating that depositions taken in an unrelated DUI case revealed that Officer Baker and another officer had been removed from the DUI squads “because of questions about his credibility” and described criticism within the sheriff’s office of the alleged “overzealous” practices of those officers in making DUI arrests. On September 17, 1997, Russ filed a motion for leave to file an amended complaint seeking to add a count for negligent retention of Officer Baker. In the motion to amend, Russ alleged that, when the City’s motion for protective order was argued, he had no knowledge of any concerns about Officer Baker and, therefore, knew no basis to contest the City’s motion. Russ’s motion to amend was denied and trial was set for January 5, 1998, before a different judge.Turning to the merits of appellant’s arguments, the credibility, bias or prejudice of witnesses who testify in a case, as well as the weight to be given their testimony, are a matter for the consideration of and determination by the jury.?Slavin v. Kay,?108 So.2d 462 (Fla. 1958). Where the credibility and bias of an officer is brought into question by virtue of that officer’s past acts, impeaching evidence of the officer’s past acts is admissible.?Henry v. State,?688 So.2d 963 (Fla. 1st DCA 1997),?accord Landry v. State,?620 So.2d 1099 (Fla. 4th DCA 1993);?see also Lutherman v. State,?348 So.2d 624 (Fla. 3d DCA 1977). As the Second District Court of Appeal explained in?Mendez v. State,?412 So.2d 965 (Fla. 2d DCA 1982):Whenever a witness takes the stand, he?ipso facto?places his credibility in issue. Cross-examination of such a witness in matters relevant to credibility ought to be given a wide scope in order to delve into a witness’s story, to test a witness’s perceptions and memory, and to impeach that witness.... The right of full cross-examination is absolute, and the denial of that right may easily constitute reversible error.SCHMIDT v. ODELL, et al., 64 F.Supp.2d 1014 (1999)WESLEY E. BROWN, Senior District Judge.Generally, to violate the Eighth Amendment, a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities and prison official must have a sufficiently culpable state of mind, which, in so far as conditions of confinement are concerned, requires a showing that the official was “deliberately indifferent” to inmate health or safety. U.S.C.A. Const. Amend. 8.Under Kansas law, to prevail on claim for intentional infliction of emotional distress, plaintiff must show: (1) the conduct of the defendants was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and (4) the plaintiff’s mental distress was extreme and severe.UNITED STATES v. HARRIS, 192 F.3d 580 (6th Cir. 1999)Damon J. Keith, Circuit JudgeIn Terry v. Ohio,?392 U.S. 1?(1968), the Supreme Court held that a police officer may stop an individual, question him, and perform a carefully limited pat down search for weapons where the officer reasonably concludes that criminal activity may be afoot. Because of the intrusive nature of such a search, the police officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The officer must be able to articulate something more than an “inchoate and unparticularized suspicion or hunch.” Harris argues that the District Court erred in finding that Officer Snavely did in fact have the requisite reasonable, articulable suspicion to allow him to execute a Terry stop.Harris’s primary argument with respect to the search and seizure issue is that all of his actions were innocent in themselves and were insufficient to give rise to a reasonable inference of criminal activity. Officer Snavely observed Harris walking erratically back and forth in a high crime area on a street where there had been reports of drug dealing and he was in the vicinity of a reported crack house. He allegedly had one of his pant legs rolled up, which indicated from Officer Snavely’s experience that Harris may have had drugs for sale. Harris was seen to stoop and remove something from his shoe or sock and walk along cupping his hands as though he were counting something.Harris presents several plausibly innocent explanations for the conduct observed by Officer Snavely. It is certainly conceivable that Harris’s walking back and forth on Arthur Avenue, his removal of an item from his shoe or sock, and his non-responsive answers to Officer Snavely’s questions could have had entirely unsinister motives. But when viewed in the aggregate, we agree with the District Court that Officer Snavely reasonably concluded that criminal activity may have been afoot. The Supreme Court addressed this issue in United States v. Sokolow,?490 U.S. 1?(1989), where it held that a series of acts, each of which is consistent with innocent behavior, may when taken together, amount to reasonable suspicion. We find that the instant case presents just such a scenario. As the Supreme Court noted in Sokolow, “Indeed, Terry itself involved ‘a series of acts, each of them perhaps innocent’ if viewed separately, ‘but which taken together warranted further investigation.’” (Quoting Terry,?392 U.S. at 22).In his next assignment of error, Harris claims that the District Court erred in denying his Batson challenge. Harris argues that the prosecutor purposefully excluded African-Americans from the jury in his trial in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It is well settled that a state denies a defendant equal protection of the laws when he is tried before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia,?100 U.S. 330?(1880). In Batson v. Kentucky, 476 U.S. 79?(1986), the Supreme Court extended this principle to the use of peremptory strikes from the petit jury and articulated a process to challenge the allegedly discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing of discriminatory use of peremptory challenges. A defendant establishes a prima facie case of purposeful discrimination by showing:That he is a member of a cognizable racial group...that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race...[and] that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire men from the petit jury on account of their race.United States v. Hill,?146 F.3d 337 (quoting Batson,?476 U.S. at 96). Once the defendant has made a prima facie showing, the government must offer a race-neutral explanation for challenging the jurors. This is an extremely light burden, as the Supreme Court held in Purkett v. Elem,?514 U.S. 765?(1995), that the government’s proffered reason need not be particularly persuasive, or even plausible, so long as it is neutral. Finally, the District Court must determine whether the defendant has established purposeful discrimination. Batson,?476 U.S. at 96. Because this determination turns largely on the evaluation of credibility, reviewing courts give the findings of the District Court great deference.The record in the instant case reveals that there was one African-American on the jury which convicted Harris. This juror was Number 25 on the venire panel and was the first African-American available on the venire panel. As it turns out, this venireman was the final panel member seated on the petit jury and was designated Juror Number 12. After the selection of the twelve petit jurors, the juror selection process continued so that the alternate jurors could be selected, and it is during this process that Harris claims the discrimination occurred.Venire panelists Numbers 26 and 27, who would have been alternate jurors Numbers 1 and 2, were both struck by the prosecutor. The prosecutor claimed that he eliminated venire member No. 26, an African-American woman, because she was unmarried and had no children. He further claimed that her demeanor seemed to indicate she did not want to be there. Venire member No. 27, an African-American male, was also struck by the prosecutor, allegedly because he had no children and had been a bus driver with the local transit authority. The prosecutor explained that there had recently been problems between local law enforcement officials and transit authority drivers, and he feared that Venire member No. 27?may have harbored feelings of animosity towards law enforcement officials.When the prosecutor struck the two African-American venire panelists, defense counsel objected under Batson. Before the District Court ruled as to whether Harris had established a prima facie case, the prosecutor offered his race-neutral reason for his use of the strikes. The District Court then made a finding that the prosecutor had not engaged in intentional discrimination. This sequence of events renders the initial question of whether defendant established a prima facie case moot. See Hernandez v. New York,?500 U.S. 352?(1991) (“Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”). Continuing with the second step of the Batson analysis, we see that the prosecutor, in his explanation of why he had struck Venire members No. 26 and 27, clearly carried his light burden.It is the District Court’s execution of the third step of the Batson analysis which we must examine closely. The District Court, in its determination that the prosecutor had not engaged in unlawful discrimination, noted:All right. The court notes that the first African-American panel member was No. 25, and No. 25 is, in fact, seated on the jury as No. 12. The next two African-Americans struck by the government actually would have been alternates if they had not been struck as jurors. So under the circumstances, the court will deny the Batson challenges. (Tr. at 67)This finding by the District Court is insufficient or mistaken in at least two respects. First, it is evident that the District Court gave great weight to the fact that one African-American was in fact seated on the jury. We note that the presence of one African-American on the jury does not preclude a Batson challenge. Jones v. Ryan,?987 F.2d 960 (3d Cir. 1993) (“Although one black person was ultimately empaneled, ‘the mere presence of a single black on the jury would not necessarily prevent a finding of a prima facie case.’”); United States v. Battle,?836 F.2d 1084 (8th Cir. 1987) (“[T]he striking of a single black juror for racial reasons violates the equal protection clause, even though other black jurors are seated, and even when there are valid reasons for the striking of some black jurors.”). Thus, the District Court’s notation that one African-American juror was seated does not, standing alone, warrant the Conclusion that the defendant has failed to meet his burden. The only other factor mentioned by the District Court was its observation that the two venire panelists who were struck would only have served as alternates even if they had not been struck by the prosecutor. The logic of this statement escapes us as it is clear that the District Court, at the time it made its ruling, could not possibly have known whether any of the alternates would be called to serve on the petit jury. Moreover, the harm inherent in a discriminatorily chosen jury injures not only the defendant, but also the jurors not selected because of their race, and to the?integrity of the judicial system as a whole. See Batson,?476 U.S. at 87. This principle is equally applicable to the selection of alternate jurors. Thus, we hold this factor of alternate status to be irrelevant, leaving the selection of one African-American for the jury as the only articulated reason for the district Judge’s Conclusion denying the Batson challenge.The government, having the benefit of hindsight, argues that any error made by the District Court in this respect must be deemed harmless, as none of the alternate jurors were ever called upon to deliberate in this case. The government’s position is without support.This type of error involves a “structural error,” which is not subject to harmless error analysis. See Arizona v. Fulminante,?499 U.S. 279 (1991). In Fulminante, the Supreme Court distinguished between “trial errors” which are subject to harmless error review and “structural errors” which are not. Trial errors, according to the Supreme Court, are errors which occurred during the presentation of the case to the jury, while structural errors affect the “entire conduct of the trial from beginning to end.” A panel of this court applied this principle in United States v. McFerron,?163 F.3d 952 (6th Cir. 1998), where it held that the erroneous denial of a peremptory challenge constituted “structural error” under the Fulminante analysis. And while the instant case involves the allegedly erroneous grant of a peremptory challenge rather than the erroneous denial of a peremptory challenge, we make no distinction between the two cases, as the underlying rationale is the same. Because the process of jury selection-even the selection of alternate jurors-is one that affects the entire conduct of the trial, the District Court’s decision with respect to the peremptory challenges of the alternate jurors is not subject to harmless error review.In sum, the District Court’s terse analysis of the Batson challenge leaves us with little to review. It seems to have made no effort to weigh the credibility of the prosecutor’s asserted reasons for striking the panelists, relying instead on impermissible factors in reaching its Conclusion. We therefore remand this issue to the District Court for a proper determination.For the foregoing reasons, we AFFIRM the District Court in every respect except the Batson analysis. We REMAND the case to the District Court for a proper determination of whether the government engaged in purposeful discrimination by striking two African-Americans from the venire panel.ALDEN, et al. v. MAINE, 527 U.S. 706, 119 S.Ct. 2240 (1999)Justice Kennedy delivered the opinion of the Court.States’ immunity from suit is a fundamental aspect of the sovereignty which the states enjoyed before the ratification of the Constitution.The federal system established by our Constitution preserves the sovereign status of the states.Under our Constitution, states retain a residuary and inviolable sovereignty and are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.Supremacy clause enshrines as “the supreme Law of the Land” only those federal acts that accord with the constitutional design. U.S.C.A. Const., Art. 1, §8.The principle of sovereign immunity preserved by constitutional design accords to the states the respect owed to them as members of the federation.A congressional power to authorize private suits against nonconsenting states in state courts would denigrate the separate sovereignty of the states.The Federal Government retains its own immunity from suit not only in state tribunals, but also in its own courts.A state is entitled to order the processes of its own governance, assigning to the political branches, rather than the courts, the responsibility for directing the payment of debts.States retain sovereign immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation. U.S.C.A. Const., Art. 1, §1 et seq.The constitutional privilege of a state to assert its sovereign immunity in its own courts does not confer upon the state a concomitant right to disregard the Constitution or valid federal law. U.S.C.A. Const., Art. 1, §8.The states and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. U.S.C.A. Const., Art. 1, §8.A state’s sovereign immunity does not bar all judicial review of state compliance with the Constitution and valid federal law.A state’s sovereign immunity bars suit only in the absence of consent.In ratifying the Constitution, the states consented to suits brought by other states or by the federal government.Congress may authorize private suits against nonconsenting states pursuant to its §5 enforcement power under the Fourteenth Amendment. U.S.C.A. Const. Amend. 14.A state’s sovereign immunity does not bar suits against lesser entities; it does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the state.A state’s sovereign immunity does not bar all suits against state officers.A state’s sovereign immunity does not bar certain actions against state officers for injunctive or declaratory relief.A suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.Congress has ample means to ensure compliance with valid federal laws, but it must respect the sovereignty of the states.After this Court decided, in?Seminole Tribe of Fla.?v.?Florida,?517 U.S. 44, that Congress lacks power under Article I to abrogate the States’ sovereign immunity in federal court, the Federal District Court dismissed a Fair Labor Standards Act of 1938 suit filed by petitioners against their employer, respondent Maine. Subsequently, petitioners filed the same action in state court. Although the FLSA purports to authorize private actions against States in their own courts, the trial court dismissed the suit on the ground of sovereign immunity. The Maine Supreme Judicial Court affirmed.Congress may exercise its Article I powers to subject States to private suits in their own courts only if there is compelling evidence that States were required to surrender this power to Congress pursuant to the constitutional design. Blatchford?v.?Native Village of Noatak,?501 U.S. 775 (1999).A State’s constitutional privilege to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. States and their officers are bound by obligations imposed by the Constitution and federal statutes that comport with the constitutional design. Limits implicit in the constitutional principle of sovereign immunity strike the proper balance between the supremacy of federal law and the separate sovereignty of the States. The first limit is that sovereign immunity bars suits only in the absence of consent. Many States have enacted statutes consenting to suits and have consented to some suits pursuant to the plan of the Convention or to subsequent constitutional Amendments. The second important limit is that sovereign immunity bars suits against States but not against lesser entities, such as municipal corporations, or against state officers for injunctive or declaratory relief or for money damages when sued in their individual capacities.The?Eleventh Amendment?makes explicit reference to the States’ immunity from suits “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amdt. 11. We have, as a result, sometimes referred to the States’ immunity from suit as “Eleventh Amendment?immunity.” The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the?Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of “the concept of a central government that would act upon and through the States” in favor of “a system in which the State and Federal Governments would exercise concurrent authority over the people - who were, in Hamilton’s words, ‘the only proper objects of government.’” Printz,?at 919 (quoting The Federalist No. 15, at 109); accord,?New York,?at 166 (“The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States”). In this the founders achieved a deliberate departure from the Articles of Confederation: Experience under the Articles had “exploded on all hands” the “practicality of making laws, with coercive sanctions, for the States as political bodies.” 2 Records of the Federal Convention of 1787, p.?9 (M. Farrand ed. 1911) (J. Madison); accord, The Federalist No. 20, at 138 (J. Madison & A. Hamilton); 3 Annals of America 249 (1976).The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity. One assurance was contained in The Federalist No. 81, written by Alexander Hamilton:“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual?without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal…. [T]here is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign Will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of the preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.”Despite the persuasive assurances of the Constitution’s leading advocates and the expressed understanding of the only state conventions to address the issue in explicit terms, this Court held, just five years after the Constitution was adopted, that Article III authorized a private citizen of another State to sue the State of Georgia without its consent.?Chisholm?v.?Georgia,?2 Dall. 419 (1793). Each of the four Justices who concurred in the judgment issued a separate opinion. The common theme of the opinions was that the case fell within the literal text of Article III, which by its terms granted jurisdiction over controversies “between a State and Citizens of another State,” and “between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.” U.S.Const., Art.?III, §2. The argument that this provision granted jurisdiction only over cases in which the State was a plaintiff was dismissed as inconsistent with the ordinary meaning of “between,” and with the provision extending jurisdiction to “Controversies between two or more States,” which by necessity contemplated jurisdiction over suits to which States were defendants. Two Justices also argued that sovereign immunity was inconsistent with the principle of popular sovereignty established by the Constitution, see 2 Dall.,?at 454-458 (Wilson, J.);?id.,?at 470-472 (Jay, C.J.); although the others did not go so far, they contended that the text of Article III evidenced the States’ surrender of sovereign immunity as to those provisions extending jurisdiction over suits to which States were parties, see id.,?at?452 (Blair, J.);?id.,?at 468 (Cushing, J.).An initial proposal to amend the Constitution was introduced in the House of Representatives the day after?Chisholm?was announced; the proposal adopted as the?Eleventh Amendment?was introduced in the Senate promptly following an intervening recess. Currie,?at 196. Congress turned to the latter proposal with great dispatch; little more than two months after its introduction it had been endorsed by both Houses and forwarded to the States. 4 Annals of Congress 25, 30, 477, 499 (1794); 1 Stat. 402.The text and history of the?Eleventh Amendment?also suggest that Congress acted not to change but to restore the original constitutional design. Although earlier drafts of the Amendment had been phrased as express limits on the judicial power granted in Article III, see?3 Annals of Congress 651-652 (1793) (“The Judicial Power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States…”), the adopted text addressed the proper interpretation of that provision of the original Constitution, see U.S.Const., Amdt.?11 (“The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States…”). By its terms, then, the?Eleventh Amendment?did not redefine the federal judicial power but instead overruled the Court:“This Amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all Legislatures and all courts, actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by individuals against the States, but declared that the Constitution should not be construed to import any power to authorize the bringing of such suits. …The Supreme Court had construed the judicial power as extending to such a suit, and its decision was thus overruled.”?Hans,?134 U.S., at 11.Finally, the swiftness and near unanimity with which the Eleventh Amendment?was adopted suggest “either that the Court had not captured the original understanding, or that the country had changed its collective mind most rapidly.” D.?Currie, The Constitution in the Supreme Court: The First Century 18, n.?101 (1985). The more reasonable interpretation, of course, is that regardless of the views of four Justices in?Chisholm,?the country as a whole - which had adopted the Constitution just five years earlier - had not understood the document to strip the States’ of their immunity from private suits. Cf. Currie, The Constitution in Congress, at 196 (“It is plain that just about everybody in Congress agreed the Supreme Court had misread the Constitution”).Article I, §8 grants Congress broad power to enact legislation in several enumerated areas of national concern. The Supremacy Clause, furthermore, provides:“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S.Const., Art.?VI.… We reject any contention that substantive federal law by its own force necessarily overrides the sovereign immunity of the States. When a State asserts its immunity to suit, the question is not the primacy of federal law but the implementation of the law in a manner consistent with the constitutional sovereignty of the States.The dissenting opinion seeks to reopen these precedents, contending that state sovereign immunity must derive either from the common law (in which case the dissent contends it is defeasible by statute) or from natural law (in which case the dissent believes it cannot bar a federal claim). As should be obvious to all, this is a false dichotomy. The text and the structure of the Constitution protect various rights and principles. Many of these, such as the right to trial by jury and the prohibition on unreasonable searches and seizures, derive from the common law. The common-law lineage of these rights does not mean they are defeasible by statute or remain mere common-law rights, however. They are, rather, constitutional rights, and form the fundamental law of the land.In?Hilton?we held that an injured employee of a state-owned railroad could sue his employer (an arm of the State) in state court under the Federal Employers’ Liability Act (FELA), 53 Stat. 1404, 45 U.S.C. §51-60. Our decision was “controlled and informed” by stare decisis. A generation earlier we had held that because the FELA made clear that all who operated railroads would be subject to suit by injured workers, States that chose to enter the railroad business after the statute’s enactment impliedly waived their sovereign immunity from such suits. See Parden.?Some States had excluded railroad workers from the coverage of their workers’ compensation statutes on the assumption that FELA provided adequate protection for those workers.?Closing the courts to FELA suits against state employers would have dislodged settled expectations and required an extensive legislative response.In?Hall?we considered whether California could subject Nevada to suit in California’s courts and determined the Constitution did not bar it from doing so. We noted that “[t]he doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign’s own courts and the other to suits in the courts of another sovereign.” We acknowledged that “[t]he immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign’s own consent could qualify the absolute character of that immunity,”?that “the notion that immunity from suit is an attribute of sovereignty is reflected in our cases,” and that “[t]his explanation adequately supports the conclusion that no sovereign may be sued in its own courts without its consent.” We sharply distinguished, however, a sovereign’s immunity from suit in the courts of another sovereign:“[B]ut [this explanation] affords no support for a claim of immunity in another sovereign’s courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.”Since we determined the Constitution did not reflect an agreement between the States to respect the sovereign immunity of one another, California was free to determine whether it would respect Nevada’s sovereignty as a matter of comity.Our opinion in?Hall?did distinguish a State’s immunity from suit in federal court from its immunity in the courts of other States; it did not, however, address or consider any differences between a State’s sovereign immunity in federal court and in its own courts. Our reluctance to find an implied constitutional limit on the power of the States cannot be construed, furthermore, to support an analogous reluctance to find implied constitutional limits on the power of the Federal Government. The Constitution, after all, treats the powers of the States differently from the powers of the Federal Government. As we explained in Hall:“[I]n view of the?Tenth Amendment’s reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people, the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on state power were intended by the Framers.”The Federal Government, by contrast, “can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.”?Martin?v.?Hunter’s Lessee,?1 Wheat. 304 (1816); see also?City of Boerne?v.?Flores,?521 U.S. 507 (1997);?United States?v.?Lopez,?514 U.S. 549 (1995).In?Howlett?v.?Rose,?496 U.S. 356?(1990),?we held that a state court could not refuse to hear a §1983 suit against a school board on the basis of sovereign immunity. The school board was not an arm of the State, however, so it could not assert any constitutional defense of sovereign immunity to which the State would have been entitled. See?Mt. Healthy City Bd. of Ed.?v.?Doyle, 429 U.S. 274 (1977). In?Howlett,?then, the only question was “whether a state-law defense of ‘sovereign immunity’ is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum.” The decision did not address the question of Congress’ power to compel a state court to entertain an action against a nonconsenting State.We have said on many occasions, furthermore, that the States retain their immunity from private suits prosecuted in their own courts. See?Beers?v.?Arkansas,?20 How. 527 (1858) (“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission”);?Railroad Co.?v. Tennessee,?101 U.S. 337 (1880) (“The principle is elementary that a State cannot be sued in its own courts without its consent. This is a privilege of sovereignty”);?Cunningham?v.?Macon & Brunswick R.?Co.,?109 U.S. 446 (1883) (“It may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution”);?Louisiana ex rel. New York Guaranty & Indemnity Co.?v.?Steele,?134 U.S. 230 (1890) (finding a suit against a state official in state court to be “clearly within the principle” of the?Eleventh Amendment?decisions);?Hess v.?Port Authority Trans-Hudson Corporation,?513 U.S. 30 (1994) (“The?Eleventh Amendment?largely shields the States from suit in federal court without their consent, leaving the parties with claims against a State to present them, if the State permits, in the State’s own tribunals”);?Seminole Tribe,?517 U.S., at 71, n.?14 (“[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit”); see also?Great Northern Life Ins. Co.?v.?Read,?322 U.S., at 59 (“The?Eleventh Amendment?has put state immunity from suit into the Constitution. Therefore, it is not in the power of individuals to bring any State into court - the State’s or that of the United States - except with its consent”); cf.?Quern?v.?Jordan,?440 U.S. 332 (1979);?Green?v.?Mansour,?474 U.S. 64 (1985).In particular, the exception to our sovereign immunity doctrine recognized in?Ex parte Young,?209 U.S. 123?(1908), is based in part on the premise that sovereign immunity bars relief against States and their officers in both state and federal courts, and that certain suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land. As we explained in?General Oil Co.?v.?Crain,?209 U.S. 211?(1908), a case decided the same day as?Ex parte Young?and extending the rule of that case to state-court suits:“It seems to be an obvious consequence that as a State can only perform its functions through its officers, a restraint upon them is a restraint upon its sovereignty from which it is exempt without its consent in the state tribunals, and exempt by the?Eleventh Amendment?of the Constitution of the United States, in the national tribunals. The error is in the universality of the conclusion, as we have seen. Necessarily to give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determining the character of the suit against state officers. And the suit at bar illustrates the necessity. If a suit against state officers is precluded in the national courts by the?Eleventh Amendment?to the Constitution, and may be forbidden by a State to its courts, as it is contended in the case at bar that it may be, without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution…. See?Ex parte Young,?p.?123, where this subject is fully discussed and the cases reviewed.”?A general federal power to authorize private suits for money damages would place unwarranted strain on the States’ ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of the State may have a legitimate claim for compensation, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made. If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen. “It needs no argument to show that the political power cannot be thus ousted of its jurisdiction and the Judiciary set in its place.”?Louisiana?v.?Jumel,?107 U.S. 711 (1883).By “‘split[ting] the atom of sovereignty,’” the founders established “‘two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’” Saenz?v.?Roe,?526 U.S.?489 (1999), quoting?U.S. Term Limits, Inc.?v.?Thornton,?514 U.S. 779 (1995). “The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens.”?Printz,?521 U.S., at 920. When the Federal Government asserts authority over a State’s most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government.The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof?… shall be the supreme Law of the Land.” U.S. Const., Art.?VI.Sovereign immunity, moreover, does not bar all judicial review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the constitutional principle of state sovereign immunity.The first of these limits is that sovereign immunity bars suits only in the absence of consent. Many States, on their own initiative, have enacted statutes consenting to a wide variety of suits. The rigors of sovereign immunity are thus “mitigated by a sense of justice which has continually expanded by consent the suability of the sovereign.”?Great Northern Life Ins. Co.?v.?Read, 322 U.S., at 53. Nor, subject to constitutional limitations, does the Federal Government lack the authority or means to seek the States’ voluntary consent to private suits. Cf.?South Dakota?v. Dole,?483 U.S. 203?(1987).The States have consented, moreover, to some suits pursuant to the plan of the Convention or to subsequent constitutional amendments. In ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government. Principality of Monaco,?at 328. A suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to “take Care that the Laws be faithfully executed,” U.S.Const., Art.?II, §3, differs in kind from the suit of an individual: While the Constitution contemplates suits among the members of the federal system as an alternative to extralegal measures, the fear of private suits against nonconsenting States was the central reason given by the founders who chose to preserve the States’ sovereign immunity. Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States.We have held also that in adopting the?Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its §5 enforcement power. Fitzpatrick?v.?Bitzer,?427 U.S. 445?(1976). By imposing explicit limits on the powers of the States and granting Congress the power to enforce them, the Amendment “fundamentally altered the balance of state and federal power struck by the Constitution.”?Seminole Tribe,?517 U.S., at 59. When Congress enacts appropriate legislation to enforce this Amendment, see City of Boerne?v.?Flores,?521 U.S. 507?(1997), federal interests are paramount, and Congress may assert an authority over the States which would be otherwise unauthorized by the Constitution.The second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State. See?Mt. Healthy City Bd. of Ed.?v.?Doyle,?429 U.S., at 280;?Lincoln County?v.?Luning,?133 U.S. 529?(1890). Nor does sovereign immunity bar all suits against state officers. Some suits against state officers are barred by the rule that sovereign immunity is not limited to suits which name the State as a party if the suits are, in fact, against the State. See?In re Ayers,?123 U.S., at 505;?Idaho?v.?Coeur d’Alene Tribe of Idaho,?521 U.S., at 270 (“The real interests served by the?Eleventh Amendment?are not to be sacrificed to elementary mechanics of captions and pleading”). The rule, however, does not bar certain actions against state officers for injunctive or declaratory relief. Compare?Ex parte Young,?209 U.S. 123?(1908), and?In?re Ayers, with?Coeur d’Alene Tribe of Idaho,?Seminole Tribe,?and?Edelman?v.?Jordan,?415 U.S. 651?(1974). Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.?Scheuer?v.?Rhodes,?416 U.S. 232 (1974);?Ford Motor Co.?v.?Department of Treasury of Ind.,?323 U.S. 459 (1945).The principle of sovereign immunity as reflected in our jurisprudence strikes the proper balance between the supremacy of federal law and the separate sovereignty of the States. See Pennhurst State School and Hospital?v.?Halderman,?465 U.S., at 105. Established rules provide ample means to correct ongoing violations of law and to vindicate the interests which animate the Supremacy Clause. See?Green?v.?Mansour,?474 U.S., at 68. That we have, during the first 210 years of our constitutional history, found it unnecessary to decide the question presented here suggests a federal power to subject nonconsenting States to private suits in their own courts is unnecessary to uphold the Constitution and valid federal statutes as the supreme law.The sole remaining question is whether Maine has waived its immunity. The State of Maine “regards the immunity from suit as ‘one of the highest attributes inherent in the nature of sovereignty,’”?Cushing?v.?Cohen, 420 A.2d 919 (Me. 1981) (quoting?Drake?v.?Smith,?390 A.2d 541 (Me. 1978)), and adheres to the general rule that “a specific authority conferred by an enactment of the Legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity.”?Petitioners have not attempted to establish a waiver of immunity under this standard. Although petitioners contend the State has discriminated against federal rights by claiming sovereign immunity from this FLSA suit, there is no evidence that the State has manipulated its immunity in a systematic fashion to discriminate against federal causes of action. To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit. The State, we conclude, has not consented to suit.This case at one level concerns the formal structure of federalism, but in a Constitution as resilient as ours, form mirrors substance. Congress has vast power but not all power. When Congress legislates in matters affecting the States, it may not treat these sovereign entities as mere prefectures or corporations. Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate States. Congress has ample means to ensure compliance with valid federal laws, but it must respect the sovereignty of the States.In apparent attempt to disparage a conclusion with which it disagrees, the dissent attributes our reasoning to natural law. We seek to discover, however, only what the Framers and those who ratified the Constitution sought to accomplish when they created a federal system. We appeal to no higher authority than the Charter which they wrote and adopted. Theirs was the unique insight that freedom is enhanced by the creation of two governments, not one. We need not attach a label to our dissenting colleagues’ insistence that the constitutional structure adopted by the founders must yield to the politics of the moment. Although the Constitution begins with the principle that sovereignty rests with the people, it does not follow that the National Government becomes the ultimate, preferred mechanism for expressing the people’s will. The States exist as a refutation of that concept. In choosing to ordain and establish the Constitution, the people insisted upon a federal structure for the very purpose of rejecting the idea that the will of the people in all instances is expressed by the central power, the one most remote from their control. The Framers of the Constitution did not share our dissenting colleagues’ belief that the Congress may circumvent the federal design by regulating the States directly when it pleases to do so, including by a proxy in which individual citizens are authorized to levy upon the state treasuries absent the States’ consent to jurisdiction.The case before us depends upon these principles. The State of Maine has not questioned Congress’ power to prescribe substantive rules of federal law to which it must comply. Despite an initial good-faith disagreement about the requirements of the FLSA, it is conceded by all that the State has altered its conduct so that its compliance with federal law cannot now be questioned. The Solicitor General of the United States has appeared before this Court, however, and asserted that the federal interest in compensating the States’ employees for alleged past violations of federal law is so compelling that the sovereign State of Maine must be stripped of its immunity and subjected to suit in its own courts by its own employees. Yet, despite specific statutory authorization, see?29 U.S.C. §216(c), the United States apparently found the same interests insufficient to justify sending even a single attorney to Maine to prosecute this litigation. The difference between a suit by the United States on behalf of the employees and a suit by the employees implicates a rule that the National Government must itself deem the case of sufficient importance to take action against the State; and history, precedent, and the structure of the Constitution make clear that, under the plan of the Convention, the States have consented to suits of the first kind but not of the second. The judgment of the Supreme Judicial Court of Maine isAffirmed.Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.I understand the Court to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a “fundamental aspect” of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the Court’s opinion that would suggest a basis for saying that the ratification of the?Tenth Amendment?gave this “fundamental aspect” its constitutional status and protection against any legislative tampering by Congress. The Court’s principal rationale for today’s result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the?Tenth Amendment?in 1791)?The answer is certainly no. There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable. Whether one looks at the period before the framing, to the ratification controversies, or to the early republican era, the evidence is the same. Some Framers thought sovereign immunity was an obsolete royal prerogative inapplicable in a republic; some thought sovereign immunity was a common-law power defeasible, like other common-law rights, by statute; and perhaps a few thought, in keeping with a natural law view distinct from the common-law conception, that immunity was inherent in a sovereign because the body that made a law could not logically be bound by it. Natural law thinking on the part of a doubtful few will not, however, support the Court’s position.If the natural law conception of sovereign immunity as an inherent characteristic of sovereignty enjoyed by the States had been broadly accepted at the time of the founding, one would expect to find it reflected somewhere in the five opinions delivered by the Court in?Chisholm?v.?Georgia,?2 Dall. 419 (1793). Yet that view did not appear in any of them. And since a bare two years before?Chisholm, the Bill of Rights had been added to the original Constitution, if the?Tenth Amendment?had been understood to give federal constitutional status to state sovereign immunity so as to endue it with the equivalent of the natural law conception, one would be certain to find such a development mentioned somewhere in the?Chisholm?writings. In fact, however, not one of the opinions espoused the natural law view, and not one of them so much as mentioned the?Tenth Amendment. Not even Justice Iredell, who alone among the Justices thought that a State could not be sued in federal court, echoed Hamilton or hinted at a constitutionally immutable immunity doctrine.Justice Wilson took up the argument for the sovereignty of the people more vociferously. Building on a conception of sovereignty he had already expressed at the Pennsylvania ratifying convention, he began by noting what he took to be the pregnant silence of the Constitution regarding sovereignty:“To the Constitution of the?United States?the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who?ordained and?established?the Constitution. They?might?have announced themselves ‘SOVEREIGN’ people of the?United States:?But serenely conscious of the?fact, they avoided the?ostentatious declaration.”As if to contrast his own directness with the Framers’ delicacy, the Framer-turned-Justice explained in no uncertain terms that Georgia was not sovereign with respect to federal jurisdiction (even in a diversity case):“As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of?Georgia, when they acted upon the large scale of the?Union, as a part of the ‘People of the United States,’ did?not?surrender the Supreme or Sovereign Power to that State; but,?as to the purposes of the Union, retained it to themselves.?As to the purposes of the Union, therefore,?Georgia?is NOT?a sovereign State.”This was necessarily to reject any natural law conception of sovereign immunity as inherently attached to an American State, but this was not all. Justice Wilson went on to identify the origin of sovereign immunity in the feudal system that had, he said, been brought to England and to the common law by the Norman Conquest. After quoting Blackstone’s formulation of the doctrine as it had developed in England, he discussed it in the most disapproving terms imaginable:“This last position [that the King is sovereign and no court can have jurisdiction over him] is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in?England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and?this?side of the Atlantic, been implicitly and generally received by those, who neither examined their?principles?nor their?consequences. The principle is, that all human law must be prescribed by a?superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The?sovereign, when traced to his source, must be found in the?man.”With this rousing conclusion of revolutionary ideology and rhetoric, Justice Wilson left no doubt that he thought the doctrine of sovereign immunity entirely anomalous in the American Republic. Although he did not speak specifically of a State’s immunity in its own courts, his view necessarily requires that such immunity would not have been justifiable as a tenet of absolutist natural law.Chief Justice Jay took a less vehement tone in his opinion, but he, too, denied the applicability of the doctrine of sovereign immunity to the States. He explained the doctrine as an incident of European feudalism, and said that by contrast,“[n]o such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are?sovereigns without subjects?(unless the African?slaves among us may be so called) and have none to govern but?themselves;?the citizens of?America?are equal as fellow citizens, and as joint tenants in the sovereignty.”From the difference between the sovereignty of princes and that of the people, Chief Justice Jay argued, it followed that a State might be sued. When a State sued another State, as all agreed it could do in federal court, all the people of one State sued all the people of the other. “But why it should be more incompatible, that all the people of a State should be sued by?one?citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike; and the consequences of a judgment alike.” Finally, Chief Justice Jay pointed out, Article III authorized suits between a State and citizens of another State. Although the Chief Justice reserved judgment on whether the United States might be sued by a citizen, given that the courts must rely on the Executive to implement their decisions, he made it clear that this reservation was practical, and not theoretical: “I wish the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law, be compelled to do justice, and be sued by individual citizens.”?Although Chief Justice Jay did not speak specifically to the question of state sovereign immunity in state court, his theory shows that he considered not the States, but the people collectively, to be sovereign; and there is thus no reason to think he would have denied that the people of the Nation could override any state claim to sovereign immunity in a matter committed to the Nation.The “jurists who believe in natural law” might have reproved Justice Holmes for his general skepticism about the intrinsic value of their views, but they would not have faulted him for seeing the consequence of their position: if the sovereign is not the source of the law to be applied, sovereign immunity has no applicability. Justice Holmes indeed explained that in the case of multiple sovereignties, the subordinate sovereign will not be immune where the source of the right of action is the sovereign that is dominant. See?Kawananakoa, 205 U.S., at 353 (District of Columbia not immune to private suit, because private rights there are “created and controlled by Congress and not by a Legislature of the District”). Since the law in this case proceeds from the national source, whose laws authorized by Article I are binding in state courts, sovereign immunity cannot be a defense. After Garcia?v.?San Antonio Metropolitan Transit Authority,?469 U.S. 528?(1985), Justice Holmes’s logically impeccable theory yields the clear conclusion that even in a system of “fundamental” state sovereign immunity, a State would be subject to suit?eo nomine?in its own courts on a federal claim.Nor can it be argued that because the State of Maine creates its own court system, it has authority to decide what sorts of claims may be entertained there, and thus in effect to control the right of action in this case. Maine has created state courts of general jurisdiction; once it has done so, the Supremacy Clause of the Constitution, Art.?VI, cl. 2, which requires state courts to enforce federal law and state-court judges to be bound by it, requires the Maine courts to entertain this federal cause of action. Maine has advanced no “‘valid excuse,’”?Howlett?v.?Rose,?496 U.S. 356 (1990) (quoting?Douglas?v.?New York, N.H. & H.R. Co.,?279 U.S. 377 (1929)), for its courts’ refusal to hear federal-law claims in which Maine is a defendant, and sovereign immunity cannot be that excuse, simply because the State is not sovereign with respect to the subject of the claim against it. The Court’s insistence that the federal structure bars Congress from making States susceptible to suit in their own courts is, then, plain mistake.It is equally puzzling to hear the Court say that “federal power to authorize private suits for money damages would place unwarranted strain on the States’ ability to govern in accordance with the will of their citizens.”?So long as the citizens’ will, expressed through state legislation, does not violate valid federal law, the strain will not be felt; and to the extent that state action does violate federal law, the will of the citizens of the United States already trumps that of the citizens of the State: the strain then is not only expected, but necessarily intended.Least of all does the Court persuade by observing that “other important needs” than that of the “judgment creditor” compete for public money. The “judgment creditor” in question is not a dunning bill-collector, but a citizen whose federal rights have been violated, and a constitutional structure that stints on enforcing federal rights out of an abundance of delicacy toward the States has substituted politesse in place of respect for the rule of law. If neither theory nor structure can supply the basis for the Court’s conceptions of sovereign immunity and federalism, then perhaps history might. The Court apparently believes that because state courts have not historically entertained Commerce Clause-based federal-law claims against the States, such an innovation carries a presumption of unconstitutionality. (Arguing that absence of statutes authorizing suits against States in state court suggests an assumed absence of such power). At the outset, it has to be noted that this approach assumes a more cohesive record than history affords. In?Hilton?v.?South Carolina Public Railways Comm’n,?502 U.S. 197?(1991), a case the Court labors mightily to distinguish, we held that a state-owned railroad could be sued in state court under the Federal Employers’ Liability Act,?45 U.S.C. §51-60, notwithstanding the lack of an express congressional statement, because “‘the?Eleventh Amendment?does not apply in state courts.’”?Hilton, at 205 (quoting?Will?v.?Michigan Dept. of State Police,?491 U.S. 58 (1989)). But even if the record were less unkempt, the problem with arguing from historical practice in this case is that past practice, even if unbroken, provides no basis for demanding preservation when the conditions on which the practice depended have changed in a constitutionally relevant way.The Court might respond to the charge that in practice it has vitiated?Garcia?by insisting, as counsel for Maine argued, that the United States may bring suit in federal court against a State for damages under the FLSA, on the authority of?United States?v.?Texas,?143 U.S. 621 (1892). See also?Seminole Tribe, 517 U.S., at 71. It is true, of course, that the FLSA does authorize the Secretary of Labor to file suit seeking damages, see?29 U.S.C. §216(c), but unless Congress plans a significant expansion of the National Government’s litigating forces to provide a lawyer whenever private litigation is barred by today’s decision and?Seminole Tribe, the allusion to enforcement of private rights by the National Government is probably not much more than whimsy. Facing reality, Congress specifically found, as long ago as 1974, “that the enforcement capability of the Secretary of Labor is not alone sufficient to provide redress in all or even a substantial portion of the situations where compliance is not forthcoming voluntarily.” S.?Rep. No. 93-690, p. 27 (1974). One hopes that such voluntary compliance will prove more popular than it has in Maine, for there is no reason today to suspect that enforcement by the Secretary of Labor alone would likely prove adequate to assure compliance with this federal law in the multifarious circumstances of some 4.7 million employees of the 50 States of the Union.So there is much irony in the Court’s profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate, and much closer to the hearts of the Framers: that where there is a right, there must be a remedy. Lord Chief Justice Holt could state this as an unquestioned proposition already in 1702, as he did in?Ashby?v.?White, 6 Mod. 45, 87 Eng. Rep. 808 (K.B.):“If an Act of Parliament be made for the benefit of any person, and he is hindered by another of that benefit, by necessary consequence of law he shall have an action; and the current of all the books is so.”Footnotes:3. Bracton is the earliest source for the common-law immunity of the King, and his explanation is essentially practical: “Si autem ab eo petatur, cum breve non currat contra ipsum, locus erit supplicationi, quod factum suum corrigat et emendet.” That is, “If [justice] is asked of him, since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act.” 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968) (London 1569 ed., folio 5b, Bk. I, ch. 8). The fact that no writ ran against the King was “no peculiar privilege; for no feudal lord could be sued in his own court.” 3 W. Holdsworth, History of English Law 465 (3d ed. 1927). “‘He can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor; that there happens to be in this world no court above his court is, we may say, an accident.’” See?Nevada?v.?Hall,?440 U.S. 410 (1979) (quoting 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1899)). It was this same view of the immunity that came down to Blackstone, who cited Finch for the view that the King must be petitioned and not sued. See H. Finch, Law, or a Discourse Thereof, in Four Books 255 (1678 ed. reprinted 1992) (“Here in place of action against the King petition must be made unto him in the Chancery, or in Parliament, for no action did ever lie against the K[ing] at the Common Law, but the party is driven to his petition”); 1 Blackstone 242.16. The Court says this statement of Wilson’s is “startling even today,” but it is hard to see what is so startling, then or now, about the proposition that, since federal law may bind state governments, the state governments are in this sense subordinate to the national. The Court seems to have forgotten that one of the main reasons a Constitutional Convention was necessary at all was that under the Articles of Confederation Congress lacked the effective capacity to bind the States. The Court speaks as if the Supremacy Clause did not exist, or McCulloch?v.?Maryland,?4 Wheat. 316 (1819), had never been decided. Nor is the Court correct to say that the views of Wilson, Randolph, and General Charles Cotesworth Pinckney, “cannot bear the weight” I put upon them. Indeed, the yoke is light, since I intend these Framers only to do their part in showing that a diversity of views with respect to sovereignty and sovereign immunity existed at the several state conventions, and that this diversity stands in the way of the Court’s assumption that the founding generation understood sovereign immunity in the natural law sense as indefeasibly “fundamental” to statehood. Finally, the Court calls Wilson’s view “a radical nationalist vision of the constitutional design,” apparently in an attempt to discount it. But while Wilson’s view of sovereignty was indeed radical in its deviation from older conceptions, this hardly distanced him from the American mainstream, and in October 1787, Washington himself called Wilson “as able, candid, & honest a member as any in Convention,” 5 Papers of George Washington: Confederation Series 379 (W. Abbot & D. Twohig eds. 1997).19. It is conceivable that the New York Convention, which was after all the intended audience for The Federalist, thought that the States had some sort of an inherent right against being sued in federal court. But this is unlikely, because numerous other of the proposed amendments declared so-called “rights” in no uncertain terms, see 1 Elliot’s Debates 328 (“[T]he people have an equal, natural, and unalienable right freely and peaceably to exercise their religion”; trial by jury is “one of the greatest securities to the rights of a free people”; “[T]he people have a right peaceably to assemble together”), whereas the proposed amendment regarding suits against States simply stated that the judicial power “does not extend…to authorize any suit by any person against a state,” and said nothing about any rights, inherent or otherwise.29. The Court might perhaps respond that if the role of state sovereign immunity was not the subject of universal consensus in 1792, the enactment of the?Eleventh Amendment?brought the doctrine into the constitutional realm. The strongest form of this view must maintain that, notwithstanding the Amendment’s silence regarding state courts and its exclusive focus on the federal judicial power, the motivation of the Framers of the Eleventh Amendment?must have been affirmatively to embrace the position that the States enjoyed the immunity from suit previously enjoyed by the Crown. On this account, the Framers of the Eleventh Amendment?said nothing about sovereign immunity in state court because it never occurred to them that such immunity could be questioned; had they thought of this possibility, they would have considered it absurd that States immune in federal court could be subjected to suit in their own courts. The first trouble with this view is that it assumes that the?Eleventh Amendment?was intended to reach all federal law suits, and not only those arising under diversity jurisdiction. If the Framers of the?Eleventh Amendment?had in mind only diversity cases, as the Court was prepared to concede in?Seminole Tribe, see 517 U.S., at 69 (“The text dealt in terms only with the problem presented by the decision in?Chisholm…. [I]t seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States”), then it might plausibly follow that the Framers of that Amendment assumed that States possessed sovereign immunity in their own courts with respect to state law. But it certainly does not follow that the Amendment’s authors would have thought that States enjoyed immunity in state court on questions of federal law. To accept this would require one to believe that the Framers of the?Eleventh Amendment?were blind to an extremely anomalous application of sovereign immunity, under which a State is immune even when it is not the font of the law under which it is sued. The Court today may labor under the misapprehension that sovereign immunity can apply where the sovereign is not the font of law, but the Court adduces no evidence to suggest that the Framers of the?Eleventh Amendment?held such a view. And the Framers were much closer than the Court to the theory of sovereign immunity according to which the font of law may not be subject to suit under that law. This leaves the Court in the position of supporting its view of what the?Eleventh Amendment?means by the “historical” assertion that the Framers must have intended it to mean the same.33. It is therefore sheer circularity for the Court to talk of the “anomaly,” that would arise if a State could be sued on federal law in its own courts, when it may not be sued under federal law in federal court,?Seminole Tribe. The short and sufficient answer is that the anomaly is the Court’s own creation: the?Eleventh Amendment?was never intended to bar federal-question suits against the States in federal court. The anomaly is that?Seminole Tribe, an opinion purportedly grounded in the Eleventh Amendment, should now be used as a lever to argue for state sovereign immunity in state courts, to which the?Eleventh Amendment?by its terms does not apply.34. Perhaps?as a corollary to its view of sovereign immunity as to some degree indefeasible because “fundamental,” the Court frets that the “power to press a State’s own courts into federal service to coerce the other branches of the State…is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals.” But this is to forget that the doctrine of separation of powers prevails in our Republic. When the state Judiciary enforces federal law against state officials, as the Supremacy Clause requires it to do, it is not turning against the State’s executive any more than we turn against the Federal Executive when we apply federal law to the United States: it is simply upholding the rule of law. There is no “commandeering” of the State’s resources where the State is asked to do no more than enforce federal law.36. The Court also claims that subjecting States to suit puts power in the hands of state courts that the State may wish to assign to its Legislature, thus assigning the state Judiciary a role “foreign to its experience but beyond its competence....” This comes perilously close to legitimizing political defiance of valid federal law.37. In its discussion of?Hilton, the Court attempts to explain away the State’s failure to raise a sovereign immunity defense by acknowledging candidly that when that case was decided, “it may have appeared to the State that Congress’ power to abrogate its immunity from suit in any court was not limited by the Constitution at all.” The reasoning of?Hilton?suggests that it appeared not only to the State, but also to the Court, that Congress could abrogate state sovereign immunity in state court. If Congress could not, then there would have been no jurisdiction in the case. The Court never even hinted that constitutional structure, much less the?Tenth Amendment, might bar the suit, even though the dissent stressed that “the principle of federalism underlying the [Eleventh] Amendment pervades the constitutional structure.”38. Nor does?Poindexter?v.?Greenhow,?114 U.S. 270?(1885), one of the Virginia Coupon Cases, fit comfortably with the assumption that state courts have exercised no disputed jurisdiction over their own governments on federal questions. Under its Funding Act of 1871, Virginia had issued bonds that specified on their face that the attached coupons should be receivable at and after maturity for all taxes, debts, dues, and demands due the State. In 1882, however, Virginia passed a law requiring its tax collectors to accept nothing but gold, silver, or currency in payment of taxes. After the bonds reached maturity, Poindexter used them to pay state property taxes; Greenhow, the local tax collector, ignored the payment and took possession of an office desk in Poindexter’s possession to sell it for unpaid taxes. Poindexter brought a common-law action in detinue against the tax collector in state court for recovery of the desk, arguing that the later Virginia statute barring use of the coupons violated the Contracts Clause. Greenhow defended,?inter alia, on the theory that the suit was “substantially an action against the State of Virginia, to which it has not assented.” The Court rejected this claim by applying to the State of Virginia reasoning akin to, though broader than, that later adopted in?Ex parte Young,?209 U.S. 123?(1908). We held that, where state legislative action is unconstitutional, it “is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name.” Because the original bonds were binding contracts, the obligation of which Virginia could not constitutionally impair, “[t]he true and real Commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it.” It therefore could not be argued that the tax collector was acting on behalf of the State, because “[t]he State of Virginia has done none of these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but contrary to her express commands.” Although the tax collector had done nothing more than collect taxes under duly enacted state law, he was held to be liable to suit. Thus in the only case to have come before this Court specifically involving a claim of state sovereign immunity of constitutional magnitude in a State’s own court, jurisdiction was upheld.40. The most recent available data give 4,732,608 as the total number of employees of the 50 States of the Union, see State Government Employment Data: March 1997, http:/pub/govs/apes/ 97stus.txt. (Use the following link, updated 6/8/14 by the author, ).BERRY v. CSX TRANSPORTATION, INC., 709 So.2d 552 (Fla. 1st DCA 1998)The Frye Reliability Standard.The issue of the admissibility of expert testimony is governed by the Florida Evidence Code, §90.702, Florida Statutes (1995). That section provides:Testimony by experts -If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.After the adoption of the Florida Evidence Code, of which §90.702 is part, disagreement arose among the District Courts of appeal as to whether (i) the relevancy test under §90.702 combined with the so-called balancing test of §90.403 or (ii) the?Frye?test was to be applied to determine the admissibility of novel scientific evidence.?See Hawthorne,?470 So.2d at 783 (See also?Ehrhardt,?Florida Evidence,?§702.3 at 526 & 528 n. 18 (1997)). This debate ended when the Florida Supreme Court decided?Stokes v. State,?548 So.2d 188 (Fla. 1989).In?Stokes,?the Florida Supreme Court held that posthypnotic testimony may not be admitted unless it meets the?Frye?test. Stokes,?548 So.2d at 194. “This test requires that the scientific principles undergirding this evidence be found by the trial court to be generally accepted by the relevant members of its particular field.”?Hadden v. State,?690 So.2d 573 (Fla. 1997). In reaching its conclusion in?Stokes,?the Court explained its rationale for continuing the application of the?Frye test:The underlying theory for this rule [Frye] is that a courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then?the procedure must be considered less reliable for courtroom use.At the same time, a similar debate was ongoing in the federal courts concerning whether?Frye?or Federal Rule of Evidence 702 should govern the admissibility of scientific evidence. The United States Supreme Court answered this question in Daubert v. Merrell Dow Pharm., Inc.,?509 U.S. 579 (1993). In what has become known as the “scientific validity” test, the?Daubert?court set forth four non-exclusive factors that courts should consider in determining the admissibility of such evidence: “(1) testability (or falsifiability), (2) error rate, (3) peer review and publication and (4) general acceptance.” David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders,?Modern Scientific Evidence: The Law and Science of Expert Testimony?§1-3.3 (1997) (herein?Modern Scientific Evidence).As might be expected, the Florida Supreme Court was faced with the decision whether to continue following?Frye?or to adopt?Daubert.?In?Flanagan v. State,?625 So.2d 827 (Fla. 1993), the court noted the United States Supreme Court’s decision in?Daubert,?but “reaffirmed the applicability of?Frye.”?Ehrhardt,?Florida Evidence?§702.4 (1997 Edition).Flanagan?was followed by the court’s decision in?Ramirez v. State,?651 So.2d 1164 (Fla. 1995), wherein the court emphasized that:the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand... The general acceptance under the?Frye?test must be established by a preponderance of the evidence.In?Ramirez,?the court delineated a four-step process for applying?Frye?in passing on the admissibility of expert opinion testimony concerning a new or novel scientific principle:First, the trial judge must determine whether such expert testimony will assist the jury in understanding the evidence or in determining a fact in issue.... Second, the trial judge must decide whether the expert’s testimony is based on a scientific principle or discovery that is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”?Frye v. United States,?293 F. 1013 (D.C. Cir. 1923)....The third step in the process is for the trial judge to?determine whether a particular witness is qualified as an expert to present opinion testimony on the subject in issue.... Fourth, the judge may then allow the expert to render an opinion on the subject of his or her expertise, and it is then up to the jury to determine the credibility of the expert’s opinion, which it may either accept or reject....Further, even when a statistical association exists and no bias is present, the association may be the result of some other confounding factor, or a so-called “confounder.”A confounding factor may be itself a risk factor for the disease or associated with the exposure of interest. As an example, assume a study finds that individuals with grey hair have a higher rate of death than those with another hair color. Instead of hair color impacting on death, however, the test results might be explained by the confounding factor of advanced age. Thus, when a researcher finds an association between an agent and disease, he or she must determine whether the association is causal or the result of confounding.Strength of Association.?Epidemiologists commonly use “relative risk” to measure the strength of the association between exposure and disease. Relative risk is the ratio of the risk of disease among the group exposed to the chemical agent compared to the risk of disease among the unexposed group.?For example, a relative risk of 2.0 indicates that the risk of developing a disease in the exposed group is two times higher than the risk of developing that disease in the unexposed group. A relative risk of 1.0 indicates no association. The higher the relative risk, the stronger or more powerful is the association between exposure to the substance and development of the disease.Scientists use the concept of a “confidence interval” as the means by which an epidemiologist can express confidence in a specific finding of relevant risk. For instance, if relative risk in a study is found to be 2.0, the epidemiologist can estimate the range of numeric values above and below 2.0 in which the relationship of a study sample would be likely to fall if the same study were repeated numerous times.?”The width of the confidence interval provides an indication of the precision of the point estimate or relative risk found in the study...”?In this appeal,?citing?Black & Lilienfeld,?52 Fordham L.Rev. at 757, the railroad urges that the confidence interval should be expressed with estimated 95% accuracy, that is, as a range in which relative risk will predictably fall 95 times out of 100 replications of the study.Consistency with Other Research.?The validity of scientific conclusions is often based upon the replication of research findings, and consistency in these findings is an important factor in making a judgment about causation.?See?Kehm v. Proctor & Gamble Co.,?580 F.Supp. 890 (N.D.Iowa 1982),?aff’d,?724 F.2d 613?(8th Cir. 1983) (noting the persuasive power of multiple independent studies, each of which reached the same finding of an association between the toxic shock syndrome and tampon use);?Cadarian v. Merrell Dow Pharm., Inc.,?745 F.Supp. 409 (E.D.Mich. 1989) (holding a single Bendectin study insufficient to support an expert’s opinion, because “the study’s authors themselves concluded that the results could not be interpreted without independent confirmatory evidence”).Biological Plausibility.?Biological plausibility involves the application of the “existing knowledge about human biology and disease pathology to provide a judgment about the plausibility that an agent caused a disease.” Thus, for example, a conclusion that high cholesterol is a cause of coronary heart disease is biologically plausible because cholesterol is found in atherosclerotic plaques.Briefly, we turn to another scientific discipline, toxicology. Toxicology is defined as “the study of the adverse effects of chemical agents on biological systems.”?One of the central tenets of toxicology is that “the dose makes the poison” implying that all chemical agents are harmful-it is only a question of dose.?Thus, even water if consumed in large enough quantities can be toxic.?A toxicologist attempts to determine at what doses foreign agents produce their effects, and animal studies are used by toxicologists to predict toxic responses in humans.?In toxicology, a dose-response relationship is a relationship in which a change in amount, intensity, or duration of exposure is associated with a change-either an increase or decrease-in risk of disease.Michael Kelly, M.D., is board-certified in internal medicine and occupational medicine. Currently he is the Medical Director of Occupational Health Services and Chief of Medicine at St. Lawrence Hospital in Lansing, Michigan. He has extensive experience in diagnosing and treating solvent-exposed workers from all over the country, including approximately 200 railroad workers. He opined that it was a general consensus in the medical and scientific community that long-term exposure to organic solvents can cause toxic encephalopathy.Regarding his occupational history, Mr. Berry told Dr. Kelly that he used materials out of a 55 gallon drum hooked up to house air, as he called it, to spray off the locomotives. He worked in the pit area under the locomotive. He would dip his hands in the material, and wash his clothes with it. He described being wet with the solvent material. He developed headaches, and was tired and lethargic. He had to take naps when he came home from work. Dr. Kelly opined that these symptoms indicated Berry had been exposed to “pretty high exposure levels occurring over a fairly long period of time.” Berry could not remember names, could not remember directions, and could not remember his assignment at work. He was frequently angry, irritable, and was having some sleep disturbances. His gait was abnormal. When he walked, his feet were wide apart indicating a balance disturbance. Regarding Berry’s cognitive difficulties, Dr. Kelly concluded that Berry’s ability to interpret visual spacial configurations was at best low average, whereas one would expect an?electrician to be able to visualize diagrams and remember them.Footnotes:4. In their recent treatise, Professors Faigman, Kaye, Saks and Sanders have explained the differences between?Frye?and Daubert?thusly:In fact, if?Daubert?is a significant break from the past, the departure lies in the changed focus of the admissibility determination.?Frye?asks judges to decide the admissibility of scientific expert testimony by deferring to the opinions of scientists in the “pertinent field.” Thus, under?Frye,?judges need not have any facility with scientific methods to make the admissibility decision. They must merely have some basis for knowing what scientists believe. Under?Daubert,?the trial court itself is initially responsible for determining the admissibility of scientific expert testimony by determining that the science supporting that opinion is valid.?Modern Scientific Evidence?at §1-3.0. These authors have further characterized Frye?as “easy to apply and requir[ing] little scientific sophistication on the part of judges.”?”Whereas?Frye require[s] judges to survey the pertinent field to assess the validity of the proffered scientific evidence,?Daubert?calls upon judges to assess the merit of the scientific research supporting an expert’s opinion.”6. One generally accepted set of standards for evaluating epidemiological studies is known as the Koch Postulates. Those standards are composed of the following seven factors:1. Strength of association;2. Temporal relationship;3. Consistency of the association in other research;4. Biological plausibility;5. Consideration of alternative explanations;6. Specificity of the association; and7. Dose-response relationship.GORE v. STATE, 719?So.2d?1197?(1998)We begin our analysis with the basic proposition that in order to be admissible, evidence must be relevant.?See?§90.402, Fla. Stat. (1995). Relevant evidence is defined as evidence “tending to prove or disprove a material fact.”?§90.401. However, the admission of relevant evidence is restricted by the mandate of §90.403, Florida Statutes (1995), which provides that “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.” §90.403 compels the trial court to engage in this balancing test.?See Steverson v.?State,?695?So.2d?687 (Fla. 1997).In its pretrial ruling, the trial court properly precluded the?State?from introducing evidence concerning?Gore’s?kidnapping and abandonment of Corolis’s son. We are initially concerned with the?State’s?blatant disregard of the trial court’s specific pretrial ruling. “The foundation of our legal system depends on fidelity to rules.”?Halsell v. State,?672?So.2d?869 (Fla. 3d DCA 1996). If, as the?State?urges here, the prosecutor genuinely believed that?Gore?had opened the door to this inquiry by his testimony on direct examination,?see generally?Bozeman v.?State,?698?So.2d?629 (Fla. 4th DCA 1997),?the proper method of proceeding would have been to first inquire of the trial court whether it would modify its earlier ruling, thus giving defense counsel an opportunity to respond fully. In this case, the “cat” was already “out of the bag,” and the damaging statement made, before defense counsel could interpose the objection.On three separate occasions during cross-examination, the prosecutor questioned Gore?as to whether he had sex with a thirteen-year-old girl. However, the?State?failed to file a notice of intent to introduce any collateral crimes evidence involving the thirteen-year-old, nor otherwise sought the trial court’s permission to question?Gore regarding this crime. Nonetheless, the trial court overruled defense counsel’s timely objections to these questions. These questions had no relevance in this trial other than to prove that?Gore?was a morally reprehensible individual. Because the sole relevance of this evidence could only be to demonstrate?Gore’s?bad character, it was inadmissible.?See?Czubak,?570?So.2d?at 928.In addition to the improprieties concerning collateral crime evidence, the prosecutor twice exhorted the jurors during closing argument to convict?Gore?if they disbelieved his testimony:You see, when I started with you I told you I have the burden of proof and I always have the burden of proof. But you see, now you consider all the evidence presented to you and decide whether I met not just the evidence I presented, but the evidence they presented, you see,?because I’ll make it really simple for you: If you believe he did not tell you the truth, that he made up a story, that’s it, he’s guilty of First Degree Murder....You know, instead of standing up here for the next however much time I have left, 25 minutes, and just talking about ridiculous statements which I don’t want to anymore, okay, we’ve all listened to everything, I can’t, I can’t give you anything else that you haven’t heard. I can’t make this anymore simpler than it is, because that’s what it is.?It’s simple and it comes down to this in simplicity: If you believe his story, he’s not guilty. If you believe he’s lying to you, he’s guilty. It’s that simple.Defense counsel timely objected to these arguments, but each time his objections were overruled. This was error. While wide latitude is permitted in closing argument,?see Breedlove v.?State,?413?So.2d?1 (Fla. 1982),?this latitude does not extend to permit improper argument. Here, the prosecutor’s closing argument enunciated an erroneous and misleading statement of the?State’s?burden of proof because it improperly asked the jury to determine whether?Gore?was lying as the sole test for determining the issue of his guilt.The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the?State?has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the?State?has proved its case beyond a reasonable doubt.?See?Northard v.?State,?675?So.2d?652 (Fla. 4th DCA),?review denied,?680?So.2d?424 (Fla. 1996);?Clewis v.?State,?605?So.2d?974 (Fla. 3d DCA 1992);?Bass v.?State,?547?So.2d?680 (Fla. 1st DCA 1989). Here, the prosecutor’s statement, “[i]f you believe he’s lying to you, he’s guilty,” was nothing more than an exhortation to the jury to convict?Gore?if it found he did not tell the truth. Thus, it was a clearly impermissible argument.?See?Bass,?547?So.2d?at 682;?cf.?Craig v.?State, 510?So.2d?857 (Fla. 1987).Due process requires that fundamental fairness be observed in each case for each defendant. Our system of justice depends on this basic precept. In this case the prosecutor’s “over zealousness in prosecuting the?State’s?cause worked against justice, rather than for it.”?Ryan v.?State,?457?So.2d?1084 (Fla. 4th DCA 1984).JUNIOR v. REED, 693 So.2d 586 (1997)PADOVANO, Judge.Absolute immunity is available to local governmental officials as well as to those officials performing legislative functions at federal and state levels. 42 U.S.C.A. §1983.Whether public official has absolute immunity from suit under §1983 depends on relationship between duties of official and conduct that is subject of complaint. 42 U.S.C.A. §1983.County Commissioner may assert valid claim of absolute immunity for act of voting on proposed county budget, because that is “legislative function”; in contrast, County Commissioner has no claim of absolute immunity for comments made to the press following a commission meeting because that is “administrative function.” 42 U.S.C.A. §1983.Any privilege enjoyed by County Commissioner to make allegedly defamatory statement did not support claim of absolute immunity in §1983 action; privilege would at most provide defense for defamation. 42 U.S.C.A. §1983.Application of state law in §1983 actions in state courts is limited to state jurisdictional issues and neutral procedural rules that may be applied to federal actions. 42 U.S.C.A. §1983.County commissioners unilateral act of dispatching County maintenance crew to clean up cemetery before that action was approved by county commission was not “legislative function” and, therefore, was not protected by absolute immunity in §1983 action. 42 U.S.C.A. §1983.Acts or omissions by government official that are not protected by absolute immunity may be protected by qualified immunity under circumstances of given case. 42 U.S.C.A. §1983.Whether government official has valid claim of qualified immunity is determined by objective standard. 42 U.S.C.A. §1983.Like absolute immunity, qualified immunity is complete protection from suit itself and not merely defense to liability; consequently, issue of qualified immunity should be resolved at early stage of proceedings and trial court. 42 U.S.C.A. §ernment official asserting defense of qualified immunity first must show that acts in question were discretionary governmental function; burden then shifts to claimant to show the conduct of official violated clearly established statutory or constitutional rights, and of public officials conduct does not rise to level of violation of clearly established statutory or constitutional right, official is immune from suit. 42 U.S.C.A. §1983.“Discretionary authority” protected by doctrine of qualified immunity includes official’s actions taken pursuant to performance of duties and within scope of authority. 42 U.S.C.A. §1983.Defamation can amount a constitutional violation and thus overcome defense of qualified immunity only if it is accompanied by another kind of injury; “stigma-plus test” requires plaintiff to show that conduct of government official directly call specific injury to protected right, such as right to continued employment. 42 U.S.C.A. §1983.“Clearly established statutory or constitutional right” negating qualified immunity, is violated, is right under federal statutes and federal Constitution; violation of state law does not strip public official of qualified immunity. 42 U.S.C.A. §1983.Willie J. Junior, the chairman of the Escambia County Board of County Commissioners, appeals an order denying his claims of absolute immunity and qualified immunity in a civil rights action brought by Donald and China Pearl Reed under 42 U.S.C. §1983. We conclude that Commissioner Junior is not protected by absolute immunity because his conduct does not fall within the legislative functions of a local government official. The trial court should have sustained Commissioner Junior’s claim of qualified immunity, however, because the conduct forming the basis of the complaint by the Reeds does not amount to a violation of a clearly established right under federal law. For this reason, we reverse.Escambia County initially sued the Reeds in county court to recover the cost of maintenance work done by county employees on the Reeds’ cemetery property in Pensacola. The complaint seeks damages of $1,988.15, for the cost of county personnel and equipment to remove weeds from the cemetery. The Reeds answered, counterclaimed against the County, and filed a third party complaint against Commissioner Junior in his individual capacity. Because the counterclaim and third party complaint were based on claims exceeding the jurisdiction of the county court, the case was transferred to the circuit court. Count I of the third party complaint against Commissioner Junior asserts a claim for damages under 42 U.S.C. §1983 for a violation of the Reeds’ right to procedural due process, and Count II alleges a claim against the Commissioner under the same statute for a violation of the Reeds’ right to substantive due process.Based on these facts, the Reeds alleged that Commissioner Junior acted under color of law to deprive them of their civil rights in violation of 42 U.S.C. §1983. Specifically, the complaint alleges that Junior’s actions defamed the Reeds’ business and caused a loss of business goodwill, without procedural due process, thereby slandering the Reeds’ business reputation and causing damages. The complaint also alleges that Commissioner Junior deprived the Reeds of a constitutionally protected liberty interest by defaming their business and causing a loss of business goodwill in violation of the Reeds’ substantive due process rights.We have jurisdiction to review the order denying the motion to dismiss in this case by an interlocutory appeal because the order is one that rejects a defense of qualified?immunity as a matter of law.?Tucker v. Resha,?648 So.2d 1187 (Fla. 1994). Although the present appeal is from an order denying a motion to dismiss and not an order denying summary judgment as in?Tucker,?the difference in the type of the order does not affect our jurisdiction. The right of review identified in Tucker?is based on the nature of the decision in the trial court, not the form of the order in which the decision was made. The federal procedures underlying the rule in?Tucker?provide for an interlocutory review of an order denying a motion to dismiss as well as an order denying a motion for summary judgment.?Behrens v. Pelletier, 516 U.S. 299 (1996). The critical question is whether the order rejects a defense of qualified immunity as a matter of law. In this case it does.A person deprived of a federal right by a state or local official acting under color of state law may seek redress under 42 U.S.C. §1983. The action may be filed in federal court or in a state court under its concurrent jurisdiction,?Maine v. Thiboutot,?448 U.S. 1 (1980), but the right to sue is subject to well defined limitations. The Supreme Court has consistently held that government officials are entitled to some form of immunity from suits for damages. As the Court explained in?Harlow v. Fitzgerald,?457 U.S. 800 (1982), “public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.” The decisions of the Supreme Court recognize immunity claims of two kinds, absolute immunity and qualified immunity.Absolute immunity is often used to protect members of the Judiciary,?Stump v. Sparkman,?435 U.S. 349 (1978), and executive officers such as prosecutors,?Imbler v. Pachtman,?424 U.S. 409 (1976), but it also applies to government officials performing legislative functions.?Tenney v. Brandhove, 341 U.S. 367 (1951);?Doe v. McMillan,?412 U.S. 306 (1973). The protection afforded by absolute immunity is available to local governmental officials as well as to those officials performing legislative functions at the federal and state levels.?Owen v. City of Independence,?445 U.S. 622 (1980);?Hernandez v. City of Lafayette,?643 F.2d 1188?(5th Cir. 1981). As an elected official of the Escambia County government, Commissioner Junior is within the class of governmental officials potentially entitled to claim absolute immunity.Whether a public official has absolute immunity from suit under §1983 depends on the relationship between the duties of the official and the conduct that is the subject of the complaint. As the Supreme Court explained in?Harlow v. Fitzgerald,?the courts must apply a functional analysis to claims of absolute immunity. It is the governmental function that is protected by the immunity afforded to the public official. Under this approach, an officer of the Legislative Branch of the government has absolute immunity only for legislative functions. A county commissioner could assert a valid claim of absolute immunity for the act of voting on a proposed county budget, for example, because that is a legislative function. In contrast, a county commissioner has no claim of absolute immunity for comments made to the press following a commission meeting because that is an administrative function.?See?Cole v. Gray,?638 F.2d 804?(5th Cir. 1981). The burden of establishing a claim of absolute immunity is on the public official claiming the immunity.?Butz?v. Economou, 438 U.S. 478 (1978);?Nixon v. Fitzgerald,?457 U.S. 731 (1982).Acts or omissions by a government official that are not protected by absolute immunity may be protected by qualified immunity under the circumstances of a given case. Whether a government official has a valid claim of qualified immunity is determined by an objective standard. In?Harlow v. Fitzgerald,?the Supreme Court decided that government officials are entitled to qualified immunity from suit when performing discretionary functions if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This standard is designed to enable the trial courts to resolve a qualified immunity issue as a matter of law without the need to consider subjective elements such as intent or bad faith. The protection afforded by qualified immunity is the norm,?Scheuer v. Rhodes, 416 U.S. 232 (1974), and it is intended to shield government officials from suit in all but exceptional cases.?Lassiter v. Alabama A & M University,?28 F.3d 1146?(11th Cir. 1994).The trial court must evaluate the defense of qualified immunity by a two-step process. First, the government official must show that the acts in question were a discretionary governmental function. The burden then shifts to the claimant to show that the conduct of the official violated clearly established statutory or constitutional rights.?Zeigler v. Jackson,?716 F.2d 847(11th Cir. 1983). If the public official’s conduct does not rise to the level of a violation of a clearly established statutory or constitutional right, the official is immune from suit, and the litigation can proceed no further.As for the second part of the test, the Reeds failed to show that Commissioner Junior violated a clearly established statutory or constitutional right. To qualify as a “clearly established” right as that phrase is used in?Harlow v. Fitzgerald,?the right allegedly violated must have been earlier developed in caselaw in such a concrete and factually defined context as to make it obvious to all reasonable government actors that what the defendant was doing violates federal law.?See?City of Hialeah v. Fernandez,?661 So.2d 335 (Fla. 3rd DCA 1995). As the court explained in?DeWald v. Wyner,?674 So.2d 836 (Fla. 4th DCA 1996) “[i]f applicable law is unsettled, immunity necessarily results.” In this case the Reeds contend that Commissioner Junior’s actions and defamatory statements resulted in a loss of their business reputation and goodwill. This conduct does not rise to the level of a constitutional violation, much less a clear violation of a settled constitutional right.The Eleventh Circuit Court of Appeals has held that defamation occurring “other than in the course of dismissal from a job, or in the termination or significant alteration of some other legal right or status” is not sufficient to support a claim under §1983.?Von Stein v. Brescher,?904 F.2d 572?(11th Cir. 1990). In?Von Stein,?the court distinguished?Marrero v. City of Hialeah,?625 F.2d 499?(5th Cir. 1980), an earlier 5th Circuit decision upon which the Reeds rely. The alleged defamation by the government official in?Marrero?resulted in a loss of the plaintiff’s right to earn a living. Other federal courts have rejected Marrero?entirely, holding instead that defamation-based injury is actionable under §1983 only if the economic damage was caused directly by the act of the government officer.?Sullivan v. New Jersey Div. Of Gaming Enforcement,?602 F.Supp. 1216 (D.N.J. 1985), aff’d.?853 F.2d 921?(3d Cir. 1988);?WMX Technologies, Inc. v. Miller,?80 F.3d 1315?(9th Cir. 1996). According to this line of cases, the additional injury required by the “stigma plus” test is not established merely by showing that the defamation ultimately resulted in an economic loss. The focus of the inquiry must be on the loss of a protected right, not on the eventual loss of income as a consequence of the defamation. Like the plaintiff in?Von Stein,?the Reeds merely claim a loss of reputation and goodwill. At best, they established a temporary, partial loss of income that does not invoke the protection of the United States Constitution.The Reeds alleged that Commissioner Junior violated a state statute regulating cemeteries, but this, too, is insufficient to establish the kind of violation to which the Supreme Court was referring in?Harlow v. Fitzgerald.?When the Court used the phrase “clearly established statutory or constitutional rights” in?Harlow,?it was speaking of rights under federal statutes and the federal constitution. 457 U.S. at 818. This point was clarified by the Court’s holding in?Davis v. Scherer,?468 U.S. 183 (1984), that a violation of state law or a state administrative regulation does not strip a public official of qualified immunity. The fact that a defendant’s conduct violated state law, even a clearly established state law, does not remove the immunity.?Robison v. Via,?821 F.2d 913?(2d Cir. 1987);?Deane v. Dunbar, 777 F.2d 871?(2d Cir. 1985).These concerns have not prevented the federal courts from resolving qualified immunity claims by motion to dismiss. In Siegert v. Gilley,?500 U.S. 226 (1991), the Supreme Court considered a qualified immunity claim which had been asserted in a motion to dismiss. The Court upheld the defense, reasoning that the allegations of the complaint, even if true, did not establish a clear violation of a statutory or constitutional right. In so ruling, the Court explained:A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is “clearly established” at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits. One of the purposes of the immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.The Court observed that the case presented an example of the desirability of resolving immunity claims by motion to dismiss because the plaintiff failed not only to allege the violation of a constitutional right that was clearly established at the time of the defendant’s actions, but also to establish the violation of any constitutional right at all. Here, as in?Seigert,?the Reeds’ failure to allege a clear violation of a statutory or constitutional right compels a conclusion that Commissioner Junior had a valid defense of immunity and the trial court should have granted his motion to dismiss.We also recognize that the resolution of a qualified immunity issue on appeal from an order denying a motion to dismiss can raise difficult questions concerning the proper remedy in the appellate court. If the trial court’s decision is reversed, the appellate court must decide whether the plaintiff should be allowed to amend the complaint on remand. Denial of the right to amend could amount to a summary adjudication of the merits of the defense based on nothing more than an insufficient allegation in the complaint. On the other hand, a decision to allow an amendment on remand could result in multiple interlocutory appeals, one for each version of the complaint. Neither result is attractive. In most cases, however, the proper remedy on appeal will be to reverse the order with instructions to dismiss. If the plaintiff could prove any set of facts that would avoid the defense of immunity,?then it is likely the trial court was correct in denying the public official’s motion to dismiss the complaint.?See?McMath v. City of Gary Indiana,?976 F.2d 1026?(7th Cir. 1992). If not, the only possible remedy is to reverse the order with instructions to dismiss the complaint.?See?Molinelli v. Tucker,?901 F.2d 13?(2d Cir. 1990).McMILLIAN v. MONROE COUNTY, ALABAMA, 520 U.S. 781, 117 S.Ct. 1734 (1997)Chief Justice?Rehnquist?delivered the opinion of the Court.Local government is liable under §1983 for its policies to cause constitutional torts; these policies may be set by government’s lawmakers, or by those whose edicts or acts may fairly be said to represent official policy. 42 U.S.C.A. §1983.In determining wherein “final policymaking authority” lays for §1983 purposes, court’s task is to identify those officials or governmental bodies who speak with final policymaking authority for local governmental actor concerning action alleged to have caused particular constitutional or statutory violation at issue. 42 U.S.C.A. §1983.Whether particular official has “final policymaking authority” for §1983 purposes is question of state law. 42 U.S.C.A. §1983.Alabama sheriff, when executing his law enforcement duties in course of criminal investigation, represented state of Alabama, not county in which he acted as law enforcement official; thus, County was not liable for allegedly unconstitutional actions that Sheriff took during investigation. 42 U.S.C.A. §1983.Alabama counties are not liable under theory of respondeat superior for sheriffs official acts that are tortious.Since it is entirely natural that both role of sheriffs and importance of counties vary from State to State, there is no inconsistency created by court decisions that declare sheriffs to be County officers in one State, and not in another.After spending six years on Alabama’s death row, petitioner’s capital murder conviction was reversed on the ground that the State had suppressed exculpatory evidence. He then sued respondent Monroe County and others under?42 U.S.C. §1983?for the allegedly unconstitutional actions of,?inter alios,?County Sheriff Tom Tate in suppressing the evidence. A county is liable under §1983 for those actions of its sheriff that constitute county “policy.”?Monell?v.?New York City Dept. of Social Servs.,?436 U.S. 658. The District Court dismissed the claims, holding that Tate’s unlawful acts did not represent Monroe County’s policy, because an Alabama county has no authority to make law enforcement policy. The Court of Appeals affirmed, agreeing that a sheriff acting in his law enforcement capacity is not a policymaker for the county.Held:?Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties.(a) In determining a local government’s §1983 liability, a court’s task is to identify those who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the violation at issue.?Jett?v.?Dallas Independent School Dist.,?491 U.S. 701. The parties agree that Sheriff Tate has final policymaking authority in the area of law enforcement, but they disagree about whether Alabama sheriffs are policymakers for the State or the county when acting in their law enforcement capacity. In deciding this dispute, the question is not whether Alabama sheriffs act as county or state officials in all of their official actions, but whom they represent in a particular area or on a particular issue.?This inquiry is dependent on the definition of the official’s functions under relevant state law. Cf.?Regents of University of California?v.?Doe, 519 U.S. 425.(b) The Court defers considerably to the Court of Appeals’ expertise in interpreting Alabama law, and concludes that the State’s constitutional provisions concerning sheriffs, the historical development of those provisions, and the interpretation given them by the State Supreme Court strongly support Monroe County’s contention that sheriffs represent the State when acting in their law enforcement capacity. The relevant portions of the Alabama Code, although less compelling, also support this conclusion. Code provisions cutting in favor of the conclusion that sheriffs are county officials are insufficient to tip the balance in petitioner’s favor.(c) The Court rejects petitioner’s arguments that the result here will create a lack of uniformity in Alabama - by allowing 67 county sheriffs to have different state law enforcement policies in their counties - and throughout the country - by permitting sheriffs to be classified as state officials in some States and county officials in others. The common law itself envisioned the possibility that state law enforcement “policies” might vary locally, as particular sheriffs adopted varying practices for arresting criminals or securing evidence. And the Nation’s federal nature allows the States wide authority to set up their state and local governments as they wish. Petitioner’s and his?amici’s concern that state and local governments will manipulate local officials’ titles in a blatant effort to shield local governments from liability is foreclosed by St. Louis?v.?Praprotnik,?485 U.S. 112.Petitioner sued Monroe County, Alabama under?42 U.S.C. §1983 for allegedly unconstitutional actions taken by Monroe County Sheriff Tom Tate. If the sheriff’s actions constitute county “policy,” then the county is liable for them.?Monell?v.?New York City Dept. of Social Servs.,?436 U.S. 658 (1978). The parties agree that the sheriff is a “policymaker” for §1983 purposes, but they disagree about whether he is a policymaker for Monroe County or for the State of Alabama. We hold that, as to the actions at issue here, Sheriff Tate represents the State of Alabama and is therefore not a county policymaker. We thus affirm the Court of Appeals’ dismissal of petitioner’s §1983 claims against Monroe County.He then brought this §1983 lawsuit in the District Court for the Middle District of Alabama against respondent Monroe County and numerous officials, including the three men in charge of investigating the Morrison murder -Tom Tate, the Sheriff of Monroe County; Larry Ikner, an investigator with the District Attorney’s office in Monroe County; and Simon Benson, an investigator with the Alabama Bureau of Investigation. Only two of the officials were sued in their official capacities -Sheriff Tate and investigator Ikner -and it is only these official capacity suits that concern us here. Petitioner principally alleged that Tate and Ikner, in their capacities as officials of Monroe County, not as officers of the State of Alabama, intimidated Myers into making false statements and suppressed exculpatory evidence. McMillian?v.?Johnson,?878 F.Supp. 1473 (MD Ala. 1995).We held in?Monell,?436 U.S. at 694, that a local government is liable under §1983 for its policies that cause constitutional torts. These policies may be set by the government’s lawmakers, “or by those whose edicts or acts may fairly be said to represent official policy.”?A court’s task is to “identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.”?Jett?v.?Dallas Independent School Dist.,?491 U.S. 701 (1989). Here, the parties agree that Sheriff Tate has “final policymaking authority” in the area of law enforcement. They sharply disagree, however, about whether Alabama sheriffs are policymakers for the State or for the county when they act in a law enforcement capacity.In deciding this dispute, our inquiry is guided by two principles. First, the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, “all or nothing” manner. Our cases on the liability of local governments under §1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue. See?Jett, 491 U.S., at 737 (court must identify “those officials who have the power to make official policy?on a particular issue”); (question is whether school district superintendent “possessed final policymaking authority?in the area of?employee transfers”);?St. Louis?v.?Praprotnik, 485 U.S. 112 (1988) (“[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy?in that area of?the city’s business”). Thus, we are not seeking to make a characterization of Alabama sheriffs that will hold true for every type of official action they engage in. We simply ask whether Sheriff Tate represents the State or the county when he acts in a law enforcement capacity.Second, our inquiry is dependent on an analysis of state law. Cf. Jett,?at 737 (“‘[W]hether a particular official has “final policymaking authority” is a question of?state law’” (quoting?Praprotnik,?at 123)); Pembaur?v.?Cincinnati,?475 U.S. 469 (1986). This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under relevant state law. Cf.?Regents of University of California?v.?Doe, 519 U.S. 425 (“[The] federal question can be answered only after considering the provisions of state law that define the agency’s character”).The Court of Appeals for the Eleventh Circuit determined that under Alabama law, a sheriff acting in his law enforcement capacity is not a policymaker for the county. Since the jurisdiction of the Court of Appeals includes Alabama, we defer considerably to that court’s expertise in interpreting Alabama law. See Jett,?at 738 (“We think the Court of Appeals [for the Fifth Circuit], whose expertise in interpreting Texas law is greater than our own, is in a better position to determine whether [the school district superintendent] possessed final policymaking authority in the area of employee transfers”);?Pembaur,?at 484 (“We generally accord great deference to the interpretation and application of state law by the courts of appeals”).We begin with the Alabama Constitution, “the supreme law of the state.”?Alexander?v.?State ex rel. Carver, 150 So.2d 204 (1963). We agree with the Court of Appeals that the constitutional provisions concerning sheriffs, the historical development of those provisions, and the interpretation given them by the Alabama Supreme Court strongly support Monroe County’s contention that sheriffs represent the State, at least for some purposes. Alabama’s Constitution, adopted in 1901, states that “[t]he executive department shall consist of a governor, lieutenant governor, attorney general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county.” Ala.Const. of 1901, Art. V, §112. This designation is especially important for our purposes, because although every Alabama Constitution has included sheriffs as constitutional officers and has provided for their election by county voters, see Ala.Const. of 1819, Art. IV, §24; Ala.Const. of 1861, Art. IV, §24; Ala.Const. of 1865, Art. VII, §3; Ala.Const. of 1867, Art. V, §21; Ala.Const. of 1875, Art. V, §26; Ala.Const. of 1901, Art. V, §138, sheriffs have not always been explicitly listed as members of the state “executive department.” Thus, the 1867 Constitution listed only the “governor, lieutenant governor, secretary of state, auditor, treasurer, and attorney general” as constituting “the executive department.” Ala.Const. of 1867, Art. V, §1. This changed with the 1875 Constitution, when sheriffs and the Superintendent of Education were added to the list. Ala.Const. of 1875, Art. V, §1.Critically for our case, the Alabama Supreme Court has interpreted these provisions and their historical background as evidence of “the framers’ intent to ensure that sheriffs be considered executive officers of the state.”?Parker,?519 So.2d. Based primarily on this understanding of the State Constitution, the court has held unequivocally that sheriffs are state officers, and that tort claims brought against sheriffs based on their officials acts therefore constitute suits against the State, not suits against the sheriff’s county. Thus, Alabama counties are not liable under a theory of?respondeat superior?for a sheriff’s official acts that are tortious. The issues in?Parker?are strikingly similar to the ones in the present case, and that decision is therefore strong evidence in favor of the Court of Appeal’s conclusion that sheriffs act on behalf of the State, rather than the county, when acting in their law enforcement capacity.Turning from the Alabama Constitution to the Alabama Code, the relevant provisions are less compelling, but still support the conclusion of the Court of Appeals to some extent. Section 36-22-3 of the Code sets out a sheriff’s duties. First, a sheriff must “attend upon” the state courts in his county, must “obey the lawful orders and directions” of those courts, and must “execute and return the process and orders” of any state court, even those outside his county. Ala. Code §§36-22-3(1), (2) (1991). Thus, judges (who are state officers, see Ala.Const. of 1901, Amdt. 328, §6.01) may order the sheriff to take certain actions, even if the judge sits in a distant county. And under Ala. Code §12-17-24 (1995), the presiding circuit judge “exercise[s] a general supervision” over the county sheriffs in his circuit, just as if the sheriffs are normal “court [i.e., state] employees” (see §12-17-1).English sheriffs (or “shire reeves”) were the King’s “reeves” (officers or agents) in the “shires” (counties), at least after the Norman Conquest in 1066. See C. Wigan& D. Meston, Mather on Sheriff and Execution Law 1-2 (1935). Although chosen locally by the shire’s inhabitants, the sheriff did “all the king’s business in the county,” 1 W. Blackstone, Commentaries on the Laws of England 328 (1765), and was “the keeper of the king’s peace.” See also Wigan & Meston,?at 2 (“It is this position of the Sheriff as the executive officer of the Crown which has all along been the outstanding characteristic of the office”).As the basic forms of English government were transplanted in our country, it also became the common understanding here that the sheriff, though limited in jurisdiction to his county and generally elected by county voters, was in reality an officer of the State, and ultimately represented the State in fulfilling his duty to keep the peace. See?Wager, Introduction, in County Government Across the Nation 5 (P. Wager ed. 1950) (“The office of sheriff has an unbroken lineage from the Anglo Saxon?shire reeve”); 1 W. Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables 5 (1941) (“In the exercise of executive and administrative functions, in conserving the public peace, in vindicating the law, and in preserving the rights of the government, he (the sheriff) represents the sovereignty of the State and he has no superior in his county”); R. Cooley, Handbook on the Law of Municipal Corporations 512 (1914) (“Sheriffs, coroners, clerks and other so called county officers are properly state officers for the county. Their functions and duties pertain chiefly to the affairs of state in the county”); 3 J. Bouvier, Bouvier’s Law Dictionary 3058 (8th ed. 1914) (defining sheriff as “[a] county officer representing the executive or administrative power of the state within his county”).The final concern of petitioner and his?amici?is that state and local governments will manipulate the titles of local officials in a blatant effort to shield the local governments from liability. But such efforts are already foreclosed by our decision in?Praprotnik. See 485 U.S. at 127 (“[E]gregious attempts by local governments to insulate themselves from liability for unconstitutional policies are precluded” by allowing plaintiffs to prove that “a widespread practice” has been established by “‘custom or usage’ with the force of law”). And there is certainly no evidence of such manipulation here; indeed, the Alabama provisions that cut most strongly against petitioner’s position predate our decision in?Monell?by some time.Footnotes:1. The claims against the defendants in their individual capacities have proceeded independently in the lower courts, with some of petitioner’s claims surviving motions for summary judgment. See McMillian?v.?Johnson,?878 F.Supp. 1473 (MD Ala. 1995).2. We have explained that a suit against a governmental officer “in his official capacity” is the same as a suit “‘against [the] entity of which [the] officer is an agent,’”?Kentucky?v.?Graham,?473 U.S. 159 (1985) (quoting?Monell?v.?New York City Dept. of Social Servs.,?436 U.S. 658 (1978)), and that victory in such an “official capacity” suit “imposes liability on the entity that [the officer] represents,”?Brandon?v.?Holt,?469 U.S. 464 (1985).4. Executive department officers have to take the constitutional oath of office, Ala. Const. of 1901, Art. XVII, §279; Ala. Const. of 1875, Art. XV, §1, and are required to submit written reports to the governor on demand. Submitting a false report was originally a crime, Ala.Const. of 1875, Art. V, §9, and is now an impeachable offense, Ala. Const. of 1901, Art. V, §121.5. As a result of this holding and the State Constitution’s sovereign immunity provision, see Ala.Const. of 1901, Art. I, §14 (“[T]he State of Alabama shall never be made a defendant in any court of law or equity”), the Alabama Supreme Court has held that a sheriff is absolutely immune from all suits for damages based on his official acts.?Parker?v.?Amerson,?519 So.2d 442 (Ala. 1987). See also?King?v.?Colbert County,?620 So.2d 623 (Ala. 1993); Boshell?v.?Walker County Sheriff,?598 So.2d 843 (Ala. 1992); Hereford?v.?Jefferson County,?586 So.2d 209 (Ala. 1991).JACKSON v. STATE of Florida, 698 So.2d 1299 (1997)GROSS, Judge.Generally, defendant in criminal trial has right to appear before jury free from physical restraints, such as shackles or handcuffs. U.S.C.A. Const. Amend. 6.Sixth Amendment guarantee of right to fair trial means that accused is entitled to have his guilt or innocence determined solely on basis of evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. U.S.C.A. Const. Amend. 6.Criminal defendant’s right to be free of physical restraints at trial is not absolute, but because it is inherently prejudicial practice, use of restraints such as shackles is permissible only where justified by essential state interest specific to each trial. U.S.C.A. Const. Amend. 6.To ensure that presumption of innocence remains viable, courts must guard against practices which unnecessarily marked defendant as dangerous character or suggest that his guilt is foregone conclusion; if defendant is to be presumed innocent, must be allowed to display indicia of innocence. U.S.C.A. Const. Amend. 6.At hearing regarding necessity for shackling, judge may consider variety of sources, including prisoner records, criminal records, witnesses and correctional and law enforcement officials, and defendant may challenge validity and import of information provided. U.S.C.A. Const. Amend. 6.Taylor v. Kentucky,?436 U.S. 478 (1978). The Supreme Court has recognized that “certain practices pose such a threat to the ‘fairness of the factfinding process’ that they must be subjected to ‘close judicial scrutiny.’”?Holbrook v. Flynn,?475 U.S. 560 (1986) (quoting?Estelle v. Williams, 425 U.S. 501 (1976)).The Florida Supreme Court has recognized that restraining a defendant with shackles in view of the jury adversely impacts an accused’s presumption of innocence.?See?Diaz v. State,?513 So.2d 1045 (Fla. 1987);?Elledge v. State,?408 So.2d 1021 (Fla. 1981). To ensure that the presumption remains viable, courts must guard against practices which “unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion.”?Harrell v. Israel,?672 F.2d 632 (7th Cir. 1982). As one court has observed, if a defendant is to be presumed innocent, he must be allowed to display the indicia of innocence.?See?United States v. Samuel,?431 F.2d 610 (4th Cir. 1970).Florida courts have found a sufficient showing of necessity to support the use of physical restraints on a defendant where there is a history or threat of escape, or a demonstrated propensity for violence. For example, in?Dufour v. State,?495 So.2d 154 (Fla. 1986), the supreme court affirmed the use of leg shackles during trial where there was evidence of the defendant’s plan to escape from jail and the defendant had already been convicted of two murders in Mississippi. In?Diaz, the decision to shackle the defendant was supported by the defendant’s “prior murder and armed robbery convictions and his record of escapes and prior incidents of violence.” The supreme court approved leg shackles on a defendant during trial in?Stewart v. State,?549 So.2d 171 (Fla. 1989), where the defendant had on a previous occasion slipped off his manacles, and was facing escape charges. The use of shackles on the defendant during trial in Blanco v. State,?603 So.2d 132 (Fla. 3d DCA 1992), was justified by the defendant’s statements to corrections officers “that he would attempt to escape during the trial and, in the attempt, would batter and inflict bodily injury on persons in the courtroom.”REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al. v. DOE, etc., 519 U.S. 425, 117 S.Ct. 900 (1997)STEVENS, J., delivered the opinion for a unanimous Court.Eleventh Amendment’s reference to actions “against one of the United States” encompasses not only actions in which state is actually named as defendant, but also certain actions against state agents and state instrumentalities, such that, when action is in essence one for recovery of money from state, state is real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. U.S.C.A. Const. Amend. 11.Although question of whether particular state agency is arm of the state, and therefore “one of the United States” within meaning of Eleventh Amendment, is question of federal law, that federal question can be answered only after considering provisions of state law that define agency’s character. U.S.C.A. Const. Amend. 11.Whether money judgment against state instrumentality or official would be enforceable against state is of considerable importance to any evaluation of relationship between state and entity or individual being sued, for purpose of claim that such entity or individual is immune from suit under Eleventh Amendment. U.S.C.A. Const. Amend. 11.Fact that state university which operated government-owned laboratory would be indemnified by Department of Energy for costs of litigation, including adverse judgments, did not divest university of its Eleventh Amendment immunity from breach of contract action by prospective employee; it is entity’s potential legal liability, rather than its ability or inability to require third party to reimburse it, or to discharge liability in first instance, that is relevant to question of immunity. U.S.C.A. Const. Amend. 11.Eleventh Amendment protects state from risk of adverse judgments even though state may be indemnified by third party. U.S.C.A. Const. Amend. 11.Supreme Court would decline to address argument that was not encompassed within question that Court granted certiorari to address.CITY OF BOERNE v. P.F. FLORES, 521 U.S. 507, 117 S.Ct. 2157 (1997)Justice KENNEDY delivered the opinion of the Court.Federal government is one of enumerated powers.Enforcement power granted Congress under §5 of Fourteenth Amendment is positive grant of legislative power. U.S.C.A. Const. Amend. 14, §5.While preventative rules are sometimes appropriate remedial measures under enforcement clause of Fourteenth Amendment, there must be congruence between means used and ends to be achieved; appropriateness of remedial measures must be considered in light of evil presented. U.S.C.A. Const. Amend. 14, §5.Preventative measures prohibiting certain types of laws may be appropriate under Congress’ remedial powers under Fourteenth Amendment when there is reason to believe that many of laws affected by congressional enactment have significant likelihood of being unconstitutional. U.S.C.A. Const. Amend. 14, §5.The Fourteenth Amendment’s history confirms the remedial, rather than substantive, nature of the Enforcement Clause. The Joint Committee on Reconstruction of the 39th Congress began drafting what would become the Fourteenth Amendment in January 1866. The objections to the Committee’s first draft of the Amendment, and the rejection of the draft, have a direct bearing on the central issue of defining Congress’ enforcement power. In February, Republican Representative John Bingham of Ohio reported the following draft amendment to the House of Representatives on behalf of the Joint Committee:Congress enacted RFRA in direct response to the Court’s decision in?Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).?There we considered a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Their practice was to ingest peyote for sacramental purposes, and they challenged an Oregon statute of general applicability which made use of the drug criminal. In evaluating the claim, we declined to apply the balancing test set forth in?Sherbert v. Verner, 374 U.S. 398 (1963),?under which we would have asked whether Oregon’s prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest. We stated:“Government’s ability to enforce generally applicable prohibitions of socially harmful conduct...cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’...contradicts both constitutional tradition and common sense.”Congress relied on its Fourteenth Amendment enforcement power in enacting the most far reaching and substantial of RFRA’s provisions, those which impose its requirements on the States. See Religious Freedom Restoration Act of 1993, S.Rep. No. 103-111, pp. 13-14 (1993) (Senate Report); H.R.Rep. No. 103-88, p. 9 (1993) (House Report). The Fourteenth Amendment provides, in relevant part:“Section 1.... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” Cong. Globe, 39th Cong., 1st Sess., 1034 (1866).KALINA v. FLETCHER, 522 U.S. 118, 118 S.CT. 502 (1997)Justice Stevens, delivered the opinion of the Court.In determining whether governmental employee is entitled to immunity, court accepts allegations of complaint as true.Absolute immunity that protects prosecutor’s role as advocate is not grounded in any special esteem for those who perform such functions, and certainly not from desire to shield abuses of office, but because any lesser degree of immunity could impair judicial process itself; thus, in determining scope of prosecutorial immunity, court examines nature of function performed, and not identity of actor who performed it.Prosecutor’s activities in connection with preparation and filing of charging documents, including information and motion for arrest warrant, were protected by absolute immunity in §1983 action brought by accused after charges were dropped. 42 U.S.C.A. §1983.Prosecutor was not entitled to absolute prosecutorial immunity with respect to her actions in executing certification for determination of probable cause in connection with filing of charges against accused, for purposes of §1983 action brought after charges were dropped, in which accused alleged that certification contained false statements; act of filing certification was not one of traditional functions of advocate, as neither federal nor state law required that prosecutor make certification and it could have been made by any competent witness. 42 U.S.C.A. §1983.Section 1983 creates damages remedy against prosecutor for making false statements of fact in affidavit supporting application for arrest warrant, as such conduct is not protected by doctrine of absolute immunity; abrogating Joseph v. Patterson, 795 F.2d 549. 42 U.S.C.A. §1983.In both of those cases, however, we found the defense unavailable when the prosecutor was performing a different function. In?Burns,?the provision of legal advice to the police during their pretrial investigation of the facts was protected only by qualified, rather than absolute, immunity.?500 U.S., at 492. Similarly, in?Buckley,?the prosecutor was not acting as an advocate either when he held a press conference,?509 U.S., at 276,?or when he allegedly fabricated evidence concerning an unsolved crime. With reference to the latter holding, we explained:“There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’?Hampton?v.?Chicago, 484 F.2d 602 (CA7 1973), cert. denied,?415 U.S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he ‘has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.’”These cases make it clear that the absolute immunity that protects the prosecutor’s role as an advocate is not grounded in any special “esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself.”?Malley, 475 U.S., at 342. Thus, in determining immunity, we examine “the nature of the function performed, not the identity of the actor who performed it.”?Forrester?v.?White, 484 U.S. 219 (1988). This point is perhaps best illustrated by the determination that the senior law enforcement official in the Nation - the Attorney General of the United States - is protected only by qualified, rather than absolute, immunity when engaged in the performance of national defense functions rather than prosecutorial functions.?Mitchell?v.?Forsyth,?472 U.S. 511 (1985).…Indeed, tradition, as well as the ethics of our profession, generally instruct counsel to avoid the risks associated with participating as both advocate and witness in the same proceeding.Justice Scalia, with whom Justice Thomas joins, concurring.I agree that Ms. Kalina performed essentially the same “function” in the criminal process as the police officers in?Malley?v.?Briggs,?475 U.S. 335 (1986),?and so I join the opinion of the Court. I write separately because it would be a?shame if our opinions did not reflect the awareness that our “functional” approach to 42 U.S.C. §1983 immunity questions has produced some curious inversions of the common law as it existed in 1871, when §1983 was enacted. A conscientious prosecutor reading our cases should now conclude that there is absolute immunity for the decision to seek an arrest warrant after filing an information, but only qualified immunity for testimony as a witness in support of that warrant. The common-law rule was, in a sense, exactly opposite.There was, of course, no such thing as absolute prosecutorial immunity when §1983 was enacted. (Indeed, as the Court points out, there generally was no such thing as the modern public prosecutor.) The common law recognized a “judicial” immunity, which protected judges, jurors and grand jurors, members of courts-martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by “quasi-judicial” immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call “qualified,” rather than absolute, immunity. I continue to believe that “prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial.” Burns?v.?Reed,?500 U.S. 478 (1991).That conclusion accords with the common law’s treatment of?private?prosecutors, who once commonly performed the “function” now delegated to public officials like petitioner. A private citizen who initiated or procured a criminal prosecution could (and can still) be sued for the tort of malicious prosecution - but only if he acted maliciously and without?probable cause, and the prosecution ultimately terminated in the defendant’s favor. Thus, although these private prosecutors (sometimes called “complaining witnesses”), since they were not public servants, were not entitled to quasijudicial immunity, there was a kind of qualified immunity built into the elements of the tort.The Court’s long road to what is, superficially at least, the opposite result in today’s opinion, began with?Imbler?v.?Pachtman,?424 U.S. 409 (1976),?which granted prosecutors absolute immunity for the “function” of initiating a criminal prosecution. Then, in?Briscoe?v.?LaHue,?460 U.S. 325 (1983),?the Court extended a similar absolute immunity to the “function” of serving as a witness. And in?Malley?v.?Briggs,?it recognized the additional “functional category” of “complaining witness.” Since this category was?entitled to only qualified immunity, the Court overturned a directed verdict in favor of a police officer who had caused the plaintiff to be arrested by presenting a judge with a complaint and an affidavit supporting probable cause. The Court said:“[C]omplaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity.”That statement is correct, but it implies a distinction between “witnesses” (absolutely immune) and “complaining witnesses” (at best qualifiedly immune) which has little foundation in the common law of 1871. That law did not recognize two kinds of witness; it recognized two different torts. “In this sense, then,?Malley’s discussion of complaining witnesses is a feint. The Court was not awaking to a different type of witness...so much as recognizing a different cause of action - the action for malicious prosecution.” Comment, Police Witness Immunity Under §1983, 56 U.Chi.L.Rev. 1433 (1989). By the time?Malley?was decided, however, the Court’s methodology forced it to express its conclusion in terms of whether the particular “function” at issue would have been entitled to immunity at common law. See?Briscoe,?at 342?(“[O]ur cases clearly indicate that immunity analysis rests on functional categories”). By inventing “a new functional category: the complaining witness, who (in the Court’s specially-tailored history) was liable at common law and so is liable under §1983,” Comment,?at 1454,?Malley?moved the Court’s immunity jurisprudence much closer to the results the common law would have achieved.Footnotes:13. Examining the nature of the function performed is not a recent innovation. In?Ex parte Virginia,?100 U.S. 339 (1880),?we stated “[w]hether the act done by [a judge] was judicial or not is to be determined by its character, and not by the character of the agent.” See also?Bradley?v.?Fisher,?13 Wall., at 347?(examining “the character of the act” performed by a judge).UNITED STATES of America v. NORIEGA, 117 F.3d 1206 (1997)KRAVITCH, Senior Circuit Judge.Pursuant to clear direction from Executive Branch, Panamanian defendant was properly denied immunity from prosecution for drug-related offenses based on head-of-state immunity, particularly when the record showed that defendant never served as constitutional leader of his country, that his country had not sought immunity for defendant, and that charged acts related to defendant’s private pursuit of personal enrichment.Exclusion of classified information regarding intelligence services that defendant allegedly provided to United States before his indictment, on ground that its probative value was outweighed substantially by its tendency to confuse issues, was not an abuse of discretion; defendant offered evidence to rebut government’s assertion that he had unexplained wealth, but evidence of purposes for which monies were allegedly given would not have aided significantly in determining fact and amount of payments, evidence would have unduly shifted trial’s focus to matters of political intrigue, and defendant had unexplained wealth beyond sum claimed to have been derived from United States. 18 U.S.C.A. App. §§1-16; Fed. Rules Evid. Rule 403, 28 U.S.C.A.Classified Information Procedures Act (CIPA) requires defendants who expect to disclose classified information to notify court and government of intention to do so, and, upon government’s motion, District Court must determine whether such evidence would be admissible at trial under federal evidentiary rules. 18 U.S.C.A. App. §§1-16; Fed. Rules Evid. Rule 403, 28 U.S.C.A.After government, pursuant to Classified Information Procedures Act (CIPA), proposes alternative way of conveying classified information which defendant seeks to offer and which is admissible under ordinary evidentiary analysis, District Court must determine whether government’s alternate submission will provide defendant with substantially same ability to present his or her defense as would disclosure of specific classified information; if government’s proffer will not allow defendant to litigate case adequately, then generally government must face dilemma of permitting disclosure or dismissing charges. 18 U.S.C.A. App. §§1-16.Permitting government to cross-examine Panamanian Defense Forces officer who testified on behalf of defendant, who was former commander of Panamanian Defense Forces, about incident during which officer risked life to protect defendant from coup attempt was not abuse of discretion, notwithstanding defendant’s claim that evidence unfairly prejudiced him by showing that his own soldiers wanted to oust him from power; evidence was relevant to show officer’s loyalty toward and bias in defendant’s favor, defendant brought out evidence of coup attempts during own examination of officer, and cross-examination consumed little time before jury and thus any prejudice did not outweigh evidence’s substantial probative value. Fed. Rules Evid. Rule 403, 28 U.S.C.A.Court of Appeals will not overturn District Court’s denial of motion for new trial based on newly discovered evidence absent abuse of discretion.The Supreme Court long ago held that “[t]he jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812). The Court, however, ruled that nations, including the United States, had agreed implicitly to accept certain limitations on their individual territorial jurisdiction based on the “common interest impelling [sovereign nations] to mutual intercourse, and an interchange of good offices with each other....” Chief among the exceptions to jurisdiction was “the exemption of the person of the sovereign from arrest or detention within a foreign territory.”In his pre-trial motion, Noriega also sought the dismissal of the indictment against him on the ground that the manner in which he was brought before the District Court (i.e., through a military invasion) was so unconscionable as to constitute a violation of substantive due process. Noriega also argued that to the extent the government’s actions did not shock the judicial conscience sufficiently to trigger due process sanctions, the District Court should exercise its supervisory power to decline jurisdiction. The District Court rejected Noriega’s due process argument, and it declared Noriega’s alternative supervisory power rationale non-justiciable. On appeal, Noriega offers no substantive argument regarding the due process prong of this claim, but rather discusses only his alternative supervisory power theory. Because, however, the due process and supervisory power issues are intertwined, we discuss them both.Noriega’s due process claim “falls squarely within the [Supreme Court’s] Ker-Frisbie doctrine, which holds that a defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence.” United States v. Darby,?744 F.2d 1508 (11th Cir. 1984) (denying due process challenge based on government’s extraterritorial seizure of defendant), cert. denied sub nom., Yamanis v. United States, 471 U.S. 1100 (1985). See Frisbie v. Collins,?342 U.S. 519 (1952) (“This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436 (1886), that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’”). Noriega has not alleged that the government mistreated him personally, and thus, he cannot come within the purview of the caveat to Ker-Frisbie recognized by the Second Circuit in United States v. Toscanino,?500 F.2d 267?(2d Cir. 1974), were this court inclined to adopt such an exception. See Darby, 744 F.2d at 1531 (questioning viability of Toscanino exception and refusing to apply it absent allegations that defendant endured “cruel, inhuman and outrageous treatment”). Further, whatever harm Panamanian civilians suffered during the armed conflict that preceded Noriega’s arrest cannot support a due process claim in this case. See United States v. Payner,?447 U.S. 727 (1980) (holding that even where government’s conduct toward third parties “was so outrageous as to offend fundamental canons of decency and fairness, the fact remains that [t]he limitations of the Due Process Clause...come into play only when the Government activity in question violates some protected right of the defendant”).Noriega’s attempt to evade the implications of the Ker-Frisbie doctrine by appealing to the Judiciary’s supervisory power is equally unavailing. Although, “in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress,” United States v. Hasting,?461 U.S. 499 (1983), we are aware of no authority that would allow a court to exercise its supervisory power to dismiss an indictment based on harm done by the government to third parties. To the contrary, the Supreme Court has held that “[t]he supervisory power merely permits federal courts to supervise ‘the administration of criminal justice’ among the parties before the bar.” Payner, 447 U.S. at 735 (quoting McNabb v. United States,?318 U.S. 332 (1943)) (rejecting defendant’s claim that search of third party provided District Court sufficient basis to exercise supervisory power to suppress seized evidence).In Payner, the Court began by noting that an unlawful search of a third party would not warrant relief for the defendant under the Fourth Amendment; it then rejected the defendant’s alternative supervisory power rationale on the grounds that “[t]he values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment.” The Court explained that by exercising its supervisory power to suppress evidence based on governmental misconduct directed at persons other than the defendant when such action would not lie under the Fourth Amendment, the District Court wrongly “substitut[ed] [its] individual judgment for the controlling decisions of th[e] Court.” In a footnote, the Court then observed that “[t]he same difficulty attends [the defendant’s] claim to the protections of the Due Process Clause of the Fifth Amendment.” A reasonable reading of Payner thus compels the conclusion that a court may not exercise its supervisory power to dismiss an indictment if the government treated third parties unconscionably, where, as here, such an approach would circumvent the Supreme Court’s limiting construction of the Fifth Amendment.Accordingly, the District Court did not err when it declined to dismiss Noriega’s indictment pursuant to either the Due Process Clause or its supervisory power.…Upon the government’s motion, the District Court then must determine whether such evidence would be admissible at trial under the Federal Rules of Evidence. As this court has held:[T]he District Court may not take into account the fact that evidence is classified when determining its “use, relevance, or admissibility.” ...If the classified information is admissible under ordinary evidentiary analysis it becomes the government’s task to propose an alternative way of conveying the information to the jury that is less damaging to national security.In this case, Noriega gave notice of his intent to use classified information regarding his intelligence work for the United States to rebut the government’s assertion that he had unexplained wealth. The government objected to any disclosure of the purposes for which the United States had paid Noriega. In pre-trial proceedings, the government offered to stipulate that Noriega had received approximately $320,000 from the United States Army and the Central Intelligence Agency. Noriega insisted that the actual figure approached $10,000,000, and that he should be allowed to disclose the tasks he had performed for the United States.The District Court held that information about the content of the discrete operations in which Noriega had engaged in exchange for the alleged payments was irrelevant to his defense. Alternatively, it ruled that the tendency of such evidence to confuse the issues before the jury substantially outweighed any probative value it might have had. The District Court’s CIPA ruling, however, left Noriega free to present evidence of the fact, amounts, time, source and method of conveyance of money he alleged he had received from the United States. At trial, Noriega declined to submit evidence regarding monies he allegedly received from the United States, because, he now contends, it would not have appeared credible to the jury absent the excluded details regarding the actual services he had performed.The Supreme Court has held that “regardless of request, favorable [exculpatory or impeachment] evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Kyles v. Whitley,?514 U.S. 419 (1995). Accordingly, to secure a new trial based on his discovery of the government’s agreement with Santacruz-Echeverri, Noriega must first establish that such non-witness deals constitute proper impeachment material. Noriega insists that they do because, had he known about the government’s pact with Santacruz-Echeverri, he would have cross-examined Bilonick about whether and how Santacruz-Echeverri induced Bilonick to cooperate with the government.The government responds that because Bilonick was not a beneficiary of its agreement with Santacruz-Echeverri, and Bilonick maintained to the government, prior to trial, that he chose to cooperate of his own accord, not due to any efforts by Santacruz-Echeverri, its deal with Santacruz-Echeverri lacks impeachment value. Noriega notes that the government’s dismissal of the possible inference that Santacruz-Echeverri influenced Bilonick conflicts with its decision to move for a sentence reduction for Santacruz-Echeverri in his unrelated case. Indeed, at the hearing on the government’s Rule 35 motion for Santacruz-Echeverri, the government stated that it “could not convince [Bilonick] to surrender himself, and [it] didn’t have a way to arrest him. There were no charges outstanding in Panama and Panama would not itself arrest him. So, whatever [Santacruz-Echeverri’s attorney] and Santacruz[-Echeverri] did, they were successful in.” In this statement, the government essentially acknowledged that Santacruz-Echeverri may have done something to secure Bilonick’s cooperation against Noriega.Under the government’s reasoning, a defendant apparently is entitled to have a jury make these determinations only if the witness in question admits to the government that he or she was induced to cooperate by a non-witness with whom the government has made a deal. Where, as here, the witness at issue has entered into his own cooperation agreement with the government, and knows that the value of his testimony, upon which his chances for a more lenient sentence largely hinge, would be undercut by such an admission, the witness has a strong motive to give the government false information about any third-party inducements. Further, the government has an equally powerful incentive to accept, even willfully blindly, the witness’s denial of outside pressure, so that it can withhold this information from the defendant. Such a regime appears inconsistent with the policy underlying the government’s witness-incentive disclosure obligations, which this court has described as “ensur[ing] that the jury know[s] the facts that might motivate a witness in giving testimony....” Smith v. Kemp,?715 F.2d 1459 (11th Cir.), cert. denied, 464 U.S. 1003 (1983).Assuming that, for the reasons cited above, the government’s pact with Santacruz-Echeverri would have afforded Noriega a basis to impeach Bilonick, Noriega still cannot win a new trial unless he satisfies the Kyles materiality test. To do so, Noriega must show the existence of a “reasonable probability” that the disclosure of the suppressed information would have led to a different result at trial. Kyles, 514 U.S. at 433. “The question is not whether the defendant would more likely than not have received a different verdict with the [concealed] evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Because the evidence at issue only would have facilitated further impeachment of one witness (out of more than forty called by the government) who gave testimony corroborative in nature related to one area of the case, we affirm the District Court’s conclusion that the government’s suppression of its deal with Santacruz-Echeverri fails to satisfy Kyles’s second prong.Bilonick was questioned thoroughly at trial about his plea agreement with the government. As a result, the jury knew that Bilonick had a compelling motive to testify against Noriega, i.e., he hoped to receive a lesser prison term based on his cooperation. If the government had disclosed its agreement with Santacruz-Echeverri, Noriega, through his cross-examination of Bilonick, might have been able to raise an inference in the jury’s mind that, by testifying against Noriega, Bilonick also hoped to gain benefits from Santacruz-Echeverri. This cumulative impeachment regarding Bilonick’s “incentives” for cooperating likely would not have led the jury to scrutinize his testimony much more than it already had, and thus, the suppression of that information does not call the verdicts against Noriega into question. See United States v. Williams,?81 F.3d 1434 (7th Cir. 1996) (ruling that newly discovered impeachment evidence regarding government’s provision of gifts and jailhouse privileges for witnesses “was unlikely to make a difference” to the jury’s credibility determinations given impeachment of witnesses at trial regarding their hopes for immunity or “punishment discounts” based upon their testimony). See also United States v. Amiel,?95 F.3d 135 (2d Cir. 1996) (affirming District Court’s denial of new trial motion where suppressed “impeachment evidence was cumulative”).The Supreme Court long has held that “‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice.”’” DeMarco v. United States,?928 F.2d 1074 (11th Cir. 1991) (quoting Giglio v. United States,?405 U.S. 150 (1972), quoting Mooney v. Holohan,?294 U.S. 103 (1935)). As a result, “due process is violated when the prosecutor, although not soliciting false evidence from a Government witness, allows it to stand uncorrected when it appears.” United States v. Sanfilippo,?564 F.2d 176 (5th Cir. 1977) (citing Napue v. Illinois,?360 U.S. 264 (1959)). The violation arises even if the “false testimony goes only to the credibility of the witness....” “Where either [the government solicits false or misleading testimony or fails to correct it], the falsehood is deemed to be material [and thus, to warrant a new trial] ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’” United States v. Alzate,?47 F.3d 1103 (11th Cir. 1995) (ruling that “standard of materiality [for such claims] is equivalent to the Chapman v. California,?386 U.S. 18 (1967), ‘harmless beyond a reasonable doubt’ standard”). Noriega has shown no such wrong in this case.Because the record fails to support a claim of prosecutorial misconduct in this regard, to win a new trial based on the post-conviction bribery allegations, Noriega must satisfy the general standard for newly discovered evidence. See United States v. Garcia,?13 F.3d 1464 (11th Cir.) (ruling that a District Court may grant a new trial based on newly discovered evidence “only if: (1) the evidence was in fact discovered after trial; (2) the defendant exercised due care to discover the evidence; (3) the evidence was not merely cumulative or impeaching; (4) the evidence was material; and (5) the evidence was of such a nature that a new trial would probably produce a new result”), cert. denied sub nom., Chaves v. United States, 512 U.S. 1226 (1994). Evidence regarding the bribing of a witness, although disturbing, clearly does constitute impeachment material, and therefore, Noriega cannot satisfy the Garcia standard. See United States v. Starrett,?55 F.3d 1525 (11th Cir. 1995) (“Failure to meet any one of these elements will defeat a motion for new trial.”), cert. denied sub nom., Sears v. United States, 517 U.S. 1111 (1996). Accordingly, we find no abuse of discretion by the District Court in denying Noriega a new trial on this basis.Footnotes:5. In his briefs, Noriega does invoke the substantive due process mantra, “shocking to the conscience,” and, in the primary brief, he quotes dicta from an opinion in which the Supreme Court stated that a case could arise “in which the conduct of law enforcement agents is so outrageous that due process would absolutely bar the government from invoking judicial processes to obtain a conviction....” (Quoting United States v. Russell,?411 U.S. 423 (1973)). Throughout his briefs, however, Noriega articulates only arguments related to the supervisory power issue.6. The District Court held that Payner did not limit its supervisory power to refuse jurisdiction due to the government’s mistreatment of third parties, but that Noriega’s claim raised a non-justiciable political question. Because we conclude that, under Payner, the District Court could not have exercised its supervisory power to dismiss the indictment against Noriega based on injuries to third parties, we need not determine whether the District Court correctly applied the political question doctrine.8. Evidence of unexplained wealth inferentially corroborated testimony that the Medellin Cartel made large payments to Noriega.UNITED STATES of America v. AVERY, 137 F.3d 343 (1997)NATHANIEL R. JONES, Circuit Judge.At the hearing, Officer Bauerle testified that officers are formally taught to look for certain characteristics when identifying people suspected of carrying narcotics. According to Bauerle, prime among those characteristics are: (1) one-way cash tickets purchased shortly before flight time; (2) persons leaving the airplane who do not ask for directions; (3) certain modes of dress; and (4) people who are walking hurriedly through the airport. Further, Bauerle testified that although he has never been formally taught to look at race as a characteristic, through informal “networks” with other airports, officers have at times looked for Black or Jamaican gangs using young White females as couriers. Task Force Officer Jim McKiernan also testified that characteristics can change from textbook definitions depending upon trends in the drug-trafficking business and that sometimes race and gender are discussed informally.This court reviews the District Court’s factual findings in a suppression hearing under the clearly erroneous standard and the District Court’s conclusions of law de novo. See United States v. Taylor,?956 F.2d 572 (6th Cir. 1992), cert. denied, 506 U.S. 952 (1992). Further, we review de novo the District Court’s determination as to whether certain facts establish a seizure in violation of the Fourth Amendment. United States v. Buchanon,?72 F.3d 1217 (6th Cir. 1995). “[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v. United States,?517 U.S. 690 (1996).This court’s statement in Travis II concerning the pre-contact stage does not affect our holding today. See Travis II, 62 F.3d at 174. If at the point an officer decides to interview/encounter a suspect he has gathered many reasons for that interview - one being race - the focus of the court is the consensual encounter, and the use of race as one factor in the pre-contact stage may not violate equal protection principles. There are two questions that arise: (1) what of a case in which an officer initially targets someone solely because of his race, without additional factors, and because of the person’s race the officer follows and investigates that person for drug trafficking; and (2) what about a situation where an airport police force has a defined policy of targeting only minorities for drug investigation? Such actions would be constitutionally impermissible, violative of the Equal Protection Clause. A person cannot become the target of a police investigation solely on the basis of skin color. Such selective law enforcement is forbidden.In reaching this conclusion, we rely both on Fourth and Fourteenth Amendment jurisprudence. The District Court has focused on the Supreme Court decisions of United States v. Brignoni-Ponce,?422 U.S. 873 (1975), and United States v. Martinez-Fuerte,?428 U.S. 543 (1976), inferring that those Fourth Amendment cases inhibiting the use of race in a Terry seizure context, would likewise lead the Court to proscribe the use of race when analyzing certain consensual encounters. Travis I, 837 F.Supp. at 1392. While we find Brignoni-Ponce and Martinez-Fuerte instructive, just as important to our conclusion are the fundamental tenets of the Fourteenth Amendment. To the extent the Fourth Amendment cases find that the reasonable suspicion requirement for an investigative detention cannot be satisfied when the sole factor grounding the suspicion is race, we agree. But see Whren v. United States,?517 U.S. 806 (1996) (“[Court’s] cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”). Further, we find that such an action would be violative of the Equal Protection Clause of the Fourteenth Amendment. (Without reference to “stage” of the investigation, the Court stated, “[w]e of course agree...that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.”).We recognize the District Court’s proclamation in Travis I, wherein the court stated that “Brignoni-Ponce...implies a period of surveillance based on the subject’s appearance from which ‘reasonable suspicion’ justifying a Terry stop might arise.” Travis I, 837 F.Supp. at 1395. Such a period of surveillance could not be challenged under the Fourth Amendment because it does not involve a seizure. The Fourteenth Amendment, however, prohibits agents from engaging in investigative surveillance of an individual based solely on impermissible factors such as race.Further, the cases the District Court relied on in Travis I involved border encounters by officers specifically targeting illegal immigrants. Thus, although the Court in Brignoni-Ponce stated “the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor,” we refuse to adopt, by analogy, the concept that “the likelihood that any given person of African ancestry is involved in drug trafficking is high enough to make African ancestry a relevant fact” in investigating drug trafficking at the airport. See Brignoni-Ponce, 422 U.S. at 886. Indeed, the Court in Martinez-Fuerte noted that “[d]ifferent considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border.”The Fourteenth Amendment guarantee of equal protection does not fit neatly into the various stages of Fourth Amendment search and seizure analysis. This is mainly because the central intention behind the Equal Protection Clause is the prevention of official conduct discriminating on the basis of race. See Washington v. Davis,?426 U.S. 229 (1976). The “stage” of investigation is not relevant under a true equal protection analysis. “[T]he heart of the Equal Protection Clause is its prohibition of discriminatory treatment. If a government actor has imposed unequal burdens based upon race, it has violated the clause.” Samaad v. Dallas,?940 F.2d 925 (5th Cir. 1991).Accordingly, we find that citizens are entitled to equal protection of the laws at all times. If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen’s race, without more, then a violation of the Equal Protection Clause has occurred. The District Court plainly was in error when it found that “there are no constitutional restrictions at the pre-contact level.” (Magistrate judge’s Report and Recommendation) (Citing Travis I, 837 F.Supp. at 1395).We empathize with the District Court’s concern that “[i]mposing additional restrictions at the pre-contact level would be administratively unwieldy....” This concern justifiably stems from the fact that a majority of the contacts reported in this case do not involve situations wherein an officer would have control over the race of an investigatee. As noted in footnote 3, in such cases, an equal protection violation could not be proved and thus our recognition of the right to equal protection does not materially affect the responsibilities of law enforcement nor the ability of the courts to define violations. Indeed, a defendant always carries the burden to prove, through conventional methods, that an equal protection violation has occurred.In order “to prevail under the Equal Protection Clause, [a defendant] must prove the decision makers in his case acted with discriminatory purpose.” McCleskey v. Kemp (1987); see also Wayte v. United States,?470 U.S. 598 (1985) (selective prosecution claim). In the airport-stop context, “a defendant would have to demonstrate by a ‘preponderance of the evidence’ that a police officer decided to approach [or pursue] him or her solely because of his or her race.” Travis II, 62 F.3d at 174.The court should have considered only the facts that led the officers to begin their investigation of Avery. When the officers began to follow Avery they knew: (1) he was in a hurry; (2) he appeared focused and looked straight ahead; (3) he was attired in a sweat suit with short sleeves in December; and (4) he carried a gym-type, carry-on bag. These factors, when combined with the observation at the gate of Avery sitting in an empty row of seats closest to the podium, provided the officers with sufficient reason to begin an investigation of Avery. An officer is not held to a “suspicion of criminal activity standard” when he embarks to investigate someone. The officer merely is prohibited from his pursuit if he acts based solely on race. Consequently, there was no equal protection violation in this case.UNITED STATES of America v. TUCKER et al., 90 F.3d 1135 (1996)MOORE, Circuit Judge.Appellants Chauncy Adam Tucker, Calvin Miller, Jr., and Anthony Darrick McCoy challenge their convictions and sentences arising from their participation in a drug trafficking conspiracy. We find their constitutional claims meritless but reverse those convictions that have to do with using or carrying a firearm during a drug trafficking crime and remand for resentencing on firearm possession and quantity issues.The appellants raise several constitutional challenges to their convictions and sentences. First, Miller and McCoy argue that 21 U.S.C. §860(a) exceeds Congress’s power under the Commerce Clause, U.S.Const. Art. I, §8. Second, all three appellants claim that the prosecution violated the equal protection principles embodied in the Due Process Clause of the Fifth Amendment by excluding jurors on the basis of race. Third, Miller contends that his attorney’s performance violated his Sixth Amendment guarantee to effective assistance of counsel.21 U.S.C. §860(a) doubles the maximum punishment for manufacture of and possession with intent to distribute controlled substances under 21 U.S.C. §841(a)(1) when those activities occur within one thousand feet of a school. Citing United States v. Lopez,?514 U.S. 549 (1995), Miller and McCoy argue that Congress lacks the power to prohibit such conduct. Although no one raised this argument before the District Court, both the appellants and appellees have briefed the issue, and we therefore agree to address this important constitutional claim. See United States v. Chesney,?86 F.3d 564 (6th Cir. 1996) (exercising discretion to address Lopez issue not raised below). We note at the outset that several post-Lopez cases and dicta in the decision of the Court of Appeals in Lopez reject the appellants’ contention. United States v. Rogers,?89 F.3d 1326 (7th Cir. 1996); United States v. Clark,?67 F.3d 1154 (5th Cir. 1995), cert. denied, 116 S.Ct. 1432 (1996), petition for cert. filed, No. 95-8936 (U.S. May 9, 1996); United States v. Salmiento, 898 F.Supp. 45 (D.P.R. 1995); United States v. Garcia-Salazar, 891 F.Supp. 568 (D.Kan. 1995); United States v. Lopez,?2 F.3d 1342 (5th Cir. 1993), aff’d,?514 U.S. 549 (1995).Unlike the Gun-Free School Zones Act, the statutory scheme at issue here neither “plows thoroughly new ground” nor “represents a sharp break with the long-standing pattern” of federal regulation. See Lopez, 514 U.S. at 549 (quoting Lopez, 2 F.3d at 1366). Rather, §860 addresses a clearly commercial activity that has long been within federal power to regulate. In contrast to the firearm possession at issue in Lopez, drug trafficking is an “economic enterprise” that substantially affects interstate commerce in numerous clear ways. Each individual instance of cocaine dealing, for example, represents the end point of a manufacturing, shipping, and distribution network that is interstate - and international - in nature. In fact, Congress included specific findings to that effect when it passed the Controlled Substances Act. Controlled Substances Act, Pub L. No. 91-513 (84 Stat. 1236), tit. II, §101, 1970 U.S.C.C.A.N. 1444, 1444-45 (codified at 21 U.S.C. §801); see also Controlled Substances Penalties Amendments Act of 1984, Pub.L. No. 98-473, ch. V, sec. 503(a), §405A, 1984 U.S.C.C.A.N. (98 Stat.) 2068, 2069 (amending Controlled Substances Act to include current §860). For these reasons, this circuit upheld federal criminalization of intrastate drug dealing under the Commerce Clause before Lopez, see United States v. Scales,?464 F.2d 371 (6th Cir. 1972), as has every jurisdiction that has considered the issue after Lopez, see United States v. Lerebours,?87 F.3d 582 (1st Cir. 1996); United States v. Staples,?85 F.3d 461 (9th Cir. 1996); United States v. Genao, 79 F.3d 1333 (2d Cir. 1996); United States v. Brown,?72 F.3d 96 (8th Cir. 1995), cert. denied, 116 S.Ct. 2581 (1996); United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995), petition for cert. filed, No. 95-9284 (U.S. June 10, 1996); Clark, 67 F.3d at 1165-66; United States v. Leshuk,?65 F.3d 1105 (4th Cir. 1995); United States v. Lynch, 908 F.Supp. 284 (D.V.I. 1995); United States v. Grafton, No. 1:95-CR-131-FMH, 1995 WL 506001 (N.D.Ga. Aug. 15, 1995). Lopez does not give us cause to question Congress’s power to regulate an activity as clearly commercial as drug trafficking.The procedural framework developed in Batson v. Kentucky,?476 U.S. 79 (1986), and its progeny governs equal protection claims of this kind. Under Batson, a defendant must first establish a prima facie case showing that the prosecution exercised peremptory strikes on the basis of race. If the defendant satisfies this requirement, the prosecution must articulate a race-neutral explanation for the challenges. The trial court must then decide if the defendant has carried the burden of proving purposeful discrimination. Once the trial court has heard and ruled on a prosecutor’s articulated reason, however, the issue of whether the defendant made a sufficient prima facie showing becomes moot. Hernandez v. New York,?500 U.S. 352 (1991). Therefore, because the District Court here issued its ruling after considering the prosecution’s explanation, the question in the instant case boils down to whether the appellants established by a preponderance of the evidence that the preemptory strikes were intentionally discriminatory. See Kelly v. Withrow,?25 F.3d 363 (6th Cir.) (“find[ing] no basis for disturbing the trial court’s determination” on Batson issue when trial court used preponderance of the evidence standard), cert. denied, 513 U.S. 1061 (1994). The District Court’s factual findings on this issue are reviewed for clear error. United States v. Peete,?919 F.2d 1168 (6th Cir. 1990).The prosecution gave two reasons for its decision to exclude juror Gonzalez: (1) she had been the victim of a rapist whom the government had failed to prosecute successfully and (2) she had an uncle who was in jail on marijuana charges. The defense offered no rebuttal. The prosecution’s explanation is inherently believable, and, given the defense’s failure to dispute it, the District Court’s ruling is not clear error.The reasoning that the prosecution offered regarding juror Marquez is less convincing: it alleged that Marquez seemed too unintelligent and disinterested and that her presence as a juror might be a hardship to her. Nevertheless, the District Court’s conclusion regarding Marquez was not clearly erroneous either, for several reasons. First, the defense introduced no evidence or argument in opposition to the explanation, even when invited to do so. The defense might have demonstrated that the articulated reasons were in fact a pretext by showing, for example, that the prosecution had not challenged equally unintelligent or disinterested jurors of other races.SEMINOLE TRIBE OF FLORIDA v. FLORIDA et al., 517 U.S. 44, 116 S.Ct. 1114 (1996)Chief Justice REHNQUIST delivered the opinion of the Court.Congress may abrogate the states’ sovereign immunity if it has unequivocally expressed its intent to abrogate the immunity and has acted pursuant to a valid exercise of power. U.S.C.A. Const. Amend. 11.Fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim.Eleventh Amendment does not exist solely in order to prevent federal court judgments that must be paid out of a state’s treasury; it also serves to avoid the indignity of subjecting state to the coercive process of judicial tribunals at the instance of private parties. U.S.C.A. Const. Amend. 11.Mere receipt of federal funds cannot establish that a state has consented to suit in federal court, for purposes of determining whether Eleventh Amendment bars suit. U.S.C.A. Const. Amend. 11.Inquiry into whether Congress has the power to abrogate unilaterally the states’ Eleventh Amendment immunity from suit is narrowly focused on a single question: was the Act in question passed pursuant to a constitutional provision granting Congress such power. U.S.C.A. Const. Amend. 11.Fourteenth Amendment allows federal power to intrude upon the province of the Eleventh Amendment and, therefore, to abrogate states’ Eleventh Amendment immunity from suit. U.S.C.A. Const. Amends. 11, 14.Principle of stare decisis serves interests in the evenhanded, predictable, and consistent development of legal principles, in reliance on judicial decisions, and in the actual and perceived integrity of the judicial process.Doctrine of stare decisis is a principle of policy, not an inexorable command.As a general rule, principle of stare decisis directs courts to adhere not only to the holdings of their prior cases, but also to their explications of the governing rules of law.Although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is sought to be prosecuted against a state, without her consent, by one of her own citizens. U.S.C.A. Const. Amend. 11.“Doctrine of Ex parte Young” allows a suit against a state official to go forward, notwithstanding the Eleventh Amendment’s jurisdictional bar, where the suit seeks prospective injunctive relief in order to end a continuing federal law violation. U.S.C.A. Const. Amend. 11.The Indian Gaming Regulatory Act, passed by Congress pursuant to the Indian Commerce Clause, allows an Indian tribe to conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 25 U.S.C. §2710(d)(1)(C). Under the Act, States have a duty to negotiate in good faith with a tribe toward the formation of a compact, §2710(d)(3)(A), and a tribe may sue a State in federal court in order to compel performance of that duty, §2710(d)(7). In this §2710(d)(7) suit, respondents, Florida and its Governor, moved to dismiss petitioner Seminole Tribe’s complaint on the ground that the suit violated Florida’s sovereign immunity from suit in federal court. The District Court denied the motion, but the Court of Appeals reversed, finding that the Indian Commerce Clause did not grant Congress the power to abrogate the States’ Eleventh Amendment immunity and that?Ex parte Young,?209 U.S. 123, does not permit an Indian tribe to force good faith negotiations by suing a State’s Governor.Held:1. The Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States to enforce legislation enacted pursuant to the Indian Commerce Clause.(a) The Eleventh Amendment presupposes that each State is a sovereign entity in our federal system and that “‘[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without [a State’s] consent.’”?Hans v. Louisiana,?134 U.S. 1. However, Congress may abrogate the States’ sovereign immunity if it has “unequivocally expresse[d] its intent to abrogate the immunity” and has acted “pursuant to a valid exercise of power.”?Green v. Mansour,?474 U.S. 64. Here, through the numerous references to the “State” in §2710(d)(7)(B)’s text, Congress provided an “unmistakably clear” statement of its intent to abrogate.(b) The inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on a single question: Was the Act in question passed pursuant to a constitutional provision granting Congress such power? This Court has found authority to abrogate under only two constitutional provisions: the Fourteenth Amendment, see Fitzpatrick v. Bitzer,?427 U.S. 445, and the Interstate Commerce Clause,?Pennsylvania v. Union Gas Co., 491 U.S. 1. The?Union Gas?plurality found that Congress’ power to abrogate came from the States’ session of their sovereignty when they gave Congress plenary power to regulate commerce. Under the rationale of?Union Gas,?the Indian Commerce Clause is indistinguishable from the Interstate Commerce Clause.(c) However, in the five years since it was decided,?Union Gas?has proven to be a solitary departure from established law. Reconsidering that decision, none of the policies underlying stare decisis?require this Court’s continuing adherence to its holding. The decision has been of questionable precedential value, largely because a majority of the Court expressly disagreed with the plurality’s rationale. Moreover, the deeply fractured decision has created confusion among the lower courts that have sought to understand and apply it. The plurality’s rationale also deviated sharply from this Court’s established federalism jurisprudence and essentially eviscerated the Court’s decision in?Hans,?since the plurality’s conclusion - that Congress could under Article I expand the scope of the federal courts’ Article III jurisdiction contradicted the fundamental notion that Article III sets forth the exclusive catalog of permissible federal-court jurisdiction. Thus,?Union Gas?was wrongly decided and is overruled. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.2. The doctrine of?Ex parte Young?may not be used to enforce §2710(d)(3) against a state official. That doctrine allows a suit against a state official to go forward, notwithstanding the Eleventh Amendment’s jurisdictional bar, where the suit seeks prospective injunctive relief in order to end a continuing federal-law violation. However, where, as here, Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an?Ex parte Young?action. The intricate procedures set forth in §2710(d)(7) show that Congress intended not only to define, but also significantly to limit, the duty imposed by §2710(d)(3). The Act mandates only a modest set of sanctions against a State, culminating in the Secretary of the Interior prescribing gaming regulations where an agreement is not reached through negotiation or mediation. In contrast, an?Ex parte Young?action would expose a state official to a federal court’s full remedial powers, including, presumably, contempt sanctions. Enforcement through an?Ex parte Young?suit would also make §2710(d)(7) superfluous, for it is difficult to see why a tribe would suffer through §2710(d)(7)’s intricate enforcement scheme if?Ex parte Young’s more complete and more immediate relief were available. The Court is not free to rewrite the statutory scheme in order to approximate what it thinks Congress might have wanted had it known that §2710(d)(7) was beyond its authority.Petitioner suggests that one consideration weighing in favor of finding the power to abrogate here is that the Act authorizes only prospective injunctive relief rather than retroactive monetary relief. But we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See Cory v. White,?457 U.S. 85 (1982) (“It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought”). We think it follows?a fortiori?from this proposition that the type of relief sought is irrelevant to whether Congress has power to abrogate States’ immunity. The Eleventh Amendment does not exist solely in order to “preven[t] federal court judgments that must be paid out of a State’s treasury,”?Hess v. Port Authority Trans-Hudson Corporation,?513 U.S. 30 (1994); it also serves to avoid “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,”?Puerto Rico Aqueduct and Sewer Authority,?506 U.S., at 146.Thus our inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See Fitzpatrick v. Bitzer,?427 U.S. 445 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In?Fitzpatrick,?we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution.?We noted that §1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that §5 of the Amendment expressly provided that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that §5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abrogate the States’ sovereign immunity. Instead, they contend that if we find the rationale of the?Union Gas?plurality to extend to the Indian Commerce Clause, then “Union Gas?should be reconsidered and overruled.” Generally, the principle of?stare decisis,?and the interests that it serves, viz., “the evenhanded, predictable, and consistent development of legal principles,...reliance on judicial decisions, and...the actual and perceived integrity of the judicial process,”?Payne v. Tennessee,?501 U.S. 808 (1991), counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated?stare decisis?as a “principle of policy,”?Helvering v. Hallock,?309 U.S. 106 (1940), and not as an “inexorable command,”?Payne,?501 U.S., at 828. “[W]hen governing decisions are unworkable or are badly reasoned, ‘this Court has never felt constrained to follow precedent.’”?(Quoting?Smith v. Allwright, 321 U.S. 649 (1944)). Our willingness to reconsider our earlier decisions has been “particularly true in constitutional cases, because in such cases ‘correction through legislative action is practically impossible.’”?Payne,?at 828 (quoting?Burnet v. Coronado Oil & Gas Co.,?285 U.S. 393 (1932).In the five years since it was decided,?Union Gas?has proven to be a solitary departure from established law. See?Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,?506 U.S. 139 (1993). Reconsidering the decision in?Union Gas, we conclude that none of the policies underlying?stare decisis?require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. See?Nichols v. United States,?511 U.S. 738 (1994) (the “degree of confusion following a splintered decision...is itself a reason for reexamining that decision”). The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in?Union Gas?and the plurality’s rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that?Union Gas?was wrongly decided and that it should be, and now is, overruled.The dissent mischaracterizes the?Hans?opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental “jurisprudence in all civilized nations.”?Hans,?134 U.S., at 17, quoting?Beers v. Arkansas,?20 How. 527, 15 L.Ed. 991 (1858); see also The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (sovereign immunity “is the general sense and the general practice of mankind”). The dissent’s proposition that the common law of England, where adopted by the States, was open to change by the Legislature, is wholly unexceptionable and largely beside the point: that common law provided the substantive rules of law rather than jurisdiction. Cf.?Monaco,?at 323 (state sovereign immunity, like the requirement that there be a “justiciable” controversy, is a constitutionally grounded limit on federal jurisdiction). It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.Petitioner argues that we may exercise jurisdiction over its suit to enforce §2710(d)(3) against the Governor notwithstanding the jurisdictional bar of the Eleventh Amendment. Petitioner notes that since our decision in?Ex parte Young,?209 U.S. 123 (1908), we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to “end a continuing violation of federal law.”?Green v. Mansour,?474 U.S., at 68. The situation presented here, however, is sufficiently different from that giving rise to the traditional?Ex parte Young action so as to preclude the availability of that doctrine.The Eleventh Amendment prohibits Congress from making the State of Florida capable of being sued in federal court. The narrow exception to the Eleventh Amendment provided by the Ex parte Young?doctrine cannot be used to enforce §2710(d)(3) because Congress enacted a remedial scheme, §2710(d)(7), specifically designed for the enforcement of that right. The Eleventh Circuit’s dismissal of petitioner’s suit is hereby affirmed. It is so ordered.Justice STEVENS, dissenting.…Nevertheless, in a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power.Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine is entirely the product of judge-made law. Three features of its English ancestry make it particularly unsuitable for incorporation into the law of this democratic Nation.First, the assumption that it could be supported by a belief that “the King can do no wrong” has always been absurd; the bloody path trod by English monarchs both before and after they reached the throne demonstrated the fictional character of any such assumption. Even if the fiction had been acceptable in Britain, the recitation in the Declaration of Independence of the wrongs committed by George III made that proposition unacceptable on this side of the Atlantic.Second, centuries ago the belief that the monarch served by divine right made it appropriate to assume that redress for wrongs committed by the sovereign should be the exclusive province of still higher authority. While such a justification for a rule that immunized the sovereign from suit in a secular tribunal might have been acceptable in a jurisdiction where a particular faith is endorsed by the government, it should give rise to skepticism concerning the legitimacy of comparable rules in a society where a constitutional wall separates the State from the Church.Third, in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court. Justice Wilson explained how foreign such a justification is to this Nation’s principles. See?Chisholm v. Georgia,?2 Dall., at 455. Moreover, Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State’s dignity.?Cohens v. Virginia,?6 Wheat. 264, 5 L.Ed. 257 (1821). Its purpose, he explained, was far more practical.“That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the Amendment.... We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the Court in those cases, because it might be essential to the preservation of peace.”Nevertheless, this Court later put forth the interest in preventing “indignity” as the “very object and purpose of the [Eleventh] Amendment.”?In re Ayers,?123 U.S., at 505. That, of course, is an “embarrassingly insufficient” rationale for the rule. See?Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,?506 U.S. 139 (1993).Moreover, I find unsatisfying Justice Holmes’ explanation that “[a] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”?Kawananakoa v. Polyblank,?205 U.S. 349 (1907). As I have explained before, Justice Holmes’ justification fails in at least two respects.“First, it is nothing more than a restatement of the obvious proposition that a citizen may not sue the sovereign unless the sovereign has violated the citizen’s legal rights. It cannot explain application of the immunity defense in cases like?Chisholm,?in which it is assumed that the plaintiff’s rights have in fact been violated - and those cases are, of course, the only ones in which the immunity defense is needed. Second, Holmes’s statement does not purport to explain why a general grant of jurisdiction to federal courts should not be treated as an adequate expression of the sovereign’s consent to suits against itself as well as to suits against ordinary litigants.” Stevens, Is Justice Irrelevant?, 87 Nw.U.L.Rev. 1121 (1993).In sum, as far as its common-law ancestry is concerned, there is no better reason for the rule of sovereign immunity “than that so it was laid down in the time of Henry IV.” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). That “reason” for the perpetuation of this ancient doctrine certainly cannot justify the majority’s expansion of it.In this country the sovereignty of the individual States is subordinate both to the citizenry of each State and to the supreme law of the federal sovereign. For that reason, Justice Holmes’ explanation for a rule that allows a State to avoid suit in its own courts does not even speak to the question whether Congress should be able to authorize a federal court to provide a private remedy for a State’s violation of federal law. In my view, neither the majority’s opinion today, nor any earlier opinion by any Member of the Court, has identified any acceptable reason for concluding that the absence of a State’s consent to be sued in federal court should affect the power of Congress to authorize federal courts to remedy violations of federal law by States or their officials in actions not covered by the Eleventh Amendment’s explicit text.While I am persuaded that there is no justification for permanently enshrining the judge-made law of sovereign immunity, I recognize that federalism concerns - and even the interest in protecting the solvency of the States that was at work in?Chisholm?and?Hans - may well justify a grant of immunity from federal litigation in certain classes of cases. Such a grant, however, should be the product of a reasoned decision by the policymaking branch of our Government. For this Court to conclude that time-worn shibboleths iterated and reiterated by judges should take precedence over the deliberations of the Congress of the United States is simply irresponsible.Justice SOUTER, with whom Justice GINSBURG and Justice BREYER join, dissenting.In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right. Although the Court invokes the Eleventh Amendment as authority for this proposition, the only sense in which that amendment might be claimed as pertinent here was tolerantly phrased by Justice STEVENS in his concurring opinion in?Pennsylvania v. Union Gas,?491 U.S. 1 (1989). There, he explained how it has come about that we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in?Hans v. Louisiana,?134 U.S. 1 (1890). Justice STEVENS saw in that second Eleventh Amendment no bar to the exercise of congressional authority under the Commerce Clause in providing for suits on a federal question by individuals against a State, and I can only say that after my own canvass of the matter I believe he was entirely correct in that view, for reasons given below. His position, of course, was also the holding in?Union Gas,?which the Court now overrules and repudiates.It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a non-state litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress.Beyond this third question that elicits today’s holding, there is one further issue. To reach the Court’s result, it must not only hold the?Hans?doctrine to be outside the reach of Congress, but must also displace the doctrine of?Ex parte Young,?209 U.S. 123 (1908), that an officer of the government may be ordered prospectively to follow federal law, in cases in which the government may not itself be sued directly. None of its reasons for displacing?Young’s jurisdictional doctrine withstand scrutiny.The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is not bound by the law’s provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. See?Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1 (1963). The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high middle ages. “At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts.” C. Jacobs, Eleventh Amendment and Sovereign Immunity 5 (1972). See also 3 W. Blackstone, Commentaries, 244-245; Jaffe,?at 2 (“By the time of Bracton (1268) it was settled doctrine that the King could not be sued?eo nomine?in his own courts”).The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, Jacobs,?at 6-7, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889 (1983).Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict. With this prospect in mind, the 1787 Constitution might have addressed state sovereign immunity by eliminating whatever sovereign immunity the States previously had, as to any matter subject to federal law or jurisdiction; by recognizing an analogue to the old immunity in the new context of federal jurisdiction, but subject to abrogation as to any matter within that jurisdiction; or by enshrining a doctrine of inviolable state sovereign immunity in the text, thereby giving it constitutional protection in the new federal jurisdiction. See Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U.Pa.L.Rev. 515 (1977).The 1787 draft in fact said nothing on the subject, and it was this very silence that occasioned some, though apparently not widespread, dispute among the Framers and others over whether ratification of the Constitution would preclude a State sued in federal court from asserting sovereign immunity as it could have done on any matter of nonfederal law litigated in its own courts. As it has come down to us, the discussion gave no attention to congressional power under the proposed Article I but focused entirely on the limits of the judicial power provided in Article III. And although the jurisdictional bases together constituting the judicial power of the national courts under section 2 of Article III included questions arising under federal law and cases between States and individuals who are not citizens, it was only upon the latter citizen-state diversity provisions that preratification questions about state immunity from suit or liability centered.The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses. In precisely tracking the language in Article III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federal question suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post-Chisholm?proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect:“[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States.” Gazette of the United States 303 (Feb. 20, 1793).It should accordingly come as no surprise that the weightiest commentary following the amendment’s adoption described it simply as constricting the scope of the Citizen-State Diversity Clauses. In?Cohens v. Virginia,?6 Wheat. 264, 5 L.Ed. 257 (1821), for instance, Chief Justice Marshall, writing for the Court, emphasized that the amendment had no effect on federal courts’ jurisdiction grounded on the “arising under” provision of Article III and concluded that “a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case.”?The point of the Eleventh Amendment, according to?Cohens,?was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, not “to strip the government of the means of protecting, by the instrumentality of its Courts, the constitution and laws from active violation.”Hans sued the State in federal court, asserting that the State’s default amounted to an impairment of the obligation of its contracts in violation of the Contract Clause. This Court affirmed the dismissal of the suit, despite the fact that the case fell within the federal court’s “arising under,” or federal question, jurisdiction. Justice Bradley’s opinion did not purport to hold that the terms either of Article III or of the Eleventh Amendment barred the suit, but that the ancient doctrine of sovereign immunity that had inspired adoption of the Eleventh Amendment applied to cases beyond the Amendment’s scope and otherwise within the federal question jurisdiction. Indeed, Bradley explicitly admitted that “[i]t is true, the amendment does so read [as to permit Hans’s suit], and if there were no other reason or ground for abating his suit, it might be maintainable.”?Hans,?134 U.S., at 10. The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would have resulted otherwise: the Eleventh Amendment (according to the Court) would have barred a federal question suit by a noncitizen, but the State would have been subject to federal jurisdiction at its own citizen’s behest.?The State was accordingly held to be free to resist suit without its consent, which it might grant or withhold as it pleased.Taking?Hans?only as far as its holding, its vulnerability is apparent. The Court rested its opinion on avoiding the supposed anomaly of recognizing jurisdiction to entertain a citizen’s federal question suit, but not one brought by a noncitizen. See?Hans,?at 10-11. There was, however, no such anomaly at all. As already explained, federal question cases are not touched by the Eleventh Amendment, which leaves a State open to federal question suits by citizens and noncitizens alike. If Hans had been from Massachusetts the Eleventh Amendment would not have barred his action against Louisiana.Although there was thus no anomaly to be cured by?Hans,?the case certainly created its own anomaly in leaving federal courts entirely without jurisdiction to enforce paramount federal law at the behest of a citizen against a State that broke it. It destroyed the congruence of the judicial power under Article III with the substantive guarantees of the Constitution, and with the provisions of statutes passed by Congress in the exercise of its power under Article I: when a State injured an individual in violation of federal law no federal forum could provide direct relief. Absent an alternative process to vindicate federal law (see Part IV) John Marshall saw just what the consequences of this anomaly would be in the early Republic, and he took that consequence as good evidence that the Framers could never have intended such a scheme.The majority does not dispute the point that?Hans v. Louisiana,?134 U.S. 1 (1890), had no occasion to decide whether Congress could abrogate a State’s immunity from federal question suits. The Court insists, however, that the negative answer to that question that it finds in?Hans?and subsequent opinions is not “mere?obiter dicta,?but rather...the well-established rationale upon which the Court based the results of its earlier decisions.” The exact rationale to which the majority refers, unfortunately, is not easy to discern. The Court’s opinion says, immediately after its discussion of?stare decisis, that “[f]or over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment.” This cannot be the “rationale,” though, because this Court has repeatedly acknowledged that the Eleventh Amendment standing alone cannot bar a federal question suit against a State brought by a state citizen. See Edelman v. Jordan,?415 U.S. 651 (1974) (acknowledging that “the Amendment by its terms does not bar suits against a State by its own citizens”). Indeed, as I have noted, Justice Bradley’s opinion in?Hans?conceded that Hans might successfully have pursued his claim “if there were no other reason or ground [other than the Amendment itself] for abating his suit.” The?Hans?Court, rather, held the suit barred by a nonconstitutional common-law immunity.The “rationale” which the majority seeks to invoke is, I think, more nearly stated in its quotation from?Principality of Monaco v. Mississippi,?292 U.S. 313 (1934). There, the Court said that “we cannot rest with a mere literal application of the words of §2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States.”?This statement certainly is true to?Hans,?which clearly recognized a pre-existing principle of sovereign immunity, broader than the Eleventh Amendment itself, that will ordinarily bar federal question suits against a nonconsenting State. That was the “rationale” which was sufficient to decide?Hans?and all of its progeny prior to?Union Gas.?But leaving aside the indefensibility of that rationale, which I will address further below, that was as far as it went.…Dellmuth v. Muth,?491 U.S. 223 (1989) (noting that “an unconsenting State is immune from liability for damages in a suit brought in federal court by one of its own citizens,” without suggesting that the immunity was unalterable by Congress)…This American reluctance to import English common law wholesale into the New World is traceable to the early colonial period. One scholar of that time has written that “[t]he process which we may call the reception of the English common law by the colonies was not so simple as the legal theory would lead us to assume. While their general legal conceptions were conditioned by, and their terminology derived from, the common law, the early colonists were far from applying it as a technical system, they often ignored it or denied its subsidiary force, and they consciously departed from many of its most essential principles.” P. Reinsch, English Common Law in the Early American Colonies 58 (1899). For a variety of reasons, including the absence of trained lawyers and judges, the dearth of law books, the religious and ideological commitments of the early settlers, and the novel conditions of the New World, the colonists turned to a variety of other sources in addition to principles of common law.It is true that, with the development of colonial society and the increasing sophistication of the colonial bar, English common law gained increasing acceptance in colonial practice. See Reinsch,?at 7-8; Hall, The Common Law: An Account of Its Reception in the United States, 4 Vand.L.Rev. 791 (1951). But even in the late colonial period, Americans insisted that:“The whole body of the common law...was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions. Much of the common law related to matters which were purely local, which existed under the English political organization, or was based upon the triple relation of king, lords and commons, or those peculiar social conditions, habits and customs which have no counterpart in the New World. Such portions of the common law, not being applicable to the new conditions of the colonists, were never recognised as part of their jurisprudence.” Dale, The Adoption of the Common Law by the American Colonies, 30 Am.L.Reg. 553 (1882).James Monroe went so far as to write in 1802 that “the application of the principles of the English common law to our constitution” should be considered “good cause for impeachment.” Letter from James Monroe to John Breckenridge (Jan. 15, 1802).See also Goebel, Oliver Wendell Holmes Devise History of the Supreme Court of the United States (discussing the lack of evidence to support the proposition that the Framers intended a general reception of the English common law through the Constitution); Jay II, at 1254 (arguing that “[i]t would have been untenable to maintain that the body of British common law had been adopted by the Constitution...”). Madison concluded that:“[I]t is...distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law - a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers.” Alien and Sedition Laws 382.…As Hamilton stated in Federalist 81:“It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent.?This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal.” The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961).The general statement on sovereign immunity emphasized by the majority then follows, along with a reference back to Federalist No. 32.?What Hamilton draws from that prior paper, however, is not a general conclusion about state sovereignty but a particular point about state contracts:“A recurrence to the principles there established will satisfy us, that there is no colour to pretend that the state governments, would by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will.” The Federalist No. 81.The first embarrassment Hamilton’s discussion creates for the majority turns on the fact that the power to regulate commerce with Indian Tribes has been interpreted as making “Indian relations...the exclusive province of federal law.”?County of Oneida v. Oneida Indian Nation of N.Y.,?470 U.S. 226 (1985). We have accordingly recognized that “[s]tate laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.”?McClanahan v. Arizona State Tax Comm’n,?411 U.S. 164(1973); see also?Rice v. Olson, 324 U.S. 786 (1945) (“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history”). We have specifically held, moreover, that the states have no power to regulate gambling on Indian lands.?California v. Cabazon Band of Mission Indians,?480 U.S. 202 (1987). In sum, since the States have no sovereignty in the regulation of commerce with the tribes, on Hamilton’s view there is no source of sovereign immunity to assert in a suit based on congressional regulation of that commerce. If Hamilton is good authority, the majority of the Court today is wrong.Quite apart, however, from its application to this particular act of Congress exercising the Indian Commerce power, Hamilton’s sovereignty discussion quoted above places the Court in an embarrassing dilemma. Hamilton posited four categories: (a) congressional legislation on subjects committed expressly and exclusively to Congress, (b) on subjects over which state authority is expressly negated, (c) on subjects over which concurrent authority would be impossible (as “contradictory and repugnant”), and (d) on subjects over which concurrent authority is not only possible, but its exercise by both is limited only by considerations of policy (as when one taxing authority is politically deterred from adding too much to the exaction the other authority is already making). But what of those situations involving concurrent powers, like the power over interstate commerce, see Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots,?12 How. 299, 13 L.Ed. 996 (1851) (recognizing power of states to engage in some regulation of interstate commerce), when a congressional statute not only binds the States but even creates an affirmative obligation on the State as such, as in this case? Hamilton’s discussion does not seem to cover this (quite possibly because, as a good political polemicist, he did not wish to raise it). If in fact it is fair to say that Hamilton does not cover this situation, then the Court cannot claim him as authority for the preservation of state sovereignty and consequent immunity. If, however, on what I think is an implausible reading, one were to try to shoehorn this situation into Hamilton’s category (c) (on the theory that concurrent authority is impossible after passage of the congressional legislation), then any claim of sovereignty and consequent immunity is gone entirely.Given this metamorphosis of the idea of sovereignty in the years leading up to 1789, the question whether the old immunity doctrine might have been received as something suitable for the new world of federal question jurisdiction is a crucial one. The answer is that sovereign immunity as it would have been known to the Framers before ratification thereafter became inapplicable as a matter of logic in a federal suit raising a federal question. The old doctrine, after all, barred the involuntary subjection of a sovereign to the system of justice and law of which it was itself the font, since to do otherwise would have struck the common-law mind from the Middle Ages onward as both impractical and absurd. See Kawananakoa v. Polyblank,?205 U.S. 349 (1907) (“A sovereign is exempt from suit...on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends”). But the ratification demonstrated that state governments were subject to a superior regime of law in a judicial system established, not by the State, but by the people through a specific delegation of their sovereign power to a National Government that was paramount within its delegated sphere. When individuals sued States to enforce federal rights, the Government that corresponded to the “sovereign” in the traditional common-law sense was not the State but the National Government, and any state immunity from the jurisdiction of the Nation’s courts would have required a grant from the true sovereign, the people, in their Constitution, or from the Congress that the Constitution had empowered. We made a similar point in Nevada v. Hall,?440 U.S., at 416, where we considered a suit against a State in another State’s courts:“This [traditional] explanation [of sovereign immunity] adequately supports the conclusion that no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign’s courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.”Cf.?United States v. Texas,?143 U.S. 621 (1892) (recognizing that a suit by the National Government against a State “does no violence to the inherent nature of sovereignty”). Subjecting States to federal jurisdiction in federal question cases brought by individuals thus reflected nothing more than Professor Amar’s apt summary that “[w]here governments are acting within the bounds of their delegated ‘sovereign’ power, they may partake of sovereign immunity; where not, not.” Amar, Of Sovereignty and Federalism, 96 Yale L.J., at 1490-1491 n. 261 (1987).Given the Framers’ general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the National Government powerless to render the States judicially accountable for violations of federal rights. And of course the Framers did not understand the scheme to leave the government powerless. In The Federalist No. 80, Hamilton observed that “[n]o man of sense will believe that such prohibitions [running against the states] would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them,” and that “an authority in the federal courts, to over-rule such as might be in manifest contravention of the articles of union” was the Convention’s preferred remedy. By speaking in the plural of an authority in the federal “courts,” Hamilton made it clear that he envisioned more than this Court’s exercise of appellate jurisdiction to review federal questions decided by state courts. Nor is it plausible that he was thinking merely of suits brought against States by the National Government itself, which The Federalist’s authors did not describe in the paternalistic terms that would pass without an eyebrow raised today. Hamilton’s power of the Government to restrain violations of citizens’ rights was a power to be exercised by the federal courts at the citizens’ behest. See also Marshall, 102 Harv.L.Rev., at 1367-1371 (discussing the Framers’ concern with preserving as much state accountability as possible even in the course of enacting the Eleventh Amendment).This sketch of the logic and objectives of the new federal order is confirmed by what we have previously seen of the preratification debate on state sovereign immunity, which in turn becomes entirely intelligible both in what it addressed and what it ignored. It is understandable that reasonable minds differed on the applicability of the immunity doctrine in suits that made it to federal court only under the original Diversity Clauses, for their features were not wholly novel. While they were, of course, in the courts of the new and, for some purposes, paramount National Government, the law that they implicated was largely the old common law (and in any case was not federal law). It was not foolish, therefore, to ask whether the old law brought the old defenses with it. But it is equally understandable that questions seem not to have been raised about state sovereign immunity in federal question cases. The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen. Cf.,?Jay II, at 1282-1284; Du Ponceau, A Dissertation on the Nature and Extent of Jurisdiction of Courts of the United States, at 6-7. The Framers’ principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.The considerations expressed so far, based on text,?Chisholm,?caution in common-law reception, and sovereignty theory, have pointed both to the mistakes inherent in?Hans?and, even more strongly, to the error of today’s holding. Although for reasons of?stare decisis?I would not today disturb the century-old precedent, I surely would not extend its error by placing the common-law immunity it mistakenly recognized beyond the power of Congress to abrogate. In doing just that, however, today’s decision declaring state sovereign immunity itself immune from abrogation in federal question cases is open to a further set of objections peculiar to itself. For today’s decision stands condemned alike by the Framers’ abhorrence of any notion that such common-law rules as might be received into the new legal systems would be beyond the legislative power to alter or repeal, and by its resonance with this Court’s previous essays in constitutionalizing common-law rules at the expense of legislative authority.I have already indicated that the Framers did not forget the state law examples. When Antifederalists objected that the 1787 draft failed to make an explicit adoption of certain common-law protections of the individual, part of the Federalists’ answer was that a general constitutional reception of the common law would bar congressional revision. Madison was particularly concerned with the necessity for legislative control, noting in a letter to George Washington that “every State has made great inroads & with great propriety on this monarchical?code.” Letter from James Madison to George Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A. Madison went on to insist that “[t]he Common law is nothing more than the unwritten law, and is left by all the Constitutions equally liable to legislative alterations.” Indeed, Madison anticipated, and rejected, the Court’s approach today when he wrote that if “the common law be admitted as...of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power...[which] would be permanent and irremediable by the Legislature.” Report on the Virginia Resolutions Concerning the Alien and Sedition Acts, in 6 Writings of James Madison 380. “A discretion of this sort,” he insisted, “has always been lamented as incongruous and dangerous....”History confirms the wisdom of Madison’s abhorrence of constitutionalizing common-law rules to place them beyond the reach of congressional amendment. The Framers feared judicial power over substantive policy and the ossification of law that would result from transforming common law into constitutional law, and their fears have been borne out every time the Court has ignored Madison’s counsel on subjects that we generally group under economic and social policy. It is, in fact, remarkable that as we near the end of this century the Court should choose to open a new constitutional chapter in confining legislative judgments on these matters by resort to textually unwarranted common-law rules, for it was just this practice in the century’s early decades that brought this Court to the nadir of competence that we identify with?Lochner v. New York,?198 U.S. 45 (1905).The Court’s holding that the States’?Hans?immunity may not be abrogated by Congress leads to the final question in this case, whether federal question jurisdiction exists to order prospective relief enforcing IGRA against a state officer, respondent Chiles, who is said to be authorized to take the action required by the federal law. Just as with the issue about authority to order the State as such, this question is entirely jurisdictional, and we need not consider here whether petitioner Seminole Tribe would have a meritorious argument for relief, or how much practical relief the requested order (to bargain in good faith) would actually provide to the Tribe. Nor, of course, does the issue turn in any way on one’s views about the scope of the Eleventh Amendment or?Hans?and its doctrine, for we ask whether the state officer is subject to jurisdiction only on the assumption that action directly against the State is barred. The answer to this question is an easy yes, the officer is subject to suit under the rule in?Ex parte Young,?209 U.S. 123 (1908), and the case could, and should, readily be decided on this point alone.In?Ex parte Young,?this Court held that a federal court has jurisdiction in a suit against a state officer to enjoin official actions violating federal law, even though the State itself may be immune. Under?Young,?“a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law.”?Quern v. Jordan,?440 U.S. 332 (1979); see also?Milliken v. Bradley,?433 U.S. 267 (1977).The fact, without more, that such suits may have a significant impact on state governments does not count under?Young. Milliken,?for example, was a suit, under the authority of?Young, brought against Michigan’s Governor, Attorney General, Board of Education, Superintendent of Public Instruction, and Treasurer, which resulted in an order obligating the State of Michigan to pay money from its treasury to fund an education plan. The relief requested (and obtained) by the plaintiffs effectively ran against the State: state moneys were to be removed from the state treasury, and they were to be spent to fund a remedial education program that it would be the State’s obligation to implement. To take another example,?Quern v. Jordan involved a court order requiring state officials to notify welfare beneficiaries of the availability of past benefits. Once again, the defendants were state officials, but it was the obligation of the State that was really at issue: the notices would be sent from the state welfare agency, to be returned to the state agency, and the state agency would pay for the notices and any ensuing awards of benefits. Indeed, in the years since?Young?was decided, the Court has recognized only one limitation on the scope of its doctrine: under?Edelman v. Jordan,?415 U.S. 651 (1974),?Young?permits prospective relief only and may not be applied to authorize suits for retrospective monetary relief.This history teaches that it was only a matter of course that once the National Constitution had provided the opportunity for some recognition of state sovereign immunity, the necessity revealed through six centuries or more of history would show up in suits against state officers, just as?Hans?would later open the door to?Ex parte Young?itself. Once, then, the Eleventh Amendment was understood to forbid suit against a State?eo nomine,?the question arose “which suits against officers will be allowed and which will not be.” Jaffe, 77 Harv.L.Rev., at 20.“It early became clear that a suit against an officer was not forbidden simply because it raised a question as to the legality of his action as an agent of the government or because it required him, as in mandamus, to perform an official duty. These as we know had been well established before the Eleventh Amendment as not necessarily requiring consent. To be sure the renewed emphasis on immunity given by the Eleventh Amendment might conceivably have been taken so to extend the doctrine as to exclude suits against state officers even in cases where the English tradition would have allowed them. There was a running battle as to where the line would be drawn. The amendment was appealed to as an argument for generous immunity. But there was the vastly powerful counterpressure for the enforcement of constitutional limits on the states. The upshot...was to confine the amendment’s prohibition more or less to the occasion which gave it birth, to wit, the enforcement of contracts and to most (though not all) suits involving the title and disposition of a state’s real and personal property.”Ex parte Young?restored the old simplicity by complementing?In re Ayers?with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor?Hans’s immunity. The officer’s action “is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional.... The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”The decision in?Ex parte Young,?and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a “fiction,” the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. “Young was really and truly about to damage the interest of plaintiffs. Whether what he was about to do amounted to a legal injury depended on the authority of his employer, the state. If the state could constitutionally authorize the act then the loss suffered by plaintiffs was not a wrong for which the law provided a remedy.... If the state could not constitutionally authorize the act then Young was not acting by its authority.” Orth, Judicial Power of the United States, at 133. The doctrine we call?Ex parte Young?is nothing short of “indispensable to the establishment of constitutional government and the rule of law.” C. Wright, Law of Federal Courts 292 (4th ed. 1983). See also E. Chemerinsky, Federal Jurisdiction 393 (2d ed. 1994).A rule of such lineage, engendered by such necessity, should not be easily displaced, if indeed it is displaceable at all, for it marks the frontier of the enforceability of federal law against sometimes competing state policies. We have in fact never before inferred a congressional intent to eliminate this time-honored practice of enforcing federal law. That of course does not mean that the intent may never be inferred, and where, as here, the underlying right is one of statutory rather than constitutional dimension, I do not in theory reject the Court’s assumption that Congress may bar enforcement by suit even against a state official. But because in practice, in the real world of congressional legislation, such an intent would be exceedingly odd, it would be equally odd for this Court to recognize an intent to block the customary application of?Ex parte Young?without applying the rule recognized in our previous cases, which have insisted on a clear statement before assuming a congressional purpose to “affec[t] the federal balance,”?United States v. Bass,?404 U.S. 336 (1971). See also?Will v. Michigan Dept. of State Police,?491 U.S. 58 (1989) (“[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute’”) (quoting?Atascadero State Hospital v. Scanlon,?473 U.S., at 242); Gregory v. Ashcroft,?501 U.S. 452 (1991). Our habitual caution makes sense for just the reason we mentioned in?Dellmuth v. Muth,?491 U.S. 223 (1989): it is “difficult to believe that...Congress, taking careful stock of the state of Eleventh Amendment law, decided it would drop coy hints but stop short of making its intention manifest.”There is no question that by its own terms?Young’s indispensable rule authorizes the exercise of federal jurisdiction over respondent Chiles. Since this case does not, of course, involve retrospective relief,?Edelman’s limit is irrelevant, and there is no other jurisdictional limitation. Obviously, for jurisdictional purposes it makes no difference in principle whether the injunction orders an official not to act, as in?Young,?or requires the official to take some positive step, as in?Milliken?or?Quern.?Nothing, then, in this case renders?Young?unsuitable as a jurisdictional basis for determining on the merits whether the petitioners are entitled to an order against a state official under general equitable doctrine. The Court does not say otherwise, and yet it refuses to apply?Young.?There is no adequate reason for its refusal.No clear statement of intent to displace the doctrine of?Ex parte Young?occurs in IGRA, and the Court is instead constrained to rest its effort to skirt?Young?on a series of suggestions thought to be apparent in Congress’s provision of “intricate procedures” for enforcing a State’s obligation under the Act. The procedures are said to implicate a rule against judicial creativity in devising supplementary procedures; it is said that applying?Young?would nullify the statutory procedures; and finally the statutory provisions are said simply to reveal a congressional intent to preclude the application of?Young.The Court cites?Schweiker v. Chilicky,?487 U.S. 412 (1988), in support of refraining from what it seems to think would be judicial creativity in recognizing the applicability of?Young.?The Court quotes from?Chilicky?for the general proposition that when Congress has provided what it considers adequate remedial mechanisms for violations of federal law, this Court should not “creat[e]” additional remedies. The Court reasons that Congress’s provision in IGRA of “intricate procedures” shows that it considers its remedial provisions to be adequate, with the implication that courts as a matter of prudence should provide no “additional” remedy under?Ex parte Young.Chilicky’s remoteness from the point of this case is, however, apparent from its facts. In Chilicky,?Congress had addressed the problem of erroneous denials of certain government benefits by creating a scheme of appeals and awards that would make a successful claimant whole for all benefits wrongly denied. The question was whether this Court should create a further remedy on the model of?Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388 (1971), for such harms as emotional distress, when the erroneous denial of benefits had involved a violation of procedural due process. The issue, then, was whether to create a supplemental remedy, backward-looking on the?Bivens?model, running against a federal official in his personal capacity, and requiring an affirmative justification (as?Bivens?does). See?Bivens; FDIC v. Meyer,?510 U.S. 471 (1994).The?Bivens?issue in?Chilicky?(and in?Meyer) is different from the?Young?issue here in every significant respect.?Young?is not an example of a novel rule that a proponent has a burden to justify affirmatively on policy grounds in every context in which it might arguably be recognized; it is a general principle of federal equity jurisdiction that has been recognized throughout our history and for centuries before our own history began.?Young?does not provide retrospective monetary relief but allows prospective enforcement of federal law that is entitled to prevail under the Supremacy Clause. It requires, not money payments from a government employee’s personal pocket, but lawful conduct by a public employee acting in his official capacity.?Young?would not function here to provide a merely supplementary regime of compensation to deter illegal action, but the sole jurisdictional basis for an Article III court’s enforcement of a clear federal statutory obligation, without which a congressional act would be rendered a nullity in a federal court. One cannot intelligibly generalize from?Chilicky’s standards for imposing the burden to justify a supplementary scheme of tort law, to the displacement of?Young’s traditional and indispensable jurisdictional basis for ensuring official compliance with federal law when a State itself is immune from suit.Next, the Court suggests that it may be justified in displacing?Young?because?Young?would allow litigants to ignore the “intricate procedures” of IGRA in favor of a menu of streamlined equity rules from which any litigant could order as he saw fit. But there is no basis in law for this suggestion, and the strongest authority to reject it.?Young?did not establish a new cause of action and it does not impose any particular procedural regime in the suits it permits. It stands, instead, for a jurisdictional rule by which paramount federal law may be enforced in a federal court by substituting a nonimmune party (the state officer) for an immune one (the State itself).?Young?does no more and furnishes no authority for the Court’s assumption that it somehow pre-empts procedural rules devised by Congress for particular kinds of cases that may depend on?Young?for federal jurisdiction.If, indeed, the Court were correct in assuming that Congress may not regulate the procedure of a suit jurisdictionally dependent on?Young,?the consequences would be revolutionary, for example, in habeas law. It is well established that when a habeas corpus petitioner sues a state official alleging detention in violation of federal law and seeking the prospective remedy of release from custody, it is the doctrine identified in?Ex parte Young?that allows the petitioner to evade the jurisdictional bar of the Eleventh Amendment (or, more properly, the Hans?doctrine). See?Young,?209 U.S., at 167;?Larson v. Domestic and Foreign Commerce Corp.,?337 U.S. 682 (1949). And yet Congress has imposed a number of restrictions upon the habeas remedy, see?28 U.S.C. §2254(b) (requiring exhaustion of state remedies prior to bringing a federal habeas petition), and this Court has articulated several more, see McCleskey v. Zant,?499 U.S. 467 (1991) (abuse of the writ);?Teague v. Lane,?489 U.S. 288 (1989) (limiting applicability of “new rules” on habeas);?Brecht v. Abrahamson,?507 U.S. 619 (1993) (applying a more deferential harmless error standard on habeas review). By suggesting that?Ex parte Young?provides a free-standing remedy not subject to the restrictions otherwise imposed on federal remedial schemes (such as habeas corpus), the Court suggests that a state prisoner may circumvent these restrictions by ostensibly bringing his suit under?Young rather than 28 U.S.C. §2254. The Court’s view implies similar consequences under any number of similarly structured federal statutory schemes.This, of course, cannot be the law, and the plausible rationale for rejecting the Court’s contrary assumption is that Congress has just as much authority to regulate suits when jurisdiction depends on?Young?as it has to regulate when?Young?is out of the jurisdictional picture. If?Young?does not preclude Congress from requiring state exhaustion in habeas cases (and it clearly does not), then?Young?does not bar the application of IGRA’s procedures when effective relief is sought by suing a state officer.But even if the jurisdictional provision had spoken narrowly of an action against the State itself (as it subsequently speaks in terms of the State’s obligation), that would be no indication that Congress had rejected the application of?Young.?An order requiring a “State” to comply with federal law can, of course, take the form of an order directed to the State in its sovereign capacity. But as?Ex parte Young?and innumerable other cases show, there is nothing incongruous about a duty imposed on a “State” that Congress intended to be effectuated by an order directed to an appropriate state official. The habeas corpus statute, again, comes to mind. It has long required “the State,” by “order directed to an appropriate State official,” to produce the state court record where an indigent habeas petitioner argues that a state court’s factual findings are not fairly supported in the record. See 28 U.S.C. §2254(e) (“the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official”). If, then, IGRA’s references to “a State’s” duty were not enforceable by order to a state official, it would have to be for some other reason than the placement of the statutory duty on “the State.”In being ready to hold that the relationship may still be altered, not by the Court but by Congress, I would tread the course laid out elsewhere in our cases. The Court has repeatedly stated its assumption that insofar as the relative positions of States and Nation may be affected consistently with the Tenth Amendment, they would not be modified without deliberately expressed intent. See?Gregory v. Ashcroft,?501 U.S., at 460. The plain statement rule, which “assures that the Legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision,”?United States v. Bass,?404 U.S., at 349, is particularly appropriate in light of our primary reliance on “[t]he effectiveness of the federal political process in preserving the States’ interests.”?Garcia v. San Antonio Metropolitan Transit Authority,?469 U.S. 528 (1985). Hence, we have required such a plain statement when Congress pre-empts the historic powers of the States,?Rice v. Santa Fe Elevator Corp.,?331 U.S. 218 (1947), imposes a condition on the grant of federal moneys,?South Dakota v. Dole,?483 U.S. 203 (1987), or seeks to regulate a State’s ability to determine the qualifications of its own officials.Because neither text, precedent, nor history supports the majority’s abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III, I would reverse the judgment of the Court of Appeals.Footnotes:14. This argument wholly disregards other methods of ensuring the States’ compliance with federal law: the Federal Government can bring suit in federal court against a State, see United States v. Texas,?143 U.S. 621 (1892) (finding such power necessary to the “permanence of the Union”); an individual can bring suit against a state officer in order to ensure that the officer’s conduct is in compliance with federal law, see Ex parte Young,?209 U.S. 123 (1908); and this Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit, see Cohens v. Virginia,?6 Wheat. 264, 5 L.Ed. 257 (1821).15. Justice STEVENS, in his dissenting opinion, makes two points that merit separate response. First, he contends that no distinction may be drawn between state sovereign immunity and the immunity enjoyed by state and federal officials. But even assuming that the latter has no constitutional foundation, the distinction is clear: the Constitution specifically recognizes the States as sovereign entities, while government officials enjoy no such constitutional recognition. Second, Justice STEVENS’ criticizes our prior decisions applying the “clear statement rule,” suggesting that they were based upon an understanding that Article I allowed Congress to abrogate state sovereign immunity. His criticism, however, ignores the fact that many of those cases arose in the context of a statute passed under the Fourteenth Amendment, where Congress’ authority to abrogate is undisputed. See Quern v. Jordan,?440 U.S. 332 (1979). And a more fundamental flaw of the criticism is its failure to recognize that both the doctrine requiring avoidance of constitutional questions, and principles of federalism, require us always to apply the clear statement rule before we consider the constitutional question whether Congress has the power to abrogate.17. Contrary to the claims of the dissent, we do not hold that Congress?cannot?authorize federal jurisdiction under?Ex parte Young?over a cause of action with a limited remedial scheme. We find only that Congress did not intend that result in the Indian Gaming Regulatory Act. Although one might argue that the text of §2710(d)(7)(A)(i), taken alone, is broad enough to encompass both a suit against a State (under an abrogation theory) and a suit against a state official (under an?Ex parte Young?theory), subsection (A)(i) of §2710(d)(7) cannot be read in isolation from sub sections (B)(ii)-(vii), which repeatedly refers exclusively to “the State.” In this regard, §2710(d)(7) stands in contrast to the statutes cited by the dissent as examples where lower courts have found that Congress implicitly authorized suit under?Ex parte Young.?Compare 28 U.S.C. §2254(e) (Federal court authorized to issue an “order directed to an appropriate State official”); 42 U.S.C. §11001 (1988 ed.) (Requiring “the Governor” of a State to perform certain actions and holding “the Governor” responsible for nonperformance); 33 U.S.C. §1365(a) (authorizing a suit against “any person” who is alleged to be in violation of relevant water pollution laws). Similarly the duty imposed by the Act - to “negotiate...in good faith to enter into” a compact with another sovereign - stands distinct in that it is not of the sort likely to be performed by an individual state executive officer or even a group of officers. Cf.?State ex rel. Stephan v. Finney,?836 P.2d 1169, 251 Kan. 559 (1992) (Governor of Kansas may negotiate but may not enter into compact without grant of power from Legislature).17. Interestingly, this passage demonstrates that the Court’s application of a common law sovereign immunity defense in?Principality of Monaco?v. Mississippi,?292 U.S. 313 (1934), was quite probably justified. There a foreign State sued a State as a substantial creditor, and thus implicated the very purpose of the Eleventh Amendment.18. Because?Hans v. Louisiana,?134 U.S. 1 (1890), was the first case in which the Court held that a State could not be sued in federal court by one of its citizens, this comment is of interest:“It is not necessary that we should enter upon an examination of the reason or the expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence.”So it is today.2. The first of these notions rests on the ancient maxim that “the King can do no wrong.” See 1 W. Blackstone, Commentaries 244. Professor Jaffe has argued this expression “originally meant precisely the contrary to what it later came to mean,” that is, “‘it meant that the king must not, was not allowed, not entitled, to do wrong.’” Jaffe, 77 Harv.L.Rev., at 4 (quoting Ehrlich, Proceedings Against the Crown (1216-1377) p. 42, in 6 Oxford Studies in Social and Legal History (P. Vinogradoff ed. 1921), at 42); see also 1 Blackstone,?at 246 (interpreting the maxim to mean that “the prerogative of the crown extends not to do any injury”). In any event, it is clear that the idea of the sovereign, or any part of it, being above the law in this sense has not survived in American law. See Langford v. United States,?101 U.S. 341 (1880); Nevada v. Hall,?440 U.S. 410 (1979).5. This lengthy discussion of the history of the Constitution’s ratification, the Court’s opinion in Chisholm v. Georgia,?2 Dall. 419, 1 L.Ed. 440 (1793) and the adoption of the Eleventh Amendment is necessary to explain why, in my view, the contentions in some of our earlier opinions that Chisholm?created a great “shock of surprise” misread the history. See?Principality of Monaco v. Mississippi,?292 U.S. 313 (1934). The Court’s response to this historical analysis is simply to recite yet again?Monaco’s erroneous assertion that?Chisholm created “such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.” This response is, with respect, no response at all.Monaco’s?ipse dixit?that?Chisholm?created a “shock of surprise” does not make it so. This Court’s opinions frequently make assertions of historical fact, but those assertions are not authoritative as to history in the same way that our interpretations of laws are authoritative as to them. In?Tucker v. Alexandroff,?183 U.S. 424 (1902), which was, like Monaco,?decided a century after the event it purported to recount, the Court baldly stated that “in September 1790, General Washington, on the advice of Mr. Adams, did refuse to permit British troops to march through the territory of the United States from Detroit to the Mississippi, apparently for the reason that the object of such movement was an attack on New Orleans and the Spanish possessions on the Mississippi.” Modern historians agree, however, that there was no such request, see J. Daly, The Use of History in the Decisions of the Supreme Court: 1900-1930, 65-66 (1954); W. Manning, The Nootka Sound Controversy, in Annual Report of the American Historical Association, H.R. Doc. 429 (1905), at 415-423, and it would of course be absurd for this Court to treat the fact that?Tucker?asserted the existence of the request as proof that it actually occurred. Cf.?Erie R. Co. v. Tompkins,?304 U.S. 64 (1938) (“But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to [the Judiciary Act of 1789] by the Court was erroneous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written”).Moreover, in this case, there is ample evidence contradicting the “shock of surprise” thesis. Contrary to?Monaco’s suggestion, the Eleventh Amendment was not “at once proposed and adopted.” Congress was in session when?Chisholm?was decided, and a constitutional amendment in response was proposed two days later, but Congress never acted on it, and in fact it was not until two years after?Chisholm?was handed down that an amendment was ratified. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889 (1983).13. The majority chides me that the “lengthy analysis of the text of the Eleventh Amendment is directed at a straw man.” But plain text is the Man of Steel in a confrontation with “background principle[s]” and “‘postulates which limit and control.’” An argument rooted in the text of a constitutional provision may not be guaranteed of carrying the day, but insubstantiality is not its failing. See?Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981) (“For the purposes of?legal?reasoning, the binding quality of the constitutional text is itself incapable of and not in need of further demonstration”);?Bourjaily v. United States, 483 U.S. 171 (1987) (“It would be extraordinary to require legislative history to?confirm?the plain meaning of [Fed.R.Evid.] 104”); Garcia v. United States,?469 U.S. 70 (1984) (“[O]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language”). This is particularly true in construing the jurisdictional provisions of Art. III, which speak with a clarity not to be found in some of the more open-textured provisions of the Constitution. See?National Mutual Ins. Co. v. Tidewater Transfer Co.,?337 U.S. 582 (1949); Schauer, Easy Cases, 58 S.Cal.L.Rev. 399 (1985) (noting the “seemingly plain linguistic mandate” of the Eleventh Amendment). That the Court thinks otherwise is an indication of just how far it has strayed beyond the boundaries of traditional constitutional analysis.26. The Court seeks to disparage the common law roots of the doctrine, and the consequences of those roots which I outline…, by asserting that?Hans?”found its roots not solely in the common law of England, but in the much more fundamental ‘“jurisprudence in all civilized nations.”‘” (Quoting?Hans,?134 U.S., at 17). The?Hans Court, however, relied explicitly on the ground that a suit against the State by its own citizen was “not known...at the common law” and was not among the departures from the common law recognized by the Constitution. Moreover,?Hans?explicitly adopted the reasoning of Justice Iredell’s dissent in?Chisholm, and that opinion could hardly have been clearer in relying exclusively on the common law.“The only principles of law...which can affect this case,” Justice Iredell wrote, “[are] those that are derived from what is properly termed ‘the common law,’ a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controuls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country.” 2 Dall., at 435. See also?Employees of Dept. of Public Health and Welfare of Missouri v. Department of Public Health and Welfare of Missouri, 411 U.S. 279 (1973) (“Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence”); R. Watkins, The State as a Party Litigant 51-52 (1927) (“It thus seems probable that the doctrine of state immunity was accepted rather as an existing fact by the people of the states, than adopted as a theory. It was a matter of universal practice, and was accepted from the mother country along with the rest of the common law of England applicable to our changed state and condition”).32. American hostility to things English was so pronounced for a time that Pennsylvania, New Jersey, and Kentucky proscribed by statute the citation of English decisions in their courts, and the New Hampshire courts promulgated a rule of court to the same effect. See Hall, 4 Vand.L.Rev., at 806; Warren,?at 227. This hostility may appear somewhat paradoxical in view of the colonists’ frequent insistence during the revolutionary crisis that they were entitled to common-law rights. See?First Continental Congress Declaration and Resolves (1774), in Documents Illustrative of the Formation of the Union of the American States, H.R. Doc. No. 398, 69th Cong., 1st Sess., 1, 3 (C. Tansill, ed. 1927) (“That the respective colonies are entitled to the common law of England”). In this context, however, the colonists were referring “not to the corpus of English case-law doctrine but to such profoundly valued common law procedures as trial by jury and the subjection of governmental power to what John Locke had called the ‘standing laws,’” such as Magna Carta, the Petition of Right, the Bill of Rights of 1689, and the Act of Settlement of 1701. Jones 110; see also Jay, Origins of Federal Common Law: Part Two, 133 U.Pa.L.Rev. 1231 (1985) (Jay II) (noting that “Antifederalists used the term common law to mean the great rights associated with due process”). The cardinal principles of this common-law vision were parliamentary supremacy and the rule of law, conceived as the axiom that “all members of society, government officials as well as private persons, are equally responsible to the law and...’equally amenable to the jurisdiction of ordinary tribunals.’” Jones 128-129 (quoting A. Dicey, Introduction to Study of the Law of Constitution 192 (9th ed. 1939)). It is hard to imagine that the doctrine of sovereign immunity, so profoundly at odds with both these cardinal principles, could have been imported to America as part of this more generalized common-law vision.33. See Conner v. Shepherd,?15 Mass. 164 (1818) (rejecting English common-law rule regarding assignment of dower rights as inapplicable to the state and condition of land in Massachusetts);Parker & Edgarton v. Foote,?19 Wend. 309, 318 (N.Y. 1838) (rejecting English rule entitling a landowner to damages for the stopping of his lights; the court noted that “[i]t cannot be necessary to cite cases to prove that those portions of the common law of England which are hostile to the spirit of our institutions, or which are not adapted to the existing state of things in this country, form no part of our law”);?Fitch v. Brainerd,?2 Conn. 163, 189 (1805) (accepting English common-law rule barring married woman from disposing of her real estate by will, and observing that “it long since became necessary...to make [the English common law] our own, by practical?adoption - with such exceptions as a diversity of circumstances, and the incipient customs of our own country, required”)?Martin v. Bigelow,?2 Aiken 184 (Vt. 1827) (declaring English common law as to stream rights inappropriate for conditions of Vermont waterways);?Hall v. Smith,?1 Bay 330, 331 (S.C.Sup.Ct. 1793) (refusing to apply strict English rules regarding promissory notes as unsuited to the “local situation of?Carolina?”). See also Hall,?at 805 (“[A] review of the cases shows that no matter what the wording of the reception statute or constitutional provision of the particular state, the rule developed, which was sooner or later to be repeated in practically every American jurisdiction, that only those principles of the common law were received which were applicable to the local situation”).34. See also Jones 123-124 (noting that the common-law institutions of habeas corpus and jury trial were “not merely received as ordinary law,” but rather “received by [specific textual provisions] of the Constitution itself, as part of the supreme law of the land”). Sovereign immunity, of course, was not elevated to constitutional status in this way; such immunity thus stands on the same footing as any other common-law principle which the Framers refused to place beyond the reach of legislative change. That such principles were and are subject to legislative alteration is confirmed by our treatment of other forms of common-law immunities, such as the immunity enjoyed under certain circumstances by public officials.?Butz v. Economou,?438 U.S. 478 (1978) (officer immunity is derived from the common law); Imbler v. Pachtman,?424 U.S. 409 (1976). In this context, “our immunity decisions have been informed by the common law” only “in the absence of explicit...congressional guidance.”?Nixon v. Fitzgerald,?457 U.S. 731 (1982); Jackson,?at 75-104. Surely no one would deny Congress the power to abrogate those immunities if it should so choose.38. See 3 Elliot’s Debates 573 (the Constitution would “render valid and effective existing claims” against the States). James Wilson, in the Pennsylvania ratification debate: “When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing.” Wilson, as I noted above, took a similar position in addressing the federal question, or arising under, clause, remarking that the effect of the clause would be to require States to honor pre-Revolutionary debt owed to English merchants, as had been promised in the Treaty of 1783.39. The Court accuses me of quoting this statement out of context, but the additional material included by the Court makes no difference. I am conceding that Madison, Hamilton, and Marshall all agreed that Article III did not of its own force abrogate the states’ pre-existing common-law immunity, at least with respect to diversity suits. None of the statements offered by the Court, however, purports to deal with federal question jurisdiction or with the question whether Congress, acting pursuant to its Article I powers, could create a cause of action against a State. As I explain further below, the views of Madison and his allies on this more difficult question can be divined, if at all, only by reference to the more extended discussions by Hamilton in Federalist No. 32, and by Iredell in his?Chisholm?dissent. Both those discussions, I submit, tend to support a congressional power of abrogation.40. See also?Worcester v. Georgia,?6 Pet. 515, 8 L.Ed. 483 (1832) (“The Cherokee nation...is a distinct community...in which the laws of Georgia can have no force.... The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States”). This Court has repeatedly rejected state attempts to assert sovereignty over Indian lands. See The New York Indians,?5 Wall. 761, 18 L.Ed. 708 (1867) (rejecting state attempt to tax reservation lands);?Worcester,?at 561-563 (nullifying an attempted prosecution by the state of Georgia of a person who resided on Indian lands in violation of state law).41. Although we have rejected a?per se?bar to state jurisdiction, it is clear that such jurisdiction remains the exception and not the rule. See?New Mexico v. Mescalero Apache Tribe,?462 U.S. 324 (1983) (“[U]nder certain circumstances a State may validly assert authority over the activities of nonmembers on a reservation, and...in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members”).45. See Wood 530 (noting that James Wilson “[m]ore boldly and fully than anyone else...developed the argument that would eventually become the basis of all Federalist thinking” about sovereignty); see also The Federalist No. 22, at 146 (A. Hamilton) (acknowledging the People as “that pure original fountain of all legitimate authority”);?The Federalist?No. 49, at 339 (J. Madison) (“the people are the only legitimate fountain of power”).46. See also?U.S. Term Limits, Inc. v. Thornton,?514 U.S. 779 (1995) (the Constitution “created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it”).49. See also Hobbes,?at 130 (“The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws.... For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound.”); Bodin,?at 28-29 (“One may be subject to laws made by another, but it is impossible to bind oneself in any matter which is the subject of one’s own free exercise of will.... It follows of necessity that the king cannot be subject to his own laws”).50. See also Wood 466 (“[O]nce men grasped, as they increasingly did in the middle [1780’s], that reform of the national government was the best means of remedying the evils caused by the state governments, then the revision of the Articles of Confederation assumed an impetus and an importance that it had not had a few years earlier”).52. See Prout v. Starr,?188 U.S. 537 (1903) (acknowledging the immunity recognized in?Hans?and other cases, but observing that “[i]t would, indeed, be most unfortunate if the immunity of the individual States from suits by citizens of other States, provided for in the 11th Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress...all of which provisions existed before the adoption of the Eleventh Amendment, which still exist, and which would be nullified and made of no effect, if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations...”). The majority contends that state compliance with federal law may be enforced by other means, but its suggestions are all pretty cold comfort: the enforcement resources of the Federal Government itself are limited; appellate review of state court decisions is contingent upon state consent to suit in state court, and is also called into question by the majority’s rationale; and the Court’s decision today illustrates the uncertainty that the Court will always permit enforcement of federal law by suits for prospective relief against state officers. Moreover, the majority’s position ignores the importance of citizen-suits to enforcement of federal law. See Alyeska Pipeline Co. v. Wilderness Society,?421 U.S. 240 (1975) (acknowledging that, in many instances, “Congress has opted to rely heavily on private enforcement to implement public policy”); see also S.Rep. No. 94-1011, p. 2 U.S. Code Cong. & Admin.News 1976, pp. 5908, 5909 (Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988) (recognizing that “[a]ll of these civil rights laws depend heavily upon private enforcement”); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,?483 U.S. 711 (1987) (noting importance of citizens’ suits under federal environmental laws).57. See also 3 Elliot’s Debates 469-470 (Edmund Randolph, Virginia Convention) (arguing that constitutional incorporation of the common law would be “destructive to republican principles”). Indeed, one reason for Madison’s suspicion of the common law was that it included “a thousand heterogeneous & antirepublican doctrines.” Letter from Madison to Washington (Oct. 18, 1787), reprinted in 3 Farrand 130, App. A. “[I]t will merit the most profound consideration.” Madison was later to warn in his Report on the Virginia Resolutions Concerning the Alien and Sedition Laws, “how far an indefinite admission of the common law...might draw after it the various prerogatives making part of the unwritten law of England.” Alien and Sedition Laws 380. Such an admission, Madison feared, would mean that “the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good people of the United States.”?See also Amar, 96 Yale L.J. 1490 (“[The] sole basis [of absolute government immunity from all suits] is the British idea that the sovereign government, as the source of all law, cannot itself be bound by any law absent its consent.... [L]iterally every article of the Federalist Constitution and every amendment in the Bill of Rights rests on the repudiation of the British view”).58. See Wood 304, n. 75 (“To Jefferson in 1785 judicial discretion in the administration of justice was still the great evil and codification the great remedy”); G. White, The Marshall Court and Cultural Change, 1815-1835, p. 130 (1991) (“[A]n assumption of the constitutional design was that if Congress exercised [its enumerated] powers through legislation, its laws would supersede any competing ones”).59. The Court attempts to sidestep this history by distinguishing sovereign immunity as somehow different from other common law principles. But see?Chisholm v. Georgia,?2 Dall., at 435 (arguing that the common law of England should control the case “so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controls it”). The Court cannot find solace in any distinction between “substantive rules of law” and “jurisdiction,” However, it is abundantly clear that we have drawn both sorts of principles from the common law.?See Burnham v. Superior Court of Cal., County of Marin,?495 U.S. 604 (1990) (noting that American notion of personal jurisdiction is a “common-law principle” that predates the Fourteenth Amendment). Nothing in the history, moreover, suggests that common law rules were more immutable when they were jurisdictional rather than substantive in nature. Nor is it true that “the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.” The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial. Indeed, that amendment vividly illustrates the distinction between provisions intended to adopt the common law (the amendment specifically mentions the “common law” and states that the common law right “shall be preserved”) and those provisions, like the Eleventh Amendment, that may have been inspired by a common law right but include no language of adoption or specific reference. Finally, the Court’s recourse to a vague “jurisprudence in all civilized nations,” rather than the common law of England is unavailing. When the Constitution has received such general principles into our law, for example, in the Admiralty Clause’s adoption of the general “law of nations” or “law of the sea,” those principles have always been subject to change by congressional enactment.?See Panama R. Co. v. Johnson,?264 U.S. 375 (1924) (noting that although “the principles of the general maritime law, sometimes called the law of the sea” were “embodied” in Art. III, §2 of the Constitution, they remained “subject to power in Congress to alter, qualify or supplement”);?The Nereide,?9 Cranch 388, 3 L.Ed. 769 (1815) (stating that the Court would be “bound by the law of nations” until Congress passed a contrary enactment).61. The Court accuses me of misrepresenting its argument. The Court’s claim, as I read it, is not that Congress cannot authorize federal jurisdiction under?Ex parte Young?over a cause of action with a limited remedial scheme, but rather that remedial limitations on the underlying cause of action do not apply to a claim based on?Ex parte Young.?Otherwise, the existence of those remedial limitations would provide no reason for the Court to assume that Congress did not intend to permit an action under?Young;?rather, the limitations would apply regardless of whether the suit was brought against the State or a state officer.62. See also?Brennan v. Stewart,?834 F.2d 1248 (C.A.5 1988) (“[A]lthough not usually conceptualized as?Ex parte Young?cases, most of the huge number of habeas claims in the federal courts under 28 U.S.C. §2254 are effectively suits against the states. These suits pass muster under the Eleventh Amendment because the habeas theory of a civil suit against the bad jailer fits perfectly with the?Ex parte Young?fiction”);?United States ex rel. Elliott v. Hendricks,?213 F.2d 922 (C.A.3 1954) (exercising jurisdiction over a habeas suit despite an Eleventh Amendment challenge on the theory that the suit was against a state officer), cert. denied, 348 U.S. 851 (1954).63. Many other federal statutes impose obligations on state officials, the enforcement of which is subject to “intricate provisions” also statutorily provided. See?Federal Water Pollution Control Act, 33 U.S.C. §1365(a) (citizen suit provision to enforce states’ obligations under federal environmental law); Emergency Planning and Community Right-to-Know Act, 42 U.S.C. §11001 (privately enforceable requirement that states form commissions, appointed by the Governor, to generate plans for addressing hazardous material emergencies).CURTIS v. BEMBENEK, 48 F.3d 281 (1995)In reviewing dismissal of plaintiff’s complaint, Court of Appeals would accept all well-pleaded facts as true, draw all inferences in favor of plaintiff; and resolve all ambiguities in favor of plaintiff.In reviewing pro se complaint, Court of Appeals must employ standards less stringent than if complaint was drafted by counsel.Police officer’s absolute immunity from §1983 liability for testimony given at trial extended to liability for allegedly perjured testimony given during preliminary hearing to determine whether probable cause existed to support warrantless arrest, and during hearing on motion to quash arrest and suppress evidence; policy consideration that witness might shade testimony in order to avoid liability applied with equal force to witness testimony in trial and adversarial pretrial settings, and plaintiff’s argument that officer was akin to complaining witness and thus was not immune was inapplicable where plaintiff failed to state claim for malicious prosecution. 42 U.S.C.A. §1983.Because of tendencies to shade testimony so as to limit potential liability, witness immunity is accorded to encourage full disclosure as means to ascertaining truth.In malicious prosecution action, plaintiff must allege and prove defendant’s role in instituting criminal proceedings against plaintiff, malice, absence of probable cause for proceeding, and termination of proceeding in favor of plaintiff.The question presented is whether a complaint filed in forma pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is automatically frivolous within the meaning of 28 U.S.C. §1915(d). The answer, we hold, is no.Accordingly, we conclude that Bembenek is entitled to absolute immunity under Briscoe and its progeny for his testimony at both the preliminary hearing and the hearing on Curtis’ motion to quash arrest and suppress evidence.In Malley, the Supreme Court denied absolute immunity to a police officer for statements made in an affidavit submitted to a magistrate for the purpose of obtaining an arrest warrant. The Court noted that, at common law, a “complaining witness” who procured the issuance of an arrest warrant by submitting a complaint could be held liable if “the complaint was made maliciously and without probable cause.” Because the police officer’s actions were analogous to those of a complaining witness, absolute immunity did not apply. Curtis suggests that the role played by Officer Bembenek in directly causing his arrest is akin to a complaining witness, and “complaining witnesses were not absolutely immune at common law.”We note that the complaining witness theory is closely associated with the common law cause of action for malicious prosecution. The term “complaining witness” has been defined by one appellate court as the person “who actively instigated or encouraged the prosecution of the plaintiff.” Anthony v. Baker,?955 F.2d 1395 (10th Cir. 1992). Similarly, in a malicious prosecution action, one of the essential elements that a plaintiff must allege and prove is the defendant’s role in instituting criminal proceedings against the plaintiff. (Citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 119 (5th ed. 1984)). Other elements that must be alleged and proved in a malicious prosecution action include malice; the absence of probable cause for the proceeding; and termination of the proceeding in favor of the plaintiff. See Heck v. Humphrey, 512?U.S.?477 (1994); White v. Frank,?855 F.2d 956 (2d Cir. 1988); Misselhorn v. Doyle, 257 Ill.App.3d 983, 195 Ill.Dec. 881, 629 N.E.2d 189 (5th Dist. 1994).We do not read Curtis’ complaint to state a claim for malicious prosecution. He has set forth a somewhat amorphous cause of action, alleging for example, that Bembenek’s false testimony “direct[ly] cause[d]” his false imprisonment, and that aside from Bembenek’s “malicious” testimony, “there was no other testimony submitted at the [preliminary] hearing to cause or perpetuate my false imprisonment.” Significantly, however, Curtis has not alleged that the underlying criminal proceeding concluded in his favor. Compare Anthony v. Baker,?955 F.2d 1395?(10th Cir. 1992) (remanding malicious prosecution action of acquitted plaintiff against defendant officer to determine whether deputy acted as a complaining witness with respect to preliminary hearing testimony). Even construing Curtis’ complaint liberally, as we must, we find no suggestion that Curtis received a favorable termination of his prior criminal prosecution. See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (failure of arrestee to allege a different element of malicious prosecution - absence of probable cause -rendered deputy sheriff absolutely immune for testimony in adversarial pretrial suppression hearing). Because Curtis has not stated a claim for malicious prosecution, his reliance on the complaining witness theory is inapplicable.Lewis v. Faulkner involved a prisoner, suing pro se, who failed to respond to the defendants’ motion to dismiss or in the alternative for summary judgment. Neither the motion papers nor any instructions from the court informed Lewis of the consequences of his failure to counter the defendants’ supporting affidavit with his own affidavits. This court vacated the dismissal of Lewis’ complaint. We explained that a District Court cannot properly act upon a motion for summary judgment without providing the opposing party a “reasonable opportunity” to contradict the material facts asserted by movant. This “reasonable opportunity” was implicit in Rule 56(e) and “presupposes notice.” We held that a prisoner who is a plaintiff in a civil case and is not represented by counsel is entitled to receive notice of the consequences of failing to respond to a motion for summary judgment or to a motion to dismiss supported by affidavits.Under Rule 56(e), the party opposing a motion for summary judgment may not rest upon the mere allegations or denials of his or her pleadings; unless the nonmoving party counters with affidavits of his or her own, the facts asserted in the movant’s affidavits will be treated as true. Similarly, Rule 12(b) provides that if a court, on a motion to dismiss, considers matters outside the pleading, the court shall treat the motion as one for summary judgment, and the nonmovant must be given a “reasonable opportunity” to contradict the material facts asserted by the moving party.Significantly, however, Rule 12(b) “says nothing about a ‘reasonable opportunity’ to contradict when dismissal motions are not treated as summary judgment motions.” English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993). Although Curtis was entitled to submit papers in opposition to the defendant’s motion, it was also appropriate for him to rely on his pleadings. A pro se plaintiff who has alleged well-pled facts supporting a claim for relief can withstand dismissal without responding to a motion to dismiss. See Maggette v. Dalsheim,?709 F.2d 800 (2d Cir. 1983) (noting that notification of plaintiff of possible consequences of failing to respond not necessary in context of Rule 12(b)(6) motion to dismiss). The plaintiff can simply rest on the assumed truthfulness and liberal construction afforded his complaint. Unlike the summary judgment context, the nonmovant’s lack of response to a motion to dismiss constitutes no admission of the proponent’s factual assertions.Footnotes:5. In resolving questions of immunity, common law courts treated witnesses in defamation actions differently than witnesses in actions for malicious prosecution. Witnesses in defamation actions who could demonstrate that any defamatory statements they made were relevant to the judicial proceedings were afforded absolute immunity. Briscoe, 460 U.S. at 330; Anthony v. Baker,?955 F.2d 1395 (10th Cir. 1992). By contrast, in actions for malicious prosecution, complaining witnesses who played a role in initiating baseless prosecutions were not absolutely immune. White v. Frank,?855 F.2d 956 (2d Cir. 1988). Thus, although an ordinary witness could not be sued at all, a “complaining witness” (i.e., the private party who actively instigated or encouraged the suit) could be sued for malicious prosecution. Anthony, 955 F.2d at 1399 (citing Malley v. Briggs,?475 U.S. 335 (1986)).6. In a concurring opinion in the Supreme Court’s recent case, Albright v. Oliver, 510?U.S.?266 (1994), Justice Ginsburg implied that a prisoner may not bring a malicious prosecution action against police officers. Characterizing a prisoner’s reliance on a malicious prosecution theory as “anomalous,” Justice Ginsburg pointed out that the “principal player in carrying out a prosecution -in ‘the formal commencement of a criminal proceeding,’...is not police officer but prosecutor.” Justice Ginsburg suggested that a claim against an officer who gives misleading testimony at a preliminary hearing would be more appropriately brought under a Fourth Amendment theory which charged the officer with “perpetuating the [defendant’s] seizure” for trial as long as the prosecution remained pending. Although Justice Ginsburg also speculated that a police officer who initiates and pursues a criminal prosecution may be fully protected from damages liability by an immunity defense, Justice Stevens responded in his dissent that the immunity issue “is neither free of difficulty...nor properly before us.”UNITED STATES v. BARO, 15 F.3d 563 (1994)BOYCE F. MARTIN, Jr., Circuit Judge.Ramon Baro’s August 1988 contact with the DEA agents at Detroit Metropolitan Airport ended his stint as a courier for his brother. The Baro cocaine distribution operation, however, continued unabated for more than a year. To establish the total amount of cocaine distributed by the Baros during the conspiracy, the government relied upon testimony from three sources: Rolando Arango, Elaine Dunkcan, and Alberto Dupont.First, Arango testified at trial that he received a total of about forty-two kilograms of cocaine from the Baros on ten separate occasions. In particular, Arango testified that he arranged through Danilo Baro to obtain one kilogram of cocaine in July 1988. Later that summer, Ramon Baro twice delivered two kilograms of cocaine to Arango in Detroit. During the remainder of 1988, Arango received from Danilo Baro, via unidentified couriers, four shipments totaling about twenty-eight kilograms of cocaine. Finally, in early 1989, Arango traveled to Miami with Suarez on three occasions, purchasing a total of seven kilograms of cocaine from Danilo Baro and receiving two additional kilograms of cocaine to hold for Ramon Baro.Elaine Dunkcan, Suarez’s girlfriend during 1988 and 1989, testified at trial that she was aware that Suarez received between two and five kilograms of cocaine from the Baros. First, Dunkcan accompanied Suarez and Dupont to Miami in 1989 and observed the men receive two or three kilograms of cocaine from the Baros. Dunkcan also recounted that soon after she and Suarez returned to Detroit from a trip to Miami in January, 1990, they were arrested as they attempted to deliver the second of two kilograms of cocaine to a confidential informant. Dunkcan was unable to confirm, however, that either Danilo or Ramon Baro was the source of these two kilograms.Finally, the government credits the Baros as the source of two kilograms of cocaine recovered by the police from a car parked at Dupont’s house. The car was registered to Ramon Baro. According to police testimony at trial, Dupont stated after his arrest that he had transported the cocaine to Detroit for Suarez.Following a three-week trial, the jury found both Danilo and Ramon Baro guilty of conspiring to distribute cocaine as well as distribution of cocaine. Danilo Baro was also convicted of engaging in a continuing criminal enterprise. At sentencing, the government argued, and the District Court agreed, that the conspiracy involved at least fifty kilograms of cocaine - forty-two kilograms obtained by Arango, five kilograms identified by Dunkcan, two kilograms recovered from Dupont, and at least one additional kilogram based on evidence that Suarez and Dupont made regular trips to Miami during this period. Over the objection of both defendants, the court included in its calculations under the Sentencing Guidelines a total of at least fifty kilograms of cocaine and assigned both defendants a base offense level of thirty-six. The court also found that both defendants played managerial or supervisory roles and thus added two additional levels to Ramon Baro’s base offense level and four additional levels to Danilo Baro’s base offense level. Danilo Baro was sentenced to a term of incarceration of 320 months, to be followed by a five-year term of supervised release, and a fine of $5,000. Ramon Baro was sentenced to 260 months of incarceration, a five-year term of supervised release, and a fine of $5,000. This timely appeal followed.Challenging both their convictions and their sentences, Danilo and Ramon Baro raise numerous grounds for relief. Ramon Baro asserts that he has standing to join Dupont’s motion to suppress evidence seized from Dupont’s car on January 25, 1990. In addition, both defendants claim that the District Court abused its discretion in selecting the method of exercising peremptory challenges. The Baros also claim that they were denied due process of law and their right to confront Arango. Finally, Ramon Baro argues that he was a minor participant in the conspiracy and the District Court thus erred by including a two-level increase pursuant to U.S.S.G. Sec. 3B1.1(c) in the calculation of his sentence. Having considered these issues and finding them without merit, we turn to the two claims that do warrant consideration: the District Court’s denial of Ramon Baro’s motion to suppress evidence obtained during the August 1988 airport encounter, and the District Court’s calculation of the base offense level for Ramon and Danilo Baro.Raising two separate grounds, Ramon Baro contests the District Court’s denial of his motion to suppress evidence and statements obtained during the August 1988 encounter with Agent Moffitt at the Detroit Metropolitan Airport. While this Court reviews the District Courts factual findings on suppression issues for clear error, we analyze the District Court’s conclusions of law under a de novo standard. United States v. Williams,?962 F.2d 1218 (6th Cir.), cert. denied, 113 S.Ct. 264 (1992).Ramon Baro first claims that the District Court erred in finding that he consented to the search of his carry-on bag and person. As the numerous airport search cases recently before this Court make clear, the Fourth Amendment is not violated when a police officer approaches a member of the traveling public, identifies himself as a law enforcement officer, and solicits information. United States v. Taylor,?956 F.2d 572, 575 (6th Cir.), cert. denied, 113 S.Ct. 404 (1992). Moreover, a request to search the passenger’s luggage or person does not transform this initial questioning into a seizure. United States v. Flowers,?909 F.2d 145 (6th Cir. 1990). Against this backdrop, a court then confronts the question of whether the approached and questioned passenger actually consented to a search of his bag or person. Where, as here, the government alleges that consent was voluntarily given, “the government bears the burden of proof on this issue” and “the consent must be unequivocal and intelligently given, untainted by duress or coercion.” United States v. Cooke,?915 F.2d 250 (6th Cir. 1990).In this case, the District Court determined that Ramon Baro consented to Moffitt’s search of his carry-on bag and person. Despite Baro’s assertions to the contrary, we do not find this conclusion to be clearly erroneous. A review of the record convinces us that the District Court correctly found that Baro gave uncoerced consent to the search within the context of a consensual conversation with Moffitt. See Taylor, 956 F.2d at 578.Second, Ramon Baro challenges the District Court’s ruling that he consented to accompany Agent Moffitt to the DEA office for the canine examination of his currency. Noting that Moffitt held more than $14,000 of his money and that his flight for Miami was scheduled for imminent departure, Baro claims that both his cash and his person were seized without probable cause in violation of the Fourth Amendment. We agree.Moffitt’s assertion of control over the cash that he took from Baro constituted a seizure of the property. A property seizure for Fourth Amendment purposes occurs when a governmental intrusion “meaningfully interferes” with an individual’s possessory interests in the property. Arizona v. Hicks,?480 U.S. 321 (1987). Here, after removing the currency from Baro’s carry-on bag and person, Moffitt held the money in his hand. The agent then informed Baro that he was taking the money to the DEA office to be tested with a narcotics detection dog. At this point, Moffitt meaningfully interfered with Baro’s possessory interests in the cash and a seizure occurred. United States v. $53,082.00 in United States Currency,?985 F.2d 245 (6th Cir. 1993).Despite the government’s assertions to the contrary, Baro did not consent to this seizure. At the suppression hearing in this matter, Agent Moffitt testified, “[t]he first thing I said to him [Baro] is that I’m going to take this currency and take it to the DEA office approximately five minutes away, have a canine examine it.” Such a matter-of-fact declaration leaves no room for Baro’s consent to the seizure of his money. As this Court emphasized in $53,082.00, “telling [a traveler] the money would be tested by a narcotics dog was a conclusive statement, not a request; therefore, consent could not be given.”Absent valid consent, the government must establish that this warrantless seizure was justified by probable cause. See United States v. Place,?462 U.S. 696 (1983). Recognizing that a greater expectation of privacy exists in property carried on one’s person, this Court has stressed that “[p]robable cause is required to justify the seizure of such items.” $53,082.00, 985 F.2d at 249. In this context, probable cause means a reasonable ground for belief that the item seized is contraband or evidence of a crime. See Place, 462 U.S. at 701; United States v. Sokolow,?490 U.S. 1 (1989).On the facts of this case, the government is unable to carry its burden. At the time Agent Moffitt seized Baro’s currency, he knew the following facts: Baro was traveling to Miami; he arrived shortly before his flight and purchased a one-way ticket in his name with cash; although observed entering the terminal with a companion, Baro attempted to present the appearance that he was traveling alone; Baro constantly looked around as he walked through the airport; Moffitt’s search revealed that Baro carried $14,190 in cash; and Baro gave an unlikely explanation for the source of the money. We review each of these observations in turn to determine whether, in the aggregate, the evidence establishes probable cause. See United States v. Knox,?839 F.2d 285 (6th Cir. 1988), cert. denied, 490 U.S. 1019 (1989).While travel to an alleged drug source city, late arrival at the airport, and nervousness are inherently unsuspicious activities, this Court has held that these facts are probative in deciding whether the government has established probable cause. United States v. $67,220.00 in United States Currency,?957 F.2d 280 (6th Cir. 1992). A defendant’s attempt to conceal the fact that he is traveling with another also indicates possible criminal activity. Even when considered together, however, these factors alone did not provide Agent Moffitt with a reasonable ground for belief that the currency seized from Baro was contraband or evidence of a crime.The remaining observations cited by the government are of questionable evidentiary value. The probative nature of the fact that Baro purchased his ticket with cash is countered by the fact that he purchased the ticket in his own name, thereby destroying the anonymity of the transaction and acting contrary to the characteristic behavior of drug couriers. Moreover, although we recognize that “evasive statements to police officers indicate possible criminal activity,” Baro’s statements prior to the seizure of his cash provide, at best, “inchoate and unparticularized suspicion.” $53,082.00, 985 F.2d at 250 (citing Terry v. Ohio,?392 U.S. 1 (1968)) (unverifiable, alternating statements that seized cash was earned by working for the Detroit Board of Education, obtained from selling refurbished HUD houses, or won in the lotto insufficient, even when coupled with drug courier profile, to establish reasonable articulable suspicion). Finally, Agent Moffitt had no reason to believe that the currency was itself contraband. See United States v. $7,850.00 in United States Currency,?7 F.3d 1355 (8th Cir. 1993).Accordingly, we conclude that the facts known to Moffitt at the time he seized the currency from Baro did not provide the officer with probable cause. The absence of contraband distinguishes this case from Taylor, where this Court, addressing many of the same factors highlighted by the government here, found that the officers had probable cause to arrest the suspect. As the Taylor court emphasized, the range of facts known about Taylor, “coupled with” the discovery that the suspect carried spherical, tape-bound packages characteristically used to transport cocaine provided the officers with probable cause to arrest the suspect. Taylor, 956 F.2d at 578. To date, this Court has not held that currency is contraband. Accordingly, based upon our review of the record, we are “left with a definite and firm conviction that a mistake has been committed” by the District Court. United States v. Tillman,?963 F.2d 137 (6th Cir. 1992).In doing so, the District Court failed to err on the side of caution. Especially where, as here, the District Court’s determination of the quantity of cocaine involved results in a two-level increase in the base offense level, the sentencing judge may not, without further findings, simply sentence a defendant based on conjecture….Footnotes:1. Given the particular facts of this case, the seizure of Baro’s property under these circumstances was tantamount to a seizure of his person as well. As the Supreme Court has recognized, a seizure of personal property from a member of the travelling public “can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return.” United States v. Place,?462 U.S. 696 (1983). Here, Moffitt presented Baro with a Hobson’s choice: abandon more than $14,000 to a plain-clothed stranger without obtaining a receipt in return or miss his flight, forfeit his plane ticket, and remain stranded in foreign environs. In this situation, “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall,?446 U.S. 544 (1980). Accordingly, we conclude that Baro was seized when, less than five minutes before his flight to Miami was scheduled to depart, Moffitt informed Baro that his money was being transported to the DEA office for a canine examination. As we hold that Moffitt lacked probable cause to seize Baro’s currency, we need not address whether the agent’s observations were sufficient to support an investigatory detention.UNITED STATES v. $5000 IN U.S. CURRENCY $9750 U.S., 40 F.3d 846 (1994)BOYCE F. MARTIN, Jr., Circuit Judge.21 U.S.C. §881(a)(6). Under §881, the government bears the initial burden of demonstrating probable cause of “a substantial connection between the property and the underlying criminal activity.” $53,082.00, 985 F.2d at 250 (quoting United States v. $22,287.00 in United States Currency,?709 F.2d 442 (6th Cir. 1983)). Thus, the government here was required to establish “a reasonable ground for belief, supported by more than mere suspicion, that there is a substantial connection between the seized money and an illegal drug transaction.” United States v. $67,220.00 in United States Currency,?957 F.2d 280 (6th Cir. 1992).“[T]here is some indication that residue from narcotics contaminates as much as 96% of the currency currently in circulation.” United States v. $80,760.00 in United States Currency, 781 F.Supp. 462 (N.D.Tex. 1991). See also Use of Drug-Sniffing Dogs Challenged: ACLU Back Complaint by Men Whose Pocket Cash Was Seized, Wash. Post, May 6, 1990, at D1 (“I would not want to walk into court and rely exclusively on a dog sniff for a forfeiture of money,” said Charles S. Saphos, Chief of the U.S. Justice Department’s Narcotic and Dangerous Drugs Section. “There are a lot of guys out there that have been shown that there is a trace [of] dope on a lot of money out there. And for that reason alone, I’d want more than just the dog.”); Dirty Money, United States Banker, October 1989, at 10 (discussing study by Lee Hearn, Chief Toxicologist for Florida’s Dade County Medical Examiner’s Office, that 97% of bills from around the country tested positive for cocaine; noting also that banks play a role in spreading the cocaine traces when tellers count and recount money, rubbing one bill against another). Thus, a court should “seriously question the value of a dog’s alert without other persuasive evidence....” $80,760.00, 781 F.Supp. at 476.$53,082.00, 985 F.2d at 250. The District of Columbia Circuit voiced similar concerns in a recent forfeiture case:In order to blunt the implications of [cocaine being found on his currency, the defendant] called an expert, Dr. James Woodford, who testified that 90 percent of all cash in the United States contains sufficient quantities of cocaine to alert a trained dog. Officer Beard, the dog handler, suggested on the basis of hearsay that the number was lower, near 70 percent. (There is at least one study indicating that up to 97 percent of all bills in circulation in the country are contaminated by cocaine, with an average of 7.3 micrograms of cocaine per bill. Crime and Chemical Analysis, 243 SCIENCE 1554, 1555 (1989).)Why the nation’s currency is so thoroughly corrupted has been a topic of inquiry. It has been estimated that one out of every three circulating bills has been involved in a cocaine transaction. R. SIEGEL, INTOXICATION 293 (1989). Cocaine attaches - in a variety of ways - to the bills, which in turn contaminate others as they pass through cash registers, cash drawers, and counting machines at banks and commercial establishments. Crime and Chemical Analysis, note 2, at 1555. Dr. Woodford testified that, as a result, bills may contain as little as a millionth of a gram of cocaine, but that is many times more cocaine than is needed for a dog to alert.... See generally Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42 HASTINGS L.J. 15, 29 & n. 71 (1990).The remaining facts do not establish probable cause. While this Court has recognized that “carrying a large sum of cash is strong evidence of some relationship with illegal drugs,” $67,220.00, 957 F.2d at 285, we agree with the Ninth Circuit that “[f]ifteen to twenty thousand dollars is hardly enough cash, standing alone, to justify more than a suspicion of illegal activity.”United States v. $191,910.00 in United States Currency,?16 F.3d 1051 (9th Cir. 1994); see also United States v. Baro,?15 F.3d 563 (6th Cir. 1994) (“To date, this Court has not held that currency is contraband.”), cert. denied, 115 S.Ct. 285 (1994). Moreover, although we recognize that “evasive statements to police officers indicate possible criminal activity,” Walker’s explanation of the purpose of his trip provides, at best, “inchoate and unparticularized suspicion.” $53,082.00, 985 F.2d at 250 (citing Terry v. Ohio,?392 U.S. 1 (1968)); see also $191,910.00, 16 F.3d at 1072 (“These kind of inconsistencies may raise a suspicion that Morgan was involved in illegal activities, but not probable cause.”). Finally, the fact that Harris pleaded guilty to state drug charges more than six years earlier is of little import here: a man’s debt to society cannot be of infinite duration.ALBRIGHT v. OLIVER, etc., et al., 510 U.S. 266, 114 S.Ct. 807 (1994)CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE O’CONNOR, JUSTICE SCALIA, and JUSTICE GINSBURG joined.§1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. 42 U.S.C.A §1983.The first step in any such claim is to identify the specific constitutional right allegedly infringed. 42 U.S.C.A §1983.Civil rights claimant’s surrender to state’s show of authority, in form of arrest warrant, constituted “seizure” for purposes of Fourth Amendment. U.S.C.A. Const. Amend. 4.Protections of substantive due process are for most part accorded to matters relating to marriage, family, procreation and right to bodily integrity. U.S.C.A. Const. Amend. 14.Arrestee’s incarceration, following his arrest pursuant to warrant subsequently found to have been obtained without probable cause, did not violate his substantive due process rights; violation, if any, implicated Fourth Amendment. U.S.C.A. Const. Amend. 4, 14.Upon learning that Illinois authorities had issued an arrest warrant charging him with the sale of a substance which looked like an illegal drug, petitioner Albright surrendered to respondent Oliver, a policeman, and was released after posting bond. At a preliminary hearing, Oliver testified that Albright sold the look-alike substance to a third party, and the court found probable cause to bind Albright over for trial. However, the court later dismissed the action on the ground that the charge did not state an offense under state law. Albright then filed this suit under 42 U.S.C. §1983, alleging that Oliver deprived him of substantive due process under the Fourteenth Amendment - his “liberty interest” - to be free from criminal prosecution except upon probable cause. The District Court dismissed on the ground that the complaint did not state a claim under §1983. The Court of Appeals affirmed, holding that prosecution without probable cause is a constitutional tort actionable under §1983 only if accompanied by incarceration, loss of employment, or some other “palpable consequenc[e].”Held: The judgment is affirmed.Petitioner’s asserted injuries - including restraints on his movement, damage to his reputation, and mental anguish - are not alleged to have flowed from the formal instrument of prosecution, as distinct from the ensuing police seizure of his person; have been treated by the Courts of Appeals as within the ambit of compensability under 42 U.S.C.A. §1983 for Fourth Amendment violations; and usually occur only after an arrest or other seizure.Albright then instituted this action under Rev.Stat. 1979, 42 U.S.C. §1983, against Detective Oliver in his individual and official capacity, alleging that Oliver deprived him of substantive due process under the Fourteenth Amendment - his “liberty interest” - to be free from criminal prosecution except upon probable cause. The District Court granted respondent’s motion to dismiss under Rule 12(b)(6) on the ground that the complaint did not state a claim under §1983. The?Court of Appeals for the Seventh Circuit affirmed, 975 F.2d 343 (1992), relying on our decision in Paul v. Davis,?424 U.S. 693?(1976). The Court of Appeals held that prosecution without probable cause is a constitutional tort actionable under §1983 only if accompanied by incarceration or loss of employment or some other “palpable consequenc[e].” 975 F.2d, at 346. The panel of the Seventh Circuit reasoned that, “just as in the garden variety public officer defamation case that does not result in exclusion from an occupation, state tort remedies should be adequate, and the heavy weaponry of constitutional litigation can be left at rest. We granted certiorari, 507 U.S. 959 (1993), and while we affirm the judgment below, we do so on different grounds. We hold that it is the Fourth Amendment, and not substantive due process, under which petitioner Albright’s claims must be judged.Petitioner’s claim before this Court is a very limited one. He claims that the action of respondents infringed his substantive due process right to be free of prosecution without probable cause. He does not claim that Illinois denied him the procedural due process guaranteed?by the Fourteenth Amendment. Nor does he claim a violation of his Fourth Amendment rights, notwithstanding the fact that his surrender to the State’s show of authority constituted a seizure for purposes of the Fourth Amendment. Terry v. Ohio,?392 U.S. 1?(1968); Brower v. County of Inyo,?489 U.S. 593?(1989).We think this principle is likewise applicable here. The Framers considered the matter of pretrial deprivations of liberty, and drafted the Fourth Amendment to?address it. The Fourth Amendment provides:“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”JUSTICE SCALIA, concurring.One can conceive of many abuses of the trial process (for example, the use of a patently biased judge, see Mayberry v. Pennsylvania,?400 U.S. 455 (1971)), that might cause a criminal sentence to be a deprivation of life, liberty or property without due process. But here there was no criminal sentence (the indictment was dismissed), and so the only deprivation of life, liberty or property, if any, consisted of petitioner’s pretrial arrest. I think it unlikely that the procedures constitutionally “due,” with regard to an arrest, consist of anything more than what the Fourth Amendment specifies; but petitioner has, in any case, not invoked “procedural” due process.…?As I have acknowledged,?however, see Michael H. v. Gerald D.,?491 U.S. 110?(1989), this Court’s current jurisprudence is otherwise. But that jurisprudence rejects “the more generalized notion of ‘substantive due process’” at least to this extent: it cannot be used to impose additional requirements upon such of the states’ criminal processes as are already addressed (and left without such requirements) by the Bill of Rights. Graham v. Connor,?490 U.S. 386?(1989). That proscription applies here. The Bill of Rights sets forth, in the Fifth and Sixth Amendments, procedural guarantees relating to the period before and during trial, including a guarantee (the Grand Jury Clause) regarding the manner of indictment. Those requirements are not to be supplemented through the device of “substantive due process.”JUSTICE GINSBURG, concurring.Yet in his presentations before this Court, Albright deliberately subordinated invocation of the Fourth Amendment and pressed, instead, a substantive due process right to be free from prosecution without?probable cause. This strategic decision appears to have been predicated on two doubtful assumptions, the first relating to the compass of the Fourth Amendment, the second, to the timeframe for commencing this civil action.A defendant incarcerated until trial no doubt suffers?greater burdens. That difference, however, should not lead to the conclusion that a defendant released pretrial is not still “seized” in the constitutionally relevant sense. Such a defendant is scarcely at liberty; he remains apprehended, arrested in his movements, indeed “seized” for trial, so long as he is bound to appear in court and answer the state’s charges. He is equally bound to appear, and is hence “seized” for trial, when the state employs the less strong-arm means of a summons in lieu of arrest to secure his presence in court.Once it is recognized, however, that Albright remained effectively “seized” for trial so long as the prosecution against him remained pending, and that Oliver’s testimony at the preliminary hearing, if deliberately misleading, violated the Fourth Amendment by perpetuating the seizure, then the limitations period should have a different trigger. The time to file the §1983 action should begin to run not at the start, but at the end, of the episode in suit, i.e., upon dismissal of the criminal charges against Albright. See McCune v. Grand Rapids, 842 F.2d 903 (CA6 1988) (“Where...innocence is what makes the state action wrongful, it makes little sense to require a federal suit to be filed until innocence or its equivalent is established by the termination of the state procedures in a manner favorable to the state criminal defendant.”). In sum, Albright’s Fourth Amendment claim, asserted within the requisite period after dismissal of the criminal action, in my judgment was neither substantively?deficient nor inevitably time-barred. It was, however, a claim Albright abandoned in the District Court and did not attempt to reassert in this Court. The principle of party presentation cautions decision makers against asserting it for him.JUSTICE KENNEDY, with whom JUSTICE THOMAS joins, concurring in the judgment.That may not be the end of the due process inquiry, however. The common law of torts long recognized that a malicious prosecution, like a defamatory statement, can cause unjustified torment and anguish - both by tarnishing one’s name and by costing the accused money in legal fees and the like. See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 119, pp. 870-889 (5th ed. 1984); T. Cooley, Law of Torts 180-187 (1879). We have held, of course, that the Due Process Clause protects interests other than the interest in freedom from physical restraint, see Michael H. v. Gerald D.,?491 U.S. 110?(1989), and, for purposes of this case, we can assume, arguendo, that some of the interests granted historical protection by the common law of torts (such as the interests in freedom from defamation and malicious prosecution) are protected by the Due Process Clause. Even so, our precedents make clear that a state actor’s?random and unauthorized deprivation of that interest cannot be challenged under 42 U.S.C. §1983 so long as the State provides an adequate postdeprivation remedy. Parratt v. Taylor,?451 U.S. 527 (1981); see Hudson v. Palmer,?468 U.S. 517 (1984); Ingraham v. Wright, 430 U.S. 651 (1977); (“adequate state remedy for defamation may satisfy the due process requirement when a State has impaired an individual’s interest in his reputation”).The common sense teaching of Parratt is that some questions of property, contract, and tort law are best resolved by state legal systems without resort to the federal courts, even when a state actor is the alleged wrongdoer. As we explained in Parratt, the contrary approach “would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under “color of law” into a violation of the Fourteenth Amendment cognizable under §1983.... Presumably, under this rationale, any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under §1983. Such reasoning ‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.’”?(Quoting Paul v. Davis,?424 U.S. 693?(1976)). The Parratt principle respects the delicate balance between state and federal courts and comports with the design of §1983, a statute that reinforces a legal tradition in which protection for persons and their rights is afforded by the common law and the laws of the States, as well as by the Constitution.That said, if a State did not provide a tort remedy for malicious prosecution, there would be force to the argument that the malicious initiation of a baseless criminal prosecution infringes an interest protected by the Due Process Clause and enforceable under §1983. Compare Ingraham v. Wright,?430 U.S., at 676, and Board of Regents of State Colleges v. Roth, 408 U.S. 564?(1972), with Paul v. Davis,?424 U.S. 693 (1976); see Prune Yard Shopping Center v. Robins,?447 U.S. 74 (1980); Martinez v. California,?444 U.S. 277 (1980); Munn v. Illinois, 94 U.S. 113 (1877). But given the state tort remedy, we need not conduct that inquiry in this case.JUSTICE SOUTER, concurring in the judgment.In framing his claim of infringement of a liberty interest in freedom from the initiation of a baseless prosecution, petitioner has chosen to disclaim any reliance on the Fourth Amendment seizure that followed when he surrendered himself into police custody. Petitioner has failed, however, to allege any substantial injury that is attributable to the former event, but not the latter. His complaint presents an extensive list of damages: limitations on his liberty, freedom of association, and freedom of movement by virtue of the terms of his bond; financial expense of his legal defense; reputational harm among members of the community; inability to transact business or obtain employment in his local area, necessitating relocation to St. Louis; inability to secure credit; and personal pain and suffering. None of these injuries, however, is alleged to have followed from the issuance of the formal instrument of prosecution, as distinct from the ensuing assertion of custody. Thus, petitioner has not shown a substantial deprivation of liberty from the mere initiation of prosecution.The significance of this failure follows from the?recognition that none of petitioner’s alleged injuries has been treated by the Courts of Appeals as beyond the ambit of compensability under the general rule of 42 U.S.C. §1983 liability for a seizure unlawful under Fourth Amendment standards, see Tennessee v. Garner,?471 U.S. 1?(1985) (affirming §1983 liability based on Fourth Amendment violation); Brower v. County of Inyo,?489 U.S. 593 (1989) (unreasonable seizure in violation of the Fourth Amendment gives rise to §1983 liability). On the contrary, the Courts of Appeals have held that injuries like those petitioner alleges are cognizable in §1983 claims founded upon arrests that are bad under the Fourth Amendment. See Hale v. Fish, 899 F.2d 390 (CA5 1990) (affirming award of damages for mental anguish, harm to reputation, and legal fees for defense); B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7 (CA1 1984) (affirming award of damages for destruction of business due to publicity surrounding illegal search); Sims v. Mulcahy, 902 F.2d 524 (CA7 1990) (approving damages for pain, suffering, and mental anguish in the context of a challenge to jury instructions); Sevigny v. Dicksey, 846 F.2d 953 (CA4 1988) (affirming damages for extreme emotional distress); Dennis v. Warren, 779 F.2d 245, 248-249 (CA5 1985) (affirming award of damages for pain, suffering, humiliation, and embarrassment); Konczak v. Tyrrell, 603 F.2d 13, 17 (CA7 1979) (affirming damages for lost wages, mental distress, humiliation, loss of reputation, and general pain and suffering).JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.Punishment by confinement in prison is a frequent conclusion of criminal proceedings. Had petitioner’s prosecution resulted in his conviction and incarceration, then there is no question but that the Due Process Clause would have been implicated; a central purpose of the Fourteenth Amendment was to deny States the power to impose this sort of deprivation of liberty until after completion of a fair trial. Over the years, however, our cases have made it clear that the interests protected by the Due Process Clause extend well beyond freedom from an improper criminal conviction.As a qualitative matter, we have decided that the liberty secured by the Fourteenth Amendment is significantly broader than mere freedom from physical constraint. Although its contours have never been defined precisely, that liberty surely includes the right to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place. On a?quantitative level, we have, to be sure, acknowledged that not every modest impairment of individual liberty amounts to a deprivation raising constitutional concerns. Cf. Meachum v. Fano,?427 U.S. 215?(1976). At the same time, however, we have recognized that a variety of state actions have such serious effects on protected liberty interests that they may not be undertaken arbitrarily, or without observing procedural safeguards. …Every prosecution, like every arrest, “is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” United States v. Marion,?404 U.S. 307?(1971). In short, an official accusation of serious crime has a direct impact on a range of identified liberty interests. That impact, moreover, is of sufficient magnitude to qualify as a deprivation of liberty meriting constitutional protection.Fortunately, our prior cases have rejected such a formalistic approach to the Due Process Clause. In Mooney v. Holohan, 294 U.S. 103 (1935), a criminal defendant claimed that the prosecutor’s knowing use of perjured testimony, and deliberate suppression of evidence that would have impeached that testimony, constituted a denial of due process. The State urged us to reject this submission on the ground that the petitioner’s trial had been free of procedural error. Our treatment of the State’s argument should dispose of the analogous defense advanced today:“Without attempting at this time to deal with the question at length, we deem it sufficient for the present purpose to say that we are unable to approve this narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. Hebert v. Louisiana, 272 U.S. 312 (1926). It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”…It is, in other words, well established that adherence to procedural forms will not save a conviction that rests in substance on false evidence or deliberate deception.There are two glaring flaws in the plurality’s analysis. First, the pretrial deprivation of liberty at issue in this case is addressed by a particular amendment, but not the Fourth; rather, it is addressed by the Grand Jury Clause of the Fifth Amendment. That the Framers saw fit to provide a specific procedural guarantee against arbitrary accusations indicates the importance they attached to the liberty interest at stake. Though we have not required the States to use the grand jury procedure itself, it by no means follows that the underlying liberty interest is unworthy of Fourteenth Amendment protection. As we explained in Hurtado, “bulwarks” of protection such as the Magna Charta and the Due Process Clause “guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.”In the years since Adamson, the Court has shown no inclination to reconsider its repudiation of Justice Black’s position. Instead, the Court has identified numerous violations of due process that have no counterparts in the specific guarantees of the Bill of Rights. And contrary to the suggestion of the plurality, these decisions have not been limited to the realm outside criminal law. As I have already discussed, it is the Due Process Clause itself, and not some explicit provision of the Bill of Rights, that forbids the use of perjured testimony and the suppression of evidence favorable to the accused. Similarly, we have held?that the Due Process Clause requires an impartial judge, and prohibits the use of unnecessarily suggestive identification procedures. Characteristically, Justice Black was the sole dissenter when the Court concluded in Sheppard v. Maxwell,?384 U.S. 333?(1966), that the failure to control disruptive influences in the courtroom constitutes a denial of due process.Having concluded that the complaint states a cause of action, however, her (JUSTCE GINSBURG) opinion does not adequately explain why a dismissal of that complaint should be affirmed. Her submission, as I understand it, rests on the propositions that (1) petitioner abandoned a meritorious claim based on the component of the Due Process Clause of the Fourteenth Amendment that is coterminous with the Fourth Amendment; and (2) the Due Process Clause provides no protection for deprivations of liberty associated with the initiation of a criminal prosecution unless an unreasonable seizure occurs. For reasons already stated, I firmly disagree with the second proposition.The Court’s judgment of affirmance is supported by five different opinions. Significantly, none of them endorses the reasoning of the Court of Appeals, and none of them commands a majority. Of greatest importance, in the aggregate, those opinions do not reject my principal submission: the Due Process Clause of the Fourteenth Amendment constrains the power of state governments to accuse a citizen of an infamous crime.I respectfully dissent.Footnotes:4. As noted by the Court of Appeals below, the extent to which a claim of malicious prosecution is actionable under §1983 is one “on which there is an embarrassing diversity of judicial opinion.” 975 F.2d, at 345, citing Brummett v. Camble, 946 F.2d 1178 (CA5 1991) (cataloging divergence of approaches by the Courts of Appeals). Most of the lower courts recognize some form of malicious prosecution action under §1983. The disagreement among the courts concerns whether malicious prosecutions, standing alone, can violate the Constitution. The most expansive approach is exemplified by the Third Circuit, which holds that the elements of a malicious prosecution action under §1983 are the same as the common law tort of malicious prosecution. See Lee v. Mihalich, 847 F.2d 66, 70 (CA3 1988) (“[T]he elements of liability for the constitutional tort of malicious prosecution under §1983 coincide with those of the common law tort”). See also, Sanders v. English, 950 F.2d 1152 (CA5 1992) (“[O]ur circuit recognizes causes of action under §1983 for false arrest, illegal detention...and malicious prosecution” because these causes of action “implicate the constitutional ‘guarantees of the Fourth and Fourteenth Amendments’...”); Robinson v. Maruffi, 895 F.2d 649 (CA10 1990); Strength v. Hubert, 854 F.2d 421 (CA11 1988) (recognizing that “freedom from malicious prosecution is a federal right protected by §1983”). Other Circuits, however, require a showing of some injury or?deprivation of a constitutional magnitude in addition to the traditional elements of common law malicious prosecution. The exact standards announced by the courts escape easy classification. See Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 409 (CA1 1990) (the challenged conduct must be “so egregious that it violated substantive or procedural due process rights under the Fourteenth Amendment”); Usher v. Los Angeles, 828 F.2d 556 (CA9 1987) (“[T]he general rule is that a claim of malicious prosecution is not cognizable under 42 U.S.C. §1983 if process is available within the state judicial system to provide a remedy...[h]owever, ‘an exception exists to the general rule when a malicious prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights’”); Coogan v. Wixom, 820 F.2d 170, 175 (CA6 1987) (in addition to elements of malicious prosecution under state law, plaintiff must show an egregious misuse of a legal proceeding resulting in a constitutional deprivation). In holding that malicious prosecution is not actionable under §1983 unless it is accompanied by incarceration, loss of protected status, or some other palpable consequence, the Seventh Circuit’s decision below places it in this latter camp. In view of our disposition of this case, it is evident that substantive due process may not furnish the constitutional peg on which to hang such a “tort.”5. Thus, Albright may have missed the statute of limitations for any claim he had based on an unconstitutional arrest or seizure. 975 F.2d 343 (CA7 1992). We express no opinion as to the timeliness of any such claim he might have.6. JUSTICE STEVENS’ dissent faults us for ignoring, inter alia, our decision in In re Winship, 397 U.S. 358?(1970). Winship undoubtedly rejected the notion that all of the required incidents of a fundamentally fair trial were to be found in the provisions of the Bill of Rights, but it did so as a matter of procedural due process: “‘This notion [that the government must prove the elements of a criminal case beyond a reasonable doubt] - basic in our law and rightly one of the boasts of a free society - is a requirement and a safeguard of due process of law in the historic, procedural content of “due process.”’” Quoting Leland v. Oregon,?343 U.S. 790 (1952).1. Albright’s presentations essentially carve up the officer’s conduct, though all part of a single scheme, so that the actions complained of match common law tort categories: first, false arrest (Fourth Amendment’s domain); next, malicious prosecution (Fifth Amendment territory). In my view, the constitutional tort 42 U.S.C. §1983 authorizes stands on its own, influenced by the substance, but not tied to the formal categories and procedures, of the common law. According the Fourth Amendment full sway, I would not force Albright’s case into a different mold.4. On the “summons and complaint” alternative to custodial arrest, see 2 W. LaFave, Search and Seizure 432-436 (2d ed. 1987).6. As we stated in Meyer v. Nebraska, 262 U.S. 390 (1923):“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations?of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”15. See United States v. Agurs,?427 U.S. 97 (1976); Giglio v. United States,?405 U.S. 150 (1972) (failure to disclose Government agreement with witness violates due process); Brady v. Maryland,?373 U.S. 83?(1963) (“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”); Napue v. Illinois,?360 U.S. 264?(1959)?(failure of state to correct testimony known to be false violates due process); Pyle v. Kansas,?317 U.S. 213 (1942) (allegations of the knowing use of perjured testimony and the suppression of evidence favorable to the accused “sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody”). But United States v. Williams, 504 U.S. 36 (1992) (prosecutor need not present exculpatory evidence in his possession to the grand jury).27. See Doggett v. United States, 505 U.S. 647 (1992) (time lag between indictment and arrest of 8 years due in part to the defendant’s absence from the country and in part to the Government’s negligence).28. It is worthwhile to emphasize that the Fourth Amendment itself does not apply to state actors. It is only because the Court has held that the privacy rights protected against federal invasion by that Amendment are implicit in the concept of ordered liberty protected by the Due Process Clause of the Fourteenth Amendment that the Fourth Amendment has any relevance in this case. Strictly speaking, petitioner’s claim is based entirely and exclusively on the Fourteenth Amendment’s Due Process Clause.30.?It seems to me quite wrong to attribute to a subsequent arrest the reputational and other harms caused by an unjustified accusation. In addition, although JUSTICE GINSBURG is prepared to hold that a Fourth Amendment claim does not accrue until the baseless charges are dismissed, at least some of the Courts of Appeals have held that the arrest triggers the running of the statute of limitations. See Rose v. Bartle, 871 F.2d 331 (CA3 1989); McCune v. Grand Rapids, 842 F.2d 903 (CA6 1988); Mack v. Varelas, 835 F.2d 995 (CA2 1987); Venegas v. Wagner, 704 F.2d 1144 (CA9 §1983). And, given the disposition of this case, a majority of this Court might agree. In any event, uncertainties about such matters counsel against constitutional adjudication based upon “pragmatic concerns.”CAMERON v. SEITZ, 38 F.3d 264, 1994 Fed.App. 0356P (1994)Generally, a judge is immune from a suit for money damages.Judicial immunity is not overcome by allegations of bad faith or malice.Judicial immunity may be overcome in only two sets of circumstances: first, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in judge’s judicial capacity, and two, judge is not immune from actions, though judicial in nature, taken in complete absence of all jurisdiction.To determine whether any of judge’s actions were taken outside his judicial capacity, for purposes of determining whether he is entitled to judicial immunity from liability, nature of act is examined, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with a judge in his judicial capacity, and the relevant inquiry is the nature and function of the act, not the act itself.A judge acts in his judicial capacity when he exercises control over his courtroom. 42 U.S.C.A. §1983.Normally, civil rights plaintiff should include in original complaint all factual allegations necessary to sustain a conclusion that defendant violated clearly established law such that defendant is not entitled to qualified immunity; however, failure to do so is not fatal, and District Court should allow plaintiff an opportunity to come forward with additional facts and allegations showing that rights violated were clearly established. 42 U.S.C.A. §1983.To qualify as prevailing party entitled to attorney fees under civil rights statute, civil rights plaintiff must obtain at least some relief on the merits of the claim; plaintiff must obtain enforceable judgment against defendant from whom fees are sought. 42 U.S.C.A. §1983.Plaintiffs Cindy Cameron (“Cindy”) and Larry Cameron (“Larry”), wife and husband, sued Cindy’s former boss, defendant James McCauley Seitz, a former Monroe County, Michigan, probate judge, alleging violations of their First and Fourteenth Amendment rights under 42 U.S.C. §1983 and intentional infliction of emotional distress under state law. A jury returned verdicts favorable to the Camerons and awarded compensatory and punitive damages. On appeal, Seitz argues that he is entitled to absolute and qualified immunity from the Camerons’ claims. We hold that Seitz is entitled to absolute judicial immunity with respect to Larry’s claims, and to qualified immunity with respect to Cindy’s claims. We therefore reverse the District Court’s denial of Seitz’s motion for dismissal and the award to the Camerons of attorney’s fees under 42 U.S.C. Sec. 1988.The Camerons’ complaint alleged deprivation of First Amendment (freedom of association) and Fourteenth Amendment (substantive due process) rights under 42 U.S.C. §1983, and asserted state tort claims of intentional interference with an advantageous business relationship, intentional infliction of emotional distress, discrimination on the basis of marital status, and loss of consortium. The Camerons’ suit also named the Monroe County Probate Court as a defendant, but the claims against it were dismissed on Eleventh Amendment grounds, as were the claims against Seitz in his official capacity. The probate court is not a party to this appeal.The District Court denied Seitz’s pre-trial motion for absolute or qualified immunity, holding that the conduct complained of by the Camerons did not involve the adjudication of anything by Seitz as a probate court judge. The District Court granted the Camerons’ pre-trial motion to allow into evidence the findings of the Michigan Judicial Tenure Commission, which had investigated the conduct of Seitz and had issued a Decision and Recommendation for Discipline.After a trial in October 1992, the jury ruled in favor of the Camerons on the §1983 and intentional infliction of emotional distress claims, awarding $88,800 in compensatory damages and $125,000 in punitive damages to Cindy, and $50,000 in compensatory damages and $50,000 in punitive damages to Larry. Seitz’s motions for judgment as a matter of law, j.n.o.v., or new trial were denied. Upon the Camerons’ motion and after a hearing, the District Court awarded attorney’s fees (some $72,700) and costs (some $5700) under 42 U.S.C. Sec. 1988.Seitz appeals the order denying his motion to dismiss; the denial of his motions for judgment as a matter of law, j.n.o.v., or new trial; the judgment; the denial of his motion for directed verdict; the order allowing the Judicial Tenure Commission documents into evidence; “any adverse rulings made during the course of trial”; and the order awarding costs, fees, and interest.Even viewed with caution toward extending the reach of judicial immunity, some of the actions taken by Seitz are clearly judicial acts for which Seitz is entitled to absolute immunity. Specifically, not taking Larry’s recommendations on the disposition of the cases and barring Larry’s admittance to the courtroom are judicial acts. Deciding a case is the quintessential judicial act, and, just as an allegation of bad faith or malice does not overcome the immunity, the complaint that Seitz made his decisions out of hostility arising from Larry’s engagement and subsequent marriage to Cindy does not negate the immunity to which he is entitled. “Disagreement with the action taken by the judge...does not justify depriving that judge of his immunity.” Stump v. Sparkman,?435 U.S. 349 (1978).A judge acts in his judicial capacity when he exercises control over his courtroom. See Sheppard v. Maxwell,?384 U.S. 333 (1966) (“the courtroom and courthouse premises are subject to the control of the court”). Thus, when Seitz barred Larry from his courtroom, he was acting in his judicial capacity and was entitled to judicial immunity. Further, as part of the exercise of control over his courtroom, a judge may control the conduct of those who appear in the courtroom. Because it is the general function and not the particular act with which we are concerned, we look to nature of the judge’s act of evaluating those who appear in court, and conclude that such evaluations are judicial in nature. We therefore hold that Seitz’s criticisms of Larry, and of the Youth Center, in open court were judicial acts for which Seitz is entitled to immunity.Similarly, a judge is acting in his judicial capacity when he calls upon those in the courtroom to address the court on matters of court business. Thus, when Seitz did not deal directly with Larry in the courtroom, the general nature of this act was nevertheless judicial in essence. Although the particular incident involved here appears unprofessional, it is the general nature of the act that is determinative of the issue of immunity. Also, when Seitz transferred Larry’s cases to another case worker, he was controlling the proceedings in his courtroom and therefore was entitled to immunity. See Mann v. Conlin,?22 F.3d 100 (6th Cir. 1994) (judge’s acts of setting hearing dates and of collecting attorney’s fees were judicial acts), cert. denied, 513 U.S. 870 (1994).As noted, absolute immunity is not available if the alleged wrongful conduct was committed pursuant to a non-judicial act, i.e., one not taken in the judge’s judicial capacity, such as terminating an employee. Forrester v. White,?484 U.S. 219 (1988). Where absolute immunity is unavailable, qualified immunity may nonetheless shield a public official from civil liability under §1983. Seitz asserts a claim of qualified immunity with respect to Cindy’s claims. Seitz is entitled to qualified immunity in the performance of official discretionary functions to the extent that his conduct did not violate clearly established statutory or constitutional rights. Flatford v. City of Monroe,?17 F.3d 162 (6th Cir. 1994). Thus, to survive a claim of qualified immunity, Cindy must show an alleged violation that implicates clearly established law. The relevant state of the law is that existing at the time of the alleged violation. Harlow v. Fitzgerald,?457 U.S. 800 (1982). The statutory or constitutional right is not “clearly established” unless the law is clear in regard to the official’s particular actions in the particular situation, such that any reasonable official would understand that his actions violate that right. Anderson v. Creighton,?483 U.S. 635 (1987). The unlawfulness of the official’s actions must be apparent. If officials of reasonable competence objectively could disagree on the law, immunity should be recognized. Mumford v. Zieba,?4 F.3d 429 (6th Cir. 1993).A judge performing administrative acts, like any government official, may assert the defense of qualified immunity. A “finding of a clearly established constitutional right must generally be supported by precedent from the Supreme Court or this circuit, or in the alternative, by decisions from other circuits”-although the decisions from other circuits must be clear and directly on point. Application of the doctrine of qualified immunity to a particular defendant is a question of law reviewed de novo.It is fairly clear that Seitz took adverse actions against Cindy. The District Court instructed the jury as to the doctrine of constructive discharge. The evidence in this case could support a jury’s finding of constructive discharge -i.e., a reasonable employer would have foreseen Cindy’s resignation when she was subjected to Seitz’s letters and tapes, which arose primarily out of Cindy’s relationship with Larry. See Wheeler v. Southland Corp.,?875 F.2d 1246 (6th Cir. 1989). However, the question of whether the evidence supports a finding of constructive discharge of Cindy here is not dispositive. Even assuming that it did, we hold that Seitz’s actions against Cindy did not violate any constitutional rights that were clearly established at the time of Seitz’s wrongful conduct.Cindy relies on Adkins v. Board of Educ. of Magoffin County, Ky.,?982 F.2d 952?(6th Cir. 1993), which construed the law with respect to state interference with marital relationships. Adkins concluded that a right to freedom of association in the marital context had existed since at least the decision in Roberts v. United States Jaycees,?468 U.S. 609 (1984). There the Court stated that “choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State.” In discussing the First Amendment’s protection of the freedom of intimate association, specifically in the context of whether the Jaycees’ decision to exclude women from membership in the Jaycees implicated that freedom, the Court noted that “[f]amily relationships,” such as marriage and childbirth, were constitutionally protected from undue interference by the state. “Once the Supreme Court has proclaimed the existence of a constitutional right, that right is ‘clearly established’ for purpose of deciding a claim of qualified immunity.” Adkins, 982 F.2d at 956.Thus, marriage and other “intimate human relationships” appear to enjoy some degree of constitutional protection. Our inquiry, however, does not end with that somewhat abstract conclusion. Rather, we must determine whether the particular relationship in this case enjoys constitutional protection.Roberts and Rotary International could be construed as providing a basis for determining that such an association short of marriage or divorce should merit constitutional protection. Certainly those cases set forth various factors to consider in making that determination. However, the precise extent of those decisions leaves room for disagreement, and, in particular, disagreement among reasonable officials. Indeed, in those cases themselves, the plaintiffs were found not to be protected on the bases that had already been clearly established, and neither was the degree of association in those groups found to be protected. Thus, the Court noted the existing protected bases (marriage, childbirth, etc.), listed the factors to consider in determining if constitutional protection exists in other cases, and found that none existed in the cases before it. The Court, however, gave no hard and fast rules as to where constitutional protection attaches in the “broad range of human relationships” between marriage and, for example, those in a large business enterprise. The Court noted that “the Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees.” Roberts, 468 U.S. at 620. In brief, it is not clear, from Roberts or Rotary International, where a relationship short of marriage would fall on this spectrum.Finally, we note that the Camerons’ state tort claim of intentional infliction of emotional distress was also submitted to the jury with their §1983 claim. The jury returned a verdict favorable to the Camerons on that claim as well. However, the jury only found a single amount as to damages and did not separately identify the amount due to each theory. The record provides no basis for us to separate the award on the state tort claim from the total damages awarded. Cindy’s claim of intentional infliction of emotional distress may still provide a basis of recovery, as we are dismissing only her §1983 claim. On remand, this claim will again be before the District Court. Of course, with the dismissal of the §1983 claim, original jurisdiction over the state tort claim is lacking, and the District Court has discretion as to whether to continue to exercise supplemental jurisdiction over it. See 28 U.S.C. Sec. 1367(c)(3); Aschinger v. Columbus Showcase Co.,?934 F.2d 1402 (6th Cir. 1991).Under 42 U.S.C. Sec. 1988, the District Court, in its discretion, may award to a “prevailing party” in a §1983 action reasonable attorney’s fees. To “qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought....” Farrar v. Hobby, 506 U.S. 103 (1992). In this case, the District Court awarded attorney’s fees to the Camerons pursuant to Sec. 1988. Because we hold that Seitz was entitled to absolute judicial and qualified immunity, the Camerons are not “prevailing parties” under Sec. 1988 and therefore are not entitled to attorney’s fees. The District Court’s order awarding such fees is reversed.The judgment of the District Court is REVERSED. This case is REMANDED to the District Court with instructions to DISMISS the counts based on 42 U.S.C. §1983. The exercise of supplemental jurisdiction over the count based on intentional infliction of emotional distress is committed to the discretion of the District Court.Footnotes:2. Curiously, the district judge appears to have instructed the jury on the issue of qualified immunity. The issue of qualified immunity is a question of law and generally should be decided by the judge at the outset of the law suit. Poe v. Haydon,?853 F.2d 418 (6th Cir. 1988), cert. denied, 488 U.S. 1007 (1989). One of the purposes of qualified immunity is to protect government officials from the exigencies of litigation. See Anderson, 483 U.S. at 638; Mumford, 4 F.3d at 432. Thus, normally a civil rights plaintiff should include in the original complaint all of the factual allegations necessary to sustain a conclusion that the defendant violated clearly established law. Poe, 853 F.2d at 424 (quoting Dominque v. Telb,?831 F.2d 673 (6th Cir. 1987)). Failure to do so, however, is not fatal; the District Court should allow the plaintiff an opportunity to come forward with additional facts or allegations showing that rights were violated and that those rights were clearly established. Failure at that point to plead such facts or allegations, however, would make summary judgment or a motion to dismiss on the ground of qualified immunity appropriate. If the plaintiff does plead such facts or allegations and the issue of qualified immunity is at the summary judgment stage, the District Court should grant the motion if the undisputed facts show that the defendant’s conduct, as a matter of law, did not violate clearly established legal rights. Summary judgment would be inappropriate, however, if there were a factual dispute as to an issue on which the question of immunity turns or if the undisputed facts show that the defendant’s conduct violated clearly established rights.CELLA v. UNITED STATES OF AMERICA, 998 F.2d 418 (1993)WILL, Senior District JudgeAs we have previously noted, “there is not much difficulty in finding a medical expert witness to testify to virtually any theory of medical causation short of the fantastic.” Stoleson v. United States, 708 F.2d 1217 (7th Cir. 1983).The defendant also challenges the District Court’s findings of fact regarding the medical causation of Cella’s affliction. The standard of review for this issue under Federal Rule of Civil Procedure 52(a) is whether these findings are clearly erroneous. The Supreme Court has held a factual findings clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake is been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985) (citing United States v. United States Gypsum Co., 333 U.S. 364 (1948)).“[I]n Jones Act cases causation may be found if the defendant’s acts or omissions played any part, no matter how small, in bringing about the injury”). The standard of causation has been called the “producing cause” standard. See Alverez, 674 F.2d at 1042-43.Cella next argues that the District Court erred in determining that he was contributorily negligent. He suggests that the court confused assumption of risk and contributory negligence in its analysis. The District Court properly identified four factors to support its finding that Cella was contributorily negligent: (1) Although Cella injured his back lifting pallets, he was in the best position to assess his ability for heavy lifting and, moreover, was aware of his recent shoulder and hip injuries; (2) Cella contributed to his accident with the spaghetti pot since he was charged with the duty of washing the melted butter off handle (even if it was not proper procedure for him to be so charged) and failed properly to perform his duty; (3) after each injury, Cella will fail to seek immediate medical assistance (and sometimes even treated himself); and (4) Cella, by his own attitude and demeanor, contributed to the steward department tensions which ultimately gave rise to the threats of physical violence. Accordingly, the District Court properly found that Cella was 40% contributorily negligent.DAUBERT v. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993)Justice?Blackmun?delivered the opinion of the Court.Petitioners, two minor children and their parents, alleged in their suit against respondent that the children’s serious birth defects had been caused by the mothers’ prenatal ingestion of Bendectin, a prescription drug marketed by respondent. The District Court granted respondent summary judgment based on a well-credentialed expert’s affidavit concluding, upon reviewing the extensive published scientific literature on the subject, that maternal use of Bendectin has not been shown to be a risk factor for human birth defects. Although petitioners had responded with the testimony of eight other well-credentialed experts, who based their conclusion that Bendectin can cause birth defects on animal studies, chemical structure analyses, and the unpublished “reanalysis” of previously published human statistical studies, the court determined that this evidence did not meet the applicable “general acceptance” standard for the admission of expert testimony. The Court of Appeals agreed and affirmed, citing?Frye v.?United States,?54 App. D. C. 46, 293 F. 1013, for the rule that expert opinion based on a scientific technique is inadmissible unless the technique is “generally accepted” as reliable in the relevant scientific community.Held:?The Federal Rules of Evidence, not?Frye,?provide the standard for admitting expert scientific testimony in a federal trial.(a)?Frye’s “general acceptance” test?was superseded by the Rules’ adoption. The Rules occupy the field,?United States?v.?Abel,?469 U.S. 45, and, although the common law of evidence may serve as an aid to their application, respondent’s assertion that they somehow assimilated?Frye?is unconvincing. Nothing in the Rules as a whole or in the text and drafting history of Rule 702, which specifically governs expert testimony, gives any indication that “general acceptance” is a necessary precondition to the admissibility of scientific evidence. Moreover, such a rigid standard would be at odds with the Rules’ liberal thrust and their general approach of relaxing the traditional barriers to “opinion” testimony. (b) The Rules - especially Rule 702 - place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. The reliability standard is established by Rule 702’s requirement that an expert’s testimony pertain to “scientific...knowledge,” since the adjective “scientific” implies a grounding in science’s methods and procedures, while the word “knowledge” connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds. The Rule’s requirement that the testimony “assist the trier of fact to understand the evidence or to determine a fact in issue” goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility.(c) Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules.(d) Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof, rather than wholesale exclusion under an uncompromising “general acceptance” standard, is the appropriate means by which evidence based on valid principles may be challenged. That even limited screening by the trial judge, on occasion, will prevent the jury from hearing of authentic scientific breakthroughs is simply a consequence of the fact that the Rules are not designed to seek cosmic understanding but, rather, to resolve legal disputes.Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers’ ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds.The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalysis of epidemiological studies that had been neither published nor subjected to peer review. 951 F. 2d, at 1130. Those courts had found unpublished reanalysis “particularly problematic in light of the massive weight of the original published studies supporting [respondent’s] position, all of which had undergone full scrutiny from the scientific community.” Contending that reanalysis is generally accepted by the scientific community only when it is subjected to verification and scrutiny by others in the field, the Court of Appeals rejected petitioners’ reanalysis as “unpublished, not subjected to the normal peer review process and generated solely for use in litigation.”?The court concluded that petitioners’ evidence provided an insufficient foundation to allow admission of expert testimony that Bendectin caused their injuries and, accordingly, that petitioners could not satisfy their burden of proving causation at trial.The?Frye?test has its origin in a short and citation free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared:“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery,?the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” 54 App. D.C., at 47, 293 F., at 1014.We interpret the legislatively enacted Federal Rules of Evidence as we would any statute.?Beech Aircraft Corp.?v.?Rainey,?488 U.S. 153 (1988). Rule 402 provides the baseline:“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Judge Weinstein has explained: “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.” Weinstein, 138 F.R.D., at 632.Petitioners and, to a greater extent, their?amici?exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of “invalid” evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth. It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment - often of great consequence -about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.To summarize: “general acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence - especially Rule 702 - do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.PUERTO RICO AQUEDUCT AND SEWER AUTHORITY v. METCALF & EDDY, INC., 506 U.S. 139, 113 S.Ct. 684 (1993)Justice WHITE delivered the opinion of the Court.Doctrine under which suits seeking prospective relief may be brought against state officials in federal court challenging constitutionality of official conduct and enforcing state law carves out narrow exception to Eleventh Amendment immunity; exception applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in past, and has no application in suits against states and their agencies, which are barred regardless of relief sought. U.S.C.A. Const. Amend. 11.Justice STEVENS, dissenting.The defense of absolute or qualified immunity is designed to shield government officials from liability for their official conduct. In the absence of such a defense, we have held, “officials would hesitate to exercise their discretion in a way injuriously affecting the claims of particular individuals even when the public interest required bold and unhesitating action.” Nixon v. Fitzgerald,?457 U.S., at 744. Because the specter of a long and contentious legal proceeding in and of itself would inhibit government officials from exercising their authority with the freedom and independence necessary to serve the public interest, we have held that claims of absolute or qualified immunity are subject to immediate appeal. Mitchell v. Forsyth,?472 U.S., at 526.While the Eleventh Amendment defense available to States and state entities is often labeled an “immunity,” that label is virtually all that it has in common with the defense of absolute or qualified immunity. In contrast to the latter, a defense based on the Eleventh Amendment, even when the Amendment is read at its broadest, does not contend that the State or state entity is shielded from liability for its conduct, but only that the federal courts are without jurisdiction over claims against the State or state entity. Nothing in the Eleventh Amendment bars respondent from seeking recovery in a different forum. Indeed, as noted above, petitioner acknowledges that it is not seeking immunity for its conduct, but merely that the suit be brought in the courts of the Commonwealth of Puerto Rico.BUCKLEY v. FITZSIMMONS, et al., 509 U.S. 259, 113 S.Ct. 2606 (1993)Justice STEVENS delivered the opinion of the Court.Under doctrine of “qualified immunity” from §1983 liability, government officials are not subject to damages liability for performance of their discretionary functions when their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known. 42 U.S.C.A. §1983.In determining whether particular actions of governmental official fit within common-law tradition of absolute immunity from §1983 liability, or only more general standard of qualified immunity, court applies “functional approach,” which looks to nature of function performed, not identity of actor who performed it. 42 U.S.C.A. §1983.Prosecutor’s administrative duties and those investigatory functions that do not relate to advocate’s preparation for initiation of prosecution or for judicial proceedings are entitled only to qualified, and not absolute immunity. 42 U.S.C.A. §1983.Prosecutor’s alleged misconduct, when endeavoring to determine whether bootprint at scene of crime had been left by suspect was investigatory, administrative function rather than prosecutorial function, for which prosecutors were entitled to only qualified immunity in suspect’s subsequent §1983 suit; prosecutors had no probable cause to arrest suspect or to initiate judicial proceedings against him at time of bootprint investigation. 42 U.S.C.A. §1983.Fact that prosecutors later called grand jury to consider allegedly false evidence their investigatory work had produced did not retroactively transform that work from administrative into prosecutorial, and thus did not provide prosecutors with absolute immunity from charge that evidence had been fabricated. 42 U.S.C.A. §1983.When functions of prosecutors and detectives are the same, immunity that protects them from §1983 liability is also the same. 42 U.S.C.A. §1983.Prosecutor’s allegedly false statements, made during public announcement of indictment of murder defendant, were entitled to only qualified, and not absolute immunity from §1983 liability; comments had no functional tie to judicial process and, though announcement may have been integral part of prosecutor’s job, he was in no different position than other executive officials who dealt with press and for whom qualified immunity was the norm. 42 U.S.C.A. §1983.Petitioner Buckley sought damages, under 42 U.S.C. §1983, from respondent prosecutors for fabricating evidence during the preliminary investigation of a highly publicized rape and murder in Illinois and making false statements at a press conference announcing the return of an indictment against him. He claimed that, when three separate lab studies failed to make a reliable connection between a bootprint at the murder site and his boots, respondents obtained a positive identification from one Robbins, who allegedly was known for her willingness to fabricate unreliable expert testimony. Thereafter, they convened a grand jury for the sole purpose of investigating the murder, and 10 months later, respondent Fitzsimmons, the State’s Attorney, announced the indictment at the news conference. Buckley was arrested and, unable to meet the bond, held in jail. Robbins provided the principal evidence against him at trial, but the jury was unable to reach a verdict. When Robbins died before Buckley’s retrial, all charges were dropped and he was released after three years of incarceration. In the §1983 action, the District Court held that respondents were entitled to absolute immunity for the fabricated evidence claim, but not for the press conference claim. However, the Court of Appeals ruled that they had absolute immunity on both claims, theorizing that prosecutors are entitled to absolute immunity when out-of-court acts cause injury only to the extent a case proceeds in court, but are entitled only to qualified immunity if the constitutional wrong is complete before the case begins. On remand from this Court, it found that nothing in Burns v. Reed,?500 U.S. 478?- in which the Court held that prosecutors had absolute immunity for their actions in participating in a probable cause hearing, but not in giving advice to the police - undermined its initial holding.Held: Respondents are not entitled to absolute immunity.Acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity. However, in endeavoring to determine whether the bootprint had been made by Buckley, respondents were acting not as advocates but as investigators searching for clues and corroboration that might give them probable cause to recommend an arrest. Such activities were not immune from liability at common law. If performed by police officers and detectives, such actions would be entitled to only qualified immunity; the same immunity applies to prosecutors performing those actions. Convening a grand jury to consider the evidence their work produced does not retroactively transform that work from the administrative into the prosecutorial.In an action brought under?42 U.S.C. §1983, petitioner seeks damages from respondent prosecutors for allegedly fabricating evidence during the preliminary investigation of a crime and making false statements at a press conference announcing the return of an indictment. The questions presented are whether respondents are absolutely immune from liability on either or both of these claims.As the case comes to us, we have no occasion to consider whether some or all of respondents’ conduct may be protected by qualified immunity. Moreover, we make two important assumptions about the case: first, that petitioner’s allegations are entirely true; and, second, that they allege constitutional violations for which §1983 provides a remedy. Our statement of facts is therefore derived entirely from petitioner’s complaint and is limited to matters relevant to respondents’ claim to absolute immunity.The theory of petitioner’s case is that in order to obtain an indictment in a case that had engendered “extensive publicity” and “intense emotions in the community,” the prosecutors fabricated false evidence, and that in order to gain votes, Fitzsimmons made false statements about petitioner in a press conference announcing his arrest and indictment 12 days before the primary election. Petitioner claims that respondents’ misconduct created a “highly prejudicial and inflamed atmosphere” that seriously impaired the fairness of the judicial proceedings against an innocent man and caused him to suffer a serious loss of freedom, mental anguish, and humiliation.The principles applied to determine the scope of immunity for state officials sued under Rev.Stat. 1979, as amended,?42 U.S.C. §1983?are by now familiar. Section 1983 on its face admits of no defense of official immunity. It subjects to liability “every person” who, acting under color of state law, commits the prohibited acts. In Tenney v. Brandhove,?341 U.S. 367 (1951), however, we held that Congress did not intend §1983 to abrogate immunities “well grounded in history and reason.” Certain immunities were so well established in 1871, when §1983 was enacted, that “we presume that Congress would have specifically so provided had it wished to abolish” them. Pierson v. Ray,?386 U.S. 547 (1967). See also Newport v. Fact Concerts, Inc.,?453 U.S. 247 (1981). Although we have found immunities in §1983 that do not appear on the face of the statute, “we do not have a license to establish immunities from §1983 actions in the interests of what we judge to be sound public policy.” Tower v. Glover,?467 U.S. 914 (1984). “Our role is to interpret the intent of Congress in enacting §1983, not to make a freewheeling policy choice.” Malley v. Briggs, 475 U.S. 335 (1986).In Imbler v. Pachtman,?424 U.S. 409 (1976), we held that a state prosecutor had absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the state’s case at trial. Noting that our earlier cases had been “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it”, we focused on the functions of the prosecutor that had most often invited common law tort actions. We concluded that the common-law rule of immunity for prosecutors was “well settled” and that “the same considerations of public policy that underlie the common-law rule likewise countenance absolute immunity under §1983.” Those considerations supported a rule of absolute immunity for conduct of prosecutors that was “intimately associated with the judicial phase of the criminal process.” In concluding that “in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under §1983,” we did not attempt to describe the line between a prosecutor’s acts in preparing for those functions, some of which would be absolutely immune, and his acts of investigation or “administration,” which would not.We further decided, however, that prosecutors are not entitled to absolute immunity for their actions in giving legal advice to the police. We were unable to identify any historical or common-law support for absolute immunity in the performance of this function. We also noted that any threat to the judicial process from “the harassment and intimidation associated with litigation” based on advice to the police was insufficient to overcome the “absence of a tradition of immunity comparable to the common-law immunity from malicious prosecution, which formed the basis for the decision in Imbler.” And though we noted that several checks other than civil litigation prevent prosecutorial abuses in advising the police, “one of the most important checks, the judicial process,” will not be effective in all cases, especially when in the end the suspect is not prosecuted. In sum, we held that providing legal advice to the police was not a function “closely associated with the judicial process.”On the other hand, as the function test of Imbler recognizes, the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor. Qualified immunity “‘represents the norm’” for executive officers, Malley v. Briggs,?475 U.S., at 340, quoting Harlow v. Fitzgerald,?457 U.S., at 807, so when a prosecutor “functions as an administrator rather than as an officer of the court” he is entitled only to qualified immunity. Imbler,?424 U.S., at 431. There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is “neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” Hampton v. Chicago, 484 F.2d 602 (CA7 1973), cert. denied,?415 U.S. 917 (1974). Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he “has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.”Justice KENNEDY, with whom the Chief Justice, Justice WHITE, and Justice SOUTER join, concurring in part and dissenting in part.Furthermore, the very matter the prosecutors were considering, the decision to use particular expert testimony, was “subjected to the ‘crucible of the judicial process.’” Burns v. Reed, 500 U.S., at 478, quoting Imbler v. Pachtman,?424 U.S., at 440. Indeed, it appears that the only constitutional violations these actions are alleged to have caused occurred within the judicial process. The question Buckley presented in his petition for certiorari itself makes this point: “Whether prosecutors are entitled to absolute prosecutorial immunity for supervision of and participation in a year long pre-arrest and pre-indictment investigation because the injury suffered by the criminal defendant occurred during the later criminal proceedings?” Remedies other than prosecutorial liability, for example, a pretrial ruling of inadmissibility or a rejection by the trier of fact, are more than adequate “to prevent abuses of authority by prosecutors.” Burns v. Reed, 500 U.S., at 478. See also Butz v. Economou,?438 U.S., at 512; Imbler v. Pachtman,?424 U.S., at 429.I suggest that it is the Court’s probable-cause demarcation between when conduct can be considered absolutely immune advocacy and when it cannot that creates the true anomaly in this case. We were quite clear in Imbler that if absolute immunity for prosecutors meant anything, it meant that prosecutors were not subject to suit for malicious prosecution. See also Burns, 500 U.S., at 478 (“The common-law immunity from malicious prosecution...formed the basis for the decision in Imbler”). Yet the central component of a malicious prosecution claim is that the prosecutor in question acted maliciously and without probable cause. See Wyatt v. Cole, 504 U.S. 158 (1992); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts §119 (5th ed. 1984). If the Court means to withhold absolute immunity whenever it is alleged that the injurious actions of a prosecutor occurred before he had probable cause to believe a specified individual committed a crime, then no longer is a claim for malicious prosecution subject to ready dismissal on absolute immunity grounds, at least where the claimant is clever enough to include some actions taken by the prosecutor prior to the initiation of prosecution. I find it rather strange that the classic case for the invocation of absolute immunity falls on the unprotected side of the Court’s new dividing line. I also find it hard to accept any line that can be so easily manipulated by criminal defendants turned civil plaintiffs, allowing them to avoid a dismissal on absolute immunity grounds by throwing in an allegation that a prosecutor acted without probable cause.Even assuming these premature actions would not be induced by the Court’s rule, separating absolute immunity from qualified immunity based on a third-party determination of probable cause makes little sense when a civil plaintiff claims that a prosecutor falsified evidence or coerced confessions. If the false evidence or coerced confession served as the basis for the third party’s determination of probable cause, as was alleged here, it is difficult to fathom why securing such a fraudulent determination transmogrifies unprotected conduct into protected conduct. Finally, the Court does not question our conclusion in Burns that absolute immunity attached to a prosecutor’s conduct before a grand jury because it “‘performs a judicial function.’” Quoting W. Prosser, Law of Torts §94, pp. 826-827 (1941)). See also Yaselli v. Goff, 12 F.2d 396 (CA2 1926), aff’d,?275 U.S. 503 (1927). It is unclear to me, then, why preparing for grand jury proceedings, which obviously occur before an indictment is handed down, cannot be “intimately associated with the judicial phase of the criminal process” and subject to absolute immunity. Burns, 500 U.S., at 478, quoting Imbler,?424 U.S., at 430.As troubling as is the line drawn by the Court, I find the reasons for its line-drawing to be of equal concern. The Court advances two reasons for distinguishing between pre-probable-cause and post-probable-cause activity by prosecutors. First, the distinction is needed to ensure that prosecutors receive no greater protection than do police officers when engaged in identical conduct. Second, absent some clear distinction between investigation and advocacy, the Court fears, “every prosecutor might...shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.” This step, it is alleged, would enable any prosecutor to “retrospectively describe” his investigative work “as ‘preparation’ for a possible trial” and therefore request the benefits of absolute immunity. I find neither of these justifications persuasive.The Court’s first concern, I take it, is meant to be a restatement of one of the unquestioned goals of our §1983 immunity jurisprudence: ensuring parity in treatment among state actors engaged in identical functions. Forrester v. White,?484 U.S., at 229; Cleavinger v. Saxner,?474 U.S., at 201. But it was for the precise reason of advancing this goal that we adopted the functional approach to absolute immunity in the first place, and I do not see a need to augment that approach by developing bright-line rules in cases where determining whether different actors are engaged in identical functions involves careful attention to subtle details. The Court, moreover, perceives a danger of disparate treatment because it assumes that before establishing probable cause, police and prosecutors perform the same functions. This assumption seem to me unwarranted. I do not understand the art of advocacy to have an inherent temporal limitation, so I cannot say that prosecutors are never functioning as advocates before the determination of probable cause. More to the point, the Court’s assumption further presumes that when both prosecutors and police officers engage in the same conduct, they are of necessity engaged in the same function. With this I must disagree. Two actors can take part in similar conduct and similar inquiries while doing so for different reasons and to advance different functions. It may be that a prosecutor and a police officer are examining the same evidence at the same time, but the prosecutor is examining the evidence to determine whether it will be persuasive at trial and of assistance to the trier of fact, while the police officer examines the evidence to decide whether it provides a basis for arresting a suspect. The conduct is the same but the functions distinct. See Buchanan, Police-Prosecutor Teams, The Prosecutor 32 (summer 1989).Footnotes:4. In particular, we expressed concern that fear of potential liability would undermine a prosecutor’s performance of his duties by forcing him to consider his own potential liability when making prosecutorial decisions and by diverting his “energy and attention...from the pressing duty of enforcing the criminal law.” Imbler v. Pachtman,?424 U.S., at 424. Suits against prosecutors would devolve into “a virtual retrial of the criminal offense of a new forum,” and would undermine the vigorous enforcement of the law by providing a prosecutor an incentive not “to go forward with a close case where an acquittal likely would trigger a suit against him for damages.” We also expressed concern that the availability of a damages action might cause judges to be reluctant to award relief to convicted defendants in post-trial motions.6. Cf. Burns v. Reed, 500 U.S. 478 (1991): “Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice.... Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive.” If the police, under the guidance of the prosecutors, had solicited the allegedly “fabricated” testimony, of course, they would not be entitled to anything more than qualified immunity.NEW YORK v. UNITED STATES, et al., 505 U.S. 144, 112 S.Ct. 2408 (1992)Justice O’CONNOR delivered the opinion of the Court.Faced with a looming shortage of disposal sites for low level radioactive waste in 31 States, Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985, which, among other things, imposes upon States, either alone or in “regional compacts” with other States, the obligation to provide for the disposal of waste generated within their borders, and contains three provisions setting forth “incentives” to States to comply with that obligation. The first set of incentives - the monetary incentives - works in three steps: (1) States with disposal sites are authorized to impose a surcharge on radioactive waste received from other States; (2) the Secretary of Energy collects a portion of this surcharge and places it in an escrow account; and (3) States achieving a series of milestones in developing sites receive portions of this fund. The second set of incentives - the access incentives - authorizes sited States and regional compacts gradually to increase the cost of access to their sites, and then to deny access altogether, to waste generated in States that do not meet federal deadlines. The so-called third “incentive” - the take title provision - specifies that a State or regional compact that fails to provide for the disposal of all internally generated waste by a particular date must, upon the request of the waste’s generator or owner, take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the State’s failure to promptly take possession. Petitioners, New York State and two of its counties, filed this suit against the United States, seeking a declaratory judgment that, inter alia, the three incentives provisions are inconsistent with the Tenth Amendment - which declares that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States” - and with the Guarantee Clause of Article IV, §4 - which directs the United States to “guarantee to every State...a Republican Form of Government.” The District Court dismissed the complaint, and the Court of Appeals affirmed.Held: …(i) Also rejected is the sited state respondents’ argument that the Act cannot be ruled an unconstitutional infringement of New York sovereignty because officials of that State lent their support, and consented, to the Act’s passage. A departure from the Constitution’s plan for the intergovernmental allocation of authority cannot be ratified by the “consent” of state officials, since the Constitution protects state sovereignty for the benefit of individuals, not States or their governments, and since the officials’ interests may not coincide with the Constitution’s allocation. Nor does New York’s prior support estop it from asserting the Act’s unconstitutionality.This case implicates one of our Nation’s newest problems of public policy and perhaps our oldest question of constitutional law. The public policy issue involves the disposal of radioactive waste: In this case, we address the constitutionality of three provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub.L. 99-240, 99 Stat. 1842,?42 U.S.C. §2021b?et seq. The constitutional question is as old as the Constitution: It consists of discerning the proper division of authority between the Federal Government and the States. We conclude that while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so. We therefore find that only two of the Act’s three provisions at issue are consistent with the Constitution’s allocation of power to the Federal Government.Our Nation’s first site for the land disposal of commercial low level radioactive waste opened in 1962 in Beatty, Nevada. Five more sites opened in the following decade: Maxey Flats, Kentucky (1963), West Valley, New York (1963), Hanford, Washington (1965), Sheffield, Illinois (1967), and Barnwell, South Carolina (1971). Between 1975 and 1978, the Illinois site closed because it was full, and water management problems caused the closure of the sites in Kentucky and New York. As a result, since 1979 only three disposal sites - those in Nevada, Washington, and South Carolina - have been in operation. Waste generated in the rest of the country must be shipped to one of these three sites for disposal. See Low-Level Radioactive Waste Regulation 39-40 (M. Burns ed. 1988).Petitioners - the State of New York and the two counties - filed this suit against the United States in 1990. They sought a declaratory judgment that the Act is inconsistent with the Tenth and Eleventh Amendments to the Constitution, with the Due Process Clause of the Fifth Amendment, and with the Guarantee Clause of Article IV of the Constitution. The States of Washington, Nevada, and South Carolina intervened as defendants. The District Court dismissed the complaint. 757 F.Supp. 10 (NDNY 1990). The Court of Appeals affirmed. 942 F.2d 114 (CA2 1991). Petitioners have abandoned their Due Process and Eleventh Amendment claims on their way up the appellate ladder; as the case stands before us, petitioners claim only that the Act is inconsistent with the Tenth Amendment and the Guarantee Clause.These questions can be viewed in either of two ways. In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution. See Perez v. United States,?402 U.S. 146 (1971); McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment. See Garcia v. San Antonio Metropolitan Transit Authority,?469 U.S. 528 (1985); Lane County v. Oregon, 7 Wall. 71, 19 L.Ed. 101 (1869). In a case like this one, involving the division of authority between federal and state governments, the two inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress. See United States v. Oregon,?366 U.S. 643; Case v. Bowles, 327 U.S. 92 (1946); Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.,?313 U.S. 508 (1941).It is in this sense that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.” United States v. Darby,?312 U.S. 100 (1941). As Justice Story put it, “this amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities.” 3 J. Story, Commentaries on the Constitution of the United States 752 (1833). This has been the Court’s consistent understanding: “The States unquestionably do retain a significant measure of sovereign authority...to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.” Garcia v. San Antonio Metropolitan Transit Authority,?469 U.S., at 549.Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment. The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.The benefits of this federal structure have been extensively catalogued elsewhere, see Gregory v. Ashcroft, 501 U.S., at 457-460; Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum.L.Rev. 1 (1988); McConnell, Federalism: Evaluating the Founders’ Design, 54 U.Chi.L.Rev. 1484 (1987), but they need not concern us here. Our task would be the same even if one could prove that federalism secured no advantages to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution. “The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.” United States v. Butler,?297 U.S. 1 (1936).This framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government’s role. Among the provisions of the Constitution that have been particularly important in this regard, three concern us here.First, the Constitution allocates to Congress the power “to regulate Commerce...among the several States.” Art. I, §8, cl. 3. Interstate commerce was an established feature of life in the late 18th century. See The Federalist No. 42, p. 267 (C. Rossiter ed. 1961) (“The defect of power in the existing Confederacy to regulate the commerce between its several members has been clearly pointed out by experience”). The volume of interstate commerce and the range of commonly accepted objects of government regulation have, however, expanded considerably in the last 200 years, and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress’ commerce power. See Katzenbach v. McClung,?379 U.S. 294 (1964); Wickard v. Filburn,?317 U.S. 111 (1942).Second, the Constitution authorizes Congress “to pay the Debts and provide for the...general Welfare of the United States.” Art. I, §8, cl. 1. As conventional notions of the proper objects of government spending have changed over the years, so has the ability of Congress to “fix the terms on which it shall disburse federal money to the States.” Pennhurst State School and Hospital v. Halderman,?451 U.S. 1 (1981). Compare United States v. Butler?297 U.S., at 72?(spending power does not authorize Congress to subsidize farmers), with South Dakota v. Dole,?483 U.S. 203 (1987)?(spending power permits Congress to condition highway funds on States’ adoption of minimum drinking age). While the spending power is “subject to several general restrictions articulated in our cases,” these restrictions have not been so severe as to prevent the regulatory authority of Congress from generally keeping up with the growth of the federal budget.The Court’s broad construction of Congress’ power under the Commerce and Spending Clauses has of course been guided, as it has with respect to Congress’ power generally, by the Constitution’s Necessary and Proper Clause, which authorizes Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” U.S. Const., Art. I., §8, cl. 18. See Legal Tender Case (Juilliard v. Greenman), 110 U.S. 421 (1884); McCulloch v. Maryland, 4 Wheat., at 411.Finally, the Constitution provides that “the Laws of the United States...shall be the supreme Law of the Land...any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S.Const., Art. VI, cl. 2. As the Federal Government’s willingness to exercise power within the confines of the Constitution has grown, the authority of the States has correspondingly diminished to the extent that federal and state policies have conflicted. See Shaw v. Delta Air Lines, Inc.,?463 U.S. 85 (1983). We have observed that the Supremacy Clause gives the Federal Government “a decided advantage in the delicate balance” the Constitution strikes between State and Federal power. Gregory v. Ashcroft, 501 U.S., at 460.The actual scope of the Federal Government’s authority with respect to the States has changed over the years, therefore, but the constitutional structure underlying and limiting that authority has not. In the end, just as a cup may be half empty or half full, it makes no difference whether one views the question at issue in this case as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment. Either way, we must determine whether any of the three challenged provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985 oversteps the boundary between federal and state authority.These statements in FERC and Hodel were not innovations. While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions. See Coyle v. Oklahoma, 221 U.S. 559 (1911). The Court has been explicit about this distinction. “Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States.” Lane County v. Oregon, 7 Wall., at 76. The Court has made the same point with more rhetorical flourish, although perhaps with less precision, on a number of occasions. In Chief Justice Chase’s much-quoted words, “the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”Texas v. White, 7 Wall. 700, 19 L.Ed. 227 (1869). See also Metcalf & Eddy v. Mitchell,?269 U.S. 514 (1926)?(“neither government may destroy the other nor curtail in any substantial manner the exercise of its powers”); Tafflin v. Levitt,?493 U.S. 455 (1990)?(“under our federal system, the States possess sovereignty concurrent with that of the Federal Government”); Gregory v. Ashcroft, 501 U.S., at 461 (“the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere”).Indeed, the question whether the Constitution should permit Congress to employ state governments as regulatory agencies was a topic of lively debate among the Framers. Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly. In practice, Congress “could not directly tax or legislate upon individuals; it had no explicit ‘legislative’ or ‘governmental’ power to make binding ‘law’ enforceable as such.” Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425 (1987).The Convention generated a great number of proposals for the structure of the new Government, but two quickly took center stage. Under the Virginia Plan, as first introduced by Edmund Randolph, Congress would exercise legislative authority directly upon individuals, without employing the States as intermediaries. 1 Records of the Federal Convention of 1787, p. 21 (M. Farrand ed. 1911). Under the New Jersey Plan, as first introduced by William Paterson, Congress would continue to require the approval of the States before legislating, as it has under the Articles of Confederation. These two plans underwent various revisions as the Convention progressed, but they remained the two primary options discussed by the delegates. One frequently expressed objection to the New Jersey Plan was that it might require the Federal Government to coerce the States into implementing legislation. As Randolph explained the distinction, “the true question is whether we shall adhere to the federal plan i.e., the New Jersey Plan, or introduce the national plan. The insufficiency of the former has been fully displayed.... There are but two modes, by which the end of a General Government can be attained: the 1st is by coercion as proposed by Mr. Paterson’s plan, the 2nd by real legislation as proposed by the other plan. Coercion is impracticable, expensive, cruel to individuals.... We must resort therefore to a national Legislation over individuals.” Madison echoed this view: “The practicability of making laws, with coercive sanctions, for the States as political bodies, had been exploded on all hands.”This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State’s policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here.First, under Congress’ spending power, “Congress may attach conditions on the receipt of federal funds.” South Dakota v. Dole,?483 U.S., at 206. Such conditions must (among other requirements) bear some relationship to the purpose of the federal spending; otherwise, of course, the spending power could render academic the Constitution’s other grants and limits of federal authority. Where the recipient of federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State’s legislative choices. See Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum.L.Rev. 847 (1979). Dole was one such case: The Court found no constitutional flaw in a federal statute directing the Secretary of Transportation to withhold federal highway funds from States failing to adopt Congress’ choice of a minimum drinking age. Similar examples abound. See Fullilove v. Klutznick,?448 U.S. 448 (1980); Massachusetts v. United States,?435 U.S. 444 (1978); Lau v. Nichols, 414 U.S. 563 (1974); Oklahoma v. Civil Service Comm’n,?330 U.S. 127 (1947).Second, where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress’ power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,?452 U.S., at 288. See also FERC v. Mississippi,?456 U.S., at 764. This arrangement, which has been termed “a program of cooperative federalism,” Hodel,?452 U.S., at 289, is replicated in numerous federal statutory schemes. These include the Clean Water Act, 86 Stat. 816, as amended, 33 U.S.C. §1251?et seq., see Arkansas v. Oklahoma, 503 U.S. 91 (1992) (Clean Water Act “anticipates a partnership between the States and the Federal Government, animated by a shared objective”); the Occupational Safety and Health Act of 1970, 84 Stat. 1590,?29 U.S.C. §651?et seq., see Gade v. National Solid Wastes Management Assn., 505 U.S. 88 (1992); the Resource Conservation and Recovery Act of 1976, 90 Stat. 2796, as amended,?42 U.S.C. §6901?et seq., see United States Dept. of Energy v. Ohio, 503 U.S. 607 (1992); and the Alaska National Interest Lands Conservation Act, 94 Stat. 2374,?16 U.S.C. §3101?et seq., see Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (CA9 1988), cert. denied,?491 U.S. 905 (1989).By contrast, where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished. If the citizens of New York, for example, do not consider that making provision for the disposal of radioactive waste is in their best interest, they may elect state officials who share their view. That view can always be preempted under the Supremacy Clause if it is contrary to the national view, but in such a case it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular. But where the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation. See Merritt, 88 Colum.L.Rev., at 61; La Pierre, Political Accountability in the National Political Process - The Alternative to Judicial Review of Federalism Issues, 80 Nw.U.L.Rev. 577 (1985).The Act could plausibly be understood either as a mandate to regulate or as a series of incentives. Under petitioners’ view, however, §2021c(a)(1)(A) of the Act would clearly “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,?452 U.S., at 288. We must reject this interpretation of the provision for two reasons. First, such an outcome would, to say the least, “upset the usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U.S., at 460. “It is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides this balance,” but the Act’s amenability to an equally plausible alternative construction prevents us from possessing such certainty. Second, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council,?485 U.S. 568 (1988). This rule of statutory construction pushes us away from petitioners’ understanding of §2021c(a)(1)(A) of the Act, under which it compels the States to regulate according to Congress’ instructions.The third step is a conditional exercise of Congress’ authority under the Spending Clause: Congress has placed conditions - the achievement of the milestones - on the receipt of federal funds. Petitioners do not contend that Congress has exceeded its authority in any of the four respects our cases have identified. See generally South Dakota v. Dole,?483 U.S., at 207. The expenditure is for the general welfare, Helvering v. Davis,?301 U.S. 619 (1937); the States are required to use the money they receive for the purpose of assuring the safe disposal of radioactive waste.?42 U.S.C. §2021e(d)(2)(E). The conditions imposed are unambiguous, Pennhurst State School and Hospital v. Halderman,?451 U.S., at 17; the Act informs the States exactly what they must do and by when they must do it in order to obtain a share of the escrow account. The conditions imposed are reasonably related to the purpose of the expenditure, Massachusetts v. United States,?435 U.S., at 461; both the conditions and the payments embody Congress’ efforts to address the pressing problem of radioactive waste disposal. Finally, petitioners do not claim that the conditions imposed by the Act violate any independent constitutional prohibition. Lawrence County v. Lead-Deadwood School Dist.,?469 U.S. 256 (1985).The take title provision is of a different character. This third so-called “incentive” offers States, as an alternative to regulating pursuant to Congress’ direction, the option of taking title to and possession of the low level radioactive waste generated within their borders and becoming liable for all damages waste generators suffer as a result of the States’ failure to do so promptly. In this provision, Congress has crossed the line distinguishing encouragement from coercion.The take title provision offers state governments a “choice” of either accepting ownership of waste or regulating according to the instructions of Congress. Respondents do not claim that the Constitution would authorize Congress to impose either option as a freestanding requirement. On one hand, the Constitution would not permit Congress simply to transfer radioactive waste from generators to state governments. Such a forced transfer, standing alone, would in principle be no different than a congressionally compelled subsidy from state governments to radioactive waste producers. The same is true of the provision requiring the States to become liable for the generators’ damages. Standing alone, this provision would be indistinguishable from an Act of Congress directing the States to assume the liabilities of certain state residents. Either type of federal action would “commandeer” state governments into the service of federal regulatory purposes, and would for this reason be inconsistent with the Constitution’s division of authority between federal and state governments. On the other hand, the second alternative held out to state governments - regulating pursuant to Congress’ direction - would, standing alone, present a simple command to state governments to implement legislation enacted by Congress. As we have seen, the Constitution does not empower Congress to subject state governments to this type of instruction.The United States proposes three alternative views of the constitutional line separating state and federal authority. While each view concedes that Congress generally may not compel state governments to regulate pursuant to federal direction, each purports to find a limited domain in which such coercion is permitted by the Constitution.First, the United States argues that the Constitution’s prohibition of congressional directives to state governments can be overcome where the federal interest is sufficiently important to justify state submission. This argument contains a kernel of truth: In determining whether the Tenth Amendment limits the ability of Congress to subject state governments to generally applicable laws, the Court has in some cases stated that it will evaluate the strength of federal interests in light of the degree to which such laws would prevent the State from functioning as a sovereign; that is, the extent to which such generally applicable laws would impede a state government’s responsibility to represent and be accountable to the citizens of the State. See EEOC v. Wyoming,?460 U.S., at 242; Transportation Union v. Long Island R. Co.,?455 U.S., at 684; National League of Cities v. Usery,?426 U.S., at 853. The Court has more recently departed from this approach. See South Carolina v. Baker,?485 U.S., at 512; Garcia v. San Antonio Metropolitan Transit Authority,?469 U.S., at 556. But whether or not a particularly strong federal interest enables Congress to bring state governments within the orbit of generally applicable federal regulation, no Member of the Court has ever suggested that such a federal interest would enable Congress to command a state government to enact state regulation. No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate. The Constitution instead gives Congress the authority to regulate matters directly and to pre-empt contrary state regulation. Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.Second, the United States argues that the Constitution does, in some circumstances, permit federal directives to state governments. Various cases are cited for this proposition, but none support it. Some of these cases discuss the well-established power of Congress to pass laws enforceable in state courts. See Testa v. Katt,?330 U.S. 386 (1947); Palmore v. United States,?411 U.S. 389 (1973); see also Mondou v. New York, N.H. & H.R. Co.,?223 U.S. 1 (1912); Claflin v. Houseman,?93 U.S. 130 (1876). These cases involve no more than an application of the Supremacy Clause’s provision that federal law “shall be the supreme Law of the Land,” enforceable in every State. More to the point, all involve congressional regulation of individuals, not congressional requirements that States regulate. Federal statutes enforceable in state courts do, in a sense, direct state judges to enforce them, but this sort of federal “direction” of state judges is mandated by the text of the Supremacy Clause. No comparable constitutional provision authorizes Congress to command state Legislatures to legislate.Additional cases cited by the United States discuss the power of federal courts to order state officials to comply with federal law. See Puerto Rico v. Branstad,?483 U.S. 219 (1987); Washington v. Washington State Commercial Passenger Fishing Vessel Assn.,?443 U.S. 658 (1979); Illinois v. City of Milwaukee,?406 U.S. 91 (1972); see also Cooper v. Aaron,?358 U.S. 1 (1958); Brown v. Board of Ed.,?349 U.S. 294 (1955); Ex parte Young,?209 U.S. 123 (1908). Again, however, the text of the Constitution plainly confers this authority on the federal courts, the “judicial Power” of which “shall extend to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States...; and to Controversies between two or more States; and between a State and Citizens of another State.” U.S. Const., Art. III, §2. The Constitution contains no analogous grant of authority to Congress. Moreover, the Supremacy Clause makes federal law paramount over the contrary positions of state officials; the power of federal courts to enforce federal law thus presupposes some authority to order state officials to comply. See Puerto Rico v. Branstad,?483 U.S., at 227?(overruling Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717 (1861)).In sum, the cases relied upon by the United States hold only that federal law is enforceable in state courts and that federal courts may in proper circumstances order state officials to comply with federal law, propositions that by no means imply any authority on the part of Congress to mandate state regulation.Third, the United States, supported by the three sited regional compacts as amici, argues that the Constitution envisions a role for Congress as an arbiter of interstate disputes. The United States observes that federal courts, and this Court in particular, have frequently resolved conflicts among States. See Arkansas v. Oklahoma,?503 U.S. 91 (1992); Wyoming v. Oklahoma,?502 U.S. 437 (1992). Many of these disputes have involved the allocation of shared resources among the States, a category perhaps broad enough to encompass the allocation of scarce disposal space for radioactive waste. See Colorado v. New Mexico,?459 U.S. 176 (1982); Arizona v. California,?373 U.S. 546 (1963). The United States suggests that if the Court may resolve such interstate disputes, Congress can surely do the same under the Commerce Clause. The regional compacts support this argument with a series of quotations from The Federalist and other contemporaneous documents, which the compacts contend demonstrate that the Framers established a strong national Legislature for the purpose of resolving trade disputes among the States. Brief for Rocky Mountain Low-Level Radioactive Waste Compact et al. as Amici Curiae 17, and n. 16.While the Framers no doubt endowed Congress with the power to regulate interstate commerce in order to avoid further instances of the interstate trade disputes that were common under the Articles of Confederation, the Framers did not intend that Congress should exercise that power through the mechanism of mandating state regulation. The Constitution established Congress as “a superintending authority over the reciprocal trade” among the States, The Federalist No. 42, p. 268 (C. Rossiter ed. 1961), by empowering Congress to regulate that trade directly, not by authorizing Congress to issue trade-related orders to state governments. As Madison and Hamilton explained, “a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity.” The Federalist No. 20, p. 138.The answer follows from an understanding of the fundamental purpose served by our Government’s federal structure. The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” Coleman v. Thompson,?501 U.S. 722. “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory v. Ashcroft,?501 U.S., at 458. See The Federalist No. 51, p. 323.Petitioners also contend that the Act is inconsistent with the Constitution’s Guarantee Clause, which directs the United States to “guarantee to every State in this Union a Republican Form of Government.” U.S. Const., Art. IV, §4. Because we have found the take title provision of the Act irreconcilable with the powers delegated to Congress by the Constitution and hence with the Tenth Amendment’s reservation to the States of those powers not delegated to the Federal Government, we need only address the applicability of the Guarantee Clause to the Act’s other two challenged provisions.We approach the issue with some trepidation, because the Guarantee Clause has been an infrequent basis for litigation throughout our history. In most of the cases in which the Court has been asked to apply the Clause, the Court has found the claims presented to be nonjusticiable under the “political question” doctrine. See City of Rome v. United States,?446 U.S. 156 (1980) (challenge to the preclearance requirements of the Voting Rights Act); Baker v. Carr,?369 U.S. 186 (1962)?(challenge to apportionment of state legislative districts); Pacific States Tel. & Tel. Co. v. Oregon,?223 U.S. 118 (1912)?(challenge to initiative and referendum provisions of state constitution).The view that the Guarantee Clause implicates only nonjusticiable political questions has its origin in Luther v. Borden, 7 How. 1, 12 L.Ed. 581 (1849), in which the Court was asked to decide, in the wake of Dorr’s Rebellion, which of two rival governments was the legitimate government of Rhode Island. The Court held that “it rests with Congress,” not the Judiciary, “to decide what government is the established one in a State.” Over the following century, this limited holding metamorphosed into the sweeping assertion that “violation of the great guaranty of a republican form of government in States cannot be challenged in the courts.” Colegrove v. Green,?328 U.S. 549 (1946).This view has not always been accepted. In a group of cases decided before the holding of Luther was elevated into a general rule of nonjusticiability, the Court addressed the merits of claims founded on the Guarantee Clause without any suggestion that the claims were not justiciable. See Kies v. Lowrey,?199 U.S. 233 (1905); Forsyth v. Hammond,?166 U.S. 506 (1897); In re Duncan,?139 U.S. 449 (1891); Minor v. Happersett, 21 Wall. 162, 22 L.Ed. 627 (1875). See also Plessy v. Ferguson,?163 U.S. 537 (1896) (racial segregation “inconsistent with the guarantee given by the Constitution to each State of a republican form of government”).We need not resolve this difficult question today. Even if we assume that petitioners’ claim is justiciable, neither the monetary incentives provided by the Act nor the possibility that a State’s waste producers may find themselves excluded from the disposal sites of another State can reasonably be said to deny any State a republican form of government. As we have seen, these two incentives represent permissible conditional exercises of Congress’ authority under the Spending and Commerce Clauses respectively, in forms that have now grown commonplace. Under each, Congress offers the States a legitimate choice rather than issuing an unavoidable command. The States thereby retain the ability to set their legislative agendas; state government officials remain accountable to the local electorate. The twin threats imposed by the first two challenged provisions of the Act - that New York may miss out on a share of federal spending or that those generating radioactive waste within New York may lose out-of-state disposal outlets - do not pose any realistic risk of altering the form or the method of functioning of New York’s government. Thus even indulging the assumption that the Guarantee Clause provides a basis upon which a State or its subdivisions may sue to enjoin the enforcement of a federal statute, petitioners have not made out such a claim in this case.Some truths are so basic that, like the air around us, they are easily overlooked. Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear “formalistic” in a given case to partisans of the measure at issue, because such measures are typically the product of the era’s perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day. The shortage of disposal sites for radioactive waste is a pressing national problem, but a Judiciary that licensed extra-constitutional government with each issue of comparable gravity would, in the long run, be far worse.States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 245 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.Justice WHITE, with whom Justice BLACKMUN and Justice STEVENS join, concurring in part and dissenting in part.To justify its holding that the take title provision contravenes the Constitution, the Court posits that “in this provision, Congress has crossed the line distinguishing encouragement from coercion.” Without attempting to understand properly the take title provision’s place in the interstate bargaining process, the Court isolates the measure analytically and proceeds to dissect it in a syllogistic fashion. The Court candidly begins with an argument respondents do not make: “that the Constitution would not permit Congress simply to transfer radioactive waste from generators to state governments.” “Such a forced transfer,” it continues, “standing alone, would in principle be no different than a congressionally compelled subsidy from state governments to radioactive waste producers.” Since this is not an argument respondents make, one naturally wonders why the Court builds its analysis that the take title provision is unconstitutional around this opening premise. But having carefully built its straw man, the Court proceeds impressively to knock him down. “As we have seen,” the Court teaches, “the Constitution does not empower Congress to subject state governments to this type of instruction.”?Although unlike the 42 States that compose the nine existing and approved regional compacts, New York has never formalized its assent to the 1980 and 1985 statutes, our cases support the view that New York’s actions signify assent to a constitutional interstate “agreement” for purposes of Art. I, §10, cl. 3. In Holmes v. Jennison, 14 Pet. 540 (1840), Chief Justice Taney stated that “the word ‘agreement,’ does not necessarily import any direct and express stipulation; nor is it necessary that it should be in writing. If there is a verbal understanding to which both parties have assented, and upon which both are acting, it is an ‘agreement.’ And the use of all of these terms, ‘treaty,’‘agreement,’‘compact,’ show that it was the intention of the framers of the Constitution to use the broadest and most comprehensive terms; ...and we shall fail to execute that evident intention, unless we give to the word ‘agreement’ its most extended signification; and so apply it as to prohibit every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties.” In my view, New York acted in a manner to signify its assent to the 1985 Act’s take title provision as part of the elaborate compromise reached among the States.Even were New York not to be estopped from challenging the take title provision’s constitutionality, I am convinced that, seen as a term of an agreement entered into between the several States, this measure proves to be less constitutionally odious than the Court opines. First, the practical effect of New York’s position is that because it is unwilling to honor its obligations to provide in-state storage facilities for its low-level radioactive waste, other States with such plants must accept New York’s waste, whether they wish to or not. Otherwise, the many economically and socially-beneficial producers of such waste in the State would have to cease their operations. The Court’s refusal to force New York to accept responsibility for its own problem inevitably means that some other State’s sovereignty will be impinged by it being forced, for public health reasons, to accept New York’s low-level radioactive waste. I do not understand the principle of federalism to impede the National Government from acting as referee among the States to prohibit one from bullying another.Even were such a distinction to be logically sound, the Court’s “anti-commandeering” principle cannot persuasively be read as springing from the two cases cited for the proposition, Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,?452 U.S. 264 (1981), and FERC v. Mississippi,?456 U.S. 742 (1982). The Court purports to draw support for its rule against Congress “commandeering” state legislative processes from a solitary statement in dictum in Hodel. “As an initial matter, Congress may not simply ‘commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’” That statement was not necessary to the decision in Hodel, which involved the question whether the Tenth Amendment interfered with Congress’ authority to pre-empt a field of activity that could also be subject to state regulation and not whether a federal statute could dictate certain actions by States; the language about “commandeering” States was classic dicta. In holding that a federal statute regulating the activities of private coal mine operators was constitutional, the Court observed that “it would...be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity.”The notion that Congress does not have the power to issue “a simple command to state governments to implement legislation enacted by Congress,” is incorrect and unsound. There is no such limitation in the Constitution. The Tenth Amendment surely does not impose any limit on Congress’ exercise of the powers delegated to it by Article I. Nor does the structure of the constitutional order or the values of federalism mandate such a formal rule. To the contrary, the Federal Government directs state governments in many realms. The Government regulates state-operated railroads, state school systems, state prisons, state elections, and a host of other state functions. Similarly, there can be no doubt that, in time of war, Congress could either draft soldiers itself or command the States to supply their quotas of troops. I see no reason why Congress may not also command the States to enforce federal water and air quality standards or federal standards for the disposition of low-level radioactive wastes.Footnotes:3. With selective quotations from the era in which the Constitution was adopted, the majority attempts to bolster its holding that the take title provision is tantamount to federal “commandeering” of the States. In view of the many Tenth Amendment cases decided over the past two decades in which resort to the kind of historical analysis generated in the majority opinion was not deemed necessary, I do not read the majority’s many invocations of history to be anything other than elaborate window-dressing. Certainly nowhere does the majority announce that its rule is compelled by an understanding of what the Framers may have thought about statutes of the type at issue here. Moreover, I would observe that, while its quotations add a certain flavor to the opinion, the majority’s historical analysis has a distinctly wooden quality. One would not know from reading the majority’s account, for instance, that the nature of federal-state relations changed fundamentally after the Civil War. That conflict produced in its wake a tremendous expansion in the scope of the Federal Government’s law-making authority, so much so that the persons who helped to found the Republic would scarcely have recognized the many added roles the National Government assumed for itself. Moreover, the majority fails to mention the New Deal era, in which the Court recognized the enormous growth in Congress’ power under the Commerce Clause. See generally F. Frankfurter & J. Landis, The Business of the Supreme Court 56-59 (1927); H. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973); Corwin, The Passing of Dual Federalism, 36 Va.L.Rev. 1 (1950); Wiecek, The Reconstruction of Federal Judicial Power, 1863-1875, 13 Am.J.Legal Hist. 333 (1969); Scheiber, State Law and “Industrial Policy” in American Development, 1790-1987, 75 Calif.L.Rev. 415 (1987); Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L.J. 453 (1989). While I believe we should not be blind to history, neither should we read it so selectively as to restrict the proper scope of Congress’ powers under Article I, especially when the history not mentioned by the majority fully supports a more expansive understanding of the Legislature’s authority than may have existed in the late 18th-century.HUDSON v. MCMILLAN et al., 503 U.S. 1, 112 S.Ct. 995 (1992)Justice O’CONNOR delivered the opinion of the Court.During the early morning hours of October 30, 1983, Hudson and corrections officer Jack McMillian had an argument. Assisted by corrections officer Marvin Woods, McMillian placed Hudson in full restraints, handcuffs and shackles, and took him to the administrative lockdown unit. During the transfer from the cell to lockdown Woods held Hudson, kicking and striking him from behind, while McMillian struck him in the face, chest, and abdomen. Lieutenant Arthur Mezo, a superior officer, was present during the beating but limited his intervention to telling the officers “don’t have too much fun.” Hudson sustained minor bruises, swelling of his face, and a broken dental plate.Hudson invoked 42 U.S.C. §1983 and filed an Eighth Amendment excessive force claim against the three corrections officers. The parties consented to trial before a magistrate judge, 28 U.S.C. §636(c), who found that McMillian and Woods used force when no force was warranted and that Mezo condoned that unnecessary use of force. Noting that Hudson’s injuries were minor and healed without the need for medical services, the trial judge awarded damages in the amount of $800.Bound by our decision in Huguet v. Barnett,?900 F.2d 838?(5th Cir. 1990), which was based on our en banc opinion in Johnson v. Morel,?876 F.2d 477?(5th Cir. 1989), a Fourth Amendment excessive force case which held that minor harms do not give constitutional import to injuries, we reversed, holding that even though “[t]he conduct of McMillian and Woods qualified as clearly excessive and occasioned unnecessary and wanton infliction of pain,” Hudson’s Eighth Amendment claim failed because he had not sustained a significant injury. 929 F.2d at 1015. In reversing us the Supreme Court held that “whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is...whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” (Citing Whitley v. Albers,?475 U.S. 312 (1986)). The Court further held that a prisoner need not show serious or significant injury in an excessive force claim against prison officers where the force used was unnecessary and wanton.Several factors are relevant in the inquiry whether unnecessary and wanton infliction of pain was used in violation of a prisoner’s Eighth Amendment right to be free from cruel and unusual punishment. These include:1. The extent of the injury suffered;2. The need for the application of force;3. The relationship between the need and the amount of force used;4. The threat reasonably perceived by the responsible officials; and5. Any efforts made to temper the severity of a forceful response.To deny the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment. See Estelle, 429 U.S., at 102.This case requires us to decide whether the use of excessive physical force against the prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury. We answer that question in the affirmative.What is necessary to establish an “unnecessary and wonton infliction of pain,” we said, varies according to the nature of the alleged constitutional violation. 475 U.S., at 320. For example, the appropriate inquiry when an inmate alleges that prison officials failed to attend to serious medical needs is whether the officials exhibited “deliberate indifference.” See Estelle v. Gamble, 429 U.S. 97 (1976). This standard is appropriate because the State’s responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns. Whitley, 475 U.S., at 320.By contrast, officials confronted with a prison disturbance must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if guards use force. Despite the weight of these competing concerns, corrections officials must make their decisions “in haste, under pressure, and frequently without the luxury of a second chance.” We accordingly concluded in Whitley that application of the deliberate indifference standard is inappropriate when authorities use force to put down a prison disturbance. Instead, “the question whether the measure taken inflicted unnecessary and wonton pain-and-suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline are maliciously and sadistically for the very purpose of causing harm.’” (Quoting Johnson v. Click, 481 F.2d 1028 (CA2), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973)).Respondents nonetheless assert that a significant injury requirement of the sort imposed by the Fifth Circuit is mandated by what we have termed the “objective component” of Eighth Amendment analysis. See Wilson v. Seiter, 501 U.S. 294 (1991). Wilson extended the deliberate indifference standard applied to Eighth Amendment claims involving medical care to claims about conditions of confinement. In taking this step, we suggested that the subjective aspect of an Eighth Amendment claim (with which the Court was concerned) can be distinguished from the objective facet of the same claim. Thus, courts considering a prisoner’s claim must ask both if “the officials act[ed] with a sufficiently culpable state of mind” and if the alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation.With respect to the objective component of an Eighth Amendment violation, Wilson announced no new rule. Instead, that decision suggested the relationship between the requirements applicable to different types of Eighth Amendment claims. What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause depends upon the claim at issue, for two reasons. First, “[t]he general requirement that in Eighth Amendment claimant allege and prove the unnecessary and wonton infliction of pain should…be applied with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.” Whitley, 475 U.S., at 320. Second, the Eighth Amendment’s prohibition of cruel and unusual punishments “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society,” and so admits of few absolute limitations. Rhodes v. Chapman, 452 U.S. 337 (1981) (quoting Trop v. Dulles, 356 U.S. 86 (1958).The objective component of an Eighth Amendment claim is therefore contextual and responsive to “contemporary standards of decency.” Estelle, 429 U.S., at 103. For instance, extreme deprivations are required to make out a conditions-of-confinement claim. Because routine discomfort is “part of the penalty the criminal offenders pay for their offenses against society,” Rhodes, 452 U.S., at 347, “only those deprivations denying “the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S., at 298 (quoting Rhodes, 452 U.S., at 347). A similar analysis applies to medical needs. Because society does not expect that prisoners will have unqualified access to healthcare, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are “serious.” See Estelle v. Gamble, 429 U.S., at 103.Justice BLACKMUN, concurring in the judgment.The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with “significant injury,” injury that requires medical attention or leave permanent marks. Indeed, were we to hold to the contrary, we might place various kinds of state-sponsored torture and abuse - of the kind ingeniously designed to cause pain but without a telltale “significant injury” - entirely beyond the pale of the Constitution. In other words, the constitutional prohibition of “cruel and unusual punishments” then might not constrain prison officials from lashing prisoners with leather straps, whipping them with rubber hoses, beating them with naked fists, shocking them with electric currents, asphyxiating them short of death, intentionally exposing them to undue heat or cold, or forcibly injecting them with psychosis-inducing drugs. These techniques, commonly thought to be practice only outside this Nation’s borders, or hardly unknown within this Nation’s prisons. See Campbell v. Grammar, 89 F.2d 797 (CA8 1989) (use of high–powered fire hoses); Jackson v. Bishop, 404 F.2d 571 (CA8 1968) (use of the “Tucker Telephone,” a hand-cranked device that generated electric shocks the sensitive body parts, and flogging with leather strap). See also Hutto v. Finney, 437 U.S. 678 (1978).As the Court makes clear, the Eighth Amendment prohibits the unnecessary and wonton infliction of “pain,” rather than the “injury.” “Pain” in its ordinary meaning surely includes the notion of psychological harm. I am unaware of any precedent of this Court to the effect that psychological pain is not cognizable for constitutional purposes. If anything, a precedent as to the contrary. See Sierra Club v. Morton, 405 U.S. 727 (1972) (recognizing Article III standing for “anesthetic” injury); Brown v. Board of Education, 347 U.S. 483 (1954) (identifying schoolchildren’s feelings of psychological inferiority from segregation in the public schools).To be sure, as the Court’s opinion intimates, a de minimis or non-measurable pain is not actionable under the Eighth Amendment. But psychological pain can be more than de minimis. Psychological pain often may be clinically diagnosed and quantified through well-established methods, as in the ordinary tort context for damages for pain and suffering are regularly awarded. I have no doubt the three-day “physical pain” or “physical injury” requirement the Eighth Amendment would be no less pernicious and without foundation than the “significant injury” requirement reject today.Justice THOMAS, with whom Justice SCALIA joins, dissenting.In my view, a use of force to cause is only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not cruel and unusual punishment. And concluding to the contrary, the Court today goes far beyond our precedents.We made clear in Estelle that the Eighth Amendment plays a very limited role in regulating prison administration. The case involved a claim the prison doctors had inadequately attended an inmate’s medical needs. We rejected the claim because the inmate failed to allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” From the outset, thus, we specified that the Eighth Amendment does not apply to every deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only that narrow class of deprivations involving “serious” injury inflicted by prison officials acting with a culpable state of mind. We have since described his twin elements as the “objective” and “subjective” components of an Eighth Amendment prison claim. See Wilson v. Seiter, 501 U.S. 294 (1991).But there is quite a gap between “routine discomfort” and the denial of “the minimal civilized measure of life’s necessities” required to establish an Eighth Amendment violation.... I see no reason why our society’s standards of decency should be more readily offended when officials, with a culpable state of mind, subjective prisoner to a deprivation on one discrete occasion, and may subject him to continuous deprivations over time. If anything, I would think that a deprivation inflicted continuously over a long period would be of greater concern to society than a deprivation inflicted on one particular occasion.But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.Petitioner apparently could have, but did not, seek redress for his injuries under state law. Respondents concede that if available state remedies were not constitutionally adequate, petitioner have a claim under the Due Process Clause of the Fourteenth Amendment. Cf. Davidson v. Kanin, 474 U.S. 344 (1986); Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981). I agree with respondents that this is the appropriate, and appropriately limited, federal constitutional inquiry in this case.Because I conclude that, under our precedents, a prisoner seeking to establish that he has been subjected to cruel and unusual punishment must always show that he has suffered a serious injury, I would affirm the judgment of the Fifth Circuit.YEE, et al. v. CITY OF ESCONDIDO, CALIFORNIA, 503 U.S. 519, 112 S.Ct. 1522 (1992)Justice O’CONNOR delivered the opinion of the Court.Where government authorizes physical occupation of property, or actually takes title to the property, the takings clause generally requires compensation. U.S.C.A. Const. Amend. 5.Whether the government floods landowner’s property or does no more than require landowner to suffer installation of cable, the takings clause requires compensation if the government authorizes compelled physical invasion of property. U.S.C.A. Const. Amend. 5.Local rent control ordinance, when viewed against backdrop of California Mobilehome Residency Law, which limited bases upon which mobile home park owners could terminate mobile home owner’s tendency, did not amount to compensable taking of mobile home park owners’ property; ordinance did not compel park owners to suffer physical occupation of their property since owners voluntarily rented their land to the mobile home owners, and nothing on face of regulatory scheme compelled park owners to continue renting property of tenants. U.S.C.A. Const. Amend. 5; West’s Ann.Cal.Civ. Code §§798 et seq., 798.55(a).Whether statutory procedure for changing use of mobile home park was in practice “a kind of gauntlet” that prevented mobile home park owners from changing the use of their land and terminating mobile home owner’s tendency could not be considered on petition for certiorari which claimed that local rent control ordinance, when viewed against backdrop of California’s Mobilehome Residency Law, amounted to physical occupation of mobile home park owners’ property entitling the park owners to compensation under the takings clause; park owners did not claim to have run that gauntlet. U.S.C.A. Const. Amend. 5; West’s Ann.Cal.Civ. Code §798 et seq.When landowner decides to rent land to tenants, government may place ceilings on rents landowner can charge, or require landowner to accept tenants he does not like, without automatically having to pay compensation under the takings clause. U.S.C.A. Const. Amend. 5.Fact that local rent control ordinance, when viewed against backdrop of California’s Mobilehome Residency Law, transfers wealth from mobile home park owners to incumbent mobile home owners did not mandate determination that local rent control ordinance amounted to compensable physical taking of mobile home park owners’ property; ordinance did not compel mobile home park owners to suffer physical occupation of their property. U.S.C.A. Const. Amend. 5; West’s Ann.Cal.Civ. Code §798 et seq.Although it was unclear whether mobile home park owners made regulatory taking argument below in action which asserted physical taking challenge to local rent control ordinance, regulatory taking argument could have been raised on petition for certiorari; arguments that ordinance constituted taking by physical occupation and by regulation were not separate claims, but, rather, were separate arguments in support of a single claim. U.S.C.A. Const. Amend. 5.Once federal claim is properly presented, party can make any argument in support of that claim; parties are not limited to precise arguments they made below.In the wake of the Mobilehome Residency Law, various communities in California adopted mobilehome rent control ordinances. See Hirsch & Hirsch, at 408-411. The voters of Escondido did the same in 1988 by approving Proposition K, the rent control ordinance challenged here. The ordinance sets rents back to their 1986 levels, and prohibits rent increases without the approval of the City Council. Park owners may apply to the Council for rent increases at any time. The Council must approve any increases it determines to be “just, fair and reasonable,” after considering the following nonexclusive list of factors: (1) changes in the Consumer Price Index; (2) the rent charged for comparable mobile home pads in Escondido; (3) the length of time since the last rent increase; (4) the cost of any capital improvements related to the pad or pads at issue; (5) changes in property taxes; (6) changes in any rent paid by the park owner for the land; (7) changes in utility charges; (8) changes in operating and maintenance expenses; (9) the need for repairs other than for ordinary wear and tear; (10) the amount and quality of services provided to the affected tenant; and (11) any lawful existing lease. Ordinance §4(g), App. 11-12.…The Yees requested damages of six million dollars, a declaration that the rent control ordinance is unconstitutional, and an injunction barring the ordinance’s enforcement.…“This element of required acquiescence is at the heart of the concept of occupation.” FCC v. Florida Power Corp.,?480 U.S. 245 (1987)….In this Court, petitioners attempt to challenge the ordinance on two additional grounds: They argue that it constitutes a denial of substantive due process and a regulatory taking. Neither of these claims is properly before us. The first was not raised or addressed below, and the second is not fairly included in the question on which we granted certiorari.The Yees did not include a due process claim in their complaint. Nor did petitioners raise a due process claim in the Court of Appeal. It was not until their petition for review in the California Supreme Court that petitioners finally raised a substantive due process claim. But the California Supreme Court denied discretionary review. Such a denial, as in this Court, expresses no view as to the merits. See People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232 (1973). In short, petitioners did not raise a substantive due process claim in the state courts, and no state court has addressed such a claim.In reviewing the judgments of state courts under the jurisdictional grant of?28 U.S.C. §1257, the Court has, with very rare exceptions, refused to consider petitioners’ claims that were not raised or addressed below. Illinois v. Gates,?462 U.S. 213 (1983). While we have expressed inconsistent views as to whether this rule is jurisdictional or prudential in cases arising from state courts, we need not resolve the question here. (In cases arising from federal courts, the rule is prudential only. See Carlson v. Green,?446 U.S. 14 (1980).) Even if the rule were prudential, we would adhere to it in this case. Because petitioners did not raise their substantive due process claim below, and because the state courts did not address it, we will not consider it here.We must also reject respondent’s contention that the regulatory taking argument is not properly before us because it was not made below. It is unclear whether petitioners made this argument below: Portions of their complaint and briefing can be read either to argue a regulatory taking or to support their physical taking argument. For the same reason it is equally ambiguous whether the Court of Appeal addressed the issue. Yet petitioners’ regulatory taking argument stands in a posture different from their substantive due process claim.Petitioners unquestionably raised a taking claim in the state courts. The question whether the rent control ordinance took their property without compensation, in violation of the Fifth Amendment’s Takings Clause, is thus properly before us. Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below. Bankers Life & Casualty Co. v. Crenshaw,?486 U.S. 71 (1988); Gates,?462 U.S., at 219; Dewey v. Des Moines,?173 U.S. 193 (1899). Petitioners’ arguments that the ordinance constitutes a taking in two different ways, by physical occupation and by regulation, are not separate claims. They are rather separate arguments in support of a single claim - that the ordinance effects an unconstitutional taking. Having raised a taking claim in the state courts, therefore, petitioners could have formulated any argument they liked in support of that claim here.A litigant seeking review in this Court of a claim properly raised in the lower courts thus generally possesses the ability to frame the question to be decided in any way he chooses, without being limited to the manner in which the question was framed below. While we have on occasion rephrased the question presented by a petitioner, see Ankenbrandt v. Richards, 502 U.S. 1023 (1992), or requested the parties to address an important question of law not raised in the petition for certiorari, see Payne v. Tennessee, 498 U.S. 1076 (1991), by and large it is the petitioner himself who controls the scope of the question presented. The petitioner can generally frame the question as broadly or as narrowly as he sees fit.The framing of the question presented has significant consequences, however, because under this Court’s Rule 14.1(a), “only the questions set forth in the petition, or fairly included therein, will be considered by the Court.” While “the statement of any question presented will be deemed to comprise every subsidiary question fairly included therein,” we ordinarily do not consider questions outside those presented in the petition for certiorari. See Berkemer v. McCarty,?468 U.S. 420 (1984). This rule is prudential in nature, but we disregard it “only in the most exceptional cases,” Stone v. Powell,?428 U.S. 465 (1976), where reasons of urgency or of economy suggest the need to address the unpresented question in the case under consideration.Rule 14.1(a) serves two important and related purposes. First, it provides the respondent with notice of the grounds upon which the petitioner is seeking certiorari, and enables the respondent to sharpen the arguments as to why certiorari should not be granted. Were we routinely to consider questions beyond those raised in the petition, the respondent would lack any opportunity in advance of litigation on the merits to argue that such questions are not worthy of review. Where, as is not unusual, the decision below involves issues on which the petitioner does not seek certiorari, the respondent would face the formidable task of opposing certiorari on every issue the Court might conceivably find present in the case. By forcing the petitioner to choose his questions at the outset, Rule 14.1(a) relieves the respondent of the expense of unnecessary litigation on the merits and the burden of opposing certiorari on unpresented questions.Second, Rule 14.1(a) assists the Court in selecting the cases in which certiorari will be granted. Last Term alone we received over 5,000 petitions for certiorari, but we have the capacity to decide only a small fraction of these cases on the merits. To use our resources most efficiently, we must grant certiorari only in those cases that will enable us to resolve particularly important questions. Were we routinely to entertain questions not presented in the petition for certiorari, much of this efficiency would vanish, as parties who feared an inability to prevail on the question presented would be encouraged to fill their limited briefing space and argument time with discussion of issues other than the one on which certiorari was granted. Rule 14.1(a) forces the parties to focus on the questions the Court has viewed as particularly important, thus enabling us to make efficient use of our resources.We granted certiorari on a single question pertaining to the Takings Clause: “Two federal courts of appeal have held that the transfer of a premium value to a departing mobilehome tenant, representing the value of the right to occupy at a reduced rate under local mobilehome rent control ordinances, constitutes an impermissible taking. Was it error for the state appellate court to disregard the rulings and hold that there was no taking under the Fifth and Fourteenth Amendments?” This was the question presented by petitioners. It asks whether the court below erred in disagreeing with the holdings of the Courts of Appeals for the Third and Ninth Circuits in Pinewood Estates of Michigan v. Barnegat Township Leveling Board, 898 F.2d 347 (CA3 1990), and Hall v. City of Santa Barbara, 833 F.2d 1270 (CA9 1987), cert. denied,?485 U.S. 940 (1988). These cases, in turn, held that mobile home ordinances effected physical takings, not regulatory takings. Fairly construed, then, petitioners’ question presented is the equivalent of the question “Did the court below err in finding no physical taking?”Whether or not the ordinance effects a regulatory taking is a question related to the one petitioners presented, and perhaps complementary to the one petitioners presented, but it is not “fairly included therein.” Consideration of whether a regulatory taking occurred would not assist in resolving whether a physical taking occurred as well; neither of the two questions is subsidiary to the other. Both might be subsidiary to a question embracing both - Was there a taking? - but they exist side by side, neither encompassing the other. Cf. American National Bank & Trust Co. of Chicago v. Haroco, Inc.,?473 U.S. 606 (1985)?(question whether complaint adequately alleges conduct of racketeering enterprise is not fairly included in question whether statute requires that plaintiff suffer damages through defendant’s conduct of such an enterprise).LUJAN v. DEFENDERS OF WILDLIFE, et al., 504 U.S. 555, 112 S.Ct. 2130 (1992)Justice Scalia delivered the opinion of the Court, except as to Part III-B, concluding that respondents lack standing to seek judicial review of the rule.Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to Legislatures, to Executives, and to courts. U.S.C.A. Const., Art. 1, §1; Art. 2, §1, cl. 1; Art. 3, §1 et seq.Irreducible constitutional minimum of standing requires that plaintiff have suffered an injury in fact, which is an invasion of a legally protected interest which is concrete and particularized and actual or imminent rather than conjectural or hypothetical; that there be a causal connection between the injury and conduct complained of so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court; and that it be likely, as opposed to merely speculative, that injury will be redressed by a favorable decision.In order for injury to be “particularized,” it must affect the plaintiff in a personal and individual way.Party invoking federal jurisdiction bears the burden of establishing elements of standing.Elements of standing are not merely pleading requirements but, rather, are an indispensable part of the plaintiff’s case, and each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, with the manner and degree of evidence required at successive stages of litigation.When plaintiffs asserted injury arises from the government’s allegedly unlawful regulation or lack of regulation of someone else, causation and redressability required for standing hinge on response of the regulated or regulable third party to the government action or inaction and on the response of others as well.“Ecosystem nexus,” under which a person who uses any part of a continuous ecosystem may be considered adversely affected by activity, does not provide basis for standing to challenge the activity.Existence of federal jurisdiction ordinarily depends upon facts as they exist when the complainant is filed, and later participation in a suit by those parties necessary for plaintiffs’ injury to be redressed will not give plaintiffs standing when their injury was not redressable by any of the parties to the suit at the time that it was filed.(a) As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing,?inter alia,?that they have suffered an injury in fact,?i.e.,?a concrete and particularized, actual or imminent invasion of a legally-protected interest. To survive a summary judgment motion, they must set forth by affidavit or other evidence specific facts to support their claim. Standing is particularly difficult to show here, since third parties, rather than respondents, are the object of the Government action or inaction to which respondents object.(b) Respondents did not demonstrate that they suffered an injury in fact. Assuming that they established that funded activities abroad threaten certain species, they failed to show that one or more of their members would thereby be directly affected apart from the members’ special interest in the subject. See?Sierra Club v. Morton,?405 U.S. 727. Affidavits of members claiming an intent to revisit project sites at some indefinite future time, at which time they will presumably be denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an “imminent” injury. Respondents also mistakenly rely on a number of other novel standing theories. Their theory that any person using any part of a contiguous ecosystem adversely affected by a funded activity has standing even if the activity is located far away from the area of their use is inconsistent with this Court’s opinion in?Lujan v. National Wildlife Federation,?497 U.S. 871. And they state purely speculative, nonconcrete injuries when they argue that suit can be brought by anyone with an interest in studying or seeing endangered animals anywhere on the globe and anyone with a professional interest in such animals.(c) The Court of Appeals erred in holding that respondents had standing on the ground that the statute’s citizen-suit provision confers on all persons the right to file suit to challenge the Secretary’s failure to follow the proper consultative procedure, notwithstanding their inability to allege any separate concrete injury flowing from that failure. This Court has consistently held that a plaintiff claiming only a generally available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. See Fairchild v. Hughes,?258 U.S. 126. Vindicating the public interest is the function of the Congress and the Chief Executive. To allow that interest to be converted into an individual right by a statute denominating it as such and permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, §3.SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which REHNQUIST, C.J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined, and an opinion with respect to Part III-B, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, J., joined. STEVENS, J., filed an opinion concurring in the judgment. BLACKMUN, J., filed a dissenting opinion, in which O’CONNOR, J., joined.Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an “injury in fact” - an invasion of a legally-protected interest which is (a) concrete and particularized.?Warth v. Seldin,?422 U.S. 490 (1975);?Sierra Club v. Morton,?405 U.S. 727 (1972); and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’”?Whitmore,?495 U.S., at 155 (quoting?Los Angeles v. Lyons, 461 U.S. 95 (1983)). Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be “fairly...trace[able] to the challenged action of the defendant, and not...th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”The party invoking federal jurisdiction bears the burden of establishing these elements. See?FW/PBS, Inc. v. Dallas,?493 U.S. 215 (1990);?Warth,?422 U.S., at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof,?i.e.,?with the manner and degree of evidence required at the successive stages of the litigation. See?Lujan v. National Wildlife Federation,?497 U.S. 871(1990);?Gladstone, Realtors v. Village of Bellwood,?441 U.S. 91 (1979);?Simon,?426 U.S., at 45;?Warth,?422 U.S., at 527. At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim,”?National Wildlife Federation,?497 U.S., at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial,”?Gladstone,?441 U.S., at 115.When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else,?much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,”?ASARCO Inc. v. Kadish,?490 U.S. 605 (1989); see also?Simon,?426 U.S., at 41; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.?E.g., Warth,?422 U.S., at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish.?Allen, 468 U.S., at 758;?Simon,?426 U.S., at 44;?Warth,?422 U.S., at 505.Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increas[es] the rate of extinction of endangered and threatened species.” Of course, the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purpose of standing. See Sierra Club v. Morton,?405 U.S., at 734. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” To survive the Secretary’s summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be “directly” affected apart from their “‘special interest’ in th[e] subject.” See generally?Hunt v. Washington State Apple Advertising Comm’n,?432 U.S. 333 (1977).Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of AID did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,”?United States v. Students Challenging Regulatory Agency Procedures (SCRAP),?412 U.S. 669 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible - though it goes to the outermost limit of plausibility - to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist, see?Japan Whaling Assn. v. American Cetacean Soc.,?478 U.S. 221 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli Project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in?Simon,?426 U.S., at 43, it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.?There is no standing.…Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations….We have consistently held that a plaintiff raising only a generally available grievance about government - claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state an Article III case or controversy. For example, in?Fairchild v. Hughes,?258 U.S. 126 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandeis wrote for the Court:“[This is] not a case within the meaning of...Article III.... Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit....”In?Massachusetts v. Mellon,?262 U.S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said:“The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.... Here the parties plaintiff have no such case.... [T]heir complaint...is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.”…And only two Terms ago, we rejected the notion that Article III permits a citizen-suit to prevent a condemned criminal’s execution on the basis of “the public interest protections of the Eighth Amendment;” once again, “[t]his allegation raise[d] only the generalized interest of all citizens in constitutional governance...and [was] an inadequate basis on which to grant...standing.”?Whitmore,?495 U.S., at 160.To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch - one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in?Marbury v. Madison,?5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) “is, solely, to decide on the rights of individuals.” Vindicating the?public?interest (including the public interest in government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies’ observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, §3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,”?Massachusetts v. Mellon,?262 U.S., at 489, and to become “virtually continuing monitors of the wisdom and soundness of Executive action.” Allen,?468 U.S., at 760 (quoting?Laird v. Tatum,?408 U.S. 1 (1972)). We have always rejected that vision of our role:“When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers.... This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents.... But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power.”?Stark v. Wickard,?321 U.S. 288 (1944).“Individual rights,” within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. See also?Sierra Club,?405 U.S., at 740.Nothing in this contradicts the principle that “[t]he...injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’”?Warth,?422 U.S., at 500 (quoting?Linda R. S. v. Richard D.,?410 U.S. 614 (1973)). Both of the cases used by Linda R.S.?as an illustration of that principle involved Congress’s elevating to the status of legally cognizable injuries concrete,?de facto injuries that were previously inadequate in law (namely, injury to an individual’s personal interest in living in a racially integrated community, see?Trafficante v. Metropolitan Life Ins. Co.,?409 U.S. 205 (1972), and injury to a company’s interest in marketing its product free from competition, see?Hardin v. Kentucky Utilities Co.,?390 U.S. 1 (1968)). As we said in?Sierra Club,?“[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” 405 U.S., at 738. Whether or not the principle set forth in?Warth?can be extended beyond that distinction, it is clear that in suits against the government, at least, the concrete injury requirement must remain.We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause remanded for proceedings consistent with this opinion.It is so ordered.?Justice KENNEDY, with whom Justice SOUTER joins, concurring in part and concurring in the judgment.Although I agree with the essential parts of the Court’s analysis, I write separately to make several observations.I agree with the Court’s conclusion in Part III-A that, on the record before us, respondents have failed to demonstrate that they themselves are “among the injured.”?Sierra Club v. Morton,?405 U.S. 727 (1972). This component of the standing inquiry is not satisfied unless:“[p]laintiffs...demonstrate a ‘personal stake in the outcome.’...Abstract injury is not enough. The plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Los Angeles v. Lyons,?461 U.S. 95 (1983).Justice STEVENS, concurring in the judgment.In my opinion a person who has visited the critical habitat of an endangered species, has a professional interest in preserving the species and its habitat, and intends to revisit them in the future has standing to challenge agency action that threatens their destruction. Congress has found that a wide variety of endangered species of fish, wildlife, and plants are of “aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U.S.C. §1531(a)(3). Given that finding, we have no license to demean the importance of the interest that particular individuals may have in observing any species or its habitat, whether those individuals are motivated by aesthetic enjoyment, an interest in professional research, or an economic interest in preservation of the species. Indeed, this Court has often held that injuries to such interests are sufficient to confer standing, and the Court reiterates that holding today.To understand why this approach is correct and consistent with our precedent, it is necessary to consider the purpose of the standing doctrine. Concerned about “the proper - and properly limited - role of the courts in a democratic society,” we have long held that “Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party.”?Warth v. Seldin,?422 U.S. 490 (1975). The plaintiff must have a “personal stake in the outcome” sufficient to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult...questions.”?Baker v. Carr,?369 U.S. 186 (1962). For that reason, “[a]bstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct.... The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural,’ or ‘hypothetical.’”?O’Shea v. Littleton,?414 U.S. 488 (1974) (quoting?Golden v. Zwickler, 394 U.S. 103 (1969)).That interpretation is sound, and, in fact, the Court of Appeals did not question it. There is, moreover, no indication that Congress intended to give a different geographic scope to the two clauses in §7(a)(2). To the contrary, Congress recognized that one of the “major causes” of extinction of endangered species is the “destruction of natural habitat.” S.Rep. No. 93-307, p. 2 (1973); see also, H.Rep. No. 93-412, p. 2 (1973), U.S. Code Cong. & Admin. News 1973, pp. 2989, 2990;?TVA v. Hill,?437 U.S. 153 (1978). It would thus be illogical to conclude that Congress required federal agencies to avoid jeopardy to endangered species abroad, but not destruction of critical habitat abroad.Justice BLACKMUN, with whom Justice O’CONNOR joins, dissenting.Article III of the Constitution confines the federal courts to adjudication of actual “cases” and “controversies.” To ensure the presence of a “case” or “controversy,” this Court has held that Article III requires, as an irreducible minimum, that a plaintiff allege (1) an injury that is (2) “fairly traceable to the defendant’s allegedly unlawful conduct” and that is (3) “likely to be redressed by the requested relief.”?Allen v. Wright,?468 U.S. 737 (1984).To survive petitioner’s motion for summary judgment on standing, respondents need not prove that they are actually or imminently harmed. They need show only a “genuine issue” of material fact as to standing. Fed. Rule Civ.Proc. 56(c). This is not a heavy burden. A “genuine issue” exists so long as “the evidence is such that a reasonable jury could return a verdict for the nonmoving party [respondents].”?Anderson v. Liberty Lobby, Inc.,?477 U.S. 242 (1986). This Court’s “function is not [it]self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”I think a reasonable finder of fact could conclude from the information in the affidavits and deposition testimony that either Kelly or Skilbred will soon return to the project sites, thereby satisfying the “actual or imminent” injury standard. The Court dismisses Kelly’s and Skilbred’s general statements that they intended to revisit the project sites as “simply not enough.” But those statements did not stand alone. A reasonable finder of fact could conclude, based not only upon their statements of intent to return, but upon their past visits to the project sites, as well as their professional backgrounds, that it was likely that Kelly and Skilbred would make a return trip to the project areas. Contrary to the Court’s contention that Kelly’s and Skilbred’s past visits “proves nothing,” the fact of their past visits could demonstrate to a reasonable factfinder that Kelly and Skilbred have the requisite resources and personal interest in the preservation of the species endangered by the Aswan and Mahaweli projects to make good on their intention to return again. Cf.?Los Angeles v. Lyons,?461 U.S. 95 (1983) (“Past wrongs were evidence bearing on whether there is a real and immediate threat of repeated injury”). Similarly, Kelly’s and Skilbred’s professional backgrounds in wildlife preservation, also make it likely - at least far more likely than for the average citizen - that they would choose to visit these areas of the world where species are vanishing.By requiring a “description of concrete plans” or “specification of when?the someday [for a return visit] will be,” the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly or Skilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects. This case differs from other cases in which the imminence of harm turned largely on the affirmative actions of third parties beyond a plaintiff’s control. See Whitmore v. Arkansas,?495 U.S. 149 (1990) (harm to plaintiff death-row inmate from fellow inmate’s execution depended on the court’s one day reversing plaintiff’s conviction or sentence and considering comparable sentences at resentencing);?Los Angeles v. Lyons,?461 U.S., at 105 (harm dependent on police’s arresting plaintiff again and subjecting him to chokehold);?Rizzo v. Goode,?423 U.S. 362 (1976) (harm rested upon “what one of a small unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures”);?O’Shea v. Littleton,?414 U.S. 488 (1974) (harm from discriminatory conduct of county magistrate and judge dependent on plaintiffs’ being arrested, tried, convicted, and sentenced);?Golden v. Zwickler,?394 U.S. 103 (1969) (harm to plaintiff dependent on a former Congressman’s (then serving a 14-year term as a judge) running again for Congress). To be sure, a plaintiff’s unilateral control over his or her exposure to harm does not?necessarily?render the harm non-speculative. Nevertheless, it suggests that a finder of fact would be far more likely to conclude the harm is actual or imminent, especially if given an opportunity to hear testimony and determine credibility.The Court also concludes that injury is lacking, because respondents’ allegations of “ecosystem nexus” failed to demonstrate sufficient proximity to the site of the environmental harm. To support that conclusion, the Court mischaracterizes our decision in?Lujan v. National Wildlife Federation,?497 U.S. 871 (1990), as establishing a general rule that “a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity.” In?National Wildlife Federation,?the Court required specific geographical proximity because of the particular type of harm alleged in that case: harm to the plaintiff’s visual enjoyment of nature from mining activities.?One cannot suffer from the sight of a ruined landscape without being close enough to see the sites actually being mined. Many environmental injuries, however, cause harm distant from the area immediately affected by the challenged action. Environmental destruction may affect animals traveling over vast geographical ranges, see Japan Whaling Assn. v. American Cetacean Soc.,?478 U.S. 221 (1986) (harm to American whale watchers from Japanese whaling activities), or rivers running long geographical courses, see Arkansas v. Oklahoma,?503 U.S. 91 (1992) (harm to Oklahoma residents from wastewater treatment plant 39 miles from border). It cannot seriously be contended that a litigant’s failure to use the precise or exact site where animals are slaughtered or where toxic waste is dumped into a river means he or she cannot show injury.The Court also rejects respondents’ claim of vocational or professional injury. The Court says that it is “beyond all reason” that a zoo “keeper” of Asian elephants would have standing to contest his government’s participation in the eradication of all the Asian elephants in another part of the world. I am unable to see how the distant location of the destruction?necessarily?(for purposes of ruling at summary judgment) mitigates the harm to the elephant keeper. If there is no more access to a future supply of the animal that sustains a keeper’s livelihood, surely there is harm.I have difficulty imagining this Court applying its rigid principles of geographic formalism anywhere outside the context of environmental claims. As I understand it, environmental plaintiffs are under no special constitutional standing disabilities. Like other plaintiffs, they need show only that the action they challenge has injured them, without necessarily showing they happened to be physically near the location of the alleged wrong. The Court’s decision today should not be interpreted “to foreclose the possibility...that in different circumstances a nexus theory similar to those proffered here might support a claim to standing.”A plurality of the Court suggests that respondents have not demonstrated redressability: a likelihood that a court ruling in their favor would remedy their injury.?Duke Power Co. v. Carolina Environmental Study Group, Inc.,?438 U.S. 59 (1978) (plaintiff must show “substantial likelihood” that relief requested will redress the injury). The plurality identifies two obstacles. The first is that the “action agencies” (e.g.,?the Agency for International Development) cannot be required to undertake consultation with petitioner Secretary, because they are not directly bound as parties to the suit and are otherwise not indirectly bound by being subject to petitioner Secretary’s regulation. Petitioner, however, officially and publicly has taken the position that his regulations regarding consultation under §7 of the Act are binding on action agencies. 50 CFR §402.14(a) (1991).?And he has previously taken the same position in this very litigation, having stated in his answer to the complaint that petitioner “admits the Fish and Wildlife Service (FWS) was designated the lead agency for the formulation of regulations concerning section 7 of the ESA.” I cannot agree with the plurality that the Secretary (or the Solicitor General) is now free, for the convenience of this appeal, to disavow his prior public and litigation positions. More generally, I cannot agree that the Government is free to play “Three-Card Monte” with its description of agencies’ authority to defeat standing against the agency given the lead in administering a statutory scheme.Emphasizing that none of the action agencies are parties to this suit (and having rejected the possibility of their being indirectly bound by petitioner’s regulation), the plurality concludes that “there is no reason they should be obliged to honor an incidental legal determination the suit produced.” I am not as willing as the plurality is to assume that agencies at least will not try to follow the law. Moreover, I wonder if the plurality has not overlooked the extensive involvement from the inception of this litigation by the Department of State and the Agency for International Development.?Under principles of collateral estoppel, these agencies are precluded from subsequently relitigating the issues decided in this suit.“[O]ne who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own, and who does this openly to the knowledge of the opposing party, is as much bound by the judgment and as fully entitled to avail himself of it as an estoppel against an adverse party, as he would be if he had been a party to the record.” Souffront v. Compagnie des Sucreries,?217 U.S. 475 (1910).This principle applies even to the Federal Government. In?Montana v. United States,?440 U.S. 147 (1979), this Court held that the Government was estopped from relitigating in federal court the constitutionality of Montana’s gross receipts tax, because that issue previously had been litigated in state court by an individual contractor whose litigation had been financed and controlled by the Federal Government. “Thus, although not a party, the United States plainly had a sufficient ‘laboring oar’ in the conduct of the state-court litigation to actuate principles of estoppel.”?See also?United States v. Mendoza,?464 U.S. 154 (1984) (Federal Government estopped where it “constituted a ‘party’ in all but a technical sense”). In my view, the action agencies have had sufficient “laboring oars” in this litigation since its inception to be bound from subsequent relitigation of the extraterritorial scope of the §7 consultation requirement.?As a result, I believe respondents’ injury would likely be redressed by a favorable decision.The second redressability obstacle relied on by the plurality is that “the [action] agencies generally supply only a fraction of the funding for a foreign project.” What this Court might “generally” take to be true does not eliminate the existence of a genuine issue of fact to withstand summary judgment. Even if the action agencies supply only a fraction of the funding for a particular foreign project, it remains at least a question for the finder of fact whether threatened withdrawal of that fraction would affect foreign government conduct sufficiently to avoid harm to listed species.The plurality states that “AID, for example, has provided less than 10% of the funding for the Mahaweli project.” The plurality neglects to mention that this “fraction” amounts to $170 million, not so paltry a sum for a country of only 16 million people with a gross national product of less than $6 billion in 1986 when respondents filed the complaint in this action. Federal Research Division, Library of Congress, Sri Lanka: A Country Study (Area Handbook Series) xvi-xvii (1990).The plurality flatly states: “Respondents have produced nothing to indicate that the projects they have named will...do less harm to listed species, if that fraction is eliminated.” As an initial matter, the relevant inquiry is not, as the plurality suggests, what will happen if AID or other agencies stop funding projects, but what will happen if AID or other agencies comply with the consultation requirement for projects abroad. Respondents filed suit to require consultation, not a termination of funding. Respondents have raised at least a genuine issue of fact that the projects harm endangered species and that the actions of AID and other U.S. agencies can mitigate that harm.The plurality overlooks an Interior Department memorandum listing eight endangered or threatened species in the Mahaweli project area and recounting that “[t]he Sri Lankan government has requested the assistance of AID in mitigating the negative impacts to the wildlife involved.” Further, a letter from the Director of the Fish and Wildlife Service to AID states:“The Sri Lanka government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to the wildlife. The donor nations and agencies that are financing the [Mahaweli project] will be the key as to how successfully the wildlife is preserved. If wildlife problems receive the same level of attention as the engineering project, then the negative impacts to the environment can be alleviated. This means that there has to be long-term funding in sufficient amounts to stem the negative impacts of this project.”I do not share the plurality’s astonishing confidence that, on the record here, a factfinder could only conclude that AID was powerless to ensure the protection of listed species at the Mahaweli project.As for the Aswan project, the record again rebuts the plurality’s assumption that donor agencies are without any authority to protect listed species. Kelly asserted in her affidavit - and it has not been disputed - that the Bureau of Reclamation was “overseeing” the rehabilitation of the Aswan project. (Bureau of Reclamation publication stating: “In 1982, the Egyptian government...requested that Reclamation serve as its engineering advisor for the nine-year [Aswan] rehabilitation project”).I find myself unable to agree with the plurality’s analysis of redressability, based as it is on its invitation of executive lawlessness, ignorance of principles of collateral estoppel, unfounded assumptions about causation, and erroneous conclusions about what the record does not say. In my view, respondents have satisfactorily shown a genuine issue of fact as to whether their injury would likely be redressed by a decision in their favor.The Court concludes that any “procedural injury” suffered by respondents is insufficient to confer standing. It rejects the view that the “injury-in-fact requirement...[is] satisfied by congressional conferral upon?all?person of an abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law.” Whatever the Court might mean with that very broad language, it cannot be saying that “procedural injuries”?as a class?are necessarily insufficient for purposes of Article III standing.Most governmental conduct can be classified as “procedural.” Many injuries caused by governmental conduct, therefore, are categorizable at some level of generality as “procedural” injuries. Yet, these injuries are not categorically beyond the pale of redress by the federal courts. When the Government, for example, “procedurally” issues a pollution permit, those affected by the permittee’s pollutants are not without standing to sue. Only later cases will tell just what the Court means by its intimation that “procedural” injuries are not constitutionally cognizable injuries. In the meantime, I have the greatest of sympathy for the courts across the country that will struggle to understand the Court’s standardless exposition of this concept today.The Court expresses concern that allowing judicial enforcement of “agencies’ observance of a particular, statutorily prescribed procedure” would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, §3.” In fact, the principal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of the Executive at the expense - not of the courts - but of Congress, from which that power originates and emanates.Under the Court’s anachronistically formal view of the separation of powers, Congress legislates pure, substantive mandates and has no business structuring the procedural manner in which the Executive implements these mandates. To be sure, in the ordinary course, Congress does legislate in black-and-white terms of affirmative commands or negative prohibitions on the conduct of officers of the Executive Branch. In complex regulatory areas, however, Congress often legislates, as it were, in procedural shades of gray. That is, it sets forth substantive policy goals and provides for their attainment by requiring Executive Branch officials to follow certain procedures, for example, in the form of reporting, consultation, and certification requirements.The Court recently has considered two such procedurally oriented statutes. In?Japan Whaling Assn. v. American Cetacean Society,?478 U.S. 221 (1986), the Court examined a statute requiring the Secretary of Commerce to certify to the President that foreign nations were not conducting fishing operations or trading which “diminis[h] the effectiveness” of an international whaling convention.?The Court expressly found standing to sue.?In Robertson v. Methow Valley Citizens Council,?490 U.S. 332 (1989), this Court considered injury from violation of the “action-forcing” procedures of the National Environmental Policy Act (NEPA), in particular the requirements for issuance of environmental impact statements.The consultation requirement of §7 of the Endangered Species Act is a similar, action-forcing statute. Consultation is designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species. Once consultation is initiated, the Secretary is under a duty to provide to the action agency “a written statement setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” 16 U.S.C. §1536(b)(3)(A). The Secretary is also obligated to suggest “reasonable and prudent alternatives” to prevent jeopardy to listed species.?The action agency must undertake as well its own “biological assessment for the purpose of identifying any endangered species or threatened species” likely to be affected by agency action. §1536(c)(1). After the initiation of consultation, the action agency “shall not make any irreversible or irretrievable commitment of resources” which would foreclose the “formulation or implementation of any reasonable and prudent alternative measures” to avoid jeopardizing listed species. §1536(d). These action-forcing procedures are “designed to protect some threatened concrete interest,” of persons who observe and work with endangered or threatened species. That is why I am mystified by the Court’s unsupported conclusion that “[t]his is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs.”Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximum Executive discretion in the attainment of Congress’ legislative goals. Congress could simply impose a substantive prohibition on executive conduct; it could say that no agency action shall result in the loss of more than 5% of any listed species. Instead, Congress sets forth substantive guidelines and allows the Executive, within certain procedural constraints, to decide how best to effectuate the ultimate goal. See?American Power & Light Co. v. SEC,?329 U.S. 90 (1946). The Court never has questioned Congress’ authority to impose such procedural constraints on executive power. Just as Congress does not violate separation of powers by structuring the procedural manner in which the Executive shall carry out the laws, surely the federal courts do not violate separation of powers when, at the very instruction and command of Congress, they enforce these procedures.To prevent Congress from conferring standing for “procedural injuries” is another way of saying that Congress may not delegate to the courts authority deemed “executive” in nature. (Congress may not “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, §3”). Here Congress seeks not to delegate “executive” power but only to strengthen the procedures it has legislatively mandated. “We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate branches.”?Touby v. United States,?500 U.S. 160 (1991). “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive?or judicial actors.”?Ironically, this Court has previously justified a relaxed review of congressional delegation to the Executive on grounds that Congress, in turn, has subjected the exercise of that power to judicial review.?INS v. Chadha,?462 U.S. 919 (1983);?American Power & Light Co. v. SEC,?329 U.S., at 105. The Court’s intimation today that procedural injuries are not constitutionally cognizable threatens this understanding upon which Congress has undoubtedly relied. In no sense is the Court’s suggestion compelled by our “common understanding of what activities are appropriate to Legislatures, to Executives, and to courts.” In my view, it reflects an unseemly solicitude for an expansion of power of the Executive Branch.It is to be hoped that over time the Court will acknowledge that some classes of procedural duties are so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty. For example, in the context of the NEPA requirement of environmental-impact statements, this Court has acknowledged “it is now well settled that NEPA itself does not mandate particular results [and] simply prescribes the necessary process,” but “these procedures are almost certain to affect the agency’s substantive decision.” Robertson v. Methow Valley Citizens Council,?490 U.S., 332 (1989). See also?Andrus v. Sierra Club,?442 U.S. 347 (1979) (“If environmental concerns are not interwoven into the fabric of agency planning, the ‘action-forcing’ characteristics of [the environmental-impact statement requirement] would be lost”). This acknowledgement of an inextricable link between procedural and substantive harm does not reflect improper appellate factfinding. It reflects nothing more than the proper deference owed to the judgment of a coordinate branch - Congress - that certain procedures are directly tied to protection against a substantive harm.In short, determining “injury” for Article III standing purposes is a fact-specific inquiry. “Typically...the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.”?Allen v. Wright,?468 U.S., at 752. There may be factual circumstances in which a congressionally imposed procedural requirement is so insubstantially connected to the prevention of a substantive harm that it cannot be said to work any conceivable injury to an individual litigant. But, as a general matter, the courts owe substantial deference to Congress’ substantive purpose in imposing a certain procedural requirement. In all events, “[o]ur separation-of-powers analysis does not turn on the labeling of an activity as ‘substantive’ as opposed to ‘procedural.’”?Mistretta v. United States,?488 U.S. 361 (1989). There is no room for a?per se?rule or presumption excluding injuries labeled “procedural” in nature.In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”?Marbury v. Madison,?1 Cranch 137, 2 L.Ed. 60 (1803).I dissent.Footnotes:1. By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.2. The dissent acknowledges the settled requirement that the injury complained of be, if not actual, then at least?imminent - but it contends that respondents could get past summary judgment because “a reasonable finder of fact could conclude...that...Kelly or Skilbred will soon return to the project sites.”?This analysis suffers either from a factual or from a legal defect, depending on what the “soon” is supposed to mean. If “soon” refers to the standard mandated by our precedents - that the injury be “imminent,” Whitmore v. Arkansas,?495 U.S. 149 (1990) - we are at a loss to see how, as a factual matter, the standard can be met by respondents’ mere profession of an intent, someday, to return. But if, as we suspect, “soon” means nothing more than “in this lifetime,” then the dissent has undertaken quite a departure from our precedents. Although “imminence” is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to insure that the alleged injury is not too speculative for Article III purposes - that the injury is “certainly impending.”?It has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff’s own control. In such circumstances we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.?Los Angeles v. Lyons,?461 U.S. 95 (1983).There is no substance to the dissent’s suggestion that imminence is demanded only when the alleged harm depends upon “the affirmative actions of third parties beyond a plaintiff’s control.”?Our cases?mention?third-party-caused contingency, naturally enough; but they also mention the plaintiff’s failure to show that he will soon expose?himself?to the injury, see Lyons,?at 105;?O’Shea v. Littleton,?414 U.S. 488 (1974);?Ashcroft v. Mattis,?431 U.S. 171 (1977). And there is certainly no reason in principle to demand evidence that third persons will take the action exposing the plaintiff to harm, while?presuming?that the plaintiff himself will do so.Our insistence upon these established requirements of standing does not mean that we would, as the dissent contends, “demand...detailed descriptions” of damages, such as a “nightly schedule of attempted activities” from plaintiffs alleging loss of consortium.?That case and the others posited by the dissent all involve actual?harm; the existence of standing is clear, though the precise extent of harm remains to be determined at trial. Where there is no actual harm, however, its imminence (though not its precise extent) must be established.3. The dissent embraces each of respondents’ “nexus” theories, rejecting this portion of our analysis because it is “unable to see how the distant location of the destruction?necessarily?(for purposes of ruling at summary judgment) mitigates the harm” to the plaintiff.?But summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”?Celotex Corp. v. Catrett,?477 U.S. 317 (1986). Respondent had to adduce facts, therefore, on the basis of which it could reasonably be found that concrete injury to its members was, as our cases require, “certainly impending.” The dissent may be correct that the geographic remoteness of those members (here in the United States) from Sri Lanka and Aswan does not “necessarily” prevent such a finding - but it assuredly does so when no further facts have been brought forward (and respondent has produced none) showing that the impact upon animals in those distant places will in some fashion be reflected here. The dissent’s position to the contrary reduces to the notion that distance?never?prevents harm, a proposition we categorically reject. It cannot be that a person with an interest in an animal automatically has standing to enjoin federal threats to that species of animal, anywhere in the world. Were that the case, the plaintiff in?Sierra Club,?for example, could have avoided the necessity of establishing anyone’s use of Mineral King by merely identifying one of its members interested in an endangered species of flora or fauna at that location. Justice Blackmun’s accusation that a special rule is being crafted for “environmental claims,”?is correct, but he?is the craftsman.Justice Stevens, by contrast, would allow standing on an apparent “animal nexus” theory to all plaintiffs whose interest in the animals is “genuine.” Such plaintiffs, we are told, do not have to visit the animals because the animals are analogous to family members. We decline to join JUSTICE STEVENS in this Linnaean leap. It is unclear to us what constitutes a “genuine” interest; how it differs from a “non-genuine” interest (which nonetheless prompted a plaintiff to file suit); and why such an interest in animals should be different from such an interest in anything else that is the subject of a lawsuit.4. We need not linger over the dissent’s facially impracticable suggestion,?that one agency of the government can acquire the power to direct other agencies by simply claiming that power in its own regulations and in litigation to which the other agencies are not parties. As for the contention that the other agencies will be “collaterally estopped” to challenge our judgment that they are bound by the Secretary of Interior’s views, because of their participation in this suit: Whether or not that is true now, it was assuredly not true when this suit was filed, naming the Secretary alone. “The existence of federal jurisdiction ordinarily depends on the facts?as they exist when the complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain,?490 U.S., 826 (1989). It cannot be that, by later participating in the suit, the State Department and AID retroactively created a redressability (and hence a jurisdiction) that did not exist at the outset.The dissent’s rejoinder that redressability?was?clear at the outset because the?Secretary?thought the regulation binding on the agencies, continues to miss the point: the agencies?did not?agree?with the Secretary, nor would they be bound by a District Court holding (as to this issue) in the Secretary’s favor. There is no support for the dissent’s novel contention,?that Rule 19 of the Federal Rules of Civil Procedure, governing joinder of indispensable parties, somehow alters our longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed. The redressability element of the Article III standing requirement and the “complete?relief” referred to by Rule 19 are not identical. Finally, we reach the dissent’s contention, that by refusing to waive our settled rule for purposes of this case we have made “federal subject matter jurisdiction...a one-way street running the Executive Branch’s way.” That is so, we are told, because the Executive can dispel jurisdiction where it previously existed (by either conceding the merits or by pointing out that nonparty agencies would not be bound by a ruling), whereas a plaintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct. But?any?defendant, not just the government, can dispel jurisdiction by conceding the merits (and presumably thereby suffering a judgment) or by demonstrating standing defects. And permitting a defendant to point out a pre-existing standing defect late in the day is not remotely comparable to permitting a plaintiff to?establish?standing on the basis of the defendant’s litigation conduct occurring after standing is erroneously determined.7. There is this much truth to the assertion that “procedural rights” are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case-law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an Environmental Impact Statement, even though he cannot establish with any certainty that the Statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. (That is why we do not rely, in the present case, upon the Government’s argument that,?even if?the other agencies were obliged to consult with the Secretary, they might not have followed his advice.) What respondents’ “procedural rights” argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected - persons who live (and propose to live) at the other end of the country from the dam.8. The dissent’s discussion of this aspect of the case,?distorts our opinion. We do?not?hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. The dissent, however, asserts that there exist “classes of procedural duties...so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty.” If we understand this correctly, it means that the government’s violation of a certain (undescribed) class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the procedure observed). We cannot agree. The dissent is unable to cite a single case in which we actually found standing solely on the basis of a “procedural right” unconnected to the plaintiff’s own concrete harm. Its suggestion that we did so in?Japan Whaling Association, and?Robertson v. Methow Valley Citizens Council,?490 U.S. 332 (1989),?is not supported by the facts. In the former case, we found that the environmental organizations had standing because the “whale watching and studying of their members w[ould] be adversely affected by continued whale harvesting,” see 478 U.S., at 230; and in the latter we did not so much as mention standing, for the very good reason that the plaintiff was a citizens’ council for the area in which the challenged construction was to occur, so that its members would obviously be concretely affected, see?Methow Valley Citizens Council v. Regional Forester,?833 F.2d 810, 812-813 (CA9 1987).5. Section 7(a)(2) has two clauses which require federal agencies to consult with the Secretary to insure that their actions (1) do not jeopardize threatened or endangered species (the “endangered species clause”), and (2) are not likely to destroy or adversely affect the habitat of such species (the “critical habitat clause”).6. Instead, the Court of Appeals concluded that the endangered species clause and the critical habitat clause are “severable,” at least with respect to their “geographical scope,” so that the former clause applies extraterritorially even if the latter does not Under this interpretation, federal agencies must consult with the Secretary to insure that their actions in foreign countries are not likely to threaten any endangered species, but they need not consult to insure that their actions are not likely to destroy the critical habitats of these species. I cannot subscribe to the Court of Appeals’ strained interpretation, for there is no indication that Congress intended to give such vastly different scope to the two clauses in §7(a)(2).4. The plurality now suggests that collateral estoppel principles can have no application here, because the participation of other agencies in this litigation arose?after?its inception. Borrowing a principle from this Court’s statutory diversity jurisdiction cases and transferring it to the constitutional standing context, the Court observes: “The existence of federal jurisdiction ordinarily depends on the facts?as they exist when the complaint is filed.” (Quoting?Newman-Green, Inc., v. Alfonzo-Larrain,?490 U.S. 826 (1989)). See also Mollan v. Torrance,?9 Wheat. 537, 6 L.Ed. 154 (1824). The plurality proclaims that “it cannot be” that later participation of other agencies in this suit retroactively created a jurisdictional issue that did not exist at the outset.The plurality, however, overlooks at least three difficulties with this explanation. In the first place, assuming that the plurality were correct that events as of the initiation of the lawsuit are the only proper jurisdictional reference point, were the Court to follow this rule in this case there would be no question as to the compliance of other agencies, because, as stated at an earlier point in the opinion: “When the Secretary promulgated the regulation here, he thought it was binding on the agencies.” This suit was commenced in October 1986, just three months after the regulation took effect. App. 21; 51 Fed.Reg. 19926 (1986). As the plurality further admits, questions about compliance of other agencies with the Secretary’s regulation arose only by later participation of the Solicitor General and other agencies in the suit. Thus, it was, to borrow the plurality’s own words, “assuredly not true when this suit was filed, naming the Secretary alone,” that there was any question before the District Court about other agencies being bound.Second, were the plurality correct that, for purposes of determining redressability, a court may look only to facts as they exist when the complaint is filed, then the Court by implication would render a nullity part of Rule 19 of the Federal Rules of Civil Procedure. Rule 19 provides in part for the joinder of persons if “in the person’s absence complete relief cannot be accorded among those already parties.” This presupposes nonredressability at the outset of the litigation. Under the plurality’s rationale, a District Court would have no authority to join indispensable parties, because it would, as an initial matter, have no jurisdiction for lack of the power to provide redress at the outset of the litigation.Third, the rule articulated in?Newman-Green?is that the existence of federal jurisdiction “ordinarily” depends on the facts at the initiation of the lawsuit. This is no ironclad?per se?rule without exceptions. Had the Solicitor General, for example, taken a position during this appeal that the §7 consultation requirement does in fact apply extraterritorially, the controversy would be moot, and this Court would be without jurisdiction.In the plurality’s view, federal subject matter jurisdiction appears to be a one-way street running the Executive Branch’s way. When the Executive Branch wants to dispel jurisdiction over an action against an agency, it is free to raise at any point in the litigation that other nonparty agencies might not be bound by any determinations of the one agency defendant. When a plaintiff, however, seeks to preserve jurisdiction in the face of a claim of nonredressability, the plaintiff is not free to point to the involvement of nonparty agencies in subsequent parts of the litigation. The plurality does not explain why the street runs only one way - why some actions of the Executive Branch subsequent to initiation of a lawsuit are cognizable for jurisdictional purposes but others simply are not.More troubling still is the distance this one-way street carries the plurality from the underlying purpose of the standing doctrine. The purpose of the standing doctrine is to ensure that courts do not render advisory opinions rather than resolve genuine controversies between adverse parties. Under the plurality’s analysis, the federal courts are to ignore their?present?ability to resolve a concrete controversy if at some distant point in the past it could be said that redress could not have been provided. The plurality perverts the standing inquiry.FRANKLIN, et al., v. MASSACHUSETTS, et al., 505 U.S. 788, 112 S.Ct. 2767 (1992)Justice O’CONNOR delivered the opinion of the Court, except as to Part III.To invoke constitutional power of federal courts to adjudicate case or controversy under Article III, litigants must allege and prove injury that is fairly traceable to allegedly unlawful conduct and likely to be redressed by requested relief. U.S.C.A. Const., Art. 3, §1 et seq.Massachusetts and voters did not have Article III standing to challenge accuracy of data used by Secretary of Commerce in decennial census to allocate overseas federal employees to the states for the purposes of apportionment, even if Massachusetts and voters had standing to challenge Secretary’s allocation decision; there was no showing that Massachusetts would have received additional Representative if allocation had been done using some other source of “more accurate” data. U.S.C.A. Const., Art. 3, §1 et seq.For standing purposes, Massachusetts’ injury caused by Commerce Secretary’s decision to allocate overseas federal employees to the states could be redressed by declaratory relief against Secretary alone; even though Secretary alone could not change reapportionment that resulted from allocation of overseas employees within census, she had interest in litigation accuracy, and it was likely that President and other officials would abide by authoritative interpretation of census statute and constitutional provision, even if they would not be directly bound by determination. 2 U.S.C.A. §2a; 13 U.S.C.A. §141(a,b); U.S.C.A. Const., Art. 1, §2, cl. 3; Art. 3, §1 et seq.; Amend. 14, §2.Secretary of Commerce’s allocation of overseas federal employees to their home states in decennial census for reapportionment purposes was consistent with “usual residence” method of measuring state affiliation and supported underlying constitutional goal of equal representation in Congress. U.S.C.A. Const., Art. 1, §2, cl. 3; Amend. 14, §2.The Constitution requires that the apportionment of Representatives be determined by an “actual Enumeration” of persons “in each State,” conducted every 10 years. Art. I, 2, cl. 3; Amdt. 14, 2. After the Secretary of Commerce takes the census in a form and content she determines, 13 U.S.C. §141(a), she reports the tabulation to the President, 141(b). He, in turn, sends Congress a statement showing the number of persons in each State, based on data from the “decennial census,” and he determines the number of Representatives to which each State will be entitled. 2 U.S.C. §2a(a). For only the second time since 1900, the Census Bureau (Bureau) allocated the Department of Defense’s overseas employees to particular States for reapportionment purposes in the 1990 census, using an allocation method that it determined most closely resembled “usual residence,” its standard measure of state affiliation. Appellees Massachusetts and two of its registered voters filed an action against, inter alios, the President and the Secretary of Commerce, alleging, among other things, that the decision to allocate federal overseas employees is inconsistent with the Administrative Procedure Act (APA) and the Constitution. In particular, they alleged that the allocation of overseas military personnel resulted in the shift of a Representative from Massachusetts to Washington State. The District Court, inter alia, held that the Secretary’s decision to allocate such employees to the States was arbitrary and capricious under APA standards, directed the Secretary to eliminate them from the apportionment count, and directed the President to recalculate the number of Representatives and submit the new calculation to Congress.Held: The judgment is reversed.With the one-time exception in 1900 of counting overseas servicemen at their family home, the Census Bureau did not allocate federal personnel stationed overseas to particular States for reapportionment purposes until 1970. The 1970 census, taken during the Vietnam War, allocated members of the Armed Forces stationed overseas to their “home of record,” using Defense Department personnel records. “Home of record” is the State declared by the person upon entry into military service, and determines where he or she will be moved after military service is complete. Because the Bureau found that military personnel were likely to designate a “home of record” with low or no income taxes instead of their true home State - even though home of record does not determine state taxation - the Bureau did not allocate overseas employees to particular States in the 1980 census.In the meantime, two more bills were introduced in Congress, but not passed, which would have required the Census Bureau to apportion members of the overseas military to their home States using the “home of record” data already in their personnel files. See H.R. 4903, 101st Cong., 2d Sess. (1990); S. 2675, 101st Cong., 2d Sess. (1990). In July 1990, six months before the census count was due to be reported to the President, the Census Bureau decided to allocate the Department of Defense’s overseas employees to the States based on their “home of record.” It chose the home of record designation over other data available, including legal residence and last duty station, because home of record most closely resembled the Census Bureau’s standard measure of state affiliation - “usual residence.” 3 Record 925. Legal residence was thought less accurate because the choice of legal residence may have been affected by state taxation. Indeed, the Congressional Research Service found that in 1990 “the nine States with either no income taxes, or those which tax only interest and dividend income, have approximately 9 percent more of the overseas military personnel claiming the States for tax purposes, than those same States receive using home of record.” Congressional Research Service Report. For similar reasons, last duty station was rejected because it would provide only a work address, and the employee’s last home address might have been in a different State, as with those, for example, who worked in the District of Columbia but lived in Virginia or Maryland. 3 A.R. 925. Residence at a “last duty station” may also have been of a very short duration and may not have reflected the more enduring tie of usual residence Those military personnel for whom home of record information was not available were allocated based on legal residence or last duty station, in that order.The APA sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts. The Secretary’s report to the President is an unusual candidate for “agency action” within the meaning of the APA, because it is not promulgated to the public in the Federal Register, no official administrative record is generated, and its effect on reapportionment is felt only after the President makes the necessary calculations and reports the result to the Congress. Contrast?2 U.S.C. §441a(e) (requiring Secretary to publish each year in the Federal Register an estimate of the voting age population). Only after the President reports to Congress do the States have an entitlement to a particular number of Representatives. See?2 U.S.C. §2a(b)?(“Each State shall be entitled...to the number of Representatives shown in the President’s statement”).The APA defines “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include - (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia.”?5 U.S.C. §§701(b)(1),?551(1). The President is not explicitly excluded from the APA’s purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion. Cf. Nixon v. Fitzgerald,?457 U.S. 731 (1982)?(Court would require an explicit statement by Congress before assuming Congress had created a damages action against the President). As the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements. Although the President’s actions may still be reviewed for constitutionality, see Youngstown Sheet & Tube Co. v. Sawyer,?343 U.S. 579 (1952), Panama Refining Co. v. Ryan,?293 U.S. 388 (1935), we hold that they are not reviewable for abuse of discretion under the APA. See Armstrong v. Bush, 288 U.S.App.D.C. 38, 924 F.2d 282 (1991). The District Court erred in proceeding to determine the merits of the APA claims.We first address standing. To invoke the constitutional power of the federal courts to adjudicate a case or controversy under Article III, appellees here must allege and prove an injury “fairly traceable to the appellants’ allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright,?468 U.S. 737 (1984).To determine whether appellees sufficiently allege and prove causation requires separating out appellees’ claims: Appellees claim both that the Secretary erred in deciding to allocate overseas employees to various States and that the Secretary erred in using inaccurate data to do so. Appellees have shown that Massachusetts would have had an additional Representative if overseas employees had not been allocated at all. App. 183. They have neither alleged nor shown, however, that Massachusetts would have had an additional Representative if the allocation had been done using some other source of “more accurate” data. Consequently, even if appellees have standing to challenge the Secretary’s decision to allocate, they do not have standing to challenge the accuracy of the data used in making that allocation. We need, then, review only the decision to include overseas federal employees in the state population counts, not the Secretary’s choice of information sources.The thornier standing question is whether the injury is redressable by the relief sought. Tracking the statutory progress of the census data from the Census Bureau, through the President, and to the States, the District Court entered an injunction against the Secretary of Commerce, the President, and the Clerk of the House. 785 F.Supp., at 268. While injunctive relief against executive officials like the Secretary of Commerce is within the courts’ power, see Youngstown Sheet & Tube Co. v. Sawyer,?343 U.S. 579 (1952), the District Court’s grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows. We have left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely “ministerial” duty, Mississippi v. Johnson, 4 Wall. 475, 18 L.Ed. 437 (1867), and we have held that the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution, United States v. Nixon,418 U.S. 683 (1974), but in general “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 4 Wall., at 501. At the threshold, the District Court should have evaluated whether injunctive relief against the President was available, and, if not, whether appellees’ injuries were nonetheless redressable.For purposes of establishing standing, however, we need not decide whether injunctive relief against the President was appropriate, because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone. See Duke Power Co. v. Carolina Environmental Study Group, Inc.,?438 U.S. 59 (1978); Allen v. Wright,?468 U.S., at 752. The Secretary certainly has an interest in defending her policy determinations concerning the census; even though she cannot herself change the reapportionment, she has an interest in litigating its accuracy. And, as the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination.Justice STEVENS, with whom Justice BLACKMUN, Justice KENNEDY, and Justice SOUTER join, concurring in part and concurring in the judgment.Following each census, Congress enacted a statute to reapportion the House of Representatives. After the 1920 census, however, Congress failed to pass a reapportionment Act. This congressional deadlock provided the impetus for the 1929 Act that established a self-executing apportionment in the case of congressional inaction. See S.Rep. No. 2, 71st Cong., 1st Sess., 2-4 (1929). The bill produced an automatic reapportionment through the application of a mathematical formula to the census. The automatic connection between the census and the reapportionment was the key innovation of the Act.The legislative record, moreover, establishes that the Executive involvement in the process is to be wholly ministerial. The question of the discretion allowed to the President was discussed on the floor of the Senate, and the sponsor of the bill, Senator Vandenberg of Michigan, stated unequivocally that the President exercised no discretion whatsoever: “I believe as a matter of indisputable fact, that function served by the President is as purely and completely a ministerial function as any function on earth could be.” 71 Cong. Rec. 1858 (1929)….…The open nature of the census enterprise and the public dissemination of the information collected are closely connected with our commitment to a democratic form of government….Justice SCALIA, concurring in part and concurring in the judgment.…Our cases have established that there are three elements to the “irreducible constitutional minimum of standing” required by Article III: (1) the plaintiffs must establish that they have suffered “injury in fact”; (2) they must show causation between the challenged action and the injury; and (3) they must establish that it is likely that the injury will be redressed by a decision in their favor. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Appellees have clearly satisfied the first two requirements, but I think they flounder on the third.…I do not think that for purposes of the Article III redressability requirement we are ever entitled to assume, no matter how objectively reasonable the assumption may be, that the President (or, for that matter, any official of the Executive or Legislative Branches), in performing a function that is not wholly ministerial, will follow the advice of a subordinate official….…It seems to me this bootstrap argument eliminates, rather than resolves, the redressability question. If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist….…I think it clear that no court has authority to direct the President to take an official act.We have long recognized that the scope of Presidential immunity from judicial process differs significantly from that of Cabinet or inferior officers, compare Nixon v. Fitzgerald, 457 U.S. 731 (1982)?(“The President’s unique status under the Constitution distinguishes him from other executive officials”) with Harlow v. Fitzgerald,?457 U.S. 800 (1982)?(“Suits against other officials - including Presidential aides - generally do not invoke separation-of-powers considerations to the same extent as suits against the President himself”).I am aware of only one instance in which we were specifically asked to issue an injunction requiring the President to take specified executive acts: to enjoin President Andrew Johnson from enforcing the Reconstruction Acts. As the plurality notes, we emphatically disclaimed the authority to do so, stating that “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 4 Wall. 475 (1867). See also C. Burdick, The Law of the American Constitution §50, pp. 126-127 (1922); C. Pyle & R. Pious, The President, Congress, and the Constitution 170 (1984) (“No court has ever issued an injunction against the President himself or held him in contempt of court”). The apparently unbroken historical tradition supports the view, which I think implicit in the separation of powers established by the Constitution, that the principals in whom the executive and legislative powers are ultimately vested - viz., the President and the Congress (as opposed to their agents) - may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary.For similar reasons, I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he be compelled personally to defend his executive actions before a court. Many of the reasons we gave in Nixon v. Fitzgerald, for acknowledging an absolute Presidential immunity from civil damages for official acts apply with equal, if not greater, force to requests for declaratory or injunctive relief in official-capacity suits that challenge the President’s performance of executive functions: The President’s immunity from such judicial relief is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Permitting declaratory or injunctive relief against the President personally would not only distract him from his constitutional responsibility to “take Care that the Laws be faithfully executed,” U.S. Const. Art. II, §3, but, as more and more disgruntled plaintiffs add his name to their complaints, would produce needless head-on confrontations between district judges and the Chief Executive. (If official-action suits against the President had been contemplated, surely they would have been placed within this Court’s original jurisdiction.) It is noteworthy that in the last substantive section of Nixon v. Fitzgerald where we explain why “a rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive,” because of “the existence of alternative remedies and deterrents,” injunctive or declaratory relief against the President is not mentioned.None of these conclusions, of course, in any way suggests that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive, see, Youngstown Sheet & Tube Co. v. Sawyer,?343 U.S. 579 (1952); Panama Refining Co. v. Ryan,?293 U.S. 388 (1935) - just as unlawful legislative action can be reviewed, not by suing Members of Congress for the performance of their legislative duties, see Powell v. McCormack,?395 U.S. 486 (1969); Dombrowski v. Eastland,?387 U.S. 82 (1967); Kilbourn v. Thompson,?103 U.S. 168 (1881), but by enjoining those congressional (or executive) agents who carry out Congress’s directive. Unless the other branches are to be entirely subordinated to the Judiciary, we cannot direct the President to take a specified executive act or the Congress to perform particular legislative duties.In sum, we cannot remedy appellees’ asserted injury without ordering declaratory or injunctive relief against appellant President Bush, and since we have no power to do that, I believe appellees’ constitutional claims should be dismissed. Since I agree with the Court’s conclusion that appellee’s constitutional claims do not provide an alternative ground that would support the judgment below, I concur in its judgment reversing the District Court.Footnotes:2. In Mississippi v. Johnson we left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely “ministerial” duty, see 4 Wall. 475, 18 L.Ed. 437 (1867); cf. Kendall v. United States, 12 Pet. 524, 9 L.Ed. 1181 (1838) (Postmaster General); Marbury v. Madison, 1 Cranch. 137, 2 L.Ed. 60 (1803) (Secretary of State). As discussed earlier, the President’s duty here was not that.3. Although the relief granted in Powell v. McCormack,?395 U.S. 486 (1969), was only declaratory, and although we reserved the question whether coercive relief could properly be granted against the congressional officers, we discussed the issue of the form of relief only after having concluded that the actions of these officers were not protected by legislative immunity. Accordingly, nothing in the case suggests that declaratory relief may be awarded for actions protected by congressional (or Presidential) immunity.A contrary conclusion is not required by the fact that in Department of Commerce v. Montana, 503 U.S. 442 (1992), we reached the merits of a challenge to the President’s use of the method of equal proportions in calculating the reapportionment. “‘[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.’” Pennhurst State School and Hospital v. Halderman,?465 U.S. 89 (1984)?(quoting Hagans v. Lavine,?415 U.S. 528 (1974)).ARIZONA v. FULMINANTE, 499 U.S. 279 (1991)JUSTICE WHITE delivered the opinion of the Court.The Arizona Supreme Court ruled in this case that respondent Oreste Fulminante’s confession, received in evidence at his trial for murder, had been coerced, and that its use against him was barred by the Fifth and Fourteenth Amendments to the United States Constitution. The court also held that the harmless error rule could not be used to save the conviction. We affirm the judgment of the Arizona court, although for different reasons than those upon which that court relied.Early in the morning of September 14, 1982, Fulminante called the Mesa, Arizona, Police Department to report that his 11-year-old stepdaughter, Jeneane Michelle Hunt, was missing. He had been caring for Jeneane while his wife, Jeneane’s mother, was in the hospital. Two days later, Jeneane’s body was found in the desert east of Mesa. She had been shot twice in the head at close range with a large caliber weapon, and a ligature was around her neck. Because of the decomposed condition of the body, it was impossible to tell whether she had been sexually assaulted.Fulminante’s statements to police concerning Jeneane’s disappearance and his relationship with her contained a number of inconsistencies, and he became a suspect in her killing. When no charges were filed against him, Fulminante left Arizona for New Jersey. Fulminante was later convicted in New Jersey on federal charges of possession of a firearm by a felon.Fulminante was incarcerated in the Ray Brook Federal Correctional Institution in New York. There he became friends with another inmate, Anthony Sarivola, then serving a 60-day sentence for extortion. The two men came to spend several hours a day together. Sarivola, a former police officer, had been involved in loan sharking for organized crime, but then became a paid informant for the Federal Bureau of Investigation. While at Ray Brook, he masqueraded as an organized crime figure. After becoming friends with Fulminante, Sarivola heard a rumor that Fulminante was suspected of killing a child in Arizona. Sarivola then raised the subject with Fulminante in several conversations, but Fulminante repeatedly denied any involvement in Jeneane’s death. During one conversation, he told Sarivola that Jeneane had been killed by bikers looking for drugs; on another occasion, he said he did not know what had happened. Sarivola passed this information on to an agent of the Federal Bureau of Investigation, who instructed Sarivola to find out more.Sarivola learned more one evening in October, 1983, as he and Fulminante walked together around the prison track. Sarivola said that he knew Fulminante was “starting to get some tough treatment and whatnot” from other inmates because of the rumor. Sarivola offered to protect Fulminante from his fellow inmates, but told him, “You have to tell me about it, you know. I mean, in other words, for me to give you any help.” Fulminante then admitted to Sarivola that he had driven Jeneane to the desert on his motorcycle, where he choked her, sexually assaulted her, and made her beg for her life, before shooting her twice in the head.Fulminante appealed, arguing, among other things, that his confession to Sarivola was the product of coercion and that its admission at trial violated his rights to due process, under the Fifth and Fourteenth Amendments of the United States Constitution. After considering the evidence at trial as well as the stipulated facts before the trial court on the motion to suppress, the Arizona Supreme Court held that the confession was coerced, but initially determined that the admission of the confession at trial was harmless error, because of the overwhelming nature of the evidence against Fulminante. 161 Ariz. 237, 778 P.2d 602 (1988). Upon Fulminante’s motion for reconsideration, however, the court ruled that this Court’s precedent precluded the use of the harmless error analysis in the case of a coerced confession. The court therefore reversed the conviction and ordered that Fulminante be retried without the use of the confession to Sarivola. Because of differing views in the state and federal courts over whether the admission at trial of a coerced confession is subject to a harmless error analysis, we granted the State’s petition for certiorari, 494 U.S. 1055 (1990). Although a majority of this Court finds that such a confession is subject to a harmless error analysis, for the reasons set forth below, we affirm the judgment of the Arizona court.We deal first with the State’s contention that the court below erred in holding Fulminante’s confession to have been coerced. The State argues that it is the totality of the circumstances that determines whether Fulminante’s confession was coerced,?cf. Schneckloth v. Bustamonte,?412 U.S. 218 (1973), but contends that, rather than apply this standard, the Arizona court applied a “but for” test, under which the court found that but for the promise given by Sarivola, Fulminante would not have confessed. In support of this argument, the State points to the Arizona court’s reference to?Bram v. United States,?168 U.S. 532?(1897). Although the Court noted in?Bram?that a confession cannot be obtained by “any direct or implied promises, however slight, nor by the exertion of any improper influence,” (quoting 3 H. Smith & A. Keep, Russell on Crimes and Misdemeanors 478 (6th ed. 1896)), it is clear this passage from?Bram,?which under current precedent does not state the standard for determining the voluntariness of a confession, was not relied on by the Arizona court in reaching its conclusion. Rather, the court cited this language as part of a longer quotation from an Arizona case which accurately described the State’s burden of proof for establishing voluntariness.?See?161 Ariz. at 244, 778 P.2d at 609 (citing?State v. Thomas,?148 Ariz. 225, 714 P.2d 395 (1986),?Malloy v. Hogan,?378 U.S. 1 (1964), and?Bram,?168 U.S. at?542). Indeed, the Arizona Supreme Court stated that a “determination regarding the voluntariness of a confession...must be viewed in a totality of the circumstances,” 161 Ariz. at 243, 778 P.2d at 608, and under that standard plainly found that Fulminante’s statement to Sarivola had been coerced.In applying the totality of the circumstances test to determine that the confession to Sarivola was coerced, the Arizona Supreme Court focused on a number of relevant facts. First, the court noted that, “because [Fulminante] was an alleged child murderer, he was in danger of physical harm at the hands of other inmates.”?In addition, Sarivola was aware that Fulminante had been receiving “rough treatment from the guys.”?Using his knowledge of these threats, Sarivola offered to protect Fulminante in exchange for a confession to Jeneane’s murder, and “[i]n response to Sarivola’s offer of protection, [Fulminante] confessed.”?Agreeing with Fulminante that “Sarivola’s promise was ‘extremely coercive,’” the Arizona Court declared:“[T]he confession was obtained as a direct result of extreme coercion, and was tendered in the belief that the defendant’s life was in jeopardy if he did not confess. This is a true coerced confession in every sense of the word.”Although the question is a close one, we agree with the Arizona Supreme Court’s conclusion that Fulminante’s confession was coerced. The Arizona Supreme Court found a credible threat of physical violence unless Fulminante confessed. Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. As we have said, “coercion can be mental as well as physical, and...the blood of the accused is not the only hallmark of an unconstitutional inquisition.”?Blackburn v. Alabama,?361 U.S. 199 (1960).?See also Culombe,?367 U.S. at?584; Reck v. Pate,?367 U.S. 433 (1961);?Rogers v. Richmond,?365 U.S. 534 (1961);?Payne v. Arkansas,?356 U.S. 560 (1958);?Watts v. Indiana,?338 U.S. 49?(1949). As in?Payne,?where the Court found that a confession was coerced because the interrogating police officer had promised that, if the accused confessed, the officer would protect the accused from an angry mob outside the jailhouse door, 356 U.S. at 564, so too here, the Arizona Supreme Court found that it was fear of physical violence, absent protection from his friend (and Government agent) Sarivola, which motivated Fulminante to confess. Accepting the Arizona court’s finding, permissible on this record, that there was a credible threat of physical violence, we agree with its conclusion that Fulminante’s will was overborne in such a way as to render his confession the product of coercion.Four of us, JUSTICES MARSHALL, BLACKMUN, STEVENS and myself, would affirm the judgment of the Arizona Supreme Court on the ground that the harmless error rule is inapplicable to erroneously admitted coerced confessions. We thus disagree with the Justices who have a contrary views.The majority today abandons what until now the Court has regarded as the “axiomatic [proposition] that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession,?Rogers v. Richmond,?365 U.S. 534, and even though there is ample evidence aside from the confession to support the conviction.?Malinski v. New York,?324 U.S. 401?(1945);?Stroble v. California,?343 U.S. 181;?Payne v. Arkansas,?356 U.S. 560.”Jackson v. Denno,?378 U.S. 368 (1964). The Court has repeatedly stressed that the view that the admission of a coerced confession can be harmless error because of the other evidence to support the verdict is “an impermissible doctrine,”?Lynumn v. Illinois,?372 U.S. 528 (1963); for “the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.”?Payne,?356 U.S. at?568.?See also Rose v. Clark,?478 U.S. 570 (1986);?New Jersey v. Portash,?440 U.S. 450 (1979);?Lego v. Twomey,?404 U.S. 477 (1972);?Chapman v. California,?386 U.S. 18 (1967); Haynes v. Washington,?373 U.S. at?518;?Blackburn v. Alabama, 361 U.S. at?206;?Spano v. New York,?360 U.S. 315 (1959); Brown v. Allen,?344 U.S. 443 (1953);?Stroble v. California,?343 U.S. 181 (1952);?Gallegos v. Nebraska,?342 U.S. 55 (1951); Haley v. Ohio,?332 U.S. 596 (1948);?Malinski v. New York,?324 U.S. 401 (1945);?Lyons v. Oklahoma,?322 U.S. 596 (1944). As the decisions in?Haynes?and?Payne?show, the rule was the same even when another confession of the defendant had been properly admitted into evidence. Today, a majority of the Court, without any justification,?cf. Arizona v. Rumsey,?467 U.S. 203 (1984), overrules this vast body of precedent without a word, and, in so doing, dislodges one of the fundamental tenets of our criminal justice system.In extending to coerced confessions the harmless error rule of?Chapman v. California, 386 U.S. 18?(1967), the majority declares that, because the Court has applied that analysis to numerous other “trial errors,” there is no reason that it should not apply to an error of this nature as well. The four of us remain convinced, however, that we should abide by our cases that have refused to apply the harmless error rule to coerced confessions, for a coerced confession is fundamentally different from other types of erroneously admitted evidence to which the rule has been applied. Indeed, as the majority concedes,?Chapman?itself recognized that prior cases “have indicated that there are some constitutional rights so basic to a fair trial that their infraction can?never be treated as harmless error,” and it placed in that category the constitutional rule against using a defendant’s coerced confession against him at his criminal trial. Moreover, cases since?Chapman?have reiterated the rule that using a defendant’s coerced confession against him is a denial of due process of law regardless of the other evidence in the record aside from the confession.?Lego v. Twomey,?404 U.S. at?483;?Mincey v. Arizona,?437 U.S. at?398;?New Jersey v. Portash,?440 U.S. at?440 U.S. 459;?Rose v. Clark,?478 U.S. at?577.Chapman?specifically noted three constitutional errors that could not be categorized as harmless error: using a coerced confession against a defendant in a criminal trial, depriving a defendant of counsel, and trying a defendant before a biased judge. The majority attempts to distinguish the use of a coerced confession from the other two errors listed in?Chapman?first by distorting the decision in?Payne,?and then by drawing a meaningless dichotomy between “trial errors” and “structural defects” in the trial process. Viewing?Payne?as merely rejecting a test whereby the admission of a coerced confession could stand if there were “sufficient evidence,” other than the confession, to support the conviction, the majority suggests that the Court in?Payne?might have reached a different result had it been considering a harmless error test. It is clear, though, that in?Payne?the Court recognized that,?regardless?of the amount of other evidence, “the admission in evidence, over objection, of the coerced confession vitiates the judgment,” because “where, as here, a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession.” 356 U.S. at?568. The inability to assess its effect on a conviction causes the admission at trial of a coerced confession to “defy analysis by?harmless error’ standards,” cf.?at?499 U.S. 309, just as certainly as do deprivation of counsel and trial before a biased judge.The majority also attempts to distinguish “trial errors” which occur “during the presentation of the case to the jury,” and which it deems susceptible to harmless error analysis, from “structural defects in the constitution of the trial mechanism,” which the majority concedes cannot be so analyzed. This effort fails, for our jurisprudence on harmless error has not classified so neatly the errors at issue. For example, we have held susceptible to harmless error analysis the failure to instruct the jury on the presumption of innocence,?Kentucky v. Whorton,?441 U.S. 786?(1979), while finding it impossible to analyze in terms of harmless error the failure to instruct a jury on the reasonable doubt standard,?Jackson v. Virginia,?443 U.S. 307 (1979). These cases cannot be reconciled by labeling the former “trial error” and the latter not, for both concern the exact same stage in the trial proceedings. Rather, these cases can be reconciled only by considering the nature of the right at issue and the effect of an error upon the trial. A jury instruction on the presumption of innocence is not constitutionally required in every case to satisfy due process, because such an instruction merely offers an additional safeguard beyond that provided by the constitutionally required instruction on reasonable doubt.?See Whorton,?441 U.S. at?789;?Taylor v. Kentucky,?436 U.S. 478 (1978). While it may be possible to analyze as harmless the omission of a presumption of innocence instruction when the required reasonable doubt instruction has been given, it is impossible to assess the effect on the jury of the omission of the more fundamental instruction on reasonable doubt. In addition, omission of a reasonable doubt instruction, though a “trial error,” distorts the very structure of the trial, because it creates the risk that the jury will convict the defendant even if the State has not met its required burden of proof.?Cf. Cool v. United States,?409 U.S. 100 (1972);?In re Winship,?397 U.S. 358 (1970).These same concerns counsel against applying harmless error analysis to the admission of a coerced confession. A defendant’s confession is “probably the most probative and damaging evidence that can be admitted against him,”?Cruz v. New York,?481 U.S. 186 (1987), so damaging that a jury should not be expected to ignore it even if told to do so,?Bruton v. United States,?391 U.S. 123 (1968), and because, in any event, it is impossible to know what credit and weight the jury gave to the confession.?Cf. Payne,?356 U.S. at?568. Concededly, this reason is insufficient to justify a?per se?bar to the use of any confession. Thus,?Milton v. Wainwright,?407 U.S. 371?(1972), applied harmless error analysis to a confession obtained and introduced in circumstances that violated the defendant’s Sixth Amendment right to counsel. Similarly, the Courts of Appeals have held that the introduction of incriminating statements taken from defendants in violation of?Miranda v. Arizona,?384 U.S. 436?(1966), is subject to treatment as harmless error.Nevertheless, in declaring that it is “impossible to create a meaningful distinction between confessions elicited in violation of the Sixth Amendment and those in violation of the Fourteenth Amendment,” the majority overlooks the obvious. Neither?Milton v. Wainwright?nor any of the other cases upon which the majority relies involved a defendant’s?coerced?confession, nor were there present in these cases the distinctive reasons underlying the exclusion of coerced incriminating statements of the defendant. First, some coerced confessions may be untrustworthy.?Jackson v. Denno,?378 U.S. at?385;?Spano v. New York, 360 U.S. at?320. Consequently, admission of coerced confessions may distort the truthseeking function of the trial upon which the majority focuses. More importantly, however, the use of coerced confessions, “whether true or false,” is forbidden “because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial, and not an inquisitorial, system - a system in which the State must establish guilt by evidence independently and freely secured, and may not by coercion prove its charge against an accused out of his own mouth,” Rogers v. Richmond,?365 U.S. at?540-541;?see also Lego,?404 U.S. at?485. This reflects the “strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will,” Blackburn v. Alabama,?361 U.S. at?206, as well as “the deep-rooted feeling that the police must obey the law while enforcing the law; that, in the end, life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves,” Spano,?360 U.S. at?320. Thus, permitting a coerced confession to be part of the evidence on which a jury is free to base its verdict of guilty is inconsistent with the thesis that ours is not an inquisitorial system of criminal justice.?Cf. Chambers v. Florida,?309 U.S. at?235.The search for truth is indeed central to our system of justice, but “certain constitutional rights are not, and should not be, subject to harmless error analysis, because those rights protect important values that are unrelated to the truthseeking function of the trial.” Rose v. Clark,?478 U.S. at?587. The right of a defendant not to have his coerced confession used against him is among those rights, for using a coerced confession “abort[s] the basic trial process” and “render[s] a trial fundamentally unfair.”A confession is like no other evidence. Indeed, “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.... [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.” Bruton v. United States,?391 U.S. at?139.?See also Cruz v. New York,?481 U.S. at?195. While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision. In the case of a coerced confession such as that given by Fulminante to Sarivola, the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.First, the transcript discloses that both the trial court and the State recognized that a successful prosecution depended on the jury’s believing the two confessions. Absent the confessions, it is unlikely that Fulminante would have been prosecuted at all, because the physical evidence from the scene and other circumstantial evidence would have been insufficient to convict. Indeed, no indictment was filed until nearly two years after the murder. Although the police had suspected Fulminante from the beginning, as the prosecutor acknowledged in his opening statement to the jury, “[W]hat brings us to Court, what makes this case fileable, and prosecutable and triable is that later, Mr. Fulminante confesses this crime to Anthony Sarivola and later, to Donna Sarivola, his wife.” After trial began, during a renewed hearing on Fulminante’s motion to suppress, the trial court opined, “You know, I think from what little I know about this trial, the character of this man [Sarivola] for truthfulness or untruthfulness and his credibility is the centerpiece of this case, is it not?,” to which the prosecutor responded, “It’s very important, there’s no doubt.” Finally, in his closing argument, the prosecutor prefaced his discussion of the two confessions by conceding, “[W]e have a lot of [circumstantial] evidence that indicates that this is our suspect, this is the fellow that did it, but it’s a little short as far as saying that it’s proof that he actually put the gun to the girl’s head and killed her. So it’s a little short of that. We recognize that.”The jurors could also have believed that Donna Sarivola had a motive to lie about the confession in order to assist her husband. Anthony Sarivola received significant benefits from federal authorities, including payment for information, immunity from prosecution, and eventual placement in the federal Witness Protection Program. In addition, the jury might have found Donna motivated by her own desire for favorable treatment, for she, too, was ultimately placed in the Witness Protection Program.BURNS v. REED, 500 U.S. 478, 111 S.Ct. 1934 (1991)Justice WHITE delivered the opinion of the Court.Suspecting that petitioner Burns had multiple personalities, one of which shot her sons while they slept, Indiana police sought the advice of respondent Reed, a state prosecutor, who told them they could question Burns under hypnosis. While hypnotized, Burns referred to both herself and the assailant as “Katie.” Interpreting this as support for their multiple-personality theory, the officers detained Burns and again sought the advice of Reed, who told them that they “probably had probable cause” to arrest her. During a subsequent county court probable cause hearing on a search warrant, one of the officers testified, in response to Reed’s questioning, that Burns had confessed to the shootings, but neither the officer nor Reed informed the judge that the “confession” was obtained under hypnosis or that Burns had otherwise consistently denied guilt. The warrant was issued on the basis of this misleading presentation, and Burns was charged with attempted murder, but her motion to suppress the statements given under hypnosis was granted before trial, and the charges were dropped. She then filed suit under?42 U.S.C. §1983?against Reed, inter alios, alleging violations of various rights under the Federal Constitution and seeking compensatory and punitive damages. The District Court granted Reed a directed verdict, and the Court of Appeals affirmed, holding that he was absolutely immune from liability for giving legal advice to the officers and for his conduct at the probable cause hearing.Held: A state prosecuting attorney is absolutely immune from liability for damages under §1983 for participating in a probable cause hearing, but not for giving legal advice to the police. (a) Imbler v. Pachtman,?424 U.S. 409, held that, in light of the immunity historically accorded prosecutors at common law and the interests supporting that immunity, state prosecutors are absolutely immune from liability under §1983 for their conduct in “initiating a prosecution and in presenting the State’s case,” insofar as that conduct is “intimately associated with the judicial phase of the criminal process.” Subsequent decisions are consistent with this functional approach and have emphasized that the official seeking absolute immunity bears the burden of showing that it is justified by the function in question. See Forrester v. White,?484 U.S. 219.(b) The absolute immunity recognized in Imbler is applicable to Reed’s appearance in court to support the search warrant application and his presentation of evidence at that hearing. Burns claims only that Reed presented false evidence to the county court and thereby facilitated the issuance of the warrant. Such conduct was clearly addressed by the common law, which immunized a prosecutor, like other lawyers, from civil liability for making, or for eliciting from witnesses, false or defamatory statements in judicial proceedings, at least so long as the statements were related to the proceedings. See Yaselli v. Goff, 12 F.2d 396, summarily aff’d,?275 U.S. 503. Moreover, this immunity extended to any hearing before a tribunal which performed a judicial function. In addition to such common-law support, absolute immunity in these circumstances is justified by the policy concerns articulated in Imbler. Reed’s actions clearly involve his “role as advocate for the State,” see?424 U.S., at 431, rather than his role as “administrator or investigative officer,” the protection for which the Court reserved judgment in Imbler. Moreover, since the issuance of a warrant is unquestionably a judicial act, appearing at a probable cause hearing is “intimately associated with the judicial phase of the criminal process.” It is also connected with the initiation and conduct of a prosecution, particularly where, as here, the hearing occurs after the arrest. Furthermore, since pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the prosecutor’s independence, absolute immunity serves the policy of protecting the judicial process, which, in any event, serves as a check on prosecutorial actions.(c) However, Reed has not met his burden of showing that the relevant factors justify an extension of absolute immunity to the prosecutorial function of giving legal advice to the police. Neither he nor the court below has identified any historical or common-law support for such an extension. American common law was aware of the office of public prosecutor and must guide this Court, which does not have a license to establish immunities from §1983 actions in the interests of what it judges to be sound public policy. Nor do other factors authorize absolute immunity in these circumstances. The risk of vexatious litigation is unavailing, since a suspect or defendant is not likely to be as aware of a prosecutor’s role in giving advice as his role in initiating and conducting a prosecution, and since absolute immunity is designed to free the judicial process, rather than every litigation-inducing conduct, from harassment and intimidation. The qualified immunity standard, which is today more protective of officials than it was at the time Imbler was decided, provides ample support to all but the plainly incompetent or those who knowingly violate the law. The argument that giving legal advice is related to a prosecutor’s role in screening cases for prosecution and in safe-guarding the fairness of the criminal judicial process proves too much, since almost any action by a prosecutor could be said to be in some way related to the ultimate decision whether to prosecute. Moreover, that argument was implicitly rejected in Mitchell v. Forsyth,?472 U.S. 511. Furthermore, although there are several checks other than civil litigation to prevent abuses of authority by prosecutors, one of the most important of those checks, the judicial process, will not necessarily restrain a prosecutor’s out-of-court activities that occur prior to the initiation of a prosecution, particularly if the suspect is not eventually prosecuted. Advising the police in the investigative phase of a criminal case is not so “intimately associated with the judicial phase of the criminal process” that it qualifies for absolute prosecutorial immunity.The Court in Imbler declined to accord prosecutors only qualified immunity because, among other things, suits against prosecutors for initiating and conducting prosecutions “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate,” lawsuits would divert prosecutors’ attention and energy away from their important duty of enforcing the criminal law, prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity, and potential liability “would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” The Court also noted that there are other checks on prosecutorial misconduct, including the criminal law and professional discipline.The Court therefore held that prosecutors are absolutely immune from liability under §1983 for their conduct in “initiating a prosecution and in presenting the State’s case,” insofar as that conduct is “intimately associated with the judicial phase of the criminal process.” Each of the charges against the prosecutor in Imbler involved conduct having that association, including the alleged knowing use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. The Court expressly declined to decide whether absolute immunity extends to “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate.” It was recognized, though, that “the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.”Decisions in later cases are consistent with the functional approach to immunity employed in Imbler. See Westfall v. Erwin,?484 U.S. 292 (1988); Forrester v. White,?484 U.S. 219 (1988); Malley v. Briggs,?475 U.S. 335 (1986); Mitchell v. Forsyth,?472 U.S. 511 (1985); Briscoe v. LaHue,?460 U.S. 325 (1983); Harlow v. Fitzgerald,?457 U.S. 800 (1982); Butz v. Economou,?438 U.S. 478 (1978). These decisions have also emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Forrester,?484 U.S., at 224; Malley,?475 U.S., at 340; Harlow,?457 U.S., at 812; Butz,?438 U.S., at 506. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been “quite sparing” in our recognition of absolute immunity, Forrester,?484 U.S., at 224, and have refused to extend it any “further than its justification would warrant.” Harlow, 457 U.S., at 811.Initially, it is important to determine the precise claim that petitioner has made against respondent concerning respondent’s role in the search warrant hearing. An examination of petitioner’s complaint, the decisions by both the District Court and Seventh Circuit, and the questions presented in the Petition for a Writ of Certiorari in this Court reveals that petitioner has challenged only respondent’s participation in the hearing, and not his motivation in seeking the search warrant or his conduct outside of the courtroom relating to the warrant.Petitioner’s complaint alleged only the following with regard to respondent’s role in the search warrant hearing:“Acting in his official capacity..., respondent facilitated the issuance of a search warrant when on September 22, 1982 he presented evidence to the Court with the full knowledge of the false testimony of the Defendant, DONALD SCROGGINS. On direct examination, Deputy Prosecutor Reed asked of police officer Donald Scroggins various questions and in doing so and in concert with other Defendants deliberately misled the Court into believing that the Plaintiff had confessed to the shooting of her children.”Obviously, that claim concerns only respondent’s participation in the probable cause hearing.When directing a verdict for respondent after petitioner’s presentation of her case, the District Court continued to view petitioner’s search warrant claim as concerning only respondent’s participation in the hearing. The District Court stated:“Finally, as to getting the search warrant, you can characterize the proceeding before the judge as testimony by respondent. And if he asked leading questions - and I think he did - why, of course, you can say that. But the fact is that it was a proceeding in court before a judge. No matter what the form of the question was, the person seeking the search warrant and doing the testifying was the police officer. And what respondent was doing was...his job as a deputy prosecuting attorney and presenting that evidence. Even though it was fragmentary and didn’t go far enough, he did it as a part of his official duties.”?Petitioner’s challenge to respondent’s participation in the search warrant hearing is similar to the claim in Briscoe v. LaHue,?460 U.S. 325 (1983). There, the plaintiff’s §1983 claim was based on the allegation that a police officer had given perjured testimony at the plaintiff’s criminal trial. In holding that the officer was entitled to absolute immunity, we noted that witnesses were absolutely immune at common law from subsequent damages liability for their testimony in judicial proceedings “even if the witness knew the statements were false and made them with malice.”Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding), and also for eliciting false and defamatory testimony from witnesses. See Yaselli v. Goff, 12 F.2d 396 (CA2 1926), summarily aff’d,?275 U.S. 503 (1927); Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265 (1897); Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001 (1896); Marsh v. Ellsworth, 50 N.Y. 309 (1872); Jennings v. Paine, 4 Wis. 358 (1855); Hoar v. Wood, 44 Mass. 193 (1841). See also King v. Skinner, Lofft 55, 98 Eng. Rep. 529 (K.B. 1772), where Lord Mansfield observed that “neither party, witness, counsel, jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.”As this and other cases indicate, pretrial court appearances by the prosecutor in support of taking criminal action against a suspect present a substantial likelihood of vexatious litigation that might have an untoward effect on the independence of the prosecutor. Therefore, absolute immunity for this function serves the policy of protecting the judicial process, which underlies much of the Court’s decision in Imbler. See Forrester,?484 U.S., at 226; Briscoe,?460 U.S., at 334. Furthermore, the judicial process is available as a check on prosecutorial actions at a probable cause hearing. “The safeguards built into the judicial system tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct.” Butz,?438 U.S., at 512. See also Mitchell,?472 U.S., at 522.The Court of Appeals did observe that Indiana common law purported to provide immunity “‘whenever duties of a judicial nature are imposed upon a public officer.’” (Quoting Griffith v. Slinkard, 146 Ind., at 121, 44 N.E., at 1002). The court then reasoned that giving legal advice is “of a judicial nature” because the prosecutor is, like a judge, called upon to render opinions concerning the legality of conduct. We do not believe, however, that advising the police in the investigative phase of a criminal case is so “intimately associated with the judicial phase of the criminal process,” Imbler,?424 U.S., at 430, that it qualifies for absolute immunity. Absent a tradition of immunity comparable to the common-law immunity from malicious prosecution, which formed the basis for the decision in Imbler, we have not been inclined to extend absolute immunity from liability under §1983. See Malley,?475 U.S., at 342.The Court of Appeals speculated that anything short of absolute immunity would discourage prosecutors from performing their “vital obligation” of giving legal advice to the police. But the qualified immunity standard is today more protective of officials than it was at the time that Imbler was decided. “As the qualified immunity defense has evolved, it provides ample support to all but the plainly incompetent or those who knowingly violate the law.” Malley,?475 U.S., at 341; see also Mitchell,?472 U.S., at 524. Although the absence of absolute immunity for the act of giving legal advice may cause prosecutors to consider their advice more carefully, “‘where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.’” (Quoting Harlow, 457 U.S., at 819). Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice. Cf. Butz,?438 U.S., at 505. Ironically, it would mean that the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not.The United States argues that giving legal advice is related to a prosecutor’s roles in screening cases for prosecution and in safeguarding the fairness of the criminal judicial process. That argument, however, proves too much. Almost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute, but we have never indicated that absolute immunity is that expansive. Rather, as in Imbler, we inquire whether the prosecutor’s actions are closely associated with the judicial process. Indeed, we implicitly rejected the United States’ argument in Mitchell where we held that the Attorney General was not absolutely immune from liability for authorizing a warrantless wiretap. Even though the wiretap was arguably related to a potential prosecution, we found that the Attorney General “was not acting in a prosecutorial capacity” and thus was not entitled to the immunity recognized in Imbler.As a final basis for allowing absolute immunity for legal advice, the Court of Appeals observed that there are several checks other than civil litigation to prevent abuses of authority by prosecutors. Although we agree, we note that one of the most important checks, the judicial process, will not necessarily restrain out-of-court activities by a prosecutor that occur prior to the initiation of a prosecution, such as providing legal advice to the police. This is particularly true if a suspect is not eventually prosecuted. In those circumstances, the prosecutor’s action is not subjected to the “crucible of the judicial process.” Imbler,?424 U.S., at 440.Justice SCALIA, with whom Justice BLACKMUN joins, and with whom Justice MARSHALL joins as to Part III, concurring in the judgment in part and dissenting in part.While we have not thought a common-law tradition (as of 1871) to be a sufficient condition for absolute immunity under §1983, see Scheuer v. Rhodes,?416 U.S. 232 (1974), we have thought it to be a necessary one:“Our initial inquiry is whether an official claiming immunity under §1983 can point to a common-law counterpart to the privilege he asserts.... If ‘an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether §1983’s history or purposes nonetheless counsel against recognizing the same immunity in §1983 actions.’” Malley v. Briggs,?475 U.S. 335 (1986), quoting Tower v. Glover,?467 U.S. 914 (1984).Where we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under §1983. See Malley; Tower; Pulliam v. Allen,?466 U.S. 522 (1984). That is so because the presumed legislative intent not to eliminate traditional immunities is our only justification for limiting the categorical language of the statute. “We do not have a license to establish immunities from §1983 actions in the interests of what we judge to be sound public policy.” Tower,?467 U.S., at 922-923. “Our role is to interpret the intent of Congress in enacting §1983, not to make a freewheeling policy choice.” Malley,?475 U.S., at 342.Since my view of the record here requires me to reach a form of prosecutorial action not addressed by the Court, and one that is arguably more difficult to analyze under the common law, I think it well to set forth in at least some detail the nature of common-law immunities. Respondent has not cited, and I have not found, a single pre-1871 case in which a prosecutor was granted absolute immunity for any of the functions contested here. Indeed, as we have previously recognized, see Imbler,?424 U.S. at 421, the first case extending any form of prosecutorial immunity was decided some 25 years after the enactment of §1983. However, pre-1871 common-law courts did recognize several categories of immunities which, it is argued, would have extended to the prosecutorial functions contested here had the case arisen. The relevant categories are:(1) Judicial Immunity. This was an absolute immunity from all claims relating to the exercise of judicial functions. See T. Cooley, Law of Torts 408-409 (1880). It extended not only to judges narrowly speaking, but to “military and naval officers in exercising their authority to order courts-martial for the trial of their inferiors, or in putting their inferiors under arrest preliminary to trial; ...to grand and petit jurors in the discharge of their duties as such; to assessors upon whom is imposed the duty of valuing property for the purpose of a levy of taxes; to commissioners appointed to appraise damages when property is taken under the right of eminent domain; to officers empowered to lay out, alter, and discontinue highways; to highway officers in deciding that a person claiming exemption from a road tax is not in fact exempt, or that one arrested is in default for not having worked out the assessment; to members of a township board in deciding upon the allowance of claims; to arbitrators, and to the collector of customs in exercising his authority to sell perishable property, and in fixing upon the time for notice of sale.As is evident from the foregoing catalog, judicial immunity extended not only to public officials but also to private citizens (in particular jurors and arbitrators); the touchstone for its applicability was performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights. See Steele v. Dunham, 26 Wis. 393 (1870) (“The board of assessors has to hear testimony; to ascertain facts; to correct errors, and arrive at results, according very much to the proceedings and processes of courts in the determination of causes; and hence they act judicially.”); Barhyte v. Shepherd, 35 N.Y. 238 (1866); Wall v. Trumbull, 16 Mich. 228 (1867); E. Weeks, Damnum absque Injuria 209-210 (1879).(2) Quasi-judicial immunity. This, unlike judicial immunity, extended only to government servants, protecting their “quasi-judicial” acts - that is, official acts involving policy discretion but not consisting of adjudication. Quasi-judicial immunity, however, was qualified, i.e., could be defeated by a showing of malice. See Billings v. Lafferty, 31 Ill. 318 (1863) (clerk of court); Reed v. Conway, 20 Mo. 22 (1854) (surveyor-general); Weeks, at 210; J. Bishop, Commentaries on Non-Contract Law §786, pp. 365-366, and n. 1 (1889); Cooley, at 411-413. I do not doubt that prosecutorial functions, had they existed in their modern form in 1871, would have been considered quasi-judicial (wherefore they are entitled to qualified immunity under §1983, cf. Pierson,?386 U.S., at 557). See Wight v. Rindskopf, 43 Wis. 344 (1877) (prosecutor acts as a quasi-judicial officer is deciding whether to dismiss a pending case). But that characterization does not support absolute immunity.(3) Defamation immunity. At common law, all statements made in the course of a court proceeding were absolutely privileged against suits for defamation. J. Townshend, Slander and Libel 347-367 (2d ed. 1872); Bishop §§295-300, pp. 123-125. Thus, an ordinary witness could not be sued at all; a complaining witness (i.e., the private party bringing the suit) could be sued for malicious prosecution but not for defamation. This immunity did not turn upon the claimant’s status as a public or judicial officer, for it protected private parties who served as witnesses, and even as prosecuting witnesses. The immunity extended, however, only against suits for defamation.“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence...may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” Fed. Rule Civ.Proc. 15(b).An additional few words are needed, however, regarding our decision in Imbler. Imbler granted a prosecutor absolute immunity against a §1983 claim that he had sought a grand jury indictment maliciously. It relied for that holding upon a common-law tradition of prosecutorial immunity that developed much later than 1871, and was not even a logical extrapolation from then-established immunities. While I would not, for the reasons stated above, employ that methodology here, the holding of Imbler remains on the books, and for reasons of stare decisis I would not abandon it. It could be argued, therefore, that a prosecutor’s role in seeking a search warrant is akin to a prosecutor’s role in seeking an indictment, and thus that Imbler’s holding alone governs the present suit. But insofar as the relevant factors are concerned, this case is further from Imbler than was Malley, which denied absolute immunity to a policeman for procuring an arrest warrant. Imbler recognized absolute immunity out of a desire to protect actions “intimately associated with the judicial phase of the criminal process.” Malley rejected a further extension because the act of procuring an arrest warrant “is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment.” The act of procuring a mere search warrant is further removed still. Nor would it be proper to follow Imbler rather than Malley because the defendant is a prosecutor, as in Imbler, rather than a policeman, as in Malley. We have made clear that “it is the nature of the function performed, not the identity of the actor who performs it, that informs our immunity analysis.” Forrester v. White,?484 U.S. 219 (1988)?(denying absolute immunity to a judge sued for a non-judicial act); see also Ex parte Virginia,?100 U.S. 339 (1880)?(“Whether the act done by a judge was judicial or not is to be determined by its character, and not by the character of the agent.”).Footnotes:1. Following her arrest, petitioner was placed in the psychiatric ward of a state hospital for four months. During that time, she was discharged from her employment, and the State obtained temporary custody of her sons. The medical experts at the hospital eventually concluded that petitioner did not have multiple personalities, and she was released.2. Even if it were applied, respondent would not prevail, since there is not even any post-1871 tradition to support prosecutorial immunity in the obtaining of search warrants. Cases considering whether such an immunity exists are few and divided in their conclusions. Compare Anderson v. Manley, 181 Wash. 327, 43 P.2d 39 (1935) (absolute immunity) with Cashen v. Spann, 66 N.J. 541, 334 A.2d 8 (1975) (qualified immunity); see also Torres v. Glasgow, 80 N.M. 412, 456 P.2d 886 (1969) (extent of immunity unclear). Suits against policemen for obtaining search warrants generally deny absolute immunity. See State ex rel. Hedgepeth v. Swanson, 223 N.C. 442, 27 S.E.2d 122 (1943); Peterson v. Cleaver, 124 Or. 547, 265 P. 428 (1928). See also Motley v. Dugan, 191 S.W.2d 979 (Mo.App. 1945) (qualified immunity for policeman seeking arrest warrant); Kidd v. Reynolds, 20 Tex.Civ.App. 355, 50 S.W. 600 (1899).FLORIDA v. BOSTICK, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined.Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State’s favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol - the equivalent of carrying a gun in a holster but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent’s characterization of the officers as “gun-wielding inquisitor[s],”?is colorful, but lacks any basis in fact.The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a “seizure” within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick’s suitcase must be suppressed as tainted fruit.Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business,”?California v. Hodari,?499 U.S. 621 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in?Terry v. Ohio,?392 U.S. 1 (1968): “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact - that the encounter took place on a bus rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick’s argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the “reasonable person” test presupposes an?innocent?person. See?Royer,?460 U.S., at 519 (“The fact that [respondent] knew the search was likely to turn up contraband is of course irrelevant; the potential intrusiveness of the officers’ conduct must be judged from the viewpoint of an innocent person in [his] position”). Accord?Chesternut,?486 U.S., at 574 (“This ‘reasonable person’ standard...ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached”).The dissent characterizes our decision as holding that police may board buses and by an “intimidating?show of authority,”?demand of passengers their “voluntary” cooperation. That characterization is incorrect. Clearly, a bus passenger’s decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant?only?if the cooperation is voluntary. “Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage.…The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation….The judgment of the Florida Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.It is so ordered.Justice MARSHALL, with whom Justice BLACKMUN and Justice STEVENS join, dissenting.Our Nation, we are told, is engaged in a “war on drugs.” No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality. The general warrant, for example, was certainly an effective means of law enforcement. Yet it was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion?notwithstanding?the effectiveness of this method. See?Boyd v. United States,?116 U.S. 616 (1886); see also?Harris v. United States,?331 U.S. 145 (1947). In my view, the law-enforcement technique with which we are confronted in this case - the suspicionless police sweep of buses in intrastate or interstate travel - bears all of the indicia of coercion and unjustified intrusion associated with the general warrant. Because I believe that the bus sweep at issue in this case violates the core values of the Fourth Amendment, I dissent.To put it mildly, these sweeps “are inconvenient, intrusive, and intimidating.”?United States v. Chandler,?744 F.Supp., at 335. They occur within cramped confines, with officers typically placing themselves in between the passenger selected for an interview and the exit of the bus. Because the bus is only temporarily stationed at a point short of its destination, the passengers are in no position to leave as a means of evading the officers’ questioning. Undoubtedly, such a sweep holds up the progress of the bus. See?United States v. Fields,?909 F.2d 470 (CA11 1990); cf.?United States v. Rembert,?694 F.Supp. 163 (WDNC 1988) (reporting testimony of officer that he makes “every effort in the world not to delay the bus” but that the driver does not leave terminal until sweep is complete). Thus, this “new and increasingly common tactic,”?United States v. Lewis,?287 U.S.App.D.C., at 306, 921 F.2d, at 1295, burdens the experience of traveling by bus with a degree of governmental interference to which, until now, our society has been proudly unaccustomed. See State ex rel. Ekstrom v. Justice Court,?136 Ariz. 1, 663 P.2d 992(1983) (“The thought that an American can be compelled to ‘show his papers’ before exercising his right to walk the streets, drive the highways or board the trains is repugnant to American institutions and ideals”).“[T]he evidence in this cause has evoked images of other days, under other flags, when no man traveled his nation’s roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the Government. The spectre of American citizens being asked, by badge-wielding police, for identification, travel papers - in short araison d’etre - is foreign to?any?fair reading of the Constitution, and its guarantee of human liberties. This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains (“that time permits”) and check identification [and] tickets, [and] ask to search luggage - all in the name of ‘voluntary cooperation’ with law enforcement....” 554 So.2d, at 1158, quoting State v. Kerwick,?at 348-349.“The random indiscriminate stopping and questioning of individuals on interstate busses seems to have gone too far. If this Court approves such ‘bus stops’ and allows prosecutions to be based on evidence seized as a result of such ‘stops,’ then we will have stripped our citizens of basic Constitutional protections. Such action would be inconsistent with what this nation has stood for during its 200 years of existence. If passengers on a bus passing through the Capital of this great nation cannot be free from police interference where there is absolutely no basis for the police officers to stop and question them, then the police will be free to accost people on our streets without any reason or cause. In this ‘anything goes’ war on drugs, random knocks on the doors of our citizens’ homes seeking ‘consent’ to search for drugs cannot be far away. This is not America.” United States v. Lewis,?728 F.Supp. 784, rev’d, 287 U.S.App.D.C. 306, 921 F.2d 1294 (1990).The question for this Court, then, is whether the suspicionless, dragnet-style sweep of buses in intrastate and interstate travel is consistent with the Fourth Amendment. The majority suggests that this latest tactic in the drug war is perfectly compatible with the Constitution. I disagree.I have no objection to the manner in which the majority frames the test for determining whether a suspicionless bus sweep amounts to a Fourth Amendment “seizure.” I agree that the appropriate question is whether a passenger who is approached during such a sweep “would feel free to decline the officers’ requests or otherwise terminate the encounter.”The majority reverses what it characterizes as the Florida Supreme Court’s “per se?rule” against suspicionless encounters between the police and bus passengers, suggesting only in dictum its “doubt” that a seizure occurred on the facts of this case. However, the notion that the Florida Supreme Court decided this case on the basis of any “per se?rule”?independent?of the facts of this case is wholly a product of the majority’s imagination. As the majority acknowledges, the Florida Supreme Court “stated explicitly the factual premise for its decision.” This factual premise contained?all of the details of the encounter between respondent and the police. The lower court’s analysis of whether respondent was seized drew heavily on these facts, and the court repeatedly emphasized that its conclusion was based on “all the circumstances” of this case. 554 So.2d, at 1157;?(“Here, the circumstances indicate?that the officers effectively ‘seized’ [respondent]”).These facts exhibit all of the elements of coercion associated with a typical bus sweep. Two officers boarded the Greyhound bus on which respondent was a passenger while the bus, en route from Miami to Atlanta, was on a brief stop to pick up passengers in Fort Lauderdale. The officers made a visible display of their badges and wore bright green “raid” jackets bearing the insignia of the Broward County Sheriff’s Department; one held a gun in a recognizable weapons pouch. These facts alone constitute an intimidating “show of authority.” See?Michigan v. Chesternut,?486 U.S. 567 (1988) (display of weapon contributes to coercive environment);?United States v. Mendenhall,?446 U.S., at 554 (“threatening presence of several officers” and “display of a weapon”);?(uniformed attire). Once on board, the officers approached respondent, who was sitting in the back of the bus, identified themselves as narcotics officers and began to question him. One officer stood in front of respondent’s seat, partially blocking the narrow aisle through which respondent would have been required to pass to reach the exit of the bus.Unlike the majority, I have no doubt that the answer to this question is no. Apart from trying to accommodate the officers, respondent had only two options. First, he could have remained seated while obstinately refusing to respond to the officers’ questioning. But in light of the intimidating show of authority that the officers made upon boarding the bus, respondent reasonably could have believed that such behavior would only arouse the officers’ suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger’s refusal to cooperate. See United States v. Cothran,?729 F.Supp., at 156; United States v. Felder,?732 F.Supp., at 205. The majority’s observation that a mere refusal to answer questions, “without more,” does not give rise to a reasonable basis for seizing a passenger, is utterly beside the point, because a passenger unadvised of his rights and otherwise unversed in constitutional law?has no reason to know?that the police cannot hold his refusal to cooperate against him.Second, respondent could have tried to escape the officers’ presence by leaving the bus altogether. But because doing so would have required respondent to squeeze past the gun-wielding inquisitor who was blocking the aisle of the bus, this hardly seems like a course that respondent reasonably would have viewed as available to him.?The majority lamely protests that nothing in the stipulated facts shows that the questioning officer “point[ed]?[his] gu[n] at [respondent] or otherwise?threatened him” with the weapon. Our decisions recognize the obvious point, however, that the choice of the police to “display” their weapons during an encounter exerts significant coercive pressure on the confronted citizen.?E.g., Michigan v. Chesternut, 486 U.S., at 575;?United States v. Mendenhall, 446 U.S., at 554. We have never suggested that the police must go so far as to put a citizen in immediate apprehension of being shot?before a court can take account of the intimidating effect of being questioned by an officer with weapon in hand.Even if respondent had perceived that the officers would?let?him leave the bus, moreover, he could not reasonably have been expected to resort to this means of evading their intrusive questioning. For so far as respondent knew, the bus’s departure from the terminal was imminent. Unlike a person approached by the police on the street, see?Michigan v. Chesternut,?or at a bus or airport terminal after reaching his destination, see?United States v. Mendenhall,?a passenger approached by the police at an intermediate point in a long bus journey cannot simply leave the scene and repair to a safe haven to avoid unwanted probing by law-enforcement officials. The vulnerability that an intrastate or interstate traveler experiences when confronted by the police outside of his “own familiar territory” surely aggravates the coercive quality of such an encounter. See?Schneckloth v. Bustamonte, 412 U.S. 218 (1973).HAFER v. MELO, et al., 502 U.S. 21, 112 S.Ct. 358 (1991)O’CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except THOMAS, J., who took no part in the consideration or decision of the case.Suit under §1983 against state official in her official capacity should be treated as suit against state, and because real party in interest in official capacity suit is state and not named official, state’s “policy or custom” must have played part in violation of federal law. 42 U.S.C.A. §1983.Only immunities available to defendant in official capacity §1983 action are those that governmental entity possesses. 42 U.S.C.A. §1983.Personal capacity §1983 suits seek to impose individual liability upon government officer for actions taken under color of state law, while plaintiff and personal capacity suit need not establish connection to governmental “policy or custom,” officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses, such as objectively reasonable reliance on existing law. 42 U.S.C.A. §1983.Statement in prior decision that officials acting in their official capacities were not “persons” under §1983 was best understood as reference to capacity of which state officer was being sued, not capacity in which officer inflicted alleged injury; statement did not make §1983 relief unavailable against state officers, sued in their individual capacities, for damages arising from official acts. 42 U.S.C.A. §ernment official in role of personal-capacity defendant is “person” subject to suit for damages under §1983 for actions taken in her official capacity. 42 U.S.C.A. §1983.Pennsylvania’s Auditor General was subject to personal-capacity suit for damages under §1983 for allegedly improper discharge of commonwealth employees, though she made employment decisions in her official capacity; requirement of action under color of state law meant that Auditor General could be liable for discharging employees precisely because of her authority as Auditor General, and novel proposition that this same official authority insulated her from suit could not be accepted. 42 U.S.C.A. §1983.State executive officials are not entitled to absolute immunity for their official actions. 42 U.S.C.A. §1983.Eleventh Amendment does not erect barrier against suits to impose “individual and personal liability” on state officials under §1983, though imposing personal liability on state officials may hamper their performance of public duties. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 11.After petitioner Hafer, the newly elected Auditor General of Pennsylvania, discharged respondents from their jobs in her office, they sued her for, inter alia, monetary damages under?42 U.S.C. §1983. The District Court dismissed the latter claims under Will v. Michigan Dept. of State Police,?491 U.S. 58, in which the Court held that state officials “acting in their official capacities” are outside the class of “persons” subject to liability under §1983. In reversing this ruling, the Court of Appeals found that respondents sought damages from Hafer in her personal capacity and held that, because she acted under color of state law, respondents could maintain a §1983 individual-capacity suit against her.Held: State officers may be held personally liable for damages under §1983 based upon actions taken in their official capacities.(a) The above-quoted language from Will does not establish that Hafer may not be held personally liable under §1983 because she “acted” in her official capacity. The claims considered in Will were official-capacity claims, and the phrase “acting in their official capacities” is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.(b) State officials, sued in their individual capacities, are “persons” within the meaning of §1983. Unlike official-capacity defendants - who are not “persons” because they assume the identity of the government that employs them - officers sued in their personal capacity come to the court as individuals and thus fit comfortably within the statutory term “person,” cf.?491 U.S., at 71. Moreover, §1983’s authorization of suits to redress deprivations of civil rights by persons acting “under color of” state law means that Hafer may be liable for discharging respondents precisely because of her authority as Auditor General. Her assertion that acts that are both within the official’s authority and necessary to the performance of governmental functions (including the employment decisions at issue) should be considered acts of the State that cannot give rise to a personal-capacity action is unpersuasive. That contention ignores this Court’s holding that §1983 was enacted to enforce provisions of the Fourteenth Amendment against those who carry a badge of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. Scheuer v. Rhodes,?416 U.S. 232. Furthermore, Hafer’s theory would absolutely immunize state officials from personal liability under §1983 solely by virtue of the “official” nature of their acts, in contravention of this Court’s immunity decisions. See Scheuer.(c) The Eleventh Amendment does not bar §1983 personal-capacity suits against state officials in federal court. Will’s language concerning suits against state officials cannot be read as establishing the limits of liability under the Amendment, since Will arose from a suit in state court and considered the Amendment only because the fact that Congress did not intend to override state immunity when it enacted §1983 was relevant to statutory construction.?491 U.S., at 66. Although imposing personal liability on state officers may hamper their performance of public duties, such concerns are properly addressed within the framework of this Court’s personal immunity jurisprudence.The Court of Appeals for the Third Circuit reversed this portion of the District Court’s decision. 912 F.2d 628 (1990). As to claims for reinstatement brought against Hafer in her official capacity, the court rested on our statement in Will that state officials sued for injunctive relief in their official capacities are “persons” subject to liability under §1983. See Will,?491 U.S., at 71, n. 10. Turning to respondents’ monetary claims, the court found that six members of the Gurley group had expressly sought damages from Hafer in her personal capacity. The remaining plaintiffs “although not as explicit, signified a similar intent.” The court found this critical. While Hafer’s power to hire and fire derived from her position as Auditor General, it said, a suit for damages based on the exercise of this authority could be brought against Hafer in her personal capacity. Because Hafer acted under color of state law, respondents could maintain a §1983 individual-capacity suit against her.We granted certiorari, 498 U.S. 1118 (1991), to address the question whether state officers may be held personally liable for damages under §1983 based upon actions taken in their official capacities.In Kentucky v. Graham,?473 U.S. 159 (1985), the Court sought to eliminate lingering confusion about the distinction between personal and official-capacity suits. We emphasized that official-capacity suits “generally represent only another way of pleading an action against an entity of which an officer is an agent.” (Quoting Monell v. New York City Dept. of Social Servs.,?436 U.S. 658 (1978)). A suit against a state official in her official capacity therefore should be treated as a suit against the State. Indeed, when an official sued in this capacity in federal court dies or leaves office, her successor automatically assumes her role in the litigation. See Fed. Rule Civ.Proc. 25(d)(1); Fed. Rule App.Proc. 43(c)(1); this Court’s Rule 35.3. Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, “the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Graham, at 166 (quoting Monell,?436 U.S., at 694). For the same reason, the only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses.The Court then addressed the related question whether state officials, sued for monetary relief in their official capacities, are persons under §1983. We held that they are not. Although “state officials literally are persons,” an official-capacity suit against a state officer “is not a suit against the official but rather is a suit against the official’s office. As such it is no different from a suit against the State itself.”?491 U.S., at 71.Will itself makes clear that the distinction between official-capacity suits and personal-capacity suits is more than “a mere pleading device.” State officers sued for damages in their official capacity are not “persons” for purposes of the suit because they assume the identity of the government that employs them. By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term “person.” (“A state official in his or her official capacity, when sued for injunctive relief, would be a person under §1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State’”) (Quoting Graham,?473 U.S., at 167).In an effort to limit the scope of her argument, Hafer distinguishes between two categories of acts taken under color of state law: those outside the official’s authority are not essential to the operation of state government, and those both within the official’s authority and necessary to the performance of governmental functions. Only the former group, she asserts, can subject state officials to personal liability under §1983; the latter group (including the employment decisions at issue in this case) should be considered acts of the State that cannot give rise to a personal-capacity action.Furthermore, Hafer’s distinction cannot be reconciled with our decisions regarding immunity of government officers otherwise personally liable for acts done in the course of their official duties. Her theory would absolutely immunize state officials from personal liability for acts within their authority and necessary to fulfilling governmental responsibilities. Yet our cases do not extend absolute immunity to all officers who engage in necessary official acts. Rather, immunity from suit under §1983 is “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it,” Imbler v. Pachtman,?424 U.S. 409 (1976), and officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue, Burns v. Reed, 500 U.S. 478 (1991).This Court has refused to extend absolute immunity beyond a very limited class of officials, including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions, “whose special functions or constitutional status requires complete protection from suit.” Harlow v. Fitzgerald,?457 U.S. 800 (1982). State executive officials are not entitled to absolute immunity for their official actions. Scheuer v. Rhodes. In several instances, moreover, we have concluded that no more than a qualified immunity attaches to administrative employment decisions, even if the same official has absolute immunity when performing other functions. See Forrester v. White, 484 U.S. 219 (1988)?(dismissal of court employee by state judge); Harlow v. Fitzgerald (discharge of Air Force employee, allegedly orchestrated by senior White House aides) (Bivens action); Davis v. Passman,?442 U.S. 228 (1979)?(dismissal of congressional aide) (Bivens action). That Hafer may assert personal immunity within the framework of these cases in no way supports her argument here.Footnote:The Third Circuit looked to the proceedings below to determine whether certain respondents brought their claims for damages against Hafer in her official capacity or her personal capacity. 912 F.2d 628 (1990). Several other Courts of Appeals adhere to this practice. See Conner v. Reinhard, 847 F.2d 384 (CA7), cert. denied,?488 U.S. 856 (1988); Houston v. Reich, 932 F.2d 883 (CA10 1991); Lundgren v. McDaniel, 814 F.2d 600 (CA11 1987). Still others impose a more rigid pleading requirement. See Wells v. Brown, 891 F.2d 591 (CA6 1989) (§1983 plaintiff must specifically plead that suit for damages is brought against state official in individual capacity); Nix v. Norman, 879 F.2d 429, 431 (CA8 1989). Because this issue is not properly before us, we simply reiterate the Third Circuit’s view that “[i]t is obviously preferable for the plaintiff to be specific in the first instance to avoid any ambiguity.” 912 F.2d, at 636, n. 7. See this Court’s Rule 14.1(a) (“Only the questions set forth in the petition, or fairly included therein, will be considered by the Court”).GREGORY v. ASHCROFT, 501 U.S. 452, 111 S.Ct. 2395 (1991)O’CONNOR, J., delivered the opinion of the Court.State’s mandatory retirement provision for judges, challenged on equal protection grounds, was subject to rational basis scrutiny; age is not suspect classification and judges had no fundamental interest in serving as judges. U.S.C.A. Const. Amend. 14.Under rational basis test, Supreme Court will not overturn law as violative of equal protection unless varying treatment of different groups or persons is so unrelated to achievement of any combination of legitimate purposes that court can only conclude that people’s actions in approving it were irrational. U.S.C.A. Const. Amend. 14.Article V, §26 of the Missouri Constitution provides a mandatory retirement age of 70 for most state judges. Petitioners, judges subject to §26, were appointed by the Governor and subsequently were retained in office by means of retention elections in which they ran unopposed, subject only to a “yes or no” vote. Along with other state judges, they filed suit against respondent Governor, alleging that §26 violated the federal Age Discrimination in Employment Act of 1967 (ADEA) and the Equal Protection Clause of the Fourteenth Amendment. The District Court granted the Governor’s motion to dismiss, ruling that there was no ADEA violation because Missouri’s appointed judges are not covered “employees” within the Act’s terms, and that there was no equal protection violation because there is a rational basis for the distinction between judges and other state officials to whom no mandatory retirement age applies. The Court of Appeals affirmed.?Appointed state judges are not covered by the ADEA. When it extended the Act’s substantive provisions to include the States as employers, Congress redefined “employee” to exclude all elected and most high-ranking state officials, including “appointees on the policymaking level.” It is at least ambiguous whether a state judge is such an appointee. Regardless of whether the judge might be considered to make policy in the same sense as executive officials and legislators, the judge certainly is in a position requiring the exercise of discretion concerning issues of public importance, and therefore might be said to be “on the policymaking level.” Thus, it cannot be concluded that the ADEA “makes unmistakably clear,” Will,?491 U.S. at 65, that appointed state judges are covered.The Missouri people rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal from office sufficiently inadequate, that they will require all judges to step aside at that age. Because it is an unfortunate fact of life that physical and mental capacity sometimes diminish with age, the people may wish to replace some older judges in order to satisfy the legitimate, indeed compelling, public interest in maintaining a Judiciary fully capable of performing judges’ demanding tasks. Although most judges probably do not suffer significant deterioration at age 70, the people could reasonably conceive the basis for the classification to be true. See Bradley,?440 U.S., at 111. Voluntary retirement will not always be sufficient to serve acceptably the goal of a fully functioning Judiciary, nor may impeachment, with its public humiliation and elaborate procedural machinery. The election process may also be inadequate, since most voters never observe judges in action nor read their opinions; since state judges serve longer terms than other officials, making them-deliberately less dependent on the people’s will; and since infrequent retention elections may not serve as an adequate check on judges whose performance is deficient. That other state officials are not subject to mandatory retirement is rationally explained by the facts that their performance is subject to greater public scrutiny, that they are subject to more standard elections, that deterioration in their performance is more readily discernible, and that they are more easily removed than judges.As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government. This Court also has recognized this fundamental principle. In Tafflin v. Levitt,?493 U.S. 455 (1990), “we began with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause.” Over a hundred years ago, the Court described the constitutional scheme of dual sovereigns:“‘The people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,’....‘Without the States in union, there could be no such political body as the United States.’ Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” Texas v. White, 7 Wall. 700, 19 L.Ed. 227 (1869), quoting Lane County v. Oregon, 7 Wall. 71, 19 L.Ed. 101 (1869).The Constitution created a Federal Government of limited powers. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., Amdt. 10. The States thus retain substantial sovereign authority under our constitutional system. As James Madison put it:…to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, pp. 292-293.This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. See generally McConnell, Federalism: Evaluating the Founders’ Design, 54 U.Chi.L.Rev. 1484 (1987); Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum.L.Rev. 1 (1988).Perhaps the principal benefit of the federalist system is a check on abuses of government power. “The ‘constitutionally mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’” Atascadero State Hospital v. Scanlon,?473 U.S. 234 (1985), quoting Garcia v. San Antonio Metropolitan Transit Authority,?469 U.S. 528 (1985). Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Alexander Hamilton explained to the people of New York, perhaps optimistically, that the new federalist system would suppress completely “the attempts of the government to establish a tyranny”:“In a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” The Federalist No. 28, pp. 180-181.James Madison made much the same point:“In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” The Federalist No. 51, p. 323.One fairly can dispute whether our federalist system has been quite as successful in checking government abuse as Hamilton promised, but there is no doubt about the design. If this “double security” is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty.The Federal Government holds a decided advantage in this delicate balance: the Supremacy Clause. U.S.Const., Art. VI. As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States. Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers. For this reason, “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides” this balance. Atascadero,?473 U.S., at 243. We explained recently:“If Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ Atascadero State Hospital v. Scanlon,?473 U.S. 234 (1985); see also Pennhurst State School and Hospital v. Halderman,?465 U.S. 89 (1984). Atascadero was an Eleventh Amendment case, but a similar approach is applied in other contexts. Congress should make its intention ‘clear and manifest’ if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp.,?331 U.S. 218 (1947).... ‘In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the Legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.’ United States v. Bass,?404 U.S. 336 (1971).” Will v. Michigan Dept. of State Police,?491 U.S. 58 (1989).This plain statement rule is nothing more than an acknowledgement that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.We explained that, while the Equal Protection Clause provides a check on such state authority, “our scrutiny will not be so demanding where we deal with matters resting firmly within a State’s constitutional prerogatives.” This rule “is no more than...a recognition of a State’s constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders. U.S.Const. Art. IV, §4; U.S.Const. Amdt. X; Luther v. Borden; see In re Duncan,?139 U.S. 449 (1891).”These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials. It is an authority that lies at “‘the heart of representative government.’” It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States “guarantees to every State in this Union a Republican Form of Government.” U.S.Const., Art. IV, §4. See Sugarman,?413 U.S., at 648. See also Merritt, 88 Colum.L.Rev., at 50-55.In 1974, Congress extended the substantive provisions of the ADEA to include the States as employers. Pub.L. 93-259, §28(a), 88 Stat. 74;?29 U.S.C. §630(b)(2). At the same time, Congress amended the definition of “employee” to exclude all elected and most high-ranking government officials. Under the Act, as amended:“The term ‘employee’ means an individual employed by any employer except that the term ‘employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.”?29 U.S.C. §630(f).Governor Ashcroft contends that the §630(f) exclusion of certain public officials also excludes judges, like petitioners, who are appointed to office by the Governor and are then subject to retention election. The Governor points to two passages in §630(f). First, he argues, these judges are selected by an elected official and, because they make policy, are “appointees on the policymaking level.”Petitioners counter that judges merely resolve factual disputes and decide questions of law; they do not make policy. Moreover, petitioners point out that the policymaking-level exception is part of a trilogy, tied closely to the elected-official exception. Thus, the Act excepts elected officials and: (1) “any person chosen by such officer to be on such officer’s personal staff”; (2) “an appointee on the policymaking level”; and (3) “an immediate advisor with respect to the constitutional or legal powers of the office.” Applying the maxim of statutory construction noscitur a sociis - that a word is known by the company it keeps - petitioners argue that since (1) and (3) refer only to those in close working relationships with elected officials, so too must (2). Even if it can be said that judges may make policy, petitioners contend, they do not do so at the behest of an elected ernor Ashcroft relies on the plain language of the statute: it exempts persons appointed “at the policymaking level.” The Governor argues that state judges, in fashioning and applying the common law, make policy. Missouri is a common law state. See Mo.Rev.Stat. §1.010 (1986) (adopting “the common law of England” consistent with federal and state law). The common law, unlike a constitution or statute, provides no definitive text; it is to be derived from the interstices of prior opinions and a well-considered judgment of what is best for the community. As Justice Holmes put it:“The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but nonetheless traceable to views of public policy in the last analysis.” O. Holmes, The Common Law 35-36 (1881).Governor Ashcroft contends that Missouri judges make policy in other ways as well. The Missouri Supreme Court and Courts of Appeals have supervisory authority over inferior courts. Mo.Const., Art. V, §4. The Missouri Supreme Court has the constitutional duty to establish rules of practice and procedure for the Missouri court system, and inferior courts exercise policy judgment in establishing local rules of practice. See Mo.Const., Art. V, §5. The state courts have supervisory powers over the state bar, with the Missouri Supreme Court given the authority to develop disciplinary rules. See Mo.Rev.Stat. §§484.040, 484.200-484.270 (1986); Rules Governing the Missouri Bar and the Judiciary (1991).By its terms, the Fourteenth Amendment contemplates interference with state authority: “No State shall...deny to any person within its jurisdiction the equal protection of the laws.” U.S.Const., Amdt. 14. But this Court has never held that the Amendment may be applied in complete disregard for a State’s constitutional powers. Rather, the Court has recognized that the States’ power to define the qualifications of their officeholders has force even as against the proscriptions of the Fourteenth ernor Ashcroft cites O’Neil v. Baine, 568 S.W.2d 761 (Mo. 1978) as a fruitful source of rational bases. In O’Neil, the Missouri Supreme Court - to whom Missouri Constitution Article V, §26, applies - considered an equal protection challenge to a state statute that established a mandatory retirement age of 70 for state magistrate and probate judges. The court upheld the statute, declaring numerous legitimate state objectives it served: “the statute draws a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber of judges in the system”; “the statute...draws a legitimate line to avoid the tedious and often perplexing decisions to determine which judges after a certain age are physically and mentally qualified and those who are not”; “mandatory retirement increases the opportunity for qualified persons...to share in the Judiciary and permits an orderly attrition through retirement”; “such a mandatory provision also assures predictability and ease in establishing and administering judges’ pension plans.” Any one of these explanations is sufficient to rebut the claim that “the varying treatment of different groups or persons in §26 is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the people’s actions were irrational.” Bradley,?440 U.S., at 97.The people of Missouri have a legitimate, indeed compelling, interest in maintaining a Judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. See Bradley, at 111; Murgia,?427 U.S., at 315. The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment - with its public humiliation and elaborate procedural machinery - serve acceptably the goal of a fully functioning Judiciary. See Mo.Const., Art. VII, §§1-3.The Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization. It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all. But a State “‘does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’” Murgia, at 316, quoting Dandridge v. Williams,?397 U.S. 471 (1970). “In an equal protection case of this type...those challenging the...judgment of the people must convince the court that the...facts on which the classification is apparently based could not reasonably be conceived to be true by the...decision maker.” Bradley,?440 U.S., at 111. The people of Missouri rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside at age 70. This classification does not violate the Equal Protection Clause.The people of Missouri have established a qualification for those who would be their judges. It is their prerogative as citizens of a sovereign State to do so. Neither the ADEA nor the Equal Protection Clause prohibits the choice they have made. Accordingly, the judgment of the Court of Appeals isAffirmed.?Justice WHITE, with whom Justice STEVENS joins, concurring in part, dissenting in part, and concurring in the judgment.…I cannot agree, however, with the majority’s reasoning in Part II of its opinion, which ignores several areas of well-established precedent and announces a rule that is likely to prove both unwise and infeasible….?In addition to petitioners’ equal protection claim, we granted certiorari to decide the following question:“Whether appointed Missouri state court judges are ‘appointees on the policymaking level’ within the meaning of the Age Discrimination in Employment Act (‘ADEA’),?28 U.S.C. §§621-34?(1982 & Supp. V 1987), and therefore exempted from the ADEA’s general prohibition of mandatory retirement and thus subject to the mandatory retirement provision of Article V, Section 26 of the Missouri Constitution.”…See Hillsborough County v. Automated Medical Laboratories, Inc.,?471 U.S. 707 (1985)?(pre-emption will be found where there is a “clear and manifest purpose” to displace state law). The vagueness of the majority’s rule undoubtedly will lead States to assert that various federal statutes no longer apply to a wide variety of State activities if Congress has not expressly referred to those activities in the statute. Congress, in turn, will be forced to draft long and detailed lists of which particular state functions it meant to regulate.…Indeed, we have held that “principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments ‘by appropriate legislation.’ Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty.” City of Rome v. United States,?446 U.S. 156 (1980); see also EEOC v. Wyoming.“Policy” is defined as “a definite course or method of action selected (as by a government, institution, group, or individual) from among alternatives and in the light of given conditions to guide and usually determine present and future decisions.” Webster’s Third New International Dictionary 1754 (1976). Applying that definition, it is clear that the decisionmaking engaged in by common-law judges, such as petitioners, places them “on the policymaking level.” In resolving disputes, although judges do not operate with unconstrained discretion, they do choose “from among alternatives” and elaborate their choices in order “to guide and...determine present and future decisions.” The quotation from Justice Holmes in the majority’s opinion, is an eloquent description of the policymaking nature of the judicial function. Justice Cardozo also stated it well:“Each common-law judge indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law.... Within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made.” B. Cardozo, The Nature of the Judicial Process 113-115 (1921).Justice BLACKMUN, with whom Justice MARSHALL joins, dissenting.Although it may be possible to define an appointed judge as a “policymaker” with only a dictionary as a guide, we have an obligation to construe the exclusion of an “appointee on the policymaking level” with a sensitivity to the context in which Congress placed it. In construing an undefined statutory term, this Court has adhered steadfastly to the rule that, “‘words grouped in a list should be given related meaning,’” Dole v. Steelworkers, 494 U.S. 26 (1990), quoting Massachusetts v. Morash,?490 U.S. 107 (1989), quoting Schreiber v. Burlington Northern, Inc.,?472 U.S. 1 (1985), quoting Securities Industry Assn. v. Board of Governors, FRS,?468 U.S. 207 (1984), and that “‘in expounding a statute, we are not...guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’” Morash,?490 U.S., at 115, quoting Pilot Life Insurance Co. v. Dedeaux,?481 U.S. 41 (1987). Applying these maxims of statutory construction, I conclude that an appointed state judge is not the kind of “policymaker” whom Congress intended to exclude from the protection of the ADEA.CONNORS, et al. v. HALLMARK & SON COAL COMPANY, 935 F.2d 336, 290 U.S.App.D.C. 170 (1991)Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.Hallmark moved for summary judgment on the unsettled claims, arguing that the statute of limitations began to run on each monthly payment when it fell due, and that the three-year limitations period?had therefore expired for each claim for payment that came due before March 3, 1984. Hallmark added that the Trustees had indicated “[t]his year,... for the first time,” that the limitations period “should be tolled under the doctrine of ‘fraudulent concealment.’” Hallmark argued that the Trustees, if they wished to assert tolling, should have alleged fraudulent concealment in the complaint. Because the discovery phase of the case had ended, Hallmark urged, the Trustees should not be allowed to alter the pleadings to insert new matter.In their memorandum opposing summary judgment for Hallmark, the Trustees conceded that the applicable statute of limitations established a three-year period. They contended, however, that where, as here, a plaintiff must rely on a self-reporting system in collecting contributions, and where the defendant submits inaccurate reports, the statute of limitations is tolled until the plaintiff discovers, or with reasonable diligence could have discovered, the contract breach.The Trustees, at this point, did invoke the doctrine of “fraudulent concealment.” They contended that another judge of the District Court had applied that doctrine to toll the statute of limitations in circumstances virtually identical to those of the present case. See Trustees of the United Ass’n [of] Full-Time Salaried Officers & Employees of Local Unions, Dist. Councils, State & Provincial Assn’s Pension Plan v. Steamfitters Local Union 395 (“Steamfitters”), 641 F.Supp. 444 (D.D.C. 1986) (allowing full recovery under ERISA and §301 against an employer who, for fourteen years, had failed to make contributions and had submitted false reports). Steamfitters, as the Trustees observed, held that the pension fund was not required to allege that the employer intended to defraud the trust: “submission of a misleading report,” the judge in Steamfitters ruled, “is, absent notice of facts contradicting it, sufficient to conceal a cause of action.” Steamfitters, 641 F.Supp. at 447.The Trustees moved for reconsideration. They argued, inter alia, that the court had incorrectly used Rule 9(b) to dispose of their case based on the complaint alone. Other courts applying the Rule 9(b) “particularity” instruction, the Trustees observed, had considered not just the complaint, but also supporting materials submitted in response to a motion for summary judgment. In the present case, the Trustees noted, they had submitted to the court a copy of the second audit, setting forth the precise dates on which Hallmark allegedly failed to make contributions, and the precise amounts involved; indeed, they had sent this document to Hallmark well before the complaint was filed. Accordingly, the Trustees contended, they had given Hallmark more than adequate notice of the circumstances “constituting fraud,” and had provided the court with materials sufficient to defeat Hallmark’s motion for summary judgment. Connors, mem.op. at 8-9 (purpose of Rule 9(b) is to “require a plaintiff to present information sufficient for the court to determine whether a valid claim for relief has been stated and for the opposing party to prepare an adequate pleading”).Because we agree with the Trustees that their claims for relief did not accrue until they became aware, or reasonably should have become aware, of Hallmark’s delinquencies and false reports, we need not reach the parties’ arguments concerning the fraudulent concealment theory.None of the statutory provisions under which the Trustees brought this action contains a statute of limitations. See 29 U.S.C. Sec. 185 (LMRA); Secs. 1132, 1145 (ERISA). In this situation, a court must, as a general rule, borrow the most closely analogous statute of limitations from the state in which the court sits. See Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,?483 U.S. 143 (1987); International Union, UAW v. Hoosier Cardinal Corp.,?383 U.S. 696 (1966). The parties agree, as they did in the District Court, that the applicable statute is Sec. 12-301(7) of the District of Columbia Code, establishing a three-year limitations period for breach of contract actions.While courts thus generally determine the limitations period by borrowing from state law, they determine the time at which the federal claim accrued - the moment at which the limitations period began to run -by consulting federal law. See Dixon v. Anderson,?928 F.2d 212 (6th Cir. 1991); Cada v. Baxter Healthcare Corp.,?920 F.2d 446 (7th Cir. 1990); Day v. Morgenthau,?909 F.2d 75 (2d Cir. 1990); Corn v. Lauderdale Lakes,?904 F.2d 585 (11th Cir. 1990); Northern Cal. Retail Clerks Unions & Food Employers Joint Pension Trust Fund v. Jumbo Markets, Inc.,?906 F.2d 1371 (9th Cir. 1990); Keystone Ins. Co. v. Houghton,?863 F.2d 1125 (3d Cir. 1988); Jensen v. Snellings,?841 F.2d 600 (5th Cir. 1988); Newcomb v. Ingle,?827 F.2d 675 (10th Cir. 1987); Maggio v. Gerard Freezer & Ice Co.,?824 F.2d 123 (1st Cir. 1987); Blanck v. McKeen, 707 F.2d 817 (4th Cir.), cert. denied, 464 U.S. 916 (1983). We review the District Court’s rejection of the Trustees’ accrual theory de novo.The Trustees argue that the general accrual rule in federal courts is the “discovery rule,” according to which a claim for relief does not accrue until the plaintiff discovers, or with due diligence should have discovered, “the injury that is the basis of the action.” Jumbo Markets, 906 F.2d at 1372. Hallmark contends that the general federal rule is the “time of injury” rule, according to which a claim accrues when the plaintiff’s right to resort to the courts is complete, whether or not she has discovered the injury. Hallmark allows that courts have applied the discovery rule in tort actions, such as personal injury or fraud, in which the injury on which a plaintiff sues was hidden. Hallmark notes, however, that the borrowed statute of limitations in this case applies to contract, not tort claims; it contends further that its underpayments between 1977 and 1979 had put the Trustees on notice of the company’s propensity to underpay.At least eight federal courts of appeals have, within the last four years, agreed with the Trustees that the discovery rule is the general accrual rule in federal courts. As the Seventh Circuit has put it, the discovery rule is to be applied in all federal question cases “in the absence of a contrary directive from Congress.” Cada v. Baxter Healthcare Corp.,?920 F.2d 446 (7th Cir. 1990); see also Dixon v. Anderson,?928 F.2d 212 (6th Cir. 1991); Corn v. Lauderdale Lakes,?904 F.2d 585 (11th Cir. 1990); Alcorn v. Burlington Northern R. Co., 878 F.2d 1105 (8th Cir. 1989); Keystone Ins. Co. v. Houghton,?863 F.2d 1125 (3d Cir. 1988); Jensen v. Snellings,?841 F.2d 600 (5th Cir. 1988); Alexopulos v. San Francisco Unified School Dist.,?817 F.2d 551 (9th Cir. 1987); Cullen v. Margiotta,?811 F.2d 698 (2d Cir.), cert. denied, 483 U.S. 1021 (1987). But Hamilton v. 1st Source Bank,?928 F.2d 86 (4th Cir. 1990) (rejecting application of discovery rule to Age Discrimination in Employment Act claim in view of direction by Congress that complainants file EEOC charges “within thirty days after the alleged unlawful practice occurred”). Judge Posner, writing for a Seventh Circuit panel, has explained that the “time of injury” rule can be considered analytically as but a particular instance of the discovery rule: if the injury is such that it should reasonably be discovered at the time it occurs, then the plaintiff should be charged with discovery of the injury, and the limitations period should commence, at that time. But if, on the other hand, the injury is not of the sort that can readily be discovered when it occurs, then the action will accrue, and the limitations period commence, only when the plaintiff has discovered, or with due diligence should have discovered, the injury. See Cada, 920 F.2d at 450 (“Accrual is the date on which the statute of limitations begins to run. It is not the date on which the wrong that injures the plaintiff occurs, but the date-often the same, but sometimes later-on which the plaintiff discovers that he has been injured.”)In short, breach of the employers’ contractual obligations to contribute and report seems likely to be a hidden injury, similar to the type of injury that has long triggered the discovery rule. Furthermore, application of the discovery rule is consistent with Congress’ intent in ERISA to provide “broad remedies” and “to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective...recovery of benefits due to participants.” S.REP. NO. 127, 93d Cong., 1st Sess. 35 (1973), U.S. CODE CONG. & ADMIN. NEWS 1974, pp. 4639. The Ninth Circuit, and at least one District Court outside that circuit, have so ruled. See Jumbo Markets, 906 F.2d at 1372; Trustees of the Nat’l Automatic Sprinkler Indus. Pension Fund v. American Automatic Fire Protection, 680 F.Supp. 731 (D.Md. 1988). Moreover, Hallmark has not informed us of any decision that, under similar circumstances, has barred a claim for delinquent ERISA contributions on the ground that the statute of limitations began to run at the time of breach, not discovery. Cf. Connors v. Beth Energy Mines, Inc.,?920 F.2d 205 (3d Cir. 1990) (applying Pennsylvania law of equitable tolling and barring claim, but only because Trustees were at least constructively aware of company’s misreporting). We join the Ninth Circuit and hold that the Trustees’ claims accrued only at the time when, in the exercise of due diligence, the Trustees would become aware of Hallmark’s alleged inaccuracies.Footnotes:6. That rule provides, in pertinent part: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”9. Hallmark contends that because the theory was first raised on motion for reconsideration, the proper standard of review is the lenient abuse of discretion standard. Hallmark is correct that the abuse of discretion standard ordinarily applies to a district judge’s decision whether to consider a new theory raised on motion for reconsideration. In the present case, however, the District Court expressly stated that it had “carefully consider[ed]” the matters raised in the Trustees’ motion. Thus, whether or not the Trustees’ accrual theory was a “new argument”-and here we note the close resemblance between that theory and the Trustees’ earlier claim that breach of a self-reporting obligation tolls the statute of limitations until discovery -the District Court apparently decided the issue on the merits, in the same manner it decided other issues in the case. Accordingly, we do not review this matter differently from the other questions presented in this appeal.10. An exception is in the area of antitrust, where the Supreme Court has held, as a matter of statutory interpretation, that a cause of action accrues at the time of injury. See Zenith Radio Corp. v. Hazeltine Research, Inc.,?401 U.S. 321 (1971). The relevant statute of limitations, however, is subject to tolling.MIRELES v. WACO, 502 U.S. 9, 112 S.Ct. 286 (1991)Judicial immunity is not overcome by allegations of bad faith or malice, existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial.Judicial immunity is overcome in only two sets of circumstances: judge is not immune from liability for nonjudicial actions, i.e., actions not taken in judge’s judicial capacity; and judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction.Fact that judge’s order to bring attorney before him was carried out by police officers did not transform judge’s actions from “judicial” to “executive” in character, so as to deprive judge of judicial immunity in §1983 suit. 42 U.S.C.A. §1983.A long line of this Court’s precedents acknowledges that, generally, a judge is immune from a suit for money damages. See Forrester v. White,?484 U.S. 219 (1988); Cleavinger v. Saxner,?474 U.S. 193 (1985); Dennis v. Sparks,?449 U.S. 24 (1980); Supreme Court of Virginia v. Consumers Union of United States, Inc.,?446 U.S. 719 (1980); Butz v. Economou,?438 U.S. 478 (1978); Stump v. Sparkman,?435 U.S. 349 (1978); Pierson v. Ray,?386 U.S. 547 (1967). Although unfairness and injustice to a litigant may result on occasion, “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 consequences to himself.” Bradley v. Fisher, 13 Wall. 335 (1872).In this case, respondent Howard Waco, a Los Angeles County public defender, filed suit in the United States District Court for the Central District of California under?42 U.S.C. §1983 against petitioner, Raymond Mireles, a judge of the California Superior Court, and two police officers, for damages arising from an incident in November 1989 at the Superior Court building in Van Nuys, California. Waco alleged that after he failed to appear for the initial call of Judge Mireles’ morning calendar, the judge, “angered by the absence of attorneys from his courtroom,” ordered the police officer defendants “to forcibly and with excessive force seize and bring plaintiff into his courtroom.” The officers allegedly “by means of unreasonable force and violence seized plaintiff and removed him backwards” from another courtroom where he was waiting to appear, cursed him, and called him “vulgar and offensive names,” then “without necessity slammed” him through the doors and swinging gates into Judge Mireles’ courtroom. Judge Mireles, it was alleged, “knowingly and deliberately approved and ratified each of the aforesaid acts” of the police officers. Waco demanded general and punitive damages.Judge Mireles moved to dismiss the complaint as to him, pursuant to Civil Rules 12(b)(1) and (6), for failure to state a claim upon which relief could be granted. The District Court dismissed the claim against the judge and entered final judgment as to him, pursuant to Civil Rule 54(b), on grounds of “complete judicial immunity.” On Waco’s appeal, the United States Court of Appeals for the Ninth Circuit reversed that judgment. Waco v. Baltad, 934 F.2d 214 (1991). The court determined that Judge Mireles was not immune from suit because his alleged actions were not taken in his judicial capacity. It opined that Judge Mireles would have been acting in his judicial capacity if he had “merely directed the officers to bring Waco to his courtroom without directing them to use excessive force.” But “if Judge Mireles requested and authorized the use of excessive force, then he would not be acting in his judicial capacity.”Taking the allegations of the complaint as true, as we do upon a motion to dismiss, we grant the petition for certiorari and summarily reverse.Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth,?472 U.S. 511 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray,?386 U.S., at 554?(“Immunity applies even when the judge is accused of acting maliciously and corruptly”). See also Harlow v. Fitzgerald,?457 U.S. 800, 102 S.Ct. 2727 (1982)?(allegations of malice are insufficient to overcome qualified immunity).We conclude that the Court of Appeals erred in ruling that Judge Mireles’ alleged actions were not taken in his judicial capacity. This Court in Stump made clear that “whether an act by a judge is a ‘judicial’ one relates to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.”?435 U.S., at 362. See also Forrester v. White,?484 U.S., at 227. A judge’s direction to court officers to bring a person who is in the courthouse before him is a function normally performed by a judge. See generally Cal.Civ.Proc. Code Ann. §§128, 177, 187 (West 1982 and Supp. 1991) (setting forth broad powers of state judges in the conduct of proceedings). Waco, who was called into the courtroom for purposes of a pending case, was dealing with Judge Mireles in the judge’s judicial capacity.Of course, a judge’s direction to police officers to carry out a judicial order with excessive force is not a “function normally performed by a judge.” Stump v. Sparkman,?435 U.S., at 362. But if only the particular act in question were to be scrutinized, then any mistake of a judge in excess of his authority would become a “nonjudicial” act, because an improper or erroneous act cannot be said to be normally performed by a judge. If judicial immunity means anything, it means that a judge “will not be deprived of immunity because the action he took was in error...or was in excess of his authority.” See also Forrester v. White,?484 U.S., at 227?(a judicial act “does not become less judicial by virtue of an allegation of malice or corruption of motive”). Accordingly, as the language in Stump indicates, the relevant inquiry is the “nature” and “function” of the act, not the “act itself.” In other words, we look to the particular act’s relation to a general function normally performed by a judge, in this case the function of directing police officers to bring counsel in a pending case before the court.Nor does the fact that Judge Mireles’ order was carried out by police officers somehow transform his action from “judicial” to “executive” in character. As Forrester instructs, it is “the nature of the function performed, not the identity of the actor who performed it, that informs our immunity analysis.”?484 U.S., at 229. A judge’s direction to an executive officer to bring counsel before the court is no more executive in character than a judge’s issuance of a warrant for an executive officer to search a home. See Burns v. Reed, 500 U.S. 478 (1991) (“The issuance of a search warrant is unquestionably a judicial act”).Justice SCALIA, with whom Justice KENNEDY joins, dissenting.I frankly am unsure whether the Court’s disposition or Justice STEVENS’ favored disposition is correct; but I am sure that, if we are to decide this case, we should not do so without briefing and argument. In my view, we should not decide it at all; the factual situation it presents is so extraordinary that it does not warrant the expenditure of our time. I would have denied the petition for writ of certiorari.Footnotes:1. The Court, however, has recognized that a judge is not absolutely immune from criminal liability, Ex Parte Virginia,?100 U.S. 339 (1880), or from a suit for prospective injunctive relief, Pulliam v. Allen,?466 U.S. 522 (1983), or from a suit for attorney’s fees authorized by statute.1. See also Supreme Court of Virginia v. Consumers Union of United States, Inc.,?446 U.S. 719 (1980)?(judge not entitled to judicial immunity when acting in enforcement capacity); cf. Mitchell v. Forsyth,?472 U.S. 511 (1985)?(Attorney General not absolutely immune when performing “national security,” rather than prosecutorial, function). Moreover, even if the act is “judicial,” judicial immunity does not attach if the judge is acting in the “‘clear absence of all jurisdiction.’” Stump v. Sparkman,?435 U.S., at 357?(quoting Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)).ACLU FOUNDATION OF SOUTHERN CALIFORNIA, et al. v. BARR, et al., 952 F.2d 457, 293 U.S.App.D.C. 101 (1991)RANDOLPH, Circuit Judge.Nonresident aliens who entered the United States on the basis of student or visitor visas did not qualify as “United States persons” for purposes of provision of the Foreign Intelligence Surveillance Act (FISA) prohibiting a United States person from being considered a foreign power or agent solely on the basis of First Amendment activities. Foreign Intelligence Surveillance Act of 1978, §105(a)(3)(A), 50 U.S.C.A. §1805(a)(3)(A); U.S.C.A. Const. Amend. 1.Provision of the Foreign Intelligence Surveillance Act (FISA) prohibiting a United States person from becoming a target of surveillance solely on the basis of First Amendment activity cannot be violated by the mere overhearing of someone who is not a target and did not apply to attorneys who were overheard during authorized surveillance directed at their clients. Foreign Intelligence Surveillance Act of 1978, §105(a)(3)(A), 50 U.S.C.A. §1805(a)(3)(A); U.S.C.A. Const. Amend. ernment is not limited to investigating crimes already fully ernment may violate First Amendment when it investigates someone because it dislikes that person’s political views. U.S.C.A. Const. Amend. 1.This is an appeal from the District Court’s dismissal of a complaint for failure to state a claim upon which relief could be granted. Despite its simple procedural posture, the case presents complex questions regarding the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. §§1801-1811), and the [293 U.S.App.D.C. 104] standards for determining the sufficiency of complaints aimed at uncovering and halting electronic surveillance, authorized by a specially -constituted federal court and conducted for the purpose of obtaining foreign intelligence information from foreign powers and agents of foreign powers.There are twenty-four plaintiffs. Eight are aliens; of these, six are non-resident aliens, two are permanent resident aliens. The remaining plaintiffs are thirteen private attorneys who provided legal advice to these aliens and three organizations with which some of the attorneys were affiliated. The Complaint, as amended, comprises some thirty pages and more than seventy separately-numbered paragraphs. It seeks a declaratory judgment and an injunction against the Attorney General and other federal officials with respect to alleged electronic surveillance conducted, so plaintiffs claimed, in violation of FISA and of the First, Fourth, and Fifth Amendments to the Constitution.When they filed this Complaint, the eight alien plaintiffs were the subjects of deportation proceedings in California, where they resided. So far as we have been told, the proceedings are not yet concluded. The government maintains that each alien belonged to an international terrorist group known as the?Popular?Front for the Liberation of Palestine. The alien plaintiffs deny this.We reach the same conclusion with respect to the claim of the alien plaintiffs who were respondents in Hamide that subjecting them to electronic surveillance solely on the basis of their First Amendment-protected activities violated their First and Fourth Amendment rights. This claim is broader than the alleged violation of §1805(a)(3)(A) because, as plaintiffs point out, it does not depend on whether the targeted alien qualified as a “United States person” under FISA. Even non-resident aliens, plaintiffs say, are entitled to the full protection of the First and the Fourth Amendments. But insofar as this claim concerns surveillance disclosed in the Lindemann affidavit and reviewed by Chief Judge Real, it is of no moment that it is framed as a constitutional violation. When a District Court conducts a §1806(f) review, its task is not simply to decide whether the surveillance complied with FISA. Section 1806(f) requires the court to decide whether the surveillance was “lawfully authorized and conducted.” The Constitution is law. Once the Attorney General invokes §1806(f), the respondents named in that proceeding therefore must present not only their statutory but also their constitutional claims for decision. Although there will be no adversary hearing, we have held that the procedure mandated by §1806(f) is an acceptable means of adjudicating the constitutional rights of persons who have been subjected to FISA surveillance. United States v. Belfield,?692 F.2d 141 (D.C. Cir. 1982). Accord United States v. Ott,?827 F.2d 473 (9th Cir. 1987).Inquiry into subjective intent unrelated to knowledge of the law is permissible where the constitutional violation turns on an unconstitutional motive. Nonetheless, under this court’s heightened pleading standard, in order to obtain even limited discovery, such intent must be pleaded with specific, discernible facts or offers of proof that constitute direct as opposed to merely circumstantial evidence of the intent.We think the legitimate concerns about compromising ongoing foreign intelligence investigations should be recognized not at the pleading stage but in the event the government moves for summary judgment. Rule 56 is the proper method of “isolat[ing] and dispos[ing] of factually unsupported claims,” Celotex Corp. v. Catrett,?477 U.S. 317 (1986). In a Rule 56 motion, which may be filed before an answer, the government would not be required to “support its motion with affidavits or other similar materials negating,” for example, plaintiffs’ claim that they, or some of them, are targets of ongoing surveillance based solely on their First Amendment activities. The government would need only assert that plaintiffs do not have sufficient evidence to carry their burden of proving ongoing surveillance and whatever additional facts were required to establish the cause of action. If plaintiffs are ultimately unable to come forward with such evidence, the District Court must conclude that there is no “genuine” dispute about these material facts and enter summary judgment in favor of the government. See Anderson v. Liberty Lobby, Inc.,?477 U.S. 242 (1986). We recognize that in the usual case some discovery is permitted before the court rules on a motion for summary judgment, especially one filed by the defendant before answering the complaint. See Fed.R.Civ.P. 56(f). But the normal rules regarding discovery must be harmonized with FISA and its procedures, notably §1806(f) -which applies “notwithstanding any other law” and which is designed to prevent disclosure of information relating to FISA surveillance in adversary proceedings. As a consequence, even plaintiffs who defeat summary judgment motions would not be entitled to obtain any of the materials relating to the authorization of the surveillance or the evidence derived from it unless the District Court, in an ex parte, in camera proceeding, first determined that the surveillance was not “lawfully authorized and conducted.” While this could mean that the ultimate issue in the case would be decided before discovery, that is the necessary consequence of the procedure outlined in §1806(f), a procedure we have found to be adequate for the adjudication of constitutional rights in this sensitive area (see United States v. Belfield, 692 F.2d at 148).The remaining constitutional claim is based on the allegation that ongoing FISA surveillance is intercepting conversations between the plaintiff aliens and their attorneys concerning deportation proceedings and related legal matters. No further detail is provided. Citing decisions such as Rios-Berrios v. INS,?776 F.2d 859?(9th Cir. 1985); Castenada-Delgado v. INS,?525 F.2d 1295 (7th Cir. 1975); and Castro-O’Ryan v. Dep’t of Immigration & Naturalization,?821 F.2d 1415, amended,?847 F.2d 1307?(9th Cir. 1987), plaintiffs say they have made out a claim under the due process clause of the Fifth Amendment. We think not. Aliens like others are entitled to due process but the government’s overhearing of attorney-client conversations relating to the deportation proceedings does not in itself violate the Fifth Amendment any more than the government’s overhearing of attorney-client conversations relating to the defense of a criminal prosecution in itself violates the Sixth and Fourteenth Amendments. The Supreme Court in Weatherford v. Bursey,?429 U.S. 545 (1977), held that the constitutional right to counsel in a criminal case is violated only if the intercepted communications are somehow used against the defendant, that is, only if the defendant has been prejudiced in connection with the underlying proceeding. See United States v. Kelly,?790 F.2d 130 (D.C. Cir. 1986). The standard for a Bivens-type tort action based on the Sixth Amendment, however, is lower, but in any case requires a deliberate intercepting of attorney-client communications. See Briggs v. Goodwin,?698 F.2d 486?(D.C.Cir.), vacated on other grounds, 712 F.2d 1444?(D.C. Cir. 1983), cert. denied, 464 U.S. 1040 (1984). We express no opinion about whether an action for an injunction requires the “prejudice” showing of Weatherford, only the deliberate interception of Briggs, or something in between. Since no inference of deliberate overhearing may be drawn from the Lindemann declaration or plaintiffs’ allegations relating to it, even the standard for damages cannot be met by plaintiffs here.Footnotes:6. The thirteen attorneys and three organizations who also appear as plaintiffs may be “United States person[s],” but they do not even purport to have been “target[s] of electronic surveillance” under §1805(a)(3)(A). The Complaint merely alleges that the attorneys (or some of them) were overheard during FISA-authorized surveillance directed at their clients. Since §1805(a)(3)(A) applies only to a “target” of surveillance, it cannot be violated by the mere overhearing of someone who is not a target.10. We do not therefore discuss in this part the sufficiency of the allegations of past surveillance made “on information and belief” by the two other alien plaintiffs -Sharif and Barakat. They were not respondents in Hamide and are therefore not covered by Chief Judge Real’s order. They claim a continuing injury from allegedly illegal FISA surveillance of them in the past on the ground that the government has compiled and is maintaining records revealing how they exercised their First Amendment rights. (The relief they seek seems to be in “the nature of mandamus” (28 U.S.C. §1361) - an order compelling the defendants to remove all such records and turn them over to the plaintiffs.) Whether they have a cause of action relating to any alleged FISA surveillance directed at them, past or present, is governed by our analysis in Part III of the opinion.With respect to the remaining plaintiffs -the thirteen attorneys and the three organizations -they do not contend that their constitutional rights were violated; they describe the alleged constitutional claims and argue in support of them solely in terms applicable to the alien plaintiffs. As to the statute, the attorney and organizational plaintiffs have no statutory claim under §1805(a)(3)(A) for reasons already given. Their only potential claim regarding past surveillance, therefore, must be that the government violated FISA’s “minimization” requirements. In Part III of the opinion we discuss why FISA does not support a cause of action for alleged statutory claims of this sort.15. As then-Judge Scalia stated for the court:We note in this regard that the discretionary relief of declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as injunction or mandamus, since it must be presumed that federal officers will adhere to the law as declared by the court. Such equivalence of effect dictates an equivalence of criteria for issuance. See Samuels v. Mackell,?401 U.S. 66 (1971). Sanchez-Espinoza v. Reagan,?770 F.2d 202 (D.C. Cir. 1985). See also 28 U.S.C. §2202 (“Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.”).DeLUCA v. MERRELL DOW PHARMACEUTICALS, INC., 911 F.2d 941 (1990)STAPLETON, Circuit Judge.Our review of a District Court’s decision to exclude the testimony of an expert is ordinarily limited to ensuring there has been no abuse of discretion, but to the extent the District Court’s ruling turns on an interpretation of a Federal Rule of Evidence our review is plenary. In re Japanese Electronic Products Litigation, 723 F.2d 238 (3d Cir. 1983), rev’d on other grounds sub. nom., Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986); United States v. Furst, 886 F.2d 558 (3d Cir. 1989). The standard of review of a District Court’s entry of summary judgment is plenary, and we apply the same standard as the District Court. Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084 (3d Cir. 1988). Summary judgment is appropriate when, after considering the record evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).The great weight of scientific opinion, as is evidenced by the FDA committee results, sides with the view that Bendectin use does not increase the risk of having a child with birth defects. Sailing against the prevailing scientific breeze is the DeLucas’ expert Dr. Alan Done, formerly a Professor of Pharmacology and Pediatrics at Wayne State University School of Medicine, who continues to hold fast to his position that Bendectin is a teratogen. In spite of his impressive curriculum vitae, Dr. Done’s opinion on this subject has been rejected as inadmissible by several courts.The court purported to base its decision on a critical analysis of the reasoning of plaintiffs’ experts but it did not explain the basis for its holding that statistically significant epidemiological results were required to sustain a verdict in plaintiffs’ favor. The court emphasized that it “did not wish [its decision] to stand as a bar to future Bendectin cases in the event that new and statistically significant studies emerge that would give the jury a firmer basis upon which to determine the issue of causation.” 884 F.2d at 167.Despite the holdings of these courts of appeals, Judge Rubin, who presided over the multi-district common issues trial, recently denied a motion for summary judgment filed by Merrell Dow alleging that a group of consolidated Bendectin cases should be dismissed because the plaintiffs failed to produce a new published study supporting their assertion that Bendectin caused their birth defects. Judge Rubin denied the motion because he found a division in the scientific community as to whether epidemiological evidence was the only type of evidence that could reliably link Bendectin use to an increased risk of birth defects, and refused to substitute his judgment for experts in the relevant fields or to decide, instead of the jury, which view was the more reasonable. Thus, he denied Merrell Dow’s assertion that the plaintiff’s expert evidence, which was based on epidemiological evidence as well as structure activity analysis, and in vitro and in vivo studies, was inadmissible or insufficient to create a genuine issue of material fact. In re Bendectin Products Liability Litigation, 732 F.Supp. 744 (E.D.Mich. 1990); see also Brock, 884 F.2d at 168.Merrell Dow is free to trigger this inquiry on remand by contending that Dr. Done’s testimony is based on unreliable epidemiological methodology. But on the present record, we cannot by reference to Rule 702 affirm the District Court’s exclusion of that testimony. Dr. Done’s qualifications were stipulated for the purposes of Merrell Dow’s motion, his testimony goes to the crucial issue of causation, and his analysis purports to be based on a theory of epidemiological reasoning that has support in the published literature. Given these facts, we are unwilling in the absence of countervailing evidence or persuasive argument to conclude that his testimony would be unhelpful under Rule 702.Footnotes:18. To the extent Dr. Done’s testimony is found by the court to be admissible, that testimony will, of course, be subject to cross-examination at trial. When an expert is found to be qualified and a determination is made, or judicial notice taken, that his methodology is sufficiently reliable to make the opinion admissible, the expert’s qualifications, his methodology, and his application of the methodology remain appropriate subjects for cross-examination. Even though admissible, the proffered opinion may be in error, inter alia, because of the inherent risk of error inherent in the methodology, because the data or factual assumptions upon which the opinion rests are wrong, or because a mistake has been made in applying the methodology to the data or assumed facts. Thus, if Merrell Dow is required to go to trial, it may query Dr. Done about the “sampling error” inherent in his analysis, about the manner in which his data were gathered, and about any possible logical flaws in his reasoning. Payton v. Abbott Laboratories, 780 F.2d 147 (1st Cir. 1985) (weaknesses in the factual underpinnings of expert testimony that DES was a teratogen affected the weight and credibility of the testimony, not its admissibility). Thus, while a reliability assessment by the court (based on a hearing or prior judicial experience and judicial notice) plays a threshold role in determining the admissibility of expert opinion, the adversarial process and the finders of fact make the ultimate determination concerning the reliability of the opinions proffered. See Barefoot v. Estelle, 463 U.S. 880 (1983); Wilson v. Merrell-Dow Pharmaceuticals, 893 F.2d 1149 (10 Cir. 1990); Ellis v. International Playtex, Inc., 745 F.2d 292 (4th Cir. 1984); 3 J. Weinstein and M. Berger, Weinstein’s Evidence p 703, at 703 (1988).BURNHAM v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN, 495 U.S. 604, 110 S.Ct. 2105 (1990)Due process does not necessarily require states to adhere to unbending territorial limits on jurisdiction; validity of assertion of jurisdiction over nonconsenting defendant who is not in the forum depends upon whether the quality and nature of his activity in relation to the forum renders that jurisdiction consistent with traditional notions of fair play and substantial justice. U.S.C.A. Const. Amend. 14.Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of the legal system which defined the due process standard of “traditional notions of fair play” and substantial justice. U.S.C.A. Const. Amend. 14.In the case of new procedures for the exercise of personal jurisdiction, hitherto unknown, the due process clause requires analysis to determine whether traditional notions of fair play and substantial justice have been offended, but a doctrine of personal jurisdiction which dates back to the adoption of the Fourteenth Amendment and is still generally observed unquestionably meets that standard. U.S.C.A. Const. Amend. 14.Justice SCALIA, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY, concluded in Parts II-A, II-B, and II-C that the Due Process Clause does not deny a State’s court’s jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State.(b)A formidable body of precedent, stretching from common-law antecedents through decisions at or near the crucial time of the Fourteenth Amendment’s adoption to many recent cases, reflects the near-unanimous view that service of process confers state-court jurisdiction over a physically present nonresident, regardless of whether he was only briefly in the State or whether the cause of action is related to his activities there.Justice BRENNAN, joined by Justice MARSHALL, Justice BLACKMUN, and Justice O’CONNOR, although agreeing that the traditional “transient jurisdiction” rule is generally valid, concluded that historical pedigree, although important, is not the?only?factor to be taken into account in establishing whether a jurisdictional rule satisfies due process, and that an independent inquiry into the fairness of the prevailing in-state service rule must be undertaken.(b)The transient jurisdiction rule will generally satisfy due process requirements. Tradition, although alone not dispositive, is relevant because the fact that American courts have announced the rule since the latter part of the 19th century provides a defendant voluntarily present in a particular State?today?with clear notice that he is subject to suit in that forum. Thus, the rule is consistent with reasonable expectations and is entitled to a strong presumption that it comports with due process. Moreover, by visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State: police, fire, and emergency services, the freedom to travel its roads and waterways, the enjoyment of the fruits of its economy, the protection of its laws, and the right of access to its courts. Without transient jurisdiction, the latter right would create an asymmetry, since a transient would have the full benefit of the power of the State’s courts as a plaintiff while retaining immunity from their authority as a defendant. Furthermore, the potential burdens on a transient defendant are slight in light of modern transportation and communications methods, and any burdens that do arise can be ameliorated by a variety of procedural devices.Justice STEVENS concluded that the historical evidence, a persisting consensus, considerations of fairness, and common sense all indicate that the judgment should be affirmed.Justice SCALIA announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join, and in which Justice WHITE joins with respect to Parts I, II-A, II-B, and II-C.To determine whether the assertion of personal jurisdiction is consistent with due process, we have long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State’s authority. That criterion was first announced in?Pennoyer v. Neff,?in which we stated that due process “mean[s] a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights,” including the “well-established principles of public law respecting the jurisdiction of an independent State over persons and property.” In what has become the classic expression of the criterion, we said in?International Shoe Co. v. Washington,?326 U.S. 310 (1945), that a state court’s assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate “traditional notions of fair play and substantial justice.” Quoting?Milliken v. Meyer,?311 U.S. 457 (1940). See also?Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,?456 U.S. 694 (1982). Since?International Shoe,?we have only been called upon to decide whether these “traditional notions” permit States to exercise jurisdiction over absent defendants in a manner that deviates from the rules of jurisdiction applied in the 19th century. We have held such deviations permissible, but only with respect to suits arising out of the absent defendant’s contacts with the State. See Helicopteros Nacionales de Colombia v. Hall,?466 U.S. 408 (1984). The question we must decide today is whether due process requires a similar connection between the litigation and the defendant’s contacts with the State in cases where the defendant is physically present in the State at the time process is served upon him.…Justice Story believed the principle, which he traced to Roman origins, to be firmly grounded in English tradition: “[B]y the common law[,] personal actions, being transitory, may be brought in any place, where the party defendant may be found,” for “every nation may...rightfully exercise jurisdiction over all persons within its domains.” J. Story, Commentaries on the Conflict of Laws §§554, 543 (1846). See also?§§530-538;?Picquet v. Swan,?at 611-612 (“Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced, on such process, against him”).“Can a citizen of Alabama be sued in this State, as he passes through it?” Undoubtedly he can. The second of the axioms of?Huberus,?as translated by?Story,?is: ‘that all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof.’?(Stor.Conf. Laws, §29, Note 3.)“...[A] citizen of another State, who is merely passing through this, resides, as he passes, wherever he is. Let him be sued, therefore, wherever he may, he will be sued where he resides.“The plaintiff in error, although a citizen of Alabama, was passing through the County of Troup, in this State, and whilst doing so, he was sued in Troup. He was liable to be sued in this State, and in Troup County of this State.”?Murphy v. J.S. Winter & Co.,?18 Ga. 690 (1855).Decisions in the courts of many States in the 19th and early 20th centuries held that personal service upon a physically present defendant sufficed to confer jurisdiction, without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there. See Vinal v. Core,?18 W.Va. 1, 20 (1881);?Roberts v. Dunsmuir,?75 Cal. 203, 204, 16 P. 782 (1888);?De Poret v. Gusman,?30 La.Ann., pt. 2, pp. 930 (1878);?Smith v. Gibson,?83 Ala. 284, 3 So. 321 (1887);?Savin v. Bond,?57 Md. 228 (1881);?Hart v. Granger,?1 Conn. 154 (1814);?Mussina v. Belden,?6 Abb.Pr. 165 (N.Y.Sup.Ct.1858);?Darrah v. Watson,?36 Iowa 116 (1872);?Baisley v. Baisley,?113 Mo. 544, 21 S.W. 29 (1893);?Bowman v. Flint,?37 Tex.Civ.App. 28, 82 S.W. 1049 (1904). See also?Reed v. Hollister,?106 Ore. 407, 212 P. 367 (1923);?Hagen v. Viney,?124 Fla. 747, 169 So. 391 (1936); Vaughn?v. Love, 324 Pa. 276, 188 A. 299 (1936). Although research has not revealed a case deciding the issue in every State’s courts, that appears to be because, the issue was so well settled that it went unlitigated. See R. Leflar, American Conflicts Law §24, p. 43 (1968) (“The law is so clear on this point that there are few decisions on it”); Note, Developments in the Law - State Court Jurisdiction, 73 Harv.L.Rev. 909, 937-938 (1960). Opinions from the courts of other States announced the rule in dictum. See Reed v. Browning,?130 Ind. 575, 30 N.E. 704 (1892);?Nathanson v. Spitz,?19 R.I. 70, 31 A. 690 (1895);?McLeod v. Connecticut & Passumpsic River R.Co.,?58 Vt. 727, 6 A. 648 (1886);?New Orleans J. & G.N.R. Co. v. Wallace,?50 Miss. 244 (1874);?Wagner v. Hallack,?3 Colo. 176 (1877);?Downer v. Shaw,?22 N.H. 277 (1851);?Moore v. Smith,?41 Ky. 340 (1842);?Adair County Bank v. Forrey,?74 Neb. 811, 105 N.W. 714 (1905). Most States, moreover, had statutes or common-law rules that exempted from service of process individuals who were brought into the forum by force or fraud, see Wanzer v. Bright,?52 Ill. 35 (1869), or who were there as a party or witness in unrelated judicial proceedings, see Burroughs v. Cocke & Willis,?56 Okla. 627, 156 P. 196 (1916);?Malloy v. Brewer,?7 S.D. 587, 64 N.W. 1120 (1895). These exceptions obviously rested upon the premise that service of process conferred jurisdiction. See?Anderson v. Atkins,?161 Tenn. 137, 29 S.W.2d 248 (1930). Particularly striking is the fact that, as far as we have been able to determine,?not one?American case from the period (or, for that matter, not one American case until 1978) held, or even suggested, that in-state personal service on an individual was insufficient to confer personal jurisdiction. Commentators were also seemingly unanimous on the rule. See?1 A. Freeman, Law of Judgments 470-471 (1873); 1 H. Black, Law of Judgments 276-277 (1891); W. Alderson, Law of Judicial Writs and Process 225-226 (1895). See also Restatement of Conflict of Laws §§77-78 (1934).The view of most courts in the 19th century was that a court simply could not exercise?in personam?jurisdiction over a nonresident who had not been personally served with process in the forum. See Reber v. Wright,?68 Pa. 471 (1871);?Sturgis v. Fay,?16 Ind. 429 (1861);?Weil v. Lowenthal,?10 Iowa 575 (1860); Freeman, Law of Judgments,?at 468; see also?D’Arcy v. Ketchum,?11 How. 165, 13 L.Ed. 648 (1851); Knowles v. Gaslight & Coke Co.,?19 Wall. 58, 22 L.Ed. 70 (1874).?Pennoyer v. Neff,?while renowned for its statement of the principle that the Fourteenth Amendment prohibits such an exercise of jurisdiction, in fact set that forth only as dictum and decided the case (which involved a judgment rendered more than two years before the Fourteenth Amendment’s ratification) under “well-established principles of public law.” 95 U.S., at 722. Those principles, embodied in the Due Process Clause, required (we said) that when proceedings “involv[e] merely a determination of the personal liability of the defendant, he must be brought within [the court’s] jurisdiction by service of process within the State, or his voluntary appearance.”?We invoked that rule in a series of subsequent cases, as either a matter of due process or a “fundamental principl[e] of jurisprudence,”?Wilson v. Seligman, 144 U.S. 41 (1892). See New York Life Ins. Co. v. Dunlevy,?241 U.S. 518 (1916);?Goldey v. Morning News,?156 U.S. 518 (1895).Later years, however, saw the weakening of the?Pennoyer?rule. In the late 19th and early 20th centuries, changes in the technology of transportation and communication, and the tremendous growth of interstate business activity, led to an “inevitable relaxation of the strict limits on state jurisdiction” over nonresident individuals and corporations.?Hanson v. Denckla, 357 U.S. 235 (1958). States required, for example, that nonresident corporations appoint an in-state agent upon whom process could be served as a condition of transacting business within their borders, see St. Clair v. Cox,?106 U.S. 350 (1882), and provided in-state “substituted service” for nonresident motorists who caused injury in the State and left before personal service could be accomplished, see Kane v. New Jersey,?242 U.S. 160 (1916);?Hess v. Pawloski,?274 U.S. 352 (1927). We initially upheld these laws under the Due Process Clause on grounds that they complied with?Pennoyers rigid requirement of either “consent,” see Hess v. Pawloski,?at 356, or “presence,” see Philadelphia & Reading R. Co. v. McKibbin,?243 U.S. 264 (1917). As many observed, however, the consent and presence were purely fictional. See?1 J. Beale, Conflict of Laws 360 (1935);?Hutchinson v. Chase & Gilbert, Inc.,?45 F.2d 139 (CA2 1930). Our opinion in?International Shoe?cast those fictions aside and made explicit the underlying basis of these decisions: Due process does not necessarily?require the States to adhere to the unbending territorial limits on jurisdiction set forth in?Pennoyer. The validity of assertion of jurisdiction over a nonconsenting defendant who is not present in the forum depends upon whether “the quality and nature of [his] activity” in relation to the forum, 326 U.S., at 319, renders such jurisdiction consistent with “traditional notions of fair play and substantial justice.” Subsequent cases have derived from the?International Shoe?standard the general rule that a State may dispense with in-forum personal service on nonresident defendants in suits arising out of their activities in the State. See generally?Helicopteros Nacionales de Colombia v. Hall,?466 U.S., at 414. As?International Shoe?suggests, the defendant’s litigation-related “minimum contacts” may take the place of physical presence as the basis for jurisdiction:“Historically the jurisdiction of courts to render judgment?in personam?is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding on him.?Pennoyer v. Neff,?95 U.S. 714. But now that the?capias ad respondendum?has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment?in personam,?if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” 326 U.S., at 316.The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” That standard was developed by?analogy?to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction.It goes too far to say, as petitioner contends, that?Shaffer?compels the conclusion that a State lacks jurisdiction over an individual unless the litigation arises out of his activities in the State.?Shaffer,?like?International Shoe,?involved jurisdiction over an?absent defendant,?and it stands for nothing more than the proposition that when the “minimum contact” that is a substitute for physical presence consists of property ownership it must, like other minimum contacts, be related to the litigation. Petitioner wrenches out of its context our statement in Shaffer?that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in?International Shoe?and its progeny,” 433 U.S., at 212. When read together with the two sentences that preceded it, the meaning of this statement becomes clear:“The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.“We?therefore conclude?that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in?International Shoe?and its progeny.”Shaffer?was saying, in other words, not that all bases for the assertion of?in personam jurisdiction (including, presumably, in-state service) must be treated alike and subjected to the “minimum contacts” analysis of?International Shoe;?but rather that?quasi in rem jurisdiction, that fictional “ancient form,” and?in personam?jurisdiction, are really one and the same and must be treated alike - leading to the conclusion that?quasi in rem?jurisdiction,?i.e., that form of?in personam?jurisdiction based upon a “property ownership” contact and by definition unaccompanied by personal, in-state service, must satisfy the litigation-relatedness requirement of?International Shoe.?The logic of?Shaffer’s holding - which places all suits against absent nonresidents on the same constitutional footing, regardless of whether a separate Latin label is attached to one particular basis of contact - does not compel the conclusion that physically present defendants must be treated identically to absent ones. As we have demonstrated at length, our tradition has treated the two classes of defendants quite differently, and it is unreasonable to read?Shaffer?as casually obliterating that distinction. International Shoe?confined its “minimum contacts” requirement to situations in which the defendant “be not present within the territory of the forum,” 326 U.S., at 316, and nothing in?Shaffer?expands that requirement beyond that.The subjectivity, and hence inadequacy, of this approach becomes apparent when the concurrence tries to explain?why?the assertion of jurisdiction in the present case meets its standard of continuing-American-tradition-plus-innate-fairness. Justice BRENNAN lists the “benefits” Mr. Burnham derived from the State of California - the fact that, during the few days he was there, “[h]is health and safety [were] guaranteed by the State’s police, fire, and emergency medical services; he [was] free to travel on the State’s roads and waterways; he likely enjoy[ed] the fruits of the State’s economy.”?Three days’ worth of these benefits strike us as powerfully inadequate to establish, as an abstract matter, that it is “fair” for California to decree the ownership of all Mr. Burnham’s worldly goods acquired during the 10 years of his marriage, and the custody over his children. We daresay a contractual exchange swapping those benefits for that power would not survive the “unconscionability” provision of the Uniform Commercial Code. Even less persuasive are the other “fairness” factors alluded to by Justice BRENNAN. It would create “an asymmetry,” we are told, if Burnham were?permitted?(as he is) to appear in California courts as a plaintiff, but were not?compelled?to appear in California courts as defendant; and travel being as easy as it is nowadays, and modern procedural devices being so convenient, it is no great hardship to appear in California courts.?The problem with these assertions is that they justify the exercise of jurisdiction over?everyone, whether or not?he ever comes to California. The only “fairness” elements setting Mr. Burnham apart from the rest of the world are the three days’ “benefits” referred to above - and even those, do not set him apart from many other people who have enjoyed three days in the Golden State (savoring the fruits of its economy, the availability of its roads and police services) but who were fortunate enough not to be served with process while they were there and thus are not (simply by reason of that savoring) subject to the general jurisdiction of California’s courts. See Helicopteros Nacionales de Colombia v. Hall,?466 U.S., at 414. In other words, even if one agreed with Justice BRENNAN’s conception of an equitable bargain, the “benefits” we have been discussing would explain why it is “fair” to assert general jurisdiction over Burnham-returned-to-New-Jersey-after-service only at the expense of proving that it is also “fair” to assert general jurisdiction over Burnham-returned-to-New-Jersey-without-service - which we?know?does not conform with “contemporary notions of due process.”AffirmedJustice WHITE, concurring in part and concurring in the judgment.I join Parts I, II-A, II-B, and II-C of Justice SCALIA’s opinion and concur in the judgment of affirmance. The rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum State, without more, has been and is so widely accepted throughout this country that I could not possibly strike it down, either on its face or as applied in this case, on the ground that it denies due process of law guaranteed by the Fourteenth Amendment. Although the Court has the authority under the Amendment to examine even traditionally accepted procedures and declare them invalid Shaffer v. Heitner,?433 U.S. 186 (1977), there has been no showing here or elsewhere that as a general proposition the rule is so arbitrary and lacking in common sense in so many instances that it should be held violative of due process in every case. Furthermore, until such a showing is made, which would be difficult indeed, claims in individual cases that the rule would operate unfairly as applied to the particular nonresident involved need not be entertained. At least this would be the case where presence in the forum State is intentional, which would almost always be the fact. Otherwise, there would be endless, fact-specific litigation in the trial and appellate courts, including this one. Here, personal service in California, without more, is enough, and I agree that the judgment should be affirmed.Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN, and Justice O’CONNOR join, concurring in the judgment.…We recognized that “‘[t]raditional notions of fair play and substantial justice’ can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage.”?I agree with this approach and continue to believe that “the minimum-contacts analysis developed in?International Shoe...represents a far more sensible construct for the exercise of state-court jurisdiction than the patchwork of legal and factual fictions that has been generated from the decision in?Pennoyer v. Neff.”Rather, I find the historical background relevant because, however murky the jurisprudential origins of transient jurisdiction, the fact that American courts have announced the rule for perhaps a century (first in dicta, more recently in holdings) provides a defendant voluntarily present in a particular State?today?”clear notice that [he] is subject to suit” in the forum. World-Wide Volkswagen Corp. v. Woodson,?444 U.S., at 297. Regardless of whether Justice Story’s account of the rule’s genesis is mythical, our common understanding?now,?fortified by a century of judicial practice, is that jurisdiction is often a function of geography. The transient rule is consistent with reasonable expectations and is entitled to a strong presumption that it comports with due process. “If I visit another State,... I knowingly assume some risk that the State will exercise its power over my property or my person while there. My contact with the State, though minimal, gives rise to predictable risks.”?Shaffer,?433 U.S., at 218; see also?Burger King Corp. v. Rudzewicz,?471 U.S. 462 (1985) (“Territorial presence frequently will enhance a potential defendant’s affiliation with a State and reinforce the reasonable foreseeability of suit there”); Glen, An Analysis of “Mere Presence” and Other Traditional Bases of Jurisdiction, 45 Brooklyn L. Rev. 607 (1979). Thus, proposed revisions to the Restatement (Second) of Conflict of Laws §28, p. 39 (1986), provide that “[a] state has power to exercise judicial jurisdiction over an individual who is present within its territory unless the individual’s relationship to the state is so attenuated as to make the exercise of such jurisdiction unreasonable.”By visiting the forum State, a transient defendant actually “avail[s]” himself,?Burger?King,?at 476, of significant benefits provided by the State. His health and safety are guaranteed by the State’s police, fire, and emergency medical services; he is free to travel on the State’s roads and waterways; he likely enjoys the fruits of the State’s economy as well. Moreover, the Privileges and Immunities Clause of Article IV prevents a state government from discriminating against a transient defendant by denying him the protections of its law or the right of access to its courts.?See?Supreme Court of New Hampshire v. Piper,?470 U.S. 274 (1985);?Baldwin v. Fish and Game Comm’n,?436 U.S. 371 (1978); see also?Supreme Court of Virginia v. Friedman,?487 U.S. 59 (1988). Subject only to the doctrine of?forum non conveniens,?an out-of-state plaintiff may use state courts in all circumstances in which those courts would be available to state citizens. Without transient jurisdiction, an asymmetry would arise: A transient would have the full benefit of the power of the forum State’s courts as a plaintiff while retaining immunity from their authority as a defendant. See Maltz, Sovereign Authority, Fairness, and Personal Jurisdiction: The Case for the Doctrine of Transient Jurisdiction, 66 Wash.U.L.Q. 671, 698-699 (1988).Justice STEVENS, concurring in the judgment.As I explained in my separate writing, I did not join the Court’s opinion in?Shaffer v. Heitner, 433 U.S. 186 (1977), because I was concerned by its unnecessarily broad reach. The same concern prevents me from joining either Justice SCALIA’s or Justice BRENNAN’s opinion in this case. For me, it is sufficient to note that the historical evidence and consensus identified by Justice SCALIA, the considerations of fairness identified by Justice BRENNAN, and the common sense displayed by Justice WHITE, all combine to demonstrate that this is, indeed, a very easy case.?Accordingly, I agree that the judgment should be affirmed.Footnotes:4. Shaffer?may have involved a unique state procedure in one respect: Justice STEVENS noted that Delaware was the only State that treated the place of incorporation as the situs of corporate stock when both owner and custodian were elsewhere. See 433 U.S., at 218.5. I find quite unacceptable as a basis for this Court’s decisions Justice BRENNAN’s view that “the raison d’etre?of various constitutional doctrines designed to protect out-of-staters, such as the Art. IV Privileges and Immunities Clause and the Commerce Clause,” entitles this Court to brand as “unfair,” and hence unconstitutional, the refusal of all 50 States “to limit or abandon bases of jurisdiction that have become obsolete.”?”Due process” (which is the constitutional text at issue here) does not mean that process which shifting majorities of this Court feel to be “due”; but that process which American society - self-interested American society, which expresses its judgments in the laws of self-interested States - has traditionally considered “due.” The notion that the Constitution, through some penumbra emanating from the Privileges and Immunities Clause and the Commerce Clause, establishes this Court as a Platonic check upon the society’s greedy adherence to its traditions can only be described as imperious.3. Even Justice SCALIA’s opinion concedes that?sometimes?courts may discard “traditional” rules when they no longer comport with contemporary notions of due process. For example, although, beginning with the Romans, judicial tribunals for over a millennium permitted jurisdiction to be acquired by force, see L. Wenger, Institutes of the Roman Law of Civil Procedure 46-47 (O. Fisk trans., rev.ed. 1986), by the 19th century, as Justice SCALIA acknowledges, this method had largely disappeared. I do not see why Justice SCALIA’s opinion assumes that there is no further progress to be made and that the evolution of our legal system, and the society in which it operates, ended 100 years ago.9. In?Molony v. Dows,?8 Abb.Pr. 316 (N.Y. Common Pleas 1859), for example, the court dismissed an action for a tort that had occurred in California, even though the defendant was served with process while he was in the forum State of New York. The court rejected the plaintiff’s contention that it possessed “jurisdiction of all actions, local and transitory, where the defendant resides, or is personally served with process,” with the comment that “an action cannot be maintained in this court, or in any court of this State, to recover a pecuniary satisfaction in damages for a wilful injury to the person, inflicted in another State, where, at the time of the act, both the wrongdoer and the party injured were domiciled in that State as resident citizens.”?The court reasoned that it could not “undertake to redress every wrong that may have happened in any part of the world, [merely] because the parties, plaintiff or defendant, may afterwards happen to be within [the court’s] jurisdiction.”?Similarly, the Pennsylvania Supreme Court declared it “the?most important?principle of?all?municipal law of Anglo-Saxon origin, that a man shall only be liable to be called upon to answer for civil wrongs in the forum of his home, and the tribunal of his vicinage.”?Coleman’s Appeal,?75 Pa. 441 (1874). And in?Gardner v. Thomas,?14 Johns. 134 (N.Y. 1817), the court was faced with the question “whether this Court will take cognizance of a tort committed on the high seas, on board of a foreign vessel, both the parties being subjects or citizens of the country to which the vessel belongs,” after the ship had docked in New York and suit was commenced there. The court observed that Lord Mansfield had appeared “to doubt whether an action may be maintained in England?for an injury in consequence of two persons fighting in?France,?[even] when both are within the jurisdiction of the Court.”?The court distinguished the instant case as an action “for an injury on the high seas” - a location, “of course, without the actual or exclusive territory of any nation.”?Nevertheless, the court found that while “our Courts may take cognizance of torts committed on the high seas, on board of a foreign vessel where both parties are foreigners,...it must, on principles of policy, often rest in the sound discretion of the Court to afford jurisdiction or not, according to the circumstances of the case.”?In the particular case before it, the court found jurisdiction lacking. See also 1 J. Wells, Jurisdiction of Courts 76 (1880) (reporting that a state court had argued that “courts have jurisdiction of actions for torts as to property, even where the parties are non-resident, and the torts were committed out of the state, if the defendant is served with process within the state,” but also noting that “Clerke,?J., very vigorously dissented in the case, and, I judge, with good reason”).It is possible to distinguish these cases narrowly on their facts, as Justice SCALIA demonstrates. Thus,?Molony?could be characterized as a case about the reluctance of one State to punish assaults occurring in another,?Gardner?as a?forum non conveniens?case, and?Coleman’s Appeal?as a case in which there was no in-state service of process. But such an approach would mistake the trees for the forest. The truth is that the transient rule as we now conceive it had no clear counterpart at common law.Just as today there is an interaction among rules governing jurisdiction,?forum non conveniens, and choice of law, see Ferens v. John Deere Co.,?494 U.S. 516 (1990);?Shaffer,?433 U.S. 186 (1977);?Hanson v. Denckla,?357 U.S. 235 (1958), at common law there was a complex interplay among pleading requirements, venue, and substantive law an interplay which in large part substituted for a theory of “jurisdiction”:“A theory of territorial jurisdiction would in any event have been premature in England before, say, 1688, or perhaps even 1832. Problems of jurisdiction were the essence of medieval English law and remained significant until the period of Victorian reform. But until after 1800 it would have been impossible, even if it had been thought appropriate, to disentangle the question of territorial limitations on jurisdiction from those arising out of charter, prerogative, personal privilege, corporate liberty, ancient custom, and the fortuities of rules of pleading, venue, and process. The intricacies of English jurisdictional law of that time resist generalization on any theory except a franchisal one; they seem certainly not reducible to territorial dimension. “The English precedents on jurisdiction were therefore of little relevance to American problems of the nineteenth century.” Hazard, A General Theory of State-Court Jurisdiction, 1965 S.Ct.Rev. 241, 252-253.13. For example, in the federal system, a transient defendant can avoid protracted litigation of a spurious suit through a motion to dismiss for failure to state a claim or through a motion for summary judgment. Fed. Rules Civ.Proc. 12(b)(6) and 56. He can use relatively inexpensive methods of discovery, such as oral deposition by telephone (Rule 30(b)(7)), deposition upon written questions (Rule 31), interrogatories (Rule 33), and requests for admission (Rule 36), while enjoying protection from harassment (Rule 26(c)), and possibly obtaining costs and attorney’s fees for some of the work involved (Rules 37(a)(4), (b)-(d)). Moreover, a change of venue may be possible. 28 U.S.C. §1404. In state court, many of the same procedural protections are available, as is the doctrine of?forum non conveniens,?under which the suit may be dismissed. See generally Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1 (1982).HALE v. FISH, et al., 899 F.2d 390 (1990)GARZA, Circuit Judge:Special FBI agent who was present when affidavit supporting warrant for aggravated kidnapping arrest was presented to state judge, possibly lending credibility to affidavit, and who took an active role in physical arrest of alleged kidnappers, had assisted state official in depriving arrestees of Fourth Amendment rights for purposes of arrestees’ federal civil rights claim. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 4.Finding that sheriff’s department investigator and Federal Bureau of Investigation (FBI) agent were liable to one arrestee for $90,000, later reduced by $25,000 to reflect reversal of attorney fee award, and to other arrestee for $54,000 based on arrest for aggravated kidnapping in violation of their constitutional rights, was properly based on consideration of time spent in jail, mental anguish suffered, damage to reputation and legal fees incurred to defend criminal charges, and was not clearly erroneous. 42 U.S.C.A. §1983.Finding the District Court correctly analyzed the §1983 liability of Major Jones and Special Agent Magee, the extent of the qualified immunity umbrella, and the liability of Agent Fuller and Captain Boyd, the District Court’s liability phase of the case is AFFIRMED. Finding the adequacy of the compensatory damages and the decision of whether or not to award punitive damages and/or prejudgment interest within the discretion of the District Court, we find no abuse of discretion. The award of attorney’s fees to Mr. Hale, which his mother paid, is reinstated and the Judgment MODIFIED to so reflect.The District Court found Major Jones and FBI Special Agent Magee liable to Hale for $90,000 (which amount was later reduced by $25,000 reflecting the reversal of the award of attorney’s fees) and liable to Stephens in the amount of $54,000. The other defendants were not held liable as the court found their connection to the defective affidavit to be too remote. Major Jones and Special Agent Magee appeal the judgment. Hale and Stephens cross-appeal, contending that the court erred in not holding Defendants Fuller and Byrd liable, that the award of compensatory damages is inadequate, that punitive damages should have been included in the award and that prejudgment interest on the award should have been granted. In addition, Hale appeals the court’s reduction of his award by $25,000, the amount of attorney’s fees expended in defense of the criminal kidnapping charges which were paid by his mother.The defendants’ offer no caselaw demonstrating that a legal debt evidenced by a surety contract is any less of a debt because it is owed to one’s mother. As Hale incurred a legal debt of $25,000 as a consequence of the appellant’s conduct, the District Court erred in reducing the amount of his original award by that amount.The standard for the assessment of punitive damages in a §1983 action was enunciated by the Supreme Court in Smith v. Wade,?461 U.S. 30 (1983), in which the Court held:That a jury may be permitted to assess punitive damages in an action under §1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. We further hold that this threshold applies even when the underlying standard of liability for compensatory damages is one of recklessness.Smith, 461 U.S. at 56. The plaintiffs note that the District Court’s opinion in the liability portion of the trial made a specific finding that the facts presented to Judge Stewart in the affidavit “were both selective and slanted to the extent that they were either deliberately false or made with a reckless disregard for the truth.” The plaintiffs contend that this finding requires an award of punitive damages under Smith.This contention demonstrates that the plaintiffs have read Smith selectively. In Smith, the Court rejected the plaintiffs’ argument that simply because the threshold of liability for compensatory damages is the same as for punitive damages, both are equally available. Smith, 461 U.S. at 51. The Court held that unlike compensatory damages, punitive damages are never available as a matter of right, no matter how egregious the defendant’s conduct may be. As the question of whether punitive damages should be awarded is one left to the finder of fact, the District Court did not err in denying to award them.The plaintiffs contend that the District Court erred when it denied them prejudgment interest on the award, yet failed to cite any cases from this circuit on the issue of whether prejudgment interest is mandatory in §1983 actions.As stated in Masters v. Transworld Drilling Co.,?688 F.2d 1013 (5th Cir.1982), this court held that prejudgment interest was “well-nigh automatic” in admiralty suits, but noted that such an award was, in most cases, “within the Court’s sound discretion.” Similarly, in Parson v. Kaiser Aluminum & Chemical Corporation,?727 F.2d 473?(5th Cir.1984), cert. denied, 467 U.S. 1243 (1984), this court stated that “[t]he award of prejudgment interest in this case reflects an appropriate exercise of the District Court’s authority to fashion relief which makes whole the injured party.” The First Circuit in Blackburn v. Snow,?771 F.2d 556 (1st Cir.1985), held, in a §1983 action, that an award of prejudgment interest was at least partially improper as a portion of the compensatory award involved intangible losses. Thus, the fate of the prejudgment interest is in the hands of the District Court. The District Court below did not abuse its “authority to fashion relief” in denying prejudgment interest in the present case.Footnotes:3. In Franks v. Delaware,?438 U.S. 154 (1978), the Supreme Court held that if an officer, in an affidavit supporting a warrant, makes a false statement knowingly and intentionally, or with reckless disregard for the truth, the false statements must be disregarded in determining whether the affidavit is sufficient to support a finding of probable cause. The holding in Franks applies to omissions as well. United States v. Thompson,?615 F.2d 329 (1980).BROCK v. MERRELL DOW PHARMACEUTICALS INC., 874 F.2d 307 (1989)GARZA, Circuit Judge.The standard for granting a judgment notwithstanding the verdict is the same as that governing rulings on directed verdicts: judgment notwithstanding the verdict is proper only when there can be only one reasonable conclusion drawn from the evidence. Dun & Bradstreet, Inc. v. Miller,?398 F.2d 218 (5th Cir. 1968). It is generally accepted that the court, in determining whether the evidence is sufficient to present a question for the jury, is not free to weigh the evidence, pass on the credibility of witnesses, or substitute its judgment of the facts for that of the jury. See Glazer v. Glazer,?374 F.2d 390 (5th Cir. 1967), cert. denied 389 U.S. 831; Alman Bros. Farms & Feed Mill, Inc. v. Diamond Lab, Inc.,?437 F.2d 1295 (5th Cir. 1971); Cardwell v. U.S.,?186 F.2d 382 (1951); see generally 9 Wright & Miller, Federal Practice and Procedure Sec. 2524 (1971). Viewing the evidence in the light most favorable to the party against whom the motion is made, the court must give that party the benefit of all reasonable inferences from the evidence. Boeing Co. v. Shipman,?411 F.2d 365 (1969).These general and abstract formulations lose much of their usefulness, however, when we attempt to apply them to the concrete factual situation at hand. One certainly might infer from the evidence in the case that Bendectin causes birth defects, and further that Bendectin caused Rachel Brock’s limb reduction defect -in fact, the jury concluded that this very thing occurred. However, the court must determine whether this is a reasonable inference to be drawn from the evidence presented, and the formulae provide us with little guidance as to what constitutes a reasonable, as opposed to unreasonable, inference that a jury could draw from the evidence. Ultimately, the “correctness” of our decision that there was insufficient evidence presented by plaintiff on the issue of whether Bendectin caused Rachel Brock’s limb reduction defect to enable a jury to draw a reasonable inference may be just a matter of opinion, but hopefully the reasoning below will persuade others of the insights of our perspective.The first problem is that there is often no consensus in the medical community regarding whether a given substance is teratogenic; this is the case with Bendectin. Moreover, while we now recognize some of the many factors which can cause birth defects, medical science is now unable, and will undoubtedly remain unable for the foreseeable future, to trace a known birth defect back to its precipitating cause. The second problem, in addition to the problem of unknowability, is that juries are asked to resolve these questions, upon which even our brightest medical minds disagree, in order to resolve the case at hand and decide whether the plaintiff is entitled to recovery, and in so doing must necessarily resort to speculation.Under the traditional approach to scientific evidence, courts would not peer beneath the reasoning of medical experts to question their reasoning. Confronted, as we now are, with difficult medical questions, courts must critically evaluate the reasoning process by which the experts connect data to their conclusions in order for courts to consistently and rationally resolve the disputes before them. Moreover, in mass torts the same issue is often presented over and over to juries in different cases, and the juries often split both ways on the issue. The effect of this is to create a state of uncertainty among manufacturers contemplating the research and development of new, and potentially lifesaving drugs. Appellate courts, if they take the lead in resolving those questions upon which juries will go both ways, can reduce some of the uncertainty which can tend to produce a sub-optimal amount of new drug development.The District of Columbia Circuit retreated from this approach recently when it considered, in a Bendectin case, the very same issue we are addressing here. In Richardson by Richardson v. Richardson-Merrell, Inc.,?857 F.2d 823?(D.C. Cir. 1988), the D.C. Circuit affirmed the lower court’s grant of judgment notwithstanding the verdict to defendant. In its discussion of its approach to resolving the conflicting expert testimony in favor of defendant, the court opined that “[e]xpert witnesses are indispensible in a case such as this. But that is not to say that the court’s hands are inexorably tied, or that it must accept uncritically any sort of opinion espoused by an expert merely because his credentials render him qualified to testify.” The court then proceeded to look behind the conclusion of plaintiff’s expert and found his reasoning inadequate. In distinguishing Ferebee, the court narrowly interpreted the case to apply only where the causation issue is novel and “stands at the frontier of current medical and epidemiological inquiry.” The Bendectin cases are different, opined the D.C. Circuit, in that there is a wealth of published epidemiological data, none of which has concluded that the drug is teratogenic. Thus, in Richardson, the court affirmed its willingness to look behind the conclusions of experts, at least in cases which are not at the frontier of epidemiological inquiry. We too, have chosen to take the same approach as the Richardson court, and in the next section we will present our analysis of the reasoning employed by the expert witnesses in this case.Undoubtedly, the most useful and conclusive type of evidence in a case such as this is epidemiological studies. Epidemiology attempts to define a relationship between a disease and a factor suspected of causing it - in this case, ingestion of Bendectin during pregnancy. To define that relationship, the epidemiologist examines the general population, comparing the incidence of the disease among those people exposed to the factor in question to those not exposed. The epidemiologist then uses statistical methods and reasoning to allow her to draw a biological inference between the factor being studied and the disease’s etiology.One difficulty with epidemiologic studies is that often several factors can cause the same disease. Birth defects are known to be caused by mercury, nicotine, alcohol, radiation, and viruses, among other factors. When epidemiologists compare the birth defect rates for women who took Bendectin during pregnancy against those who did not take Bendectin during pregnancy, there is a chance that the distribution of the other causal factors may not be even between the two groups. Usually, the larger the size of the sample, the more likely that random chance will lead to an even distribution of these factors among the two comparison groups, unless there is a dependence between some of the other factors and the factor being studied. For example, there would be a dependence between variables if women who took Bendectin during pregnancy were more or less likely to smoke than women who did not take Bendectin. Another source of error in epidemiological studies is selective recall -i.e., women who have children with birth defects may be more likely to remember taking Bendectin during pregnancy than those women with normal children. Fortunately, we do not have to resolve any of the above questions, since the studies presented to us incorporate the possibility of these factors by use of a confidence interval. The purpose of our mentioning these sources of error is to provide some background regarding the importance of confidence intervals.We find, in this case, the lack of conclusive epidemiological proof to be fatal to the Brock’s case. While we do not hold that epidemiologic proof is a necessary element in all toxic tort cases, it is certainly a very important element. This is especially true when the only other evidence is in the form of animal studies of questionable applicability to humans. We are not the first court to emphasize the importance of epidemiologic analysis. For instance, in Heyman v. United States, 506 F.Supp. 1145 (S.D.Fl. 1981), which was one of the “swine flu” cases, the plaintiff had contracted Guillan-Barre Syndrome, allegedly caused by a swine flu inoculation under the National Swine Flu Immunization Program. In dismissing plaintiff’s action for failure to prove that the swine flu vaccine caused her illness, the court held that “[g]iven the general inability of a physician to make accurate predictions of causation without at least some reference to epidemiological studies, plaintiff’s position that her illness was caused by the swine flu shot amounts to nothing more than speculation.”We need not address at length the animal studies presented by plaintiffs below, except to note several of the more important studies and their methodological flaws. The plaintiffs presented an in vitro study conducted by Drs. Hassell and Horigan. This study used cells cut from the limbs of mice and chickens which were then exposed to various test compounds, including Bendectin. According to plaintiff’s experts, limb bud cells which normally form in six days were reduced if those cells were exposed to Bendectin; these limb bud cells ultimately form the arms and legs. However, Dr. Hassell himself cautioned that the body may break down doxylamine, the active ingredient in Bendectin, into a metabolic product which may differ from the pure test compound. Thus, human limb bud cells in a fetus may not be exposed to doxylamine, but rather the metabolic product of doxylamine. Moreover, extrapolation of these findings to humans cannot be done without knowing the dosage level and the corresponding drug level in the bloodstream of the mother. Taking the concept of metabolic products one step further, the plaintiff introduced the testimony of Drs. Snodgrass and Newman, who hypothesized that the human body breaks down doxylamine into less complex molecules called metabolites. These metabolites, some of which are negatively charged, are attracted to the relatively alkaline embryotic fluids, and ultimately bond with the cells in the embryo, producing tissue damage. However, both experts admitted that different species of animals metabolize chemicals differently, and that there are no studies which show that doxylamine is broken down by humans into toxic metabolites. Thus, we must view the limb bud tests as quite speculative.In light of the evidence presented, we are convinced that the Brocks did not present sufficient evidence regarding causation to allow a trier of fact to make a reasonable inference that Bendectin caused Rachel Brock’s limb reduction defect. We expect that our decision here will have a precedential effect on other cases pending in this circuit which allege Bendectin as the cause of birth defects. Hopefully, our decision will have the effect of encouraging district judges faced with medical and epidemiologic proof in subsequent toxic tort cases to be especially vigilant in scrutinizing the basis, reasoning, and conclusiveness of studies presented by both sides. However, we do not wish this case to stand as a bar to future Bendectin cases in the event that new and conclusive studies emerge which would give a jury a firmer basis on which to determine the issue of causation.Footnotes:3. Merrell-Dow raises two other points on appeal, specifically, 1) that a new trial should be ordered because one of plaintiff’s experts presented a study that allegedly relied on fraudulent data, and 2) that punitive damages were inappropriate. Our reversal on the grounds that there was insufficient credible evidence that Bendictin causes birth defects to send this case to the jury obviates the need for us to address these other two points.6. Advances in science and medical technology have shed new light on the way we perceive our world, but in so doing have raised new questions for our legal system. Professor Black notes that:[a]round the turn of the twentieth century, however, advances in physiology and psychology and the advent of the quantum and relativity theories destroyed simple, mechanistic certainty. Quantum theory tells us that certainty is a physical impossibility, relativity that time is not absolute, and psychology that preconceptions color supposedly objective accounts of the natural world.Black, A Unified Theory of Scientific Evidence, 56 Fordham L.Rev. 595 (1988). See generally Kuhn, The Structure of Scientific Revolutions 5-7 (critiquing scientific method by noting that “normal science” is based on the assumptions of the commonly accepted paradigms, but a new theory can lead to a change in the accepted paradigms of normal science).WILL v. MICHIGAN DEPARTMENT OF STATE POLICE et al., 491 U.S. 58, 109 S.Ct. 2304 (1989)JUSTICE WHITE delivered the opinion of the Court.While federal civil rights statute provides federal forum to remedy many deprivations of civil liberties, it does not provide federal forum for litigants who seek remedy against state for alleged deprivations of civil liberties; Eleventh Amendment bars such suits unless state has waived its immunity or congresses exercised its undoubted power under §5 of Fourteenth Amendment to override that immunity. U.S.C.A. Const. Amends. 11, 14, §5; 42 U.S.C.A. §1983.Scope of Eleventh Amendment is consideration in deciphering congressional intent as to scope of federal rights statute. U.S.C.A. Const. Amend. 11; 42 U.S.C.A. §1983.Suit against state official in his or her official capacity is suit not against official, but rather against official’s office; as such, suit is no different from one against state itself. 42 U.S.C.A. §1983.Neither state nor its officials acting in their official capacities are “persons” under federal civil rights statute. 42 U.S.C.A. §1983.Petitioner filed Michigan state court suits under 42 U.S.C. §1983 alleging that respondents, the Department of State Police and the Director of State Police in his official capacity, had denied him a promotion for an improper reason. The state court judge ruled for petitioner, finding that both respondents were “persons” under §1983, which provides that any person who deprives an individual of his or her constitutional rights under color of state law shall be liable to that individual. However, the State Court of Appeals vacated the judgment against the Department, holding that a State is not a person under §1983, and remanded the case for a determination of the Director’s possible immunity. The State Supreme Court affirmed in part and reversed in part, agreeing that the State is not a person under §1983, but holding that a State official acting in his or her official capacity also is not such a person.Held:?Neither States nor state officials acting in their official capacities are “persons” within meaning of §1983.(a) That a State is not a person under §1983 is supported by the statute’s language, congressional purpose, and legislative history. In common usage, the term “person” does not include a State. This usage is particularly applicable where it is claimed that Congress has subjected the States to liability to which they had not been subject before. Reading §1983 to include States would be a decidedly awkward way of expressing such a congressional intent. The statute’s language also falls short of satisfying the ordinary rule of statutory construction that Congress must make its intention to alter the constitutional balance between the States and the Federal Government unmistakably clear in a statute’s language. Moreover, the doctrine of sovereign immunity is one of the well-established common law immunities and defenses that Congress did not intend to override in enacting §1983.?Cf. Newport v. Fact Concerts, Inc.,?453 U.S. 247;?Railroad Co. v. Tennessee,?101 U.S. 337. The “Dictionary Act” provision that a “person” includes “bodies politic and corporate” fails to evidence such an intent. This Court’s ruling in?Monell v. New York City Dept. of Social Services,?436 U.S. 658?- which held that a municipality is a person under §1983 - is not to the contrary, since States are protected by the Eleventh Amendment, while municipalities are not. (b) A suit against state officials in their official capacities is not a suit against the officials, but rather is a suit against the officials’ offices and, thus is no different from a suit against the State itself.Our conclusion that a State is not a person within the meaning of §1983 is reinforced by Congress’ purpose in enacting the statute. Congress enacted §1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to §1983, shortly after the end of the Civil War “in response to the widespread deprivations of civil rights in the Southern States and the inability or unwillingness of authorities in those States to protect those rights or punish wrongdoers.” Felder v. Casey,?487 U.S. 131?(1988). Although Congress did not establish federal courts as the exclusive forum to remedy these deprivations,?it is plain that “Congress assigned to the federal courts a paramount role” in this endeavor, Patsy v. Board of Regents of Florida,?457 U.S. 496?(1982).Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity,?Welch v. Texas Dept. of Highways and Public Transportation,?483 U.S. 468 (1987), or unless Congress has exercised its undoubted power under §5 of the Fourteenth Amendment to override that immunity. That Congress, in passing §1983, had no intention to disturb the States’ Eleventh Amendment immunity and so to alter the federal-state balance in that respect was made clear in our decision in?Quern.?Given that a principal purpose behind the enactment of §1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, we cannot accept petitioner’s argument that Congress intended nevertheless to create a cause of action against States to be brought in state courts, which are precisely the courts Congress sought to allow civil rights claimants to avoid through §1983.Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official, but rather is a suit against the official’s office.?Brandon v. Holt,?469 U.S. 464?(1985). As such, it is no different from a suit against the State itself.?See Kentucky v. Graham,?473 U.S. 159 (1985);?Monell,?at?436 U.S. 690. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device.?JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.Because this case was brought in state court, the Court concedes, the Eleventh Amendment is inapplicable here. Like the guest who would not leave, however, the Eleventh Amendment lurks everywhere in today’s decision and, in truth, determines its outcome.Both before and after the time when the Dictionary Act and §1983 were passed, the phrase “bodies politic and corporate” was understood to include the States.?See?J. Bouvier, 1 A Law Dictionary Adapted to the Constitution and Laws of the United States of America 185 (11th ed. 1866); W. Shumaker & G. Longsdorf, Cyclopedic Dictionary of Law 104 (1901);?Chisholm v. Georgia,?2 Dall. 419,?2 U.S. 447?(1793);?Cotton v. United States,?11 How. 229,?52 U.S. 231 (1851) (“Every sovereign State is of necessity a body politic, or artificial person”); Poindexter v. Greenhow,?114 U.S. 270 (1885);?McPherson v. Blacker,146 U.S. 1?(1892);?Heim v. McCall,?239 U.S. 175 (1915).?See also United States v. Maurice,?2 Brock. 96, 109 (CC Va. 1823) (“The United States is a government, and, consequently, a body politic and corporate”);?Van Brocklin v. Tennessee,?117 U.S. 151?(1886). Indeed, the very legislators who passed §1 referred to States in these terms.?See?Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (Sen. Vickers) (“What is a State? Is it not a body politic and corporate?”), (Sen. Edmunds) (“A State is a corporation”).The reason why States are “bodies politic and corporate” is simple: just as a corporation is an entity that can act only through its agents, “[t]he State is a political corporate body, can act only through agents, and can command only by laws.” Poindexter v. Greenhow,?at?114 U.S. 288.?See also?Black’s Law Dictionary 159 (5th ed. 1979) (“[B]ody politic or corporate:” “[a] social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good”). As a “body politic and corporate,” a State falls squarely within the Dictionary Act’s definition of a “person.”Because I recognize that both uses of this phrase were deemed valid when §1983 and the Dictionary Act were passed, the Court accuses me of “confus[ing] [the] precise definition of this phrase with its use?in a rather loose way,” “to refer to?the?state (as opposed to?a?State).” Quoting Black,?at 143. It had never occurred to me, however, that only “precise” definitions counted as valid ones. Where the question we face is what meaning Congress attached to a particular word or phrase, we usually - and properly - are loath to conclude that Congress meant to use the word or phrase in a hypertechnical sense unless it said so. Nor does the Court’s distinction between “the?state” and “a?State” have any force. The suggestion, I take it, is that the phrase “bodies politic and corporate” refers only to nations, rather than to the states within a nation; but then the Court must explain why so many of the sources I have quoted refer to states?in addition to?nations. In an opinion so utterly devoted to the rights of the States as sovereigns, moreover, it is surprising indeed to find the Court distinguishing between our sovereign States and our sovereign Nation.Taking the example closest to this case, we might have observed in?Monell?that §1983 was clumsily written if it included municipalities, since these, too, may act only under color of state authority. Nevertheless, we held there that the statute does apply to municipalities. Similarly, we have construed the statutory term “white persons” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,”?see Wilson v. Omaha Indian Tribe,?442 U.S. at?666, quoting 1 U.S.C. §1, despite the evident awkwardness in doing so. Indeed, virtually every time we construe the word “person” to include corporate or other artificial entities that are not individual, flesh-and-blood persons, some awkwardness results. But given cases like?Monell?and?Wilson, it is difficult to understand why mere linguistic awkwardness should control where there is good reason to accept the “awkward” reading of a statute.As to the more general historical background of §1, we too easily forget, I think, the circumstances existing in this country when the early civil rights statutes were passed. “[V]iewed against the events and passions of the time,”?United States v. Price,?383 U.S. 787?(1966), I have little doubt that §1 of the Civil Rights Act of 1871 included States as “persons.” The following brief description of the Reconstruction period is illuminating:“The Civil War had ended in April, 1865. Relations between Negroes and whites were increasingly turbulent. Congress had taken control of the entire governmental process in former Confederate States. It had declared the governments in 10 ‘unreconstructed’ States to be illegal, and had set up federal military administrations in their place. Congress refused to seat Representatives from these States until they had adopted constitutions guaranteeing Negro suffrage and had ratified the Fourteenth Amendment. Constitutional conventions were called in 1868. Six of the 10 States fulfilled Congress’ requirements in 1868, the other four by 1870.”“For a few years, ‘radical’ Republicans dominated the governments of the Southern States, and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 1866, and a similar organization appeared with the romantic title of the Knights of the White Camellia. In 1868, a wave of murders and assaults was launched, including assassinations designed to keep Negroes from the polls. The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man.”“Within the Congress, pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 1865, Congress, on April 9, 1866, enacted the Civil Rights Act of 1866.... On June 13, 1866, the Fourteenth Amendment was proposed, and it was ratified in July, 1868. In February, 1869, the Fifteenth Amendment was proposed, and it was ratified in February, 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted.”JUSTICE STEVENS, dissenting.In our administration of §1983, we have also relied on fictions to protect the illusion that a sovereign State, absent consent, may not be held accountable for its delicts in federal court. Under a settled course of decision, in contexts ranging from school desegregation to the provision of public assistance benefits to the administration of prison systems and other state facilities, we have held the States liable under §1983 for their constitutional violations through the artifice of naming a public officer as a nominal party. Once one strips away the Eleventh Amendment overlay applied to actions in federal court, it is apparent that the Court in these cases has treated the State as the real party in interest both for the purposes of granting prospective and ancillary relief and of denying retroactive relief. When suit is brought in state court, where the Eleventh Amendment is inapplicable, it follows that the State can be named directly as a party under §1983.An official-capacity suit is the typical way in which we have held States responsible for their duties under federal law. Such a suit, we have explained, “‘generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.’”?Kentucky v. Graham,?473 U.S. 159 (1985) (quoting?Monell v. New York City Dept. of Social Services,?436 U.S. 658 (1978)); see also Pennhurst State School and Hospital v. Halderman,?465 U.S. 89?(1984). In the peculiar Eleventh Amendment analysis we have applied to such cases, we have recognized that an official-capacity action is in reality always against the State, and balanced interests to determine whether a particular type of relief is available. The Court has held that, when a suit seeks equitable relief or money damages from a state officer for injuries suffered in the past, the interests in compensation and deterrence are insufficiently weighty to override the State’s sovereign immunity.?See Papasan v. Allain,?478 U.S. 265?(1986);?Green v. Mansour,?474 U.S. 64?(1985);?Edelman v. Jordan,?415 U.S. 651?(1974). On the other hand, although, prospective relief awarded against a state officer also “implicate[s] Eleventh Amendment concerns,”?Mansour,?474 U.S. at 68, the interests in “end[ing] a continuing violation of federal law,” outweigh the interests in state sovereignty and justify an award under §1983 of an injunction that operates against the State’s officers or even directly against the State itself.?See Papasan,?at?478 U.S. 282; Quern v. Jordan,?440 U.S. 332 (1979);?Milliken v. Bradley,?433 U.S. 267?(1977).In?Milliken v. Bradley,?for example, a unanimous Court upheld a federal court order requiring the State of Michigan to pay $5,800,000 to fund educational components in a desegregation decree “notwithstanding [its]?direct?and substantial impact on the state treasury.” As Justice Powell stated in his concurring opinion, “the State [had] been adjudged a participant in the constitutional violations, and the State therefore may be ordered to participate prospectively in a remedy otherwise appropriate.” Subsequent decisions have adhered to the position that equitable relief - even “a remedy that might require the expenditure of state funds,”?Papasan,?at?433 U.S. 282?- may be awarded to ensure future compliance by a State with a substantive federal question determination.?See also Quern v. Jordan,?440 U.S. at 337.Our treatment of States as “persons” under §1983 is also exemplified by our decisions holding that ancillary relief, such as attorney’s fees, may be awarded directly against the State. We have explained that “liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, §1988 does not authorize a fee award against that defendant.” Kentucky v. Graham,?at 165. Nonetheless, we held in?Hutto v. Finney,?437 U.S. 678?(1978), a case challenging the administration of the Arkansas prison system, that a Federal District Court could award attorneys fees directly against the State under §1988;?see Brandon v. Holt,?469 U.S. 464?(1985), and could assess attorney’s fees for bad-faith litigation under §1983 “to be paid out of Department of Corrections funds.” 437 U.S. at 692. In Supreme Court of Virginia v. Consumers Union of United States, Inc.,?446 U.S. 719 (1980), JUSTICE WHITE reaffirmed for a unanimous Court that an award of fees could be entered against a State or state agency, in that case a State Supreme Court, in an injunctive action under §1983. In suits commenced in state court, in which there is no independent reason to require parties to sue nominally a state officer, we have held that attorney’s fees can be awarded against the State in its own name.?See Maine v. Thiboutot,?448 U.S. 1 (1980).The Civil Rights Act of 1871 was “intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights.”?Monell v. New York City Dept. of Social Services,?436 U.S. at?700. Our holdings that a §1983 action can be brought against state officials in their official capacity for constitutional violations properly recognize and are faithful to that profound mandate. If prospective relief can be awarded against state officials under §1983 and the State is the real party in interest in such suits, the State must be a “person” which can be held liable under §1983. No other conclusion is available. Eleventh Amendment principles may limit the State’s capacity to be sued as such in federal court.?See Alabama v. Pugh, 438 U.S. 781?(1978). But since those principles are not applicable to suits in state court,?see Thiboutot,?at?448 U.S. 9;?Nevada v. Hall,?440 U.S. 410?(1979), there is no need to resort to the fiction of an official-capacity suit, and the State may and should be named directly as a defendant in a §1983 action.The Court concludes, however, that “a state official in his or her official capacity, when sued for injunctive relief, would be a person under §1983,”?while that same party sued in the same official capacity is not a person when the plaintiff seeks monetary relief. It cites in support of this proposition cases such as Osborn v. Bank of United States,?9 Wheat. 738 (1824), in which the Court, through Chief Justice Marshall, held that an action against a state auditor to recover taxes illegally collected did not constitute an action against the State. This line of authority, the Court states, “would not have been foreign to the 19th-century Congress that enacted §1983.”The Court having constructed an edifice for the purposes of the Eleventh Amendment on the theory that the State is always the real party in interest in a §1983 official-capacity action against a state officer, I would think the majority would be impelled to conclude that the State is a “person” under §1983. As JUSTICE BRENNAN has demonstrated, there is also a compelling textual argument that States are persons under §1983. In addition, the Court’s construction draws an illogical distinction between wrongs committed by county or municipal officials on the one hand, and those committed by state officials, on the other. Finally, there is no necessity to import into this question of statutory construction doctrine created to protect the fiction that one sovereign cannot be sued in the courts of another sovereign. Aside from all of these reasons, the Court’s holding that a State is not a person under §1983 departs from a long line of judicial authority based on exactly that premise.Footnotes:3. The courts in the following cases have taken the position that a State is a person under §1983.?See Della Grotta v. Rhode Island,?781 F.2d 343 (CA1 1986);?Gay Student Services v. Texas A&M University,?612 F.2d 160 (CA5),?cert. denied,?449 U.S. 1034 (1980);?Uberoi v. University of Colorado,?713 P.2d 894 (Colo. 1986); Stanton v. Godfrey,?415 N.E.2d 103 (Ind.App. 1981),?Gumbhir v. Kansas State Bd. of Pharmacy,?231 Kan. 507, 646 P.2d 1078 (1982),?cert. denied, 459 U.S. 1103 (1983);?Rahmah Navajo School Bd., Inc. v. Bureau of Revenue,?104 N. M. 302, 720 P.2d 1243 (App.),?cert. denied,?479 U.S. 940?(1986).A larger number of courts have agreed with the Michigan Supreme Court that a State is not a person under §1983.?See Ruiz v. Estelle,?679 F.2d 1115,?modified on other grounds,?688 F.2d 266 (CA5 1982),?cert. denied,?460 U.S. 1042 (1983);?Toledo, P. & W. R. Co. v. Illinois,?744 F.2d 1296 (CA7 1984),?cert. denied,?470 U.S. 1051 (1985);?Harris v. Missouri Court of Appeals,?787 F.2d 427 (CA8),?cert. denied,?479 U.S. 851 (1986);?Aubuchon v. Missouri,?631 F.2d 581 (CA8 1980),?cert. denied,?450 U.S. 915 (1981);?State v. Green,?633 P.2d 1381 (Alaska 1981);?St. Mary’s Hospital and Health Center v. State,?150 Ariz. 8, 721 P.2d 666 (App. 1986);?Mezey v. State,?161 Cal.App.3d 1060, 208 Cal.Rptr. 40 (1984);?Hill v. Florida Dept. of Corrections,?513 So.2d 129 (Fla. 1987),?cert. denied,?484 U.S. 1064 (1988);?Merritt ex rel. Merritt v. State,?108 Idaho 20, 696 P.2d 871 (1985);?Woodbridge v. Worcester State Hospital,?384 Mass. 38, 423 N.E.2d 782 (1981);?Bird v. State Dept. of Public Safety, 375 N.W.2d 36 (Minn.App. 1985);?Shaw v. St. Louis,?664 S.W.2d 572 (Mo.App. 1983),?cert. denied,?469 U.S. 849 (1984);?Fuchilla v. Layman,?109 N.J. 319, 537 A.2d 652,?cert. denied,?488 U.S. 826 (1988);?Burkey v. Southern Ohio Correctional Facility,?38 Ohio App.3d 170, 528 N.E.2d 607 (1988);Gay v. State,?730 S.W.2d 154 (Tex.App. 1987);?Edgar v. State,?92 Wash.2d 217, 595 P.2d 534 (1979),?cert. denied,?444 U.S. 1077 (1980);?Boldt v. State,?101 Wis.2d 566, 305 N.W.2d 133,?cert. denied,?454 U.S. 973 (1981).10. Of course, a state official in his or her official capacity, when sued for injunctive relief, would be a person under §1983 because “official-capacity actions for prospective relief are not treated as actions against the State.”?Kentucky v. Graham,?473 U.S. at?167;?Ex parte Young,?209 U.S. 123 (1908). This distinction is “commonplace in sovereign immunity doctrine,” L. Tribe, American Constitutional Law §3-27, p. 190, n. 3 (2d ed. 1988), and would not have been foreign to the 19th-century Congress that enacted §1983,?see In re Ayers,?123 U.S. 443 (1887);?United States v. Lee,?106 U.S. 196 (1882);?Board of Liquidation v. McComb,?92 U.S. 531?(1876);Osborn v. Bank of United States,?9 Wheat. 738 (1824).?City of Kenosha v. Bruno,?412 U.S. 507?(1973), on which JUSTICE STEVENS relies, is not to the contrary. That case involved municipal liability under §1983, and the fact that nothing in §1983 suggests its “bifurcated application to municipal corporations depending on the nature of the relief sought against them,” 412 U.S. at 513, is not surprising, since, by the time of the enactment of §1983, municipalities were no longer protected by sovereign immunity.1. “A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries, the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.” O. Holmes, The Common Law 8 (M. Howe ed. 1963).3. In the first chapter of his classic History of England, published in 1849, Thomas Macaulay wrote:“Of these kindred constitutions, the English was, from an early period, justly reputed the best. The prerogatives of the sovereign were undoubtedly extensive.”“But his power, though ample, was limited by three great constitutional principles, so ancient that none can say when they began to exist, so potent that their natural development, continued through many generations, has produced the order of things under which we now live.”“First, the King could not legislate without the consent of his Parliament. Secondly, he could impose no tax without the consent of his Parliament. Thirdly, he was bound to conduct the executive administration according to the laws of the land, and, if he broke those laws, his advisers and his agents were responsible.” 1 T. Macaulay, History of England 28-29. In the United States as well, at the time of the passage of the Civil Rights Act of 1871, actions against agents of the sovereign were the means by which the State, despite its own immunity, was required to obey the law. See Poindexter v. Greenhow,?114 U.S. 270?(1885) (“The fancied inconvenience of an interference with the collection of its taxes by the government of Virginia, by suits against its tax collectors, vanishes at once upon the suggestion that such interference is not possible, except when that government seeks to enforce the collection of its taxes contrary to the law and contract of the State, and in violation of the Constitution of the United States”);?Davis v. Gray,?16 Wall. 203,?83 U.S. 220(1873) (“Where the State is concerned, the State should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record”).DeSHANEY v. WINNEBAGO COUNTY DEPT. OF SOCIAL SERVICES, et al, 489 U.S. 189, 109 S.Ct. 998 (1989)CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Nothing in the language of the due process clause requires state to protect life, liberty, and property of its citizens against invasion by private actors. U.S.C.A. Const. Amend. 14.Due process clause is phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security. U.S.C.A. Const. Amend. 14.Due process clause forbids the state itself to deprive individual’s life, liberty, or property without due process of law, but its language cannot be fairly extended to impose an affirmative obligation on the state to ensure that those interests do not come to harm through other means. U.S.C.A. Const. Amend. 14.Purpose of the due process clause was to protect the people from the state, not to ensure that the state protected them from each other. U.S.C.A. Const. Amend. 14.State may not selectively deny protective services to certain disfavored minorities without violating the equal protection clause. U.S.C.A. Const. Amend. 14.State’s failure to protect an individual against private violence does not constitute a violation of the due process clause. U.S.C.A. Const. Amend. 14.To make out an Eighth Amendment claim based on the failure to provide adequate medical care, prisoner must show that state defendants exhibited deliberate indifference to his serious medical needs; mere negligent or inadvertent failure to provide adequate care is not enough. U.S.C.A. Const. Amend. 8.Due process clause does not transform every tort committed by a state actor into a constitutional violation. U.S.C.A. Const. Amend. 14.Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father’s custody. Petitioner sued respondents claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that it did not.The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse in January 1982, when his father’s second wife complained to the police, at the time of their divorce, that he had previously “hit the boy causing marks and [was] a prime case for child abuse.” The Winnebago County Department of Social Services (DSS) interviewed the father, but he denied the accusations, and DSS did not pursue them further. In January 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions. The examining physician suspected child abuse and notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in the temporary custody of the hospital. Three days later, the county convened an ad hoc “Child Protection Team” - consisting of a pediatrician, a psychologist, a police detective, the county’s lawyer, several DSS caseworkers, and various hospital personnel - to consider Joshua’s situation. At this meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. The Team did, however, decide to recommend several measures to protect Joshua, including enrolling him in a preschool program, providing his father with certain counseling services, and encouraging his father’s girlfriend to move out of the home. Randy DeShaney entered into a voluntary agreement with DSS in which he promised to cooperate with them in accomplishing these goals. Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of his father. A month later, emergency room personnel called the DSS caseworker handling Joshua’s case to report that he had once again been treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the next six months, the caseworker made monthly visits to the DeShaney home, during which she observed a number of suspicious injuries on Joshua’s head; she also noticed that he had not been enrolled in school, and that the girlfriend had not moved out. The caseworker dutifully recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney household was physically abusing Joshua, but she did nothing more. In November 1983, the emergency room notified DSS that Joshua had been treated once again for injuries that they believed to be caused by child abuse. On the caseworker’s next two visits to the DeShaney home, she was told that Joshua was too ill to see her. Still DSS took no action.In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded. Randy DeShaney was subsequently tried and convicted of child abuse. Joshua and his mother brought this action under 42 U.S.C. §1983 in the United States District Court for the Eastern District of Wisconsin against respondents Winnebago County, DSS, and various individual employees of DSS. The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known. The District Court granted summary judgment for respondents.But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government “from abusing [its] power, or employing it as an instrument of oppression,” Davidson v. Cannon, at 348; see also Daniels v. Williams, at 331 (“‘to secure the individual from the arbitrary exercise of the powers of government,’” and “to prevent governmental power from being ‘used for purposes of oppression’”); Parratt v. Taylor, 451 U.S. 527 (1981) (to prevent the “affirmative abuse of power”). Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain “special relationships” created or assumed by the State with respect to particular individuals. Petitioners argue that such a “special relationship” existed here because the State knew that Joshua faced a special danger of abuse at his father’s hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Having actually undertaken to protect Joshua from this danger - which petitioners concede the State played no part in creating - the State acquired an affirmative “duty,” enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so “shocks the conscience,” Rochin v. California, 342 U.S. 165 (1952), as to constitute a substantive due process violation.We reject this argument. It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals. In Estelle v. Gamble, 429 U.S. 97 (1976), we recognized that the Eighth Amendment’s prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment’s Due Process Clause, Robinson v. California, 370 U.S. 660 (1962), requires the State to provide adequate medical care to incarcerated prisoners. 429 U.S., at 103. We reasoned that because the prisoner is unable “‘by reason of the deprivation of his liberty [to] care for himself,’” it is only “‘just’” that the State be required to care for him. Quoting Spicer v. Williamson, 191 N.C. 487, 132 S.E. 291 (1926). In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth Amendment setting, holding that the substantive component of the Fourteenth Amendment’s Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their “reasonable safety” from themselves and others. (Dicta indicating that the State is also obligated to provide such individuals with “adequate food, shelter, clothing, and medical care”). As we explained: “If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed - who may not be punished at all - in unsafe conditions.” See also Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983) (holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police).Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection. The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court’s expansion of the Due Process Clause of the Fourteenth Amendment. Affirmed.JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.…Wisconsin’s child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney’s violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs. It simply belies reality, therefore, to contend that the State “stood by and did nothing” with respect to Joshua. Through its child-protection program, the State actively intervened in Joshua’s life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger. These circumstances, in my view, plant this case solidly within the tradition of cases like Youngberg and Estelle. It will be meager comfort to Joshua and his mother to know that, if the State had “selectively den[ied] its protective services” to them because they were “disfavored minorities,” their §1983 suit might have stood on sturdier ground. Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant so long as their inaction was not the product of invidious discrimination. Presumably, then, if respondents decided not to help Joshua because his name began with a “J,” or because he was born in the spring, or because they did not care enough about him even to formulate an intent to discriminate against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because they were not the ones who dealt the blows that destroyed Joshua’s life.As the Court today reminds us, “the Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.’” Quoting Davidson, U.S., at 348. My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today’s opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.Footnotes:6. The Eighth Amendment applies “only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.... [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” Ingraham v. Wright, 430 U.S. 651 (1977); see also Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983); Bell v. Wolfish, 441 U.S. 520 (1979).NEITZKE, et al., v. WILLIAMS, 490 U.S. 319, 109 S.Ct. 1827 (1989)Justice MARSHALL delivered the opinion of the Court.In forma pauperis complaint is frivolous where it lacks arguable basis either in law or in fact; term “frivolous” in statute authorizing sua sponte dismissal of frivolous in forma pauperis complaints embraces not only inarguable legal conclusion but also fanciful factual allegation. 28 U.S.C.A. §1915(d).Rule permitting dismissal for failure to state claim does not countenance dismissal based on judge’s disbelief of complaint’s factual allegations. Fed. Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.Statute permitting sua sponte dismissal of frivolous in forma pauperis complaint is designed largely to discourage filing of, and waste of judicial and private resources upon, baseless suits that paying litigants generally do not initiate because of cost of bringing suit and threat of sanctions under Rule 11; statute accords judges not only authority to dismiss claim based on indisputably meritless legal theory, but also unusual power to pierce veil of complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless. Fed. Rules Civ.Proc. Rule 11, 28 U.S.C.A.; 28 U.S.C.A. §1915(d).When in forma pauperis complaint raises arguable question of law which District Court ultimately finds is correctly resolved against plaintiff, dismissal for failure to state claim is appropriate, but dismissal on frivolousness is not. U.S.C.A. Const. Amends. 8, 14; 42 U.S.C.A. §1983; 28 U.S.C.A. §1915(d); Fed. Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.…The Supreme Court, Justice Marshall, held that complaint filed in forma pauperis is not automatically “frivolous” so as to warrant sua sponte dismissal pursuant to statute because complaint fails to state claim.The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part.?Williams v. Faulkner,?837 F.2d 304 (1988). In its view, the District Court had wrongly equated the standard for failure to state a claim under Rule 12(b)(6) with the standard for frivolousness under §1915(d). The frivolousness standard, authorizing?sua sponte?dismissal of an in forma pauperis?complaint “only if the petitioner cannot make any rational argument in law or fact which would entitle him or her to relief,” is a “more lenient” standard than that of Rule 12(b)(6), the court stated. Unless there is “‘indisputably absent any factual or legal basis’” for the wrong asserted in the complaint, the trial court, “[i]n a close case,” should permit the claim to proceed at least to the point where responsive pleadings are required.The federal?in forma pauperis?statute, enacted in 1892 and presently codified as 28 U.S.C. §1915, is designed to ensure that indigent litigants have meaningful access to the federal courts.?Adkins v. E.I. DuPont de Nemours & Co.,?335 U.S. 331 (1948). Toward this end, §1915(a) allows a litigant to commence a civil or criminal action in federal court?in forma pauperis?by filing in good faith an affidavit stating,?inter alia,?that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or captious litigation, §1915(d) authorizes federal courts to dismiss a claim filed?in forma pauperis?“if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Dismissals on these grounds are often made?sua sponte?prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints. See Franklin v. Murphy,?745 F.2d 1221 (CA9 1984).…The cost of bringing suit and the fear of financial sanctions doubtless deter most inarguable paid claims, but such deterrence presumably screens out far less frequently those arguably meritorious legal theories whose ultimate failure is not apparent at the outset.Close questions of federal law, including claims filed pursuant to 42 U.S.C. §1983, have on a number of occasions arisen on motions to dismiss for failure to state a claim, and have been substantial enough to warrant this Court’s granting review, under its certiorari jurisdiction, to resolve them. See Estelle v. Gamble,?429 U.S. 97 (1976);?McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976);?Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388 (1971);?Jones v. Alfred Mayer Co.,?392 U.S. 409 (1968). It can hardly be said that the substantial legal claims raised in these cases were so defective that they should never have been brought at the outset. To term these claims frivolous is to distort measurably the meaning of frivolousness both in common and legal parlance. Indeed, we recently reviewed the dismissal under Rule 12(b)(6) of a complaint based on 42 U.S.C. §1983 and found by a 9-to-0 vote that it had, in fact, stated a cognizable claim - a powerful illustration that a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit. See?Brower v. County of Inyo,?489 U.S. 593 (1989). That frivolousness in the §1915(d) context refers to a more limited set of claims than does Rule 12(b)(6) accords, moreover, with the understanding articulated in other areas of law that not all unsuccessful claims are frivolous. See Penson v. Ohio, 488 U.S. 75 (1988) (criminal defendant has right to appellate counsel even if his claims are ultimately unavailing so long as they are not frivolous); Christiansburg Garment Co. v. EEOC,?434 U.S. 412 (1978) (attorney’s fees may not be assessed against a plaintiff who fails to state a claim under 42 U.S.C. §1988 or under Title VII of the Civil Rights Act of 1964 unless his complaint is frivolous);?Hagans v. Lavine,?415 U.S. 528 (1974) (complaint that fails to state a claim may not be dismissed for want of subject-matter jurisdiction unless it is frivolous).Our conclusion today is consonant with Congress’ over-arching goal in enacting the?in forma pauperis?statute: “to assure equality of consideration for all litigants.”?Coppedge v. United States,?369 U.S. 438 (1962); see also H.R.Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892). Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. These procedures alert him to the legal theory underlying the defendant’s challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action. This adversarial process also crystallizes the pertinent issues and facilitates appellate review of a trial court dismissal by creating a more complete record of the case.?Brandon v. District of Columbia Board of Parole,?236 U.S.App.D.C. 155, 734 F.2d 56 (1984), cert. denied, 469 U.S. 1127 (1985). By contrast, the?sua sponte?dismissals permitted by, and frequently employed under, §1915(d), necessary though they may sometimes be to shield defendants from vexatious lawsuits, involve no such procedural protections.To conflate the standards of frivolousness and failure to state a claim, as petitioners urge, would thus deny indigent plaintiffs the practical protections against unwarranted dismissal generally accorded paying plaintiffs under the Federal Rules. A complaint like that filed by Williams under the Eighth Amendment, whose only defect was its failure to state a claim, will in all likelihood be dismissed?sua sponte,?whereas an identical complaint filed by a paying plaintiff will in all likelihood receive the considerable benefits of the adversary proceedings contemplated by the Federal Rules. Given Congress’ goal of putting indigent plaintiffs on a similar footing with paying plaintiffs, petitioners’ interpretation cannot reasonably be sustained. According opportunities for responsive pleadings to indigent litigants commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more important because indigent plaintiffs so often proceed?pro se?and therefore may be less capable of formulating legally competent initial pleadings. See?Haines v. Kerner,?404 U.S. 519 (1972).GRAHAM v. CONNOR et al., 490 U.S. 386, 109 S.Ct. 1865 (1989)REHNQUIST, C. J., delivered the opinion of the Court.This case requires us to decide what constitutional standard governs a free citizen’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person. We hold that such claims are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard.Fifteen years ago, in Johnson v. Glick, 481 F.2d 1028, cert. denied, 414 U.S. 1033 (1973), the Court of Appeals for the Second Circuit addressed a§1983 damages claim filed by a pretrial detainee who claimed that a guard had assaulted him without justification. In evaluating the detainee’s claim, Judge Friendly applied neither the Fourth Amendment nor the Eighth, the two most textually obvious sources of constitutional protection against physically abusive governmental conduct. Instead, he looked to “substantive due process,” holding that “quite apart from any ‘specific’ of the Bill of Rights, application of undue force by law enforcement officers deprives a suspect of liberty without due process of law.” As support for this proposition, he relied upon our decision in Rochin v. California, 342 U.S. 165 (1952), which used the Due Process Clause to void a state criminal conviction based on evidence obtained by pumping the defendant’s stomach. If a police officer’s use of force which “shocks the conscience” could justify setting aside a criminal conviction, Judge Friendly reasoned, a correctional officer’s use of similarly excessive force must give rise to a due process violation actionable under §1983. Judge Friendly went on to set forth four factors to guide courts in determining “whether the constitutional line has been crossed” by a particular use of force - the same four factors relied upon by the courts below in this case.In the years following Johnson v. Glick, the vast majority of lower federal courts have applied its four-part “substantive due process” test indiscriminately to all excessive force claims lodged against law enforcement and prison officials under §1983, without considering whether the particular application of force might implicate a more specific constitutional right governed by a different standard. Indeed, many courts have seemed to assume, as did the courts below in this case, that there is a generic “right” to be free from excessive force, grounded not in any particular constitutional provision but rather in “basic principles of §1983 jurisprudence.”We reject this notion that all excessive force claims brought under §1983 are governed by a single generic standard. As we have said many times, §1983“is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137 (1979). In addressing an excessive force claim brought under §1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. (“The first inquiry in any §1983 suit” is “to isolate the precise constitutional violation with which [the defendant] is charged”). In most instances, that will be either the Fourth Amendment’s prohibition against unreasonable seizures of the person, or the Eighth Amendment’s ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct. The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized “excessive force” standard. See Tennessee v. Garner (claim of excessive force to effect arrest analyzed under a Fourth Amendment standard); Whitley v. Albers, 475 U.S. 312 (1986) (claim of excessive force to subdue convicted prisoner analyzed under an Eighth Amendment standard).Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons...against unreasonable...seizures” of the person. This much is clear from our decision in Tennessee v. Garner. In Garner, we addressed a claim that the use of deadly force to apprehend a fleeing suspect who did not appear to be armed or otherwise dangerous violated the suspect’s constitutional rights, notwithstanding the existence of probable cause to arrest. Though the complaint alleged violations of both the Fourth Amendment and the Due Process Clause, see471 U.S., at 5, we analyzed the constitutionality of the challenged application of force solely by reference to the Fourth Amendment’s prohibition against unreasonable seizures of the person, holding that the “reasonableness” of a particular seizure depends not only on when it is made, but also on how it is carried out. Today we make explicit what was implicit in Garner’s analysis, and hold that all claims that law enforcement officers have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of “‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’” against the countervailing governmental interests at stake. Quoting United States v. Place, 462 U.S. 696 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, U.S., at 22. Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, “ Bell v. Wolfish, 441 U.S. 520 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, U.S., at 8 (the question is “whether the totality of the circumstances justifie[s] a particular sort of...seizure”).Differing standards under the Fourth and Eighth Amendments are hardly surprising: the terms “cruel” and “punishments” clearly suggest some inquiry into subjective state of mind, whereas the term “unreasonable” does not. Moreover, the less protective Eighth Amendment standard applies “only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.” Ingraham v. Wright, 430 U.S. 651 (1977). The Fourth Amendment inquiry is one of “objective reasonableness” under the circumstances, and subjective concepts like “malice” and “sadism” have no proper place in that inquiry.Footnotes:2. Petitioner also asserted pendent state-law claims of assault, false imprisonment, and intentional infliction of emotional distress. Those claims have been dismissed from the case and are not before this Court.6. Judge Friendly did not apply the Eighth Amendment’s Cruel and Unusual Punishments Clause to the detainee’s claim for two reasons. First, he thought that the Eighth Amendment’s protections did not attach until after conviction and sentence. This view was confirmed by Ingraham v. Wright, 430 U.S. 651 (1977) (“Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions”). Second, he expressed doubt whether a “spontaneous attack” by a prison guard, done without the authorization of prison officials, fell within the traditional Eighth Amendment definition of “punishments.” Although Judge Friendly gave no reason for not analyzing the detainee’s claim under the Fourth Amendment’s prohibition against “unreasonable...seizures” of the person, his refusal to do so was apparently based on a belief that the protections of the Fourth Amendment did not extend to pretrial detainees. (Noting that “most of the courts faced with challenges to the conditions of pretrial detention have primarily based their analysis directly on the due process clause”).GALLEGOS, et al. v. HAGGERTY, et al., 689 F.Supp. 93 (1988)McAVOY, District Judge.Qualified immunity doctrine is not license for lawless conduct by officials; its purpose is to force officials to hesitate in situations when they should know that certain conduct will violate clearly established statutory or constitutional rights.Qualified immunity doctrine provides immunity from suit, not simply trial.Qualified immunity defense is available only in so far as plaintiffs are asserting claim against defendants in individual capacity and is unavailable in official-capacity action.Doctrine of qualified immunity applies only to suits for civil damages.United States’ waiver of sovereign immunity is limited to suits predicated on tort causes of action cognizable under state law. 28 U.S.C.A. §§1346(b), 2680(h).Border patrol agents failed to establish action in conformance with federal standards when they searched house and conducted investigative detention of migrant farm workers to find suspected, illegal aliens and, therefore, could be liable under Federal Tort Claims Act. U.S.C.A. Const. Amend. 4; 28 U.S.C.A. §§1346(b), 2680(h).Plaintiffs commenced this action against the United States, and officers and agents of the Immigration and Naturalization Service (“INS”), alleging violations of the First, Fourth, Fifth, and Ninth Amendments, the Federal Tort Claims Act (“FTCA”), and 42 U.S.C. Sections 1981, 1985(3), and 1986.Plaintiffs allege that defendants unlawfully entered and searched the house; forcibly entered Maria and Jose Gallegos’ room; and detained plaintiffs in the front yard, even after determining that they were United States citizens or lawful permanent residents. Plaintiffs seek damages and declaratory relief.Defendants also argue that plaintiffs had no expectation of privacy in the hallways and common areas of the house, even assuming they were legitimately on the premises. In?United States v. Holland,?755 F.2d 253 (2d Cir.),?cert. denied,?471 U.S. 1125 (1985), the Second Circuit held that the “common halls and lobbies of multi-tenant buildings are not within an individual tenant’s zone of privacy.”?See?United States v. Santana,?427 U.S. 38 (1976) (defendant standing in doorway of house is in “public place” and has no legitimate expectation of privacy; suspect cannot defeat arrest set in motion in public place by fleeing into house). Plaintiffs argue?Holland?does not apply because the house in this case was not a multi-tenant building, and the common areas were used by all the residents. See?Reardon v. Wroan,?811?F.2d 1025 (7th Cir. 1987) (distinguishing?Holland?and finding fraternity residents have greater expectation of privacy in common areas than co-tenants in apartment building). Clearly, issues of fact remain concerning the layout of the house, and plaintiffs’ possessory interest in it, making summary judgment inappropriate.Defendants did not, either in their brief or at oral argument, attempt to rely on the “hot pursuit” exception to the warrant requirement; instead, they argue that Agent Bassett’s presence in the upper hallways, and presumably his entry into Maria and Jose Gallegos’ room, was justified as a security check. The Second Circuit has held that when law enforcement officers have lawfully entered a premises to effect an arrest, they are “entitled to conduct a cursory examination of the premises to see if anyone else was present who might threaten their safety or destroy evidence.”?United States v. Jackson, 778 F.2d 933 (2d Cir. 1985),?cert. denied,?479 U.S. 910 (1986) (quoting?United States v. Christophe,?470 F.2d 865 (2d Cir. 1972),?cert. denied,?411 U.S. 964 (1973));?United States v. Martino,?664 F.2d 860 (2d Cir. 1981),?cert. denied sub nom., Miller v. United States,?458 U.S. 1110 (1982);?United States v. Gomez,?633 F.2d 999, 1008 (2d Cir. 1980),?cert. denied,?450 U.S. 994 (1981);?United States v. Agapito,?620 F.2d 324 (2d Cir.),?cert. denied,?449 U.S. 834 (1980).Defendants do not argue that plaintiffs were not detained; rather, they assert that this was an “investigative stop” or a “brief intrusion to question citizenship status,” which was justified by reasonable suspicion. Defendants also contend that the three officers questioned the group and verified records as quickly as possible given poor radio communications in the area. An “investigative stop,” which is permitted upon a showing of less than probable cause, “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”?Florida v. Rover,?460 U.S. 491 (1983). In addition, the investigative methods relied upon should be the least intrusive reasonably available to verify or dispel the officer’s suspicion in a short period of time. It is the government’s burden to demonstrate that the detention was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.The Supreme Court has declined to impose a rigid time limitation on investigative stops,?see?United States v. Sharpe,?470 U.S. 675 (1985), however, the Court has stated that an investigative stop that continues indefinitely, at some point, becomes a?de facto?arrest (Upholding twenty minute investigative stop when police were diligent and suspect’s actions contributed to delay);?United States v. Place,?462 U.S. 696 (1983) (detention of luggage for ninety minutes unreasonable; same standards apply to seizure of traveler’s luggage and seizure of persons). In assessing whether a detention is reasonable in duration and scope, a court should consider: (1) the brevity of the invasion of the individual’s Fourth Amendment interest; (2) the law enforcement purposes served by the stop; (3) the time reasonably needed to effectuate those purposes; and (4) whether the police diligently pursued a means of investigation likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the suspect.?See?Sharpe,?470 U.S. at 685-686. With regard to the fourth factor, “[t]he question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.”; see?Place,?462 U.S. at 709 (fourth factor; agents who had notice of suspect’s arrival and ample time to arrange additional investigation could have minimized intrusion);?Royer,?460 U.S. at 505 (fourth factor; more expeditious investigation of luggage with trained dogs would have minimized or eliminated detention).A detention or seizure, no matter how brief, requires reasonable and objective grounds.?Rover,?460 U.S. at 498. The INS may?detain?an alien if it has specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the alien is illegally in the country.?United States v. Brignoni-Ponce,?422 U.S. 873 (1975) (vehicle stop);?United States v. Sugrim,?732 F.2d 25 (2d Cir. 1984) (bus terminal stop);?Ojeda-Vinales v. INS,?523 F.2d 286 (2d Cir. 1975) (urban stop);?United States v. Hernandez-Rojas,?470 F.Supp. 1212 (E.D.N.Y. 1979) (airport stop),?aff’d without opinion,?615 F.2d 1351 (1979). Hispanic appearance, although a relevant factor, without more, does not furnish reasonable grounds to suspect alienage, let alone illegal alienage.?See?Brignoni-Ponce,?422 U.S. at 885.Defendants contend that they had reasonable grounds to initiate an investigative stop based on DeGraff’s “history...and current practice” [Defendants’ Memorandum of Law at 11, filed February 27, 1987] of hiring illegal aliens to work on his farm, and information received from three phone calls. At this stage of the proceedings, defendants have not produced sufficient evidence to establish reasonable grounds to initiate an investigative stop. Defendants have failed to identify, with specificity, the sources of their information, and the information provided by each source. Indeed, it is unclear who provided the description of plaintiffs on which defendants relied. In addition, as plaintiffs correctly point out, defendants have failed to demonstrate reasonable cause to detain?each?of the plaintiffs.?See?United States v. Cortez,?449 U.S. 411 (1981) (immigration stop; detaining officers must have particularized and objective basis for suspecting particular person stopped of criminal activity).Defendants assert that they are entitled to qualified immunity. In?Harlow v. Fitzgerald,?457 U.S. 800 (1982), the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See also?Robison v. Via,?821 F.2d 913 (2d Cir. 1987). The doctrine is not, however, a license for lawless conduct and its purpose is to force officials to hesitate in situations where they should know that certain conduct will violate clearly established statutory or constitutional rights.?Mitchell,?472 U.S. 511;?Harlow,?457 U.S. at 819.In this case, defendants would be entitled to summary judgment if they “adduce[d]...sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable” for them to believe that they were acting in a manner that did not violate clearly established rights.?Robison,?821 F.2d at 921 (quoting?Halperin v. Kissinger,?807 F.2d 180 (D.C. Cir. 1986)). Plaintiffs have alleged violations of clearly established rights. When the facts are viewed in a light most favorable to plaintiffs, it is clear that defendants’ actions could be found objectively unreasonable. Defendants are not entitled to qualified immunity at this state of the litigation.The claims against McKinley in his individual capacity have been dismissed. Defendants move to dismiss claims against Dickman in his individual capacity because he did not have personal involvement in or knowledge of the alleged conduct and cannot be held liable under?respondeat superior.?Dickman is the Chief Border Patrol Agent for the Buffalo sector of the INS.Personal involvement in the deprivation of constitutional rights is a prerequisite to an award of damages.?Williams v. Smith, 781 F.2d 319(2d Cir. 1986) (42 U.S.C. §1983);?see?Black v. United States,?534 F.2d 524 (2d Cir. 1976) (action against federal officials). A defendant may be personally involved in a constitutional deprivation in several ways: (1) direct participation; (2) failure to remedy the wrong after learning about it; (3) creation of a policy or custom under which unconstitutional practices occur; or (4) gross negligence in managing subordinates who caused the violation.Here, plaintiffs allege in their complaint that Dickman trained and supervised the agents in a manner which gave rise to the violations. They also claim he promulgated policies, customs and orders under which the violations occurred. In his affidavit, Dickman states that he was unaware of the incident until he read the agents’ weekly report. In addition, he states that he does not personally conduct training sessions?but requests experts to come in or sends the agents for special training elsewhere. Dickman does not discuss his role as a policymaker. As plaintiffs allege liability based on personal involvement, and issues of fact remain, summary judgment is inappropriate.The FTCA is a “limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.”?United States v. Orleans,?425 U.S. 807 (1976). The waiver of sovereign immunity is limited to suits predicated on tort causes of action cognizable under state law.?Contemporary Mission, Inc. v. United States Postal Service,?648 F.2d 97 (2d Cir. 1981). 28 U.S.C. Section 1346(b) provides:Subject to the provisions of chapter 171 [28 U.S.C. Section 2671-2680], the District Courts...shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages...for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. Section 2680(h) provides that the government may be sued “with regard to acts or omissions of investigative or law enforcement officers...[on] any claim arising...out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.”In summary, the court finds that defendants’ motion for summary judgment is denied as to (I) plaintiffs’ Fourth Amendment claims; (II) plaintiffs’ equal protection claims; (III) qualified immunity; (IV) plaintiffs’ claims against Dickman; (V) plaintiffs’ FTCA claims.Footnotes:4. Based on these factual allegations, the parties have submitted extensive briefs. Legal arguments raised in the briefs will not be addressed until the record has been developed; however, the court notes in passing that federal constitutional privacy interests do not rise or fall with intricate points of state property law. Although such matters are relevant, they are not by any means determinative.?See?Rakas,?439 U.S. at 143-44.7. Defendants argue that Jeffrey Parry, the owner’s son and the property manager, arrived during the investigation and consented to the search. Haggerty Declaration para. 12-13. Consent is probably immaterial in this case since it appears that entry preceded consent. In any event, because of the DeGraff-Parry dispute, it is unclear that Parry had authority to authorize a search. Defendants submit no caselaw on the issue of consent.8. In?Welsh,?the Supreme Court limited the exigent-circumstances rule, holding that “application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense...has been committed.” 466 U.S. at 753.16. The qualified immunity defense is available only insofar as plaintiffs are asserting a claim against defendants in their individual capacity; the defense is unavailable in an official-capacity action.?Kentucky v. Graham,?473 U.S. 159 (1985). In addition, the doctrine applies only to suits for civil damages.?See?Harlow,?457 U.S. at 819;?Pulliam v. Allen,?466 U.S. 522 (1984).BEECH AIRCRAFT CORP. v. RAINEY, 488 U.S. 153 (1988)JUSTICE BRENNAN delivered the opinion of the Court.Our conclusion that neither the language of the Rule nor the intent of its framers calls for a distinction between “fact” and “opinion” is strengthened by the analytical difficulty of drawing such a line. It has frequently been remarked that the distinction between statements of fact and opinion is, at best, one of degree:“All statements in language are statements of opinion,?i.e.,?statements of mental processes or perceptions. So-called ‘statements of fact’ are only more specific statements of opinion. What the judge means to say, when he asks the witness to state the facts, is: ‘The nature of this case requires that you be more specific, if you can, in your description of what you saw.’”Footnotes:11. The Advisory Committee proposed a nonexclusive list of four factors it thought would be helpful in passing on this question: (1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation (citing?Palmer v. Hoffman, 318 U.S. 109?(1943)). Advisory Committee’s Notes on Fed. Rule Evid. 803(8), 28 U.S.C.App. p. 725;?see?Note, The Trustworthiness of Government Evaluative Reports under Federal Rule of Evidence 803(8)(C), 96 Harv.L.Rev. 492 (1982).In a case similar in many respects to this one, the trial court applied the trustworthiness requirement to hold inadmissible a JAG Report on the causes of a Navy airplane accident; it found the report untrustworthy because it “was prepared by an inexperienced investigator in a highly complex field of investigation.”?Fraley v. Rockwell Int’l Corp.,?470 F.Supp. 1264 (SD Ohio 1979). In the present case, the District Court found the JAG Report to be trustworthy. As no party has challenged that finding, we have no occasion to express an opinion on it.2. According to 21 C. Wright & K. Graham, Federal Practice and Procedure §5039, p. 199 (1977) one doctrine which allows even a valid and timely objection to be defeated is variously known as “waiver,” “estoppel,” “opening the door,” “fighting fire with fire,” and “curative admissibility.” The doctrine’s soundness depends on the specific situation in which it is used, and calls for an exercise of judicial discretion.GETER v. WILLE, 846 F.2d 1352 (1988)FAY, Circuit Judge.The Court of Appeals, Fay, Circuit Judge, held that mother could not prevail in §1983 action and absence of showing of participation by Sheriff and director in alleged deprivation are showing that Sheriff’s office or jail had policies, customs, or usage is relating to events that led to inmate’s death.Although supervisory officials cannot be held liable for acts of employees solely on basis of respondeat superior in §1983 action, local government is liable when execution of government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts injury. 42 U.S.C.A. §1983.Mother of deceased inmate who starved himself while in custody could not recover damages for son’s death pursuant to §1983 action against County Sheriff and director of corrections in their official capacities; there was no evidence demonstrating that either Sheriff’s office or jail had any policies, customs, or usage is relating to events that led to inmate’s death, and neither Sheriff nor director participated in or condoned alleged deprivations. 42 U.S.C.A. §1983.Thomas Geter tragically died while an inmate in the Palm Beach County Jail. Geter claimed that he was unable to swallow and refused to eat or drink, literally starving himself to death. Geter’s mother brought a 42 U.S.C. §1983 (“Section 1983”) action against the Palm Beach County Sheriff and the Director of Corrections. She did not sue defendants individually or join to the suit any other parties having direct contact with Geter while he was in custody. The plaintiff prevailed at trial and the defendants appealed. The primary issue before this Court is whether the District Court should have directed a verdict for these defendants. Because we find error, we reverse.In June of 1980, Thomas Geter was being held at the Palm Beach County Jail (“jail”) on charges of first degree murder and sodomy. Suspecting mental problems, the court appointed a psychiatrist to examine Geter. The psychiatrist concluded that Geter was incompetent to stand trial and suggested further evaluation. The sheriff’s office then sent Geter to the North Florida Evaluation and Treatment Center at Gainesville where doctors diagnosed him as suffering from chronic undifferentiated schizophrenia. By September, 1981, Geter was in remission, and judged competent to stand trial. The sheriff’s office then returned him to jail.Jessie Geter, the decedent’s mother, brought this action under §1983. Plaintiff chose to name only the Sheriff and the Director of Corrections of Palm Beach County, Florida as defendants. In addition, she only brought the claim under §1983 and thus sued them solely in their official capacities. The gravamen of her §1983 complaint is that defendants knowingly, willfully, and negligently failed to provide for Geter’s medical needs while he was in their custody. The jury awarded compensatory damages of $50,000 and punitive damages of $100,000. Defense counsel had moved for a directed verdict, and after the jury’s decision to award damages, moved for a judgment notwithstanding the verdict, but the District Court denied both motions.Plaintiff maintains that she did not prevail based on a respondeat superior theory, but that the jury found there existed a policy of callous indifference toward Geter evidenced by the doctor’s order to return Geter to his cell when he was too weak to be weighed. Supervisory officials cannot be held liable for the acts of employees solely on the basis of respondeat superior. McLaughlin v. City of LaGrange, 662 F.2d 1385 (11th Cir. 1981). However, a local government?is liable under §1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury....” Monell v. Department of Social Services,?436 U.S. 658 (1978). See also Hearn v. City of Gainesville,?688 F.2d 1328 (11th Cir. 1982).There is simply no evidence in the record showing that either the sheriff’s office or the jail had any policies, customs, or usages relating to the events that led to Geter’s death. Without any evidence that the supervisory employee participated in or condoned the alleged deprivations, there can be no §1983 liability for the acts of the subordinates.The series of events leading to Geter’s death were unquestionably tragic. The jury, apparently consumed by this misfortune, wanted to make someone pay for what happened to Geter. However, the plaintiff failed to prove her case against these defendants. The record shows that Geter received extensive medical attention. His condition was not ignored. The fact that the physicians involved may have failed to properly handle this medical situation cannot be imputed to these defendants. Even in the most tragic circumstances, our judicial system cannot award recovery against apparently innocent defendants. Therefore, we must REVERSE.Footnotes:1. Because the plaintiff sued the defendants in their official capacity, this is in effect a suit against Palm Beach County. Official capacity suits are “in all respects other than name, to be treated as a suit against the [governmental] entity.” Kentucky v. Graham,?473 U.S. 159 (1985). Thus, the law governing the liability of governmental entities under §1983 controls the liability of the Sheriff and the Director of Corrections in their official capacity. See also Brown v. Smith,?813 F.2d 1187 (11th Cir. 1987) (rejecting respondeat superior as a theory of liability for supervisory government officials).3. Appellants also argue that the trial court erred in allowing an award of $100,000 in punitive damages. Because we have determined that the trial court erred in failing to direct the verdict for the defendants, we find this issue moot. However, we note that the Supreme Court has concluded that governmental agencies cannot be held liable for punitive damages in a §1983 action. City of Newport v. Fact Concerts, Inc.,?453 U.S. 247 (1981).UNITED STATES of America, v. SANGINETO-MIRANDA et al., 859 F.2d 1501 (1988)BOGGS, Circuit Judge.A warrantless arrest is justified if, at the time of the defendant’s arrest, police officers have probable cause to believe that an offense has been, is being, or will be committed. Beck v. Ohio,?379 U.S. 89 (1964). Probable cause exists where the “facts and circumstances within the officer’s knowledge...are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo,?443 U.S. 31 (1979). The probable cause requirement does “not demand any showing that such a belief is correct or more likely true than false.” Texas v. Brown,?460 U.S. 730 (1983).Probable cause is “a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates,?462 U.S. 213 (1983). See also United States v. Cortez,?449 U.S. 411 (1981) (“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and so are law enforcement officers.”); Brinegar v. United States,?338 U.S. 160 (1949). Thus, in determining whether probable cause exists, the trial court must look to the “totality of the circumstances,” Gates, 462 U.S. at 230, and view the facts “as a whole and in a practical manner.” United States v. Pepple, 707 F.2d 261 (6th Cir. 1983). We review the District Court’s finding of probable cause under the “clearly erroneous” standard.Alternatively, Betts contends that probable cause had existed for a sufficient period of time to allow the police to obtain a warrant for his arrest. We disagree. To be sure, the police knew in early April about Betts’s possible involvement in criminal activity. However, it is unlikely they truly had probable cause until April 18, the date of arrest, when Hamilton notified Sergeant Swain that he was negotiating a cocaine deal with Betts and had observed two kilograms in the Pidgeon Perch apartment. We will not second-guess the officers in determining when probable cause arose. In any event, the officers “were conducting an ongoing investigation, and were not required to seek a warrant as soon as they had probable cause to suspect a conspiracy to distribute cocaine.” United States v. Palumbo,?735 F.2d 1095 (8th Cir.), cert. denied, 469 U.S. 934 (1984). Instead, police officers reasonably could wait until they gathered additional evidence of the conspiracy or for further charges.Nelson and Betts seek to suppress all the evidence that was seized during the warrantless entry and “securing” of the Pidgeon Perch apartment, the telephone calls that DEA agent Holmes received while on the premises, and the items seized pursuant to the search warrant. They contend that the warrantless entry was not justified by exigent circumstances. The District Court agreed with the magistrate that Nelson lacked standing to raise the Fourth Amendment issue. The District Court also ruled that Betts had standing, but nevertheless concluded that the “[o]fficers were justified in securing the apartment to prevent destruction or removal of evidence by entering it prior to arrival of the search warrant.”We consider the issue of standing at the outset. A defendant has the burden of establishing his standing to challenge a search or seizure in violation of the Fourth Amendment. Rakas v. Illinois,?439 U.S. 128 (1978). The defendant must satisfy a two-part test: 1) whether he manifested a subjective expectation of privacy in the object of the challenged search; and 2) whether society is prepared to recognize that expectation as legitimate. California v. Ciraolo,?476 U.S. 207 (1986).Both the District Court and the magistrate correctly concluded that Nelson did not have a subjective expectation of privacy in the Pidgeon Perch apartment. At the suppression hearing, Nelson testified that Betts picked him up at the airport and both men proceeded to the latter’s apartment. Because of the noise level there, they drove to the Pidgeon Perch apartment to transact some business. Nelson did not own or rent that apartment; nor did he have a key. Betts provided the means of entry. Although Nelson asserted that he intended to spend the night there and brought a shirt and pants, he left his red bag with the remainder of his clothing at Betts’s residence. The magistrate did not find it credible that Nelson intended to stay in the apartment overnight. Moreover, there was no indication that Nelson had a right to exclude others from the apartment, nor was there any evidence that he took precautions to insure his privacy in any area of the apartment. When the police arrived, Nelson was sleeping on a couch in the living room. At best, the record indicates that Nelson was only a casual visitor. “A defendant’s legitimate presence on the searched premises, without more, is insufficient to establish standing.” United States v. Antone,?753 F.2d 1301 (5th Cir.) (citing Rakas, 439 U.S. at 142), cert. denied, 474 U.S. 818 (1985). Nelson has not met his burden of establishing his standing to contest the warrantless entry. United States v. Meyer,?656 F.2d 979?(5th Cir. 1981).The Government seeks a similar ruling with respect to Betts. It insists that Betts failed to show any expectation of privacy in the apartment or the ability to exclude others. We conclude, however, that Betts has met his burden of establishing a legitimate expectation of privacy in the Pidgeon Perch apartment.The Government did not contradict this evidence in any respect. The record thus reveals that Betts was more than a casual visitor or a mere transient. Rather, he enjoyed a legitimate expectation of privacy in the residence. Betts is entitled to challenge the warrantless entry of the apartment.The Fourth Amendment prohibits governmental intrusions into a private dwelling without a warrant supported by probable cause, subject only to a few carefully delineated exceptions. Thompson v. Louisiana,?469 U.S. 17 (1984). See also Payton v. New York,?445 U.S. 573 (1980) (“In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”); Coolidge v. New Hampshire,?403 U.S. 443 (1971). In fact, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court,?407 U.S. 297 (1972). In view of this strong command, the Supreme Court has declared that searches and seizures inside a residence without a warrant are “presumptively unreasonable,” Payton v. New York, 445 U.S. at 586, and the police bear a “heavy burden when attempting to demonstrate an urgent need” that might justify a warrantless entry. Welsh v. Wisconsin,?466 U.S. 740 (1984). See also United States v. Morgan,?743 F.2d 1158 (6th Cir. 1984) (“the burden is on the government to demonstrate exigency”), cert. denied, 471 U.S. 1061 (1985).The Supreme Court has recognized only a few emergency circumstances excusing the need for a warrant. See United States v. Santana,?427 U.S. 38 (1976) (hot pursuit of a fleeing felon); Warden v. Hayden,?387 U.S. 294 (1967); Schmerber v. California,?384 U.S. 757 (1966) (destruction of evidence); Michigan v. Tyler,?436 U.S. 499 (1978) (fire on premises, even if only smoldering). The Court has also made clear that the exigent-circumstances exception in the context of a home entry “should rarely be sanctioned when there is probable cause to be believe that only a minor offense...has been committed.” Welsh v. Wisconsin, 466 U.S. at 753.The law is settled that a warrantless entry will be sustained when the circumstances then extant were such as to lead a person of reasonable caution to conclude that evidence of a federal crime would probably be found on the premises and also that such evidence would probably be destroyed within the time necessary to obtain a search warrant.We believe, consistent with Vale, that a police officer can show an objectively reasonable belief that contraband is being, or will be, destroyed within a residence if he can demonstrate: 1) a reasonable belief that third parties are inside the dwelling; and 2) a reasonable belief that these third parties may soon become aware the police are on their trail, so that the destruction of evidence would be in order. See Socey, 846 F.2d at 1445; United States v. Aquino,?836 F.2d 1268 (10th Cir. 1988) (“The required release of these persons [suspected confederates] created the possibility that news of the arrests would reach others in the drug connection,” thereby prompting the destruction of evidence); United States v. Wulferdinger,?782 F.2d 1473 (9th Cir. 1986) (exigent circumstances justified warrantless entry where confederate’s failure to return to premises, due to arrest, might cause those inside to dispose of evidence); United States v. Moore,?790 F.2d 13?(1st Cir. 1986).Betts argues that Passarella is distinguishable because, unlike the instant case, Special Agent Moulton did not affirmatively misrepresent his identity. He points out that Holmes misrepresented himself as “Ben,” while affecting a “black street slang dialect.” To be sure, Special Agent Moulton in Passarella did not make any affirmative misrepresentations, but “merely permitted the caller to assume that he was Passarella.” However, we also recognized that “a certain degree of deception or subterfuge on the part of law enforcement authorities” is a “necessary incident to the investigation of unlawful activities, which are, by their nature, covert and secretive.” We concluded that the Fourth Amendment did not protect “a wrongdoer’s misplaced trust;” nor did it “require the police to offer their true identity whenever they answer[ed] the telephone.” Similarly, we rule that Holmes’s false identification does not require suppression of the calls as non-consensual, any more than any undercover agent’s false identity requires suppression in similar circumstances.Lastly, Betts contends that Swain’s affidavit in support of the warrant contained false statements made knowingly or intentionally, or with reckless disregard for the truth. In Franks v. Delaware,?438 U.S. 154 (1978), the Supreme Court ruled that a search warrant must be voided and the fruits of the search excluded if a defendant shows by a preponderance of the evidence that a warrant affidavit includes a false statement made knowingly and intentionally or with reckless disregard for the truth and if, with the affidavit’s false material excluded, the affidavit is insufficient to establish probable cause. The District Court concluded that Betts failed to meet this standard, and we see no reason to disturb that ruling. Even assuming the presence of inaccurate information in the affidavit, the remaining portions are sufficient to base a finding of probable cause.Sangineto argues that his pre-Miranda statement concerning the existence and whereabouts of his truck should have been suppressed. Additionally, he argues that, because only his answer enabled police to find his vehicle and the narcotics hidden inside, the cocaine should have been suppressed as “fruit of the poisonous tree.”The magistrate concluded that the questioning of Sangineto after his arrest but before the Miranda warnings were administered was “illegal, but the response that Mr. Sangineto made concerning the truck was not in itself an incriminating one.” He further noted that “Sangineto does not claim that the question leading to the location of the truck invalidated the later consensual search.” Sangineto took issue with both conclusions in filing objections to the magistrate’s report. The District Court adopted the magistrate’s report and recommendation and affirmed in a brief order.It is undisputed that Sangineto was in a custodial situation, which mandated Miranda warnings. California v. Beheler,?463 U.S. 1121 (1983) (Miranda warnings are required where there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest). Those warnings were not administered until Holmes arrived on the scene. It is equally clear that Officer Cox’s question concerning Sangineto’s means of transportation constituted interrogation. Arizona v. Mauro, 481 U.S. 520 (1987) (interrogation refers to direct questioning by law enforcement officers and “its functional equivalent”); Rhode Island v. Innis, 446 U.S. 291 (1980). “When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the [government’s] case in chief.” Oregon v. Elstad,?470 U.S. 298 (1985). Indeed, this “bright-line rule” applies even if the pre-warning statements are voluntary. Thus, Sangineto’s statement concerning the existence and whereabouts of his truck should have been suppressed.The more troublesome issue is whether the Miranda violation requires suppression of the narcotics found in the truck. We frame the issue as follows: whether nontestimonial physical evidence proximately derived from a Miranda violation is inadmissible as “fruit of the poisonous tree.”For the reasons discussed below, we conclude that the cocaine should not be suppressed.The Miranda exclusionary rule...serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.We have difficulty considering Nelson’s contention because of his failure to establish a full record for intelligent appellate review. In order to meet the first two requirements of a prima facie case, we must know the race of the defendant, and whether the prosecutor has exercised a peremptory challenge to exclude at least one person of that race. However, it will be relevant to the third and crucial requirement of a prima facie case to know: 1) the racial composition of the initial group seated and the final jury panel sworn; 2) the number of peremptory strikes allowed each side; and 3) the race of those who were struck or excused from the jury panel throughout the voir dire (whether for cause or by a peremptory challenge), the order of strikes, and by whom they were exercised. In an appropriate case, it may also be useful to consider evidence as to the percentage of the “cognizable racial group” in the jury pool, or the racial composition of the district wherein the jury pool is selected. United States v. Clemons,?843 F.2d 741 (3d Cir. 1988).NATHANIEL R. JONES, Circuit Judge, concurring.In part IV-A, the majority places heavy reliance on the Supreme Court’s decision in Oregon v. Elstad,?470 U.S. 298 (1985). In my view, the facts in the instant case are readily distinguishable from those in Elstad. In particular, whereas in Elstad the relevant pre-Miranda statements were made in the least coercive of custodial environments, the pre-Miranda statements in the instant case were made while the defendants were in handcuffs and sitting in the rear of a police car. Thus, while the majority comfortably concludes that the pre-Miranda questioning of Sangineto and Vargas “had none of the earmarks of coercion,” I concur as to this issue solely on the ground that Sangineto has not raised the issue of coercion.MILBURN, Circuit Judge, concurring.Exigent circumstances justify a warrantless entry into a home only where there is also probable cause to enter the residence. United States v. Socey,?846 F.2d 1439 (D.C. Cir. 1988); United States v. Aquino,?836 F.2d 1268 (10th Cir. 1988); United States v. Howard,?828 F.2d 552 (9th Cir. 1987); United States v. Cresta,?825 F.2d 538 (1st Cir. 1987).Vargas joins Sangineto in these arguments. However, as the Government notes, “Vargas made no statements and gave no consents.” Moreover, he has no standing to object to Sangineto’s statements or consents.The Government argues that the truck and the cocaine are admissible under the inevitable discovery rule. Nix v. Williams,?467 U.S. 431 (1984). Because the magistrate and the District Court never made findings on this issue, we decline to rely on this basis.SCHWEIKER, et al., v. CHILICKY, et al., 487 U.S. 412, 108 S.Ct. 2460 (1988)Justice O’CONNOR delivered the opinion of the Court.Absence of statutory relief does not mandate that court award money damages against federal official responsible for constitutional violation. 28 U.S.C.A. §1331.Courts must give appropriate deference to indications that congressional inaction has not been advertent, and should not create Bivens remedies when design of federal government programs suggests that Congress has provided what Congress considers to be adequate remedies for constitutional violations that may occur in course of program’s administration. 28 U.S.C.A. §1331.In 1980, Congress enacted legislation requiring that most disability determinations under Title II of the Social Security Act be reviewed at least once every three years. Under the “continuing disability review” (CDR) program, as originally implemented by the Secretary of Health and Human Services, benefits were usually terminated if the state agency performing the initial evaluation found that a claimant had become ineligible, and were not available during administrative appeals. Finding that benefits were frequently being improperly terminated by state agencies under CDR, only to be reinstated by a federal administrative law judge (ALJ) on appeal, Congress enacted reform legislation in 1983 and 1984, which,?inter alia,?provided for the continuation of benefits through the completion of ALJ review. Respondents, individuals whose Title II benefits were improperly terminated in 1981 and 1982, but were later restored, filed suit in Federal District Court. They alleged that petitioners, one Arizona and two federal officials who were CDR policymakers, had violated respondents’ due process rights by adopting illegal policies that led to the benefits terminations. Respondents sought money damages from petitioners, in their individual capacities, for emotional distress and for loss of necessities proximately caused by petitioners’ conduct. The court dismissed the case, but the Court of Appeals reversed and remanded, noting that respondents’ money damages claims were predicated on the constitutional tort theory of?Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388, and concluding,?inter alia,?that it could not be determined as a matter of law that respondents could prove no state of facts warranting recovery.Held:?The improper denial of Social Security disability benefits, allegedly resulting from due process violations by petitioners in their administration of the CDR program, cannot give rise to a cause of action for money damages against petitioners.(a) A money damages remedy against federal officials for constitutional torts will not be devised by the courts where “special factors counse[l] hesitation in the absence of affirmative action by Congress.”?Bivens?at 396. Such “special factors” include the existence of statutory mechanisms giving meaningful remedies against the United States, even though those remedies do not provide “complete relief” to the claimant.?Bush v. Lucas,?462 U.S. 367. Thus, the courts must give appropriate deference to indications that congressional inaction has not been inadvertent, and should not create Bivens?remedies when the design of a Government program suggests that Congress has provided what it considers to be adequate remedies for constitutional violations that may occur in the course of the program’s administration.(b) Since the elaborate CDR remedial scheme devised by Congress does not include a money damages remedy against officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits, such a remedy is unavailable. The present case is indistinguishable from?Bush.?In both, Congress failed to authorize “complete relief” for emotional distress and other hardships, but Congress is presumed to have balanced governmental efficiency and individual rights in an acceptable manner. Moreover, congressional attention to problems in CDR administration (including the very problems that gave rise to this case) has been frequent and intense, as shown by the enactment of reform legislation on two occasions. Congress’ unwillingness to provide compensation for consequential damages is at least as clear here as it was in?Bush.?Bush?is not limited to its civil service context, since its reasoning - that Congress is in a better position than courts to decide whether the creation of a new substantive legal liability would serve the public interest applies as much, or more, in this case. Respondents’ attempt to distinguish?Bush?on the ground that the plaintiff there received compensation for the constitutional violation itself, while respondents here have merely received benefits to which they would have been entitled had there been no constitutional violation, is not analytically meaningful, since the harm resulting from the alleged constitutional violation can in neither case be separated from the denial of the statutory right. The fact that respondents have not been fully compensated for the injury caused by lengthy delays in providing the benefits on which they depended for the necessities of life cannot be remedied by this Court. Congress is charged with designing welfare benefits programs, and with balancing the need for administrative efficiency against individual rights, and Congress has discharged that responsibility to the extent that it affects this case.In addition to pursuing administrative remedies, respondents (along with several other individuals who have since withdrawn from the case) filed this lawsuit in the United States District Court for the District of Arizona. They alleged that petitioners one Arizona and two federal officials who had policymaking roles in the administration of the CDR program - had violated respondents’ due process rights. The thrust of the complaint, which named petitioners in their official and individual capacities, was that petitioners had adopted illegal policies that led to the wrongful termination of benefits by state agencies. Among the allegations were claims that petitioners improperly accelerated the starting date of the CDR program; illegally refused to acquiesce in decisions of the United States Court of Appeals for the Ninth Circuit; failed to apply uniform written standards in implementing the CDR program; failed to give effect to dispositive evidence in particular cases; and used an impermissible quota system under which state agencies were required to terminate predetermined numbers of recipients. See 796 F.2d 1131 (1986). Respondents sought injunctive and declaratory relief, and money damages for “emotional distress and for loss of food, shelter and other necessities proximately caused by [petitioners’] denial of benefits without due process.”Respondents appealed, pressing only their claims for money damages against petitioners in their individual capacities. These claims, noted the Court of Appeals, are “predicated on the constitutional tort theory of?Bivens v. Six Unknown Named Agents,?403 U.S. 388 (1971).” Petitioners argued that the District Court lacked subject matter jurisdiction because the procedures set forth in 42 U.S.C. §405(g), which do not authorize judicial review in a case like this one, provide the exclusive means of judicial redress for actions “arising under” the relevant provisions of the Act. The Court of Appeals rejected this argument, holding that subject matter jurisdiction existed because respondents’ claims for emotional distress “arose under” the Due Process Clause of the Fifth Amendment rather than under the statute. The Court of Appeals went on to affirm the District Court to the extent that it dismissed the claims involving acceleration of the CDR program and nonacquiescence in Ninth Circuit decisions. As to respondents’ other claims, however, the Court of Appeals concluded that “[i]t cannot be determined as a matter of law that [respondents] could prove no state of facts...that resulted in violations of their due process rights and consequent damages.” The case was accordingly remanded for further proceedings, including a trial if necessary.The Constitution provides that federal courts may be given original jurisdiction over “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” U.S.Const., Art. III, §§1, 2. Since 1875, Congress has provided the federal trial courts with general jurisdiction over such cases. See Judiciary Act of March 3, 1875, §1, 18 Stat. 470; 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3561 (2d ed. 1984); American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts 162-163 (1969). The statute currently provides that the “District Courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §1331.So-called “Bivens?actions” for money damages against federal officers have subsequently been permitted under §1331 for violations of the Due Process Clause of the Fifth Amendment,?Davis v. Passman,?442 U.S. 228 (1979), and the Cruel and Unusual Punishments Clause of the Eighth Amendment,?Carlson v. Green,?446 U.S. 14 (1980). In each of these cases, as in?Bivens?itself, the Court found that there were no “special factors counselling hesitation in the absence of affirmative action by Congress,” no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy.Our more recent decisions have responded cautiously to suggestions that?Bivens?remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation. Thus, in?Chappell v. Wallace,?462 U.S. 296 (1983), we refused - unanimously - to create a?Bivens?action for enlisted military personnel who alleged that they had been injured by the unconstitutional actions of their superior officers and who had no remedy against the Government itself:“The special nature of military life - the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel - would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command....“Also, Congress, the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy for claims by military personnel that constitutional rights have been violated by superior officers. Any action to provide a judicial response by way of such a remedy would be plainly inconsistent with Congress’ authority in this field.“Taken together, the unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a?Bivens-type remedy against their superior officers.” 462 U.S., at 304.Similarly, we refused - again unanimously - to create a Bivens?remedy for a First Amendment violation “aris[ing] out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States.”?Bush v. Lucas, 462 U.S. 367 (1983). In that case, a federal employee was demoted, allegedly in violation of the First Amendment, for making public statements critical of the agency for which he worked. He was reinstated through the administrative process, with retroactive seniority and full backpay, but he was not permitted to recover for any loss due to emotional distress or mental anguish, or for attorney’s fees. Concluding that the administrative system created by Congress “provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies,”?the Court refused to create a?Bivens?action even though it assumed a First Amendment violation and acknowledged that “existing remedies do not provide complete relief for the plaintiff.” (No remedy whatsoever for short suspensions or for adverse personnel actions against probationary employees). The Court stressed that the case involved policy questions in an area that had received careful attention from Congress. Noting that the Legislature is far more competent than the Judiciary to carry out the necessary “balancing [of] governmental efficiency and the rights of employees,” we refused to “decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights.”The administrative structure and procedures of the Social Security system, which affects virtually every American, “are of a size and extent difficult to comprehend.”?Richardson v. Perales,?402 U.S. 389 (1971). Millions of claims are filed every year under the Act’s disability benefits programs alone, and these claims are handled under “an unusually protective [multi]-step process for the review and adjudication of disputed claims.”?Heckler v. Day,?467 U.S. 104 (1984).The steps provided for under Title II are essentially identical for new claimants and for persons subject to CDR. An initial determination of a claimant’s eligibility for benefits is made by a state agency, under federal standards and criteria. See 42 U.S.C. §421(a) (1982 ed. and Supp. IV); see also 20 CFR §§404.1588-404.1599 (1987). Next, a claimant is entitled to?de novo?reconsideration by the state agency, and additional evidence may be presented at that time. §§404.907-404.922. If the claimant is dissatisfied with the state agency’s decision, review may then be had by the Secretary of Health and Human Services, acting through a federal ALJ; at this stage, the claimant is again free to introduce new evidence or raise new issues. 42 U.S.C. §421(d) (1982 ed., Supp. IV); 20 CFR §§404.929-404.965 (1987). If the claimant is still dissatisfied, a hearing may be sought before the Appeals Council of the Social Security Administration. §§404.967-404.983. Once these elaborate administrative remedies have been exhausted, a claimant is entitled to seek judicial review, including review of constitutional claims. 42 U.S.C. §§405(g), 421(d) (1982 ed. and Supp. IV);?Heckler v. Ringer,?466 U.S. 602 (1984); Mathews v. Eldridge,?424 U.S., at 332; Weinberger v. Salfi,?422 U.S. 749 (1975). The Act, however, makes no provision for remedies in money damages against officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits. As respondents concede, claimants whose benefits have been fully restored through the administrative process would lack standing to invoke the Constitution under the statute’s administrative review provision.The case before us cannot reasonably be distinguished from Bush v. Lucas.?Here, exactly as in?Bush,?Congress has failed to provide for “complete relief”: respondents have not been given a remedy in damages for emotional distress or for other hardships suffered because of delays in their receipt of Social Security benefits. The creation of a?Bivens?remedy would obviously offer the prospect of relief for injuries that must now go unredressed. Congress, however, has not failed to provide meaningful safeguards or remedies for the rights of persons situated as respondents were. Indeed, the system for protecting their rights is, if anything, considerably more elaborate than the civil service system considered in?Bush.?The prospect of personal liability for official acts, moreover, would undoubtedly lead to new difficulties and expense in recruiting administrators for the programs Congress has established. Congressional competence at “balancing governmental efficiency and the rights of [individuals],” is no more questionable in the social welfare context than it is in the civil service context. Cf. Forrester v. White,?484 U.S. 219 (1988).Respondents also suggest that this case is distinguishable from?Bush?because the plaintiff in that case received compensation for the constitutional violation itself, while these respondents have merely received that to which they would have been entitled had there been no constitutional violation. (“Bush’s reinstatement was a remedy for the alleged abuse, not just a restoration of something to which he was entitled...”); (failure to create a?Bivens?remedy “would give respondents precisely the same thing whether or not they were victims of constitutional deprivation and would thus leave respondents with no post-deprivation remedy at all for the constitutional violations they allege”). The?Bush?opinion, however, drew no distinction between compensation for a “constitutional wrong” and the restoration of statutory rights that had been unconstitutionally taken away. Nor did it suggest that such labels would matter. Indeed, the Court appeared to assume that civil service employees would get “precisely the same thing whether or not they were victims of constitutional deprivation.” See?Bush,?462 U.S., at 386 (civil service statute “provides meaningful remedies for employees who may have been?unfairly?disciplined for making critical comments about their agencies”).?Bush?thus lends no support to the notion that statutory violations caused by unconstitutional conduct necessarily require remedies in addition to the remedies provided generally for such statutory violations. Here, as in Bush,?it is evident that if we were “to fashion an adequate remedy for every wrong that can be proved in a case...[the complaining party] would obviously prevail.”?In neither case, however, does the presence of alleged unconstitutional conduct that is not?separately remedied under the statutory scheme imply that the statute has provided “no remedy” for the constitutional wrong at issue.The remedy sought in?Bush?was virtually identical to the one sought by respondents in this case: consequential damages for hardships resulting from an allegedly unconstitutional denial of a statutory right (Social Security benefits in one instance and employment in a particular Government job in the other). In light of the comprehensive statutory schemes involved, the harm resulting from the alleged constitutional violation can in neither case be separated from the harm resulting from the denial of the statutory right. Respondents’ effort to separate the two does not distinguish this case from?Bush?in any analytically meaningful sense.In the end, respondents’ various arguments are rooted in their insistent and vigorous contention that they simply have not been adequately recompensed for their injuries. They say, for example:“Respondents are disabled workers who were dependent upon their Social Security benefits when petitioners unconstitutionally terminated them. Respondents needed those benefits, at the time they were wrongfully withheld, to purchase food, shelter, medicine, and life’s other necessities. The harm they suffered as a result bears no relation to the dollar amount of the benefits unjustly withheld from them. For the Government to offer belated restoration of back benefits in a lump sum and attempt to call it quits, after respondents have suffered deprivation for months on end, is not only to display gross insensitivity to the damage done to respondents’ lives, but to trivialize the seriousness of petitioners’ offense.”Justice STEVENS, concurring in part and concurring in the judgment.Respondents have asserted that their claims arise under the Due Process Clause of the Fifth Amendment. In my opinion the Court should not reach the issue whether these claims may be brought directly under the Constitution without first deciding whether the Solicitor General is correct in his submission that Congress has enacted a statute that expressly requires dismissal of the complaint. See Schweiker v. Hogan,?457 U.S. 569 (1982). I agree with the explanation in Part III-A of Justice BRENNAN’s opinion of why 42 U.S.C. §405(h) does not preclude a?Bivens remedy in this case.Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting.The Court today reaffirms the availability of a federal action for money damages against federal officials charged with violating constitutional rights. “‘[W]here legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’”?(Quoting?Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), in turn quoting?Bell v. Hood,?327 U.S. 678 (1946)). Acknowledging that the trauma respondents and others like them suffered as a result of the allegedly unconstitutional acts of state and federal officials “must surely have gone beyond what anyone of normal sensibilities would wish to see imposed on innocent disabled citizens,” the Court does not for a moment suggest that the retroactive award of benefits to which respondents were always entitled remotely approximates full compensation for such trauma. Nevertheless, it refuses to recognize a?Bivens?remedy here because the “design of [the disability insurance] program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration.”I agree that in appropriate circumstances we should defer to a congressional decision to substitute alternative relief for a judicially created remedy. Neither the design of Title II’s administrative review process, however, nor the debate surrounding its reform contains any suggestion that Congress meant to preclude recognition of a?Bivens?action for persons whose constitutional rights are violated by those charged with administering the program, or that Congress viewed this process as an adequate substitute remedy for such violations. Indeed, Congress never mentioned, let alone debated, the desirability of providing a statutory remedy for such constitutional wrongs. Because I believe legislators of “normal sensibilities” would not wish to leave such traumatic injuries unrecompensed, I find it inconceivable that Congress meant by mere silence to bar all redress for such injuries.In response to the escalating costs of the Title II disability insurance program, Congress enacted legislation in 1980 directing state agencies to review the eligibility of Title II beneficiaries at least once every three years in order to ensure that those receiving benefits continued to qualify for such assistance. Pub.L. 96-265, §311(a), 94 Stat. 460, as amended, 42 U.S.C. §421(i) (1982 ed. and Supp. IV). Although the CDR program was to take effect January 1, 1982, the then-new administration advanced its starting date to March 1, 1981, and initiated what congressional critics later characterized as a “meat ax approach” to the problem of Social Security fraud. 130 Cong. Rec. 6594 (1984) (remarks of Rep. Alexander); (remarks of Rep. Anthony). Respondents allege that in the course of their review proceedings, state and federal officials violated their due process rights by judging their eligibility in light of impermissible quotas, disregarding dispositive favorable evidence, selecting biased physicians, purposely using unpublished criteria and rules inconsistent with statutory standards, arbitrarily reversing favorable decisions, and failing impartially to review adverse decisions.Whatever the merits of these allegations, a question that is not now before us, it is undisputed that by 1984 the CDR program was in total disarray. As the Court recounts, during the three years that followed the inauguration of the program, approximately 200,000 recipients lost their benefits only to have them restored on appeal. Just under half of all initial reviews resulted in the termination of benefits, H.R.Rep. No. 98-618, p. 10 (1984), yet nearly two-thirds of those who appealed regained their benefits. 130 Cong. Rec. 6598 (1984) (remarks of Rep. Levin); see also S.Rep. No. 96-466, p. 18 (1984). Typically, appeals took anywhere from 9 to 18 months to process, during which time beneficiaries often lacked sufficient income to purchase necessities and also lost their eligibility for Medicare coverage. 130 Cong. Rec. 25979 (1984) (remarks of Sen. Levin). When Congress enacted the Social Security Disability Benefits Reform Act of 1984, approximately 120,000 contested eligibility decisions were pending on appeal, and federal courts had directed the agency to reopen another 100,000(remarks of Rep. Conte); several “massive” class actions were pending in the federal courts challenging a number of the Social Security Administration’s (SSA’s) disability review policies and standards, Brief for Petitioners 14; and half the States either refused to comply with those standards or were barred by court orders from doing so, 130 Cong. Rec. 13218-13219 (1984) (remarks of Sen. Cohen); (remarks of Rep. Levin). Indeed, in April 1984, these debilitating challenges prompted the Secretary of Health and Human Services to call a halt to all further reviews by imposing a temporary, nationwide moratorium.In?Chappell v. Wallace,?462 U.S. 296 (1983), where we declined to permit an action for damages by enlisted military personnel seeking redress from their superior officers for constitutional injuries, we noted that Congress, in the exercise of its “plenary constitutional authority over the military, has enacted statutes regulating military life, and has established a comprehensive internal system of justice to regulate military life.... The resulting system provides for the review and remedy of complaints and grievances such as [the equal protection claim] presented by respondents.”?That system not only permits aggrieved military personnel to raise constitutional challenges in administrative proceedings, it authorizes recovery of significant consequential damages, notably retroactive promotions.?Similarly, in?Bush v. Lucas,?462 U.S. 367 (1983), we concluded that, in light of the “elaborate, comprehensive scheme” governing federal employment relations,?recognition of any supplemental judicial remedy for constitutional wrongs was inappropriate. Under that scheme - which Congress has “constructed step-by-step, with careful attention to conflicting policy considerations,” over the course of nearly 100 years - “[c]onstitutional challenges...are fully cognizable” and prevailing employees are entitled not only to full backpay, but to retroactive promotions, seniority, pay raises, and accumulated leave.?Indeed, Congress expressly “intended [to] put the employee ‘in the same position he would have been in had the unjustified or erroneous personnel action not taken place.’”?(Quoting S.Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966), U.S. Code Cong. & Admin. News 1966, p. 2097).It is true that neither the military justice system nor the federal employment relations scheme affords aggrieved parties full compensation for constitutional injuries; nevertheless, the relief provided in both is far more complete than that available under Title II’s review process. Although federal employees may not recover damages for any emotional or dignitary harms they might suffer as a result of a constitutional injury, see?Bush,?at 372, they, like their military counterparts, are entitled to redress for most economic consequential damages, including, most significantly, consequential damage to their Government careers. Here, by stark contrast, Title II recipients cannot even raise constitutional challenges to agency action in any of the four tiers of administrative review, and if they ultimately prevail on their eligibility claims in those administrative proceedings they can recover no consequential damages whatsoever. The only relief afforded persons unconstitutionally deprived of their disability benefits is retroactive payment of the very benefits they should have received all along. Such an award, of course, fails miserably to compensate disabled persons illegally stripped of the income upon which, in many cases, their very subsistence depends.The inadequacy of this relief is by no means a product of “the inevitable compromises required in the design of a massive and complex welfare benefits program.” In?Chappell?and?Bush,?we dealt with elaborate administrative systems in which Congress anticipated that federal officials might engage in unconstitutional conduct, and in which it accordingly sought to afford injured persons a form of redress as complete as the Government’s institutional concerns would allow. In the federal employment context, for example, Congress carefully “balanc[ed] governmental efficiency and the rights of employees,”?Bush,?462 U.S., at 389, paying “careful attention to conflicting policy considerations,”?and in the military setting it “established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure.” Chappell,?462 U.S., at 302.The mere fact that Congress was aware of the prior injustices and failed to provide a form of redress for them, standing alone, is simply not a “special factor counselling hesitation” in the judicial recognition of a remedy. Inaction, we have repeatedly stated, is a notoriously poor indication of congressional intent, see Bob Jones University v. United States,?461 U.S. 574 (1983);?Zuber v. Allen,?396 U.S. 168 (1969), all the more so where Congress is legislating in the face of a massive breakdown calling for prompt and sweeping corrective measures. In 1984, Congress undertook to resuscitate a disability review process that had ceased functioning: that the prospective measures it prescribed to prevent future dislocations included no remedy for past wrongs in no way suggests a conscious choice to leave those wrongs unremedied. I therefore think it altogether untenable to conclude, on the basis of mere legislative silence and inaction, that Congress intended an administrative scheme that does not even take cognizance of constitutional claims to displace a damages action for constitutional deprivations that might arise in the administration of the disability insurance program.Our decisions in?Chappell?and?Bush?reveal yet another flaw in the “special factors” analysis the Court employs today. In both those cases, we declined to legislate in areas in which Congress enjoys a special expertise that the Judiciary clearly lacks. Thus, in?Chappell,?we dealt with military affairs, a subject over which “[i]t is clear that the Constitution contemplated that the Legislative Branch have plenary control.” 462 U.S., at 301. Indeed, as we reaffirmed:“‘[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always?to civilian control of the Legislative and Executive Branches.’” (Quoting?Gilligan v. Morgan,?413 U.S. 1 (1973)).Similarly, in?Bush?we dealt with the unique area of federal employment relations, where the Government acts not as governor but as employer. We observed that Congress had devoted a century to studying the problems peculiar to this subject, during the course of which it had “developed considerable familiarity with balancing governmental efficiency and the rights of employees.” 462 U.S., at 389. In addition, Congress “has a special interest in informing itself about the efficiency and morale of the Executive Branch,” and is far more capable than courts of apprising itself of such matters “through factfinding procedures such as hearings that are not available to the courts.”?In declining to recognize a cause of action for constitutional violations that might arise in the civil service context, therefore, we reasoned that the recognition of such an action could upset Congress’ careful structuring of federal employment relations, and concluded that “Congress is in a far better position to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service.”?The Court’s suggestion, therefore, that congressional authority over a given subject is itself a “special factor” that “counsel[s] hesitation [even] in the absence of affirmative action by Congress,” see?Bivens,?403 U.S., at 396, is clearly mistaken. In?Davis v. Passman,?442 U.S. 228 (1979), we recognized a cause of action under the Fifth Amendment’s Due Process Clause for a congressional employee who alleged that she had been discriminated against on the basis of her sex, even though Congress is competent to pass legislation governing the employment relations of its own Members, see 42 U.S.C. §2000e-16(a) (excluding congressional employees from the coverage of §717 of Title VII). Likewise, in?Carlson v. Green,446 U.S. 14 (1980), we created a?Bivens?action for redress of injuries flowing from the allegedly unconstitutional conduct of federal prison officials, notwithstanding the fact that Congress had expressly (and competently) provided a statutory remedy in the Federal Tort Claims Act for injuries inflicted by such officials. In neither case was it necessary to inquire into Congress’ competence over the subject matter. Rather, we permitted the claims because they arose in areas in which congressional competence is no greater than that of the courts, and in which, therefore, courts need not fear to tread even in the absence of congressional action.The same is true here. Congress, of course, created the disability insurance program and obviously may legislate with respect to it. But unlike the military setting, where Congress’ authority is plenary and entitled to considerable judicial deference, or the federal employment context, where Congress enjoys special expertise, social welfare is hardly an area in which the courts are largely incompetent to act. The disability insurance program is concededly large, but it does not involve necessarily unique relationships like those between enlisted military personnel and their superior officers, or Government workers and their federal employers. Rather, like the federal law enforcement and penal systems that gave rise to the constitutional claims in?Bivens?and?Carlson,?the constitutional issues that surface in the social welfare system turn on the relationship of the Government and those it governs - the relationship that lies at the heart of constitutional adjudication. Moreover, courts do not lack familiarity or expertise in determining what the dictates of the Due Process Clause are. In short, the social welfare context does not give rise to the types of concerns that make it an area where courts should refrain from creating a damages action even in the absence of congressional action.Finally, petitioners argue that the sheer size of the disability insurance program is a special factor militating against recognition of a?Bivens?action for respondents’ claims. SSA is “probably the largest adjudicative agency in the western world,”?Heckler v. Campbell,?461 U.S. 458 (1983), responsible for processing over 2 million disability claims each year.?Heckler v. Day,?467 U.S. 104 (1984). Accordingly, petitioners argue, recognition of a?Bivens?action for any due process violations that might occur in the course of this processing would have an intolerably disruptive impact on the administration of the disability insurance program. Thousands of such suits could potentially be brought, diverting energy and money from the goals of the program itself, discouraging public service in the agency, and deterring those officials brave enough to accept such employment from “legitimate efforts” to ensure that only those truly unable to work receive benefits.Petitioners’ dire predictions are overblown in several respects. To begin with, Congress’ provision for interim payments in both the 1983 emergency legislation,?and the 1984 Reform Act dramatically reduced the number of recipients who suffered consequential damages as a result of initial unconstitutional benefits termination. Similarly, the various other corrective measures incorporated in the 1984 legislation, which petitioners champion here as a complete remedy for past wrongs, should forestall future constitutional deprivations. Moreover, in order to prevail in any?Bivens?action, recipients such as respondents must both prove a deliberate abuse of governmental power rather than mere negligence, see?Daniels v. Williams,?474 U.S. 327 (1986), and overcome the defense of qualified immunity. See?Harlow v. Fitzgerald,?457 U.S. 800 (1982). Indeed, these very requirements are designed to protect Government officials from liability for their “legitimate” actions; the prospect of liability for deliberate violations of known constitutional rights, therefore, will not dissuade well-intentioned civil servants either from accepting such employment or from carrying out the legitimate duties that employment imposes.Petitioners’ argument, however, is more fundamentally flawed. Both the federal law enforcement system involved in Bivens?and the federal prison system involved in?Carlson v. Green,?446 U.S. 14 (1980), are vast undertakings, and the possibility that individuals who come in contact with these Government entities will consider themselves aggrieved by the misuse of official power is at least as great as that presented by the social welfare program involved here. Yet in neither case did we even hint that such factors might legitimately counsel against recognition of a remedy for those actually injured by the abuse of such authority. See?Bivens,?403 U.S., at 410 (“I...cannot agree...that the possibility of ‘frivolous’ claims...warrants closing the courthouse doors to people in Bivens’ situation. There are other ways, short of that, of coping with frivolous lawsuits”). Indeed, in?Bivens?itself we rejected the suggestion that state law should govern the liability of federal officials charged with unconstitutional conduct precisely because officials “acting...in the name of the United States posses[s] a far greater capacity for harm than [a private] individual...exercising no authority other than his own.” That the authority wielded by officials in this case may be used to harm an especially large number of innocent citizens, therefore, militates in?favor?of a cause of action, not against one, and petitioners’ argument to the contrary perverts the entire purpose underlying our recognition of?Bivens?actions. In the modern welfare society in which we live, where many individuals such as respondents depend on government benefits for their sustenance, the Due Process Clause stands as an essential guarantee against arbitrary governmental action. The scope of any given welfare program is relevant to determining what process is due those dependent upon it, see Mathews v. Eldridge,?424 U.S. 319 (1976), but it can never free the administrators of that program from all constitutional restraints, and should likewise not excuse those administrators from liability when they act in clear contravention of the Due Process Clause’s commands.After contributing to the disability insurance program throughout their working lives, respondents turned to it for essential support when disabling medical conditions prevented them from providing for themselves. If the allegations of their complaints are true, they were unjustly deprived of this essential support by state and federal officials acting beyond the bounds of their authority and in violation of respondents’ constitutional rights. That respondents suffered grievous harm as a result of these actions - harm for which the belated restoration of disability benefits in no way compensated them - is undisputed and indisputable. Yet the Court today declares that respondents and others like them may recover nothing from the officials allegedly responsible for these injuries because Congress failed to include such a remedy among the reforms it enacted in an effort to rescue the disability insurance program from a paralyzing breakdown. Because I am convinced that Congress did not intend to preclude judicial recognition of a cause of action for such injuries, and because I believe there are no special factors militating against the creation of such a remedy here, I dissent.Footnotes:2. The Court of Appeals described the remaining allegations as follows:“1. Knowing use of unpublished criteria and rules and standards contrary to the Social Security Act.“2. Intentional disregard of dispositive favorable evidence.“3. Purposeful selection of biased physicians and staff to review claims.“4. Imposition of quotas.“5. Failure to review impartially adverse decisions.“6. Arbitrary reversal of favorable decisions.“7. Denial of benefits based on the type of disabling impairment.“8. Unreasonable delays in receiving hearings after termination of benefits.” 796 F.2d, at 1138.UNITED STATES v. KNOX, 839 F.2d 285 (1988)RALPH B. GUY, Jr., Circuit Judge.A one-count indictment was returned against appellants Knox, Ware, and Champegnie charging them with aiding and abetting one another in the possession with intent to distribute a Schedule II controlled substance (cocaine), in violation of 21 U.S.C. §841(a)(1) and 18 U.S.C. §2. The charges arose out of defendants’ arrest at the Memphis airport following the discovery of the cocaine in one of the bags in their possession. All three defendants moved to suppress the evidence and a full evidentiary hearing was conducted by the District Court. Testimony was given by the arresting officer at the hearing; all three defendants elected not to testify. The District Court denied defendants’ suppression motions, finding that, although a seizure had occurred, it constituted a permissible investigatory detention based on a reasonable and articulable suspicion that defendants were engaged in criminal activity. The District Court also found that none of the defendants had standing to challenge the search of the bag containing the cocaine, since both Ware and Knox had specifically disclaimed ownership of the bag and, therefore, none of the appellants had exhibited a legitimate expectation of privacy as to its contents.Following this ruling, defendant Knox entered a conditional guilty plea pursuant to Fed.R.Crim.P. 11. Ware and Champegnie were tried and convicted in a subsequent jury trial. Defendants allege that the district judge erred in:1) Denying the motion to suppress;2) Failing to suppress oral statements made by defendants during questioning;3) Holding the defendants had abandoned the bag in which the cocaine was discovered and therefore lacked standing to contest its search; and4) Denying defendant Champegnie’s motion for judgment of acquittal at the close of the government’s case.Finding no error, we affirm.Following the evidentiary hearing on the motion to suppress, the District Court entered its order denying the motions. In so ruling, the court found that sufficient objective and particularized facts existed to support the agents’ suspicions and thereby rendered their investigatory detention and questioning of defendants constitutional. Further, the court held that the disclaimers of Knox and Ware as to ownership of the blue travel bag resulted in their abandonment of that item, thereby depriving them of standing to challenge the constitutionality of its search or subsequent admission into evidence of the contraband it contained.In?Berkemer v. McCarty,?468 U.S. 420 (1984), the Court rejected the argument that?Miranda?warnings should not be required in?custodial?interrogations which result from stops for routine traffic violations. Although the court refused to differentiate between custodial interrogations resulting in felony charges as opposed to misdemeanor charges, it also held that roadside questioning of a motorist detained pursuant to a routine traffic stop did?not?constitute custodial interrogation. In so ruling, the Court analogized the routine traffic stop to a?Terry?stop, pointing out that in all such detentions:[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.... The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion to our opinions that?Terry?stops are subject to the dictates of?Miranda.Our task in this case is to determine whether the fact that defendants were escorted voluntarily to separate rooms in the airport for questioning constituted a restraint on their freedom tantamount to a formal arrest. We hold that it did not. In a previous airport search case involving questioning in a private airport office, we concluded that appellant’s voluntary presence in the office did not convert an otherwise lawful?Terry?stop into an arrest.?United States v. Smith,?574 F.2d 882, 886 (6th Cir. 1978). We also noted that “[s]ome element of official coercion” would be necessary to transform such a scenario into the equivalent of an arrest.In?Royer,?the Court clearly found the following factors, in combination, persuasive:1) Questioning in a separate airport office;2) Retention of the defendant’s ticket and identification;3) Retrieval of defendant’s luggage by the DEA without his consent; and4) Failure to inform defendant he was free to leave.These particular facts were determinative of the Court’s conclusion that Royer was involuntarily confined under circumstances tantamount to arrest and that, the detention having exceeded the limits of an investigative stop, any “consent” to the search of his luggage was invalid.Defendants assert that the District Court improperly found that none of them possessed standing to challenge the search of the blue travel bag. Champegnie further asserts that, since there is no evidence that he had abandoned his briefcase, the cocaine handbook found within should have been suppressed. We hold that none of the defendants had standing to challenge the admissibility of the cocaine found in the blue travel bag since none of them exhibited a legitimate expectation of privacy in the bag at the time of the search. Katz v. United States, 389 U.S. 347 (1967). A legitimate expectation of privacy incorporates two elements: first, whether the defendant “exhibited an actual (subjective) expectation of privacy,” and, second, whether the defendant’s subjective expectation is “one that society is prepared to recognize as reasonable.” United States v. Tolbert, 692 F.2d 1041 (6th Cir. 1982), cert. denied, 464 U.S. 933 (1983). Fourth Amendment rights are personal and may not be asserted vicariously. Rakas v. Illinois, 439 U.S. 128 (1978). “[D]efendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have been violated.” United States v. Salvucci, 448 U.S. 83 (1980). When a defendant is aggrieved by an allegedly illegal search of a third party’s property, the Fourth Amendment rights of?that defendant have not been infringed. Rakas, 439 U.S. at 134. See also United States v. Calandrella, 605 F.2d 236 (6th Cir.), cert. denied sub nom. Kaye v. United States, 444 U.S. 991 (1979).Jurors as factfinders are entitled to make common sense conclusions regarding human behavior.?Cortez, 449 U.S. at 418. The jury could reasonably conclude from the foregoing circumstantial evidence that Champegnie had purposefully attempted to disassociate himself from Knox and Ware in the event of detection. Therefore, the decision of the District Court with respect to all the foregoing issues is AFFIRMED.NATHANIEL R. JONES, Circuit Judge, concurring.In?Miranda v. Arizona,?384 U.S. 436 (1966), the Supreme Court held that:[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.I recognize that this theory of the impact of?Beheler?on airport?Terry?stops is arguably supported by certain dicta in the?Berkemer?opinion. In that case, the Supreme Court analogized the noncustodial nature of an ordinary traffic stop to?Terry?stops. After outlining the constitutional rationale for allowing?Terry?seizures on less than probable cause, the Court stated:[T]his means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that?Terry?stops are subject to the dictates of?Miranda.Further, I reject the argument that, in view of?Beheler,?custodial interrogation can never be found in a setting that, under a pure Fourth Amendment analysis, is a valid investigatory detention based upon reasonable and articulable suspicion.?See United States v. Streifel,?781 F.2d 953 (1st Cir. 1986) (suggesting that it is only a?general rule?that?Terry?stops do not implicate?Miranda). If it is true that custodial interrogations and brief investigatory detentions are mutually exclusive, it is because the Supreme Court has held that “detention for custodial interrogation - regardless of its label - intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.” Dunaway v. New York,?442 U.S. 200 (1979).?See also United States v. Manbeck,?744 F.2d 360 (4th Cir. 1984),?cert. denied,?469 U.S. 1217 (1985). Accordingly, it is not impossible for investigative?Terry?stops to degenerate into custodial interrogation requiring?Miranda?warnings. But when they do, the holding of?Dunaway?requires that the seizure be justified by full probable cause as opposed to mere reasonable suspicion.FORRESTER v. WHITE, 484 U.S. 219, 108 S.Ct. 538 (1988)Justice O’CONNOR delivered the opinion of the ernment officials who seek exemption from personal liability on basis of immunity have burden of showing that such exemption is justified by overriding considerations of public policy.Among executive officials, President of United States is absolutely immune from damages liability arising from official acts, but immunity is based on President’s unique position in Constitutional scheme and does not extend indiscriminately to President’s personal aides, or to Cabinet level officials.Highest executive officials in states are not protected by absolute immunity from damages liability arising from their official acts under federal law.While judges enjoy absolute immunity from liability in damages for their judicial or adjudicatory acts, judges are not absolutely immune from liability and damages for administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform; it is nature of function performed - adjudication - rather than identity of actor who performed it - a judge-that determines whether absolute immunity attaches to act.State court judge was acting in administrative capacity when he demoted and dismissed probation officer, and thus state court judge was not absolutely immune from damages suit under §1983; threat of vexatious lawsuits by disgruntled employees did not serve to distinguish judge from other public officials who hire and fire subordinates.Held:?A state-court judge does not have absolute immunity from a damages suit under §1983 for his decisions to demote and dismiss a court employee.Judges have long enjoyed absolute immunity from liability in damages for their judicial or adjudicatory acts, primarily in order to protect judicial independence by insulating judges from vexatious actions by disgruntled litigants. Truly judicial acts, however, must be distinguished from the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform. It is the nature of the function performed - adjudication - rather than the identity of the actor who performed it - a judge - that determines whether absolute immunity attaches to the act.This case requires us to decide whether a state-court judge has absolute immunity from a suit for damages under 42 U.S.C. §1983 for his decision to dismiss a subordinate court employee. The employee, who had been a probation officer, alleged that she was demoted and discharged on account of her sex, in violation of the Equal Protection Clause of the Fourteenth Amendment. We conclude that the judge’s decisions were not judicial acts for which he should be held absolutely immune.Forrester filed this lawsuit in the United States District Court for the Southern District of Illinois in July 1982. She alleged violations of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §2000e?et seq.,?and §1 of the Civil Rights Act of 1871, Rev.Stat. §1979, as amended, 42 U.S.C. §1983. A jury found that Judge White had discriminated against Forrester on account of her sex, in violation of the Equal Protection Clause of the Fourteenth Amendment. The jury awarded her $81,818.80 in compensatory damages under §1983. Forrester’s other claims were dismissed in the course of the lawsuit.After Judge White’s motion for judgment notwithstanding the verdict was denied, he moved for a new trial. The District Court granted this motion, holding that the jury verdict was against the weight of the evidence. Judge White then moved for summary judgment on the ground that he was entitled to “judicial immunity” from a civil damages suit. This motion, too, was granted. Forrester appealed.A divided panel of the Court of Appeals for the Seventh Circuit affirmed the grant of summary judgment. The majority reasoned that judges are immune for activities implicating the substance of their decisions in the cases before them, although they are not shielded “from the trials of life generally.”?792 F.2d 647 (1986).Suits for monetary damages are meant to compensate the victims of wrongful actions and to discourage conduct that may result in liability. Special problems arise, however, when government officials are exposed to liability for damages. To the extent that the threat of liability encourages these officials to carry out their duties in a lawful and appropriate manner, and to pay their victims when they do not, it accomplishes exactly what it should. By its nature, however, the threat of liability can create perverse incentives that operate to?inhibit officials in the proper performance of their duties. In many contexts, government officials are expected to make decisions that are impartial or imaginative, and that above all are informed by considerations other than the personal interests of the decision maker. Because government officials are engaged by definition in governing, their decisions will often have adverse effects on other persons. When officials are threatened with personal liability for acts taken pursuant to their official duties, they may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct. In this way, exposing government officials to the same legal hazards faced by other citizens may detract from the rule of law instead of contributing to it.…Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy, and the Court has recognized a category of “qualified” immunity that avoids unnecessarily extending the scope of the traditional concept of absolute immunity. See Scheuer v. Rhodes,?416 U.S. 232 (1974);?Butz v. Economou,?438 U.S. 478 (1978);?Harlow v. Fitzgerald,?457 U.S. 800 (1982).The purposes served by judicial immunity from liability in damages have been variously described. In?Bradley v. Fisher, and again in?Pierson v. Ray, the Court emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have. As Judge Posner pointed out in his dissenting opinion below, this is the principal characteristic that adjudication has in common with legislation and with criminal prosecution, which are the two other areas in which absolute immunity has most generously been provided. 792 F.2d, at 660. If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits.?The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication. Nor are suits against judges the only available means through which litigants can protect themselves from the consequences of judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability.…Here, as in other contexts, immunity is justified and defined by the?functions?it protects and serves, not by the person to whom it attaches.Likewise, judicial immunity has not been extended to judges acting to promulgate a code of conduct for attorneys.?Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719 (1980). In explaining why legislative, rather than judicial, immunity furnished the appropriate standard, we said: “Although it is clear that under Virginia law the issuance of the Bar Code was a proper function of the Virginia Court, propounding the Code was not an act of adjudication but one of rulemaking.”?Similarly, in the same case, we held that judges acting to enforce the Bar Code would be treated like prosecutors, and thus would be amenable to suit for injunctive and declaratory relief.?Cf.?Pulliam v. Allen,?466 U.S. 522 (1984). Once again, it was the nature of the function performed, not the identity of the actor who performed it, that informed our immunity analysis.…Absolute immunity, however, is “strong medicine, justified only when the danger of [officials’ being] deflect[ed from the effective performance of their duties] is very great.”SEVIGNY v. DICKSEY, 846 F.2d 953, 11 Fed.R.Serv.3d 315 (1988)JAMES DICKSON PHILLIPS, Circuit Judge.Award of $112,000 in compensatory damages stemming from arrest for misdemeanor child abuse and willful and wanton damage to real property to mother whose young child drove car into garage was adequately based on evidence from which jury could find that mother suffered extreme emotional distress, including the anxiety of having her fitness as a parent officially investigated. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 4.Punitive damages award of $21,000 against arresting officer was amply supported based on evidence that officer accused mother of lying about property damage incident but ignored two witnesses who might have verified mother’s story, that he charged mother with two completely inconsistent offenses without further investigation, that he interfered with her attempt to post bond, that he initiated an investigation of her care for her children, that he told her that her children would be taken away, and that he told her father that she had the whole thing coming to her. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 4.Sevigny then brought this action against Dicksey and the Town of Carolina Beach, alleging under 42 U.S.C. §1983 an unlawful arrest in violation of her Fourth Amendment rights, and pendent state claims of false imprisonment and negligence on the part of Dicksey and the Town. The only issues submitted to the jury were the false imprisonment and unlawful arrest claims against Dicksey. The jury awarded Sevigny $112,000.00 in compensatory and $21,000.00 in punitive damages, finding that Dicksey had arrested her without probable cause and had falsely imprisoned her. Dicksey moved for judgment n.o.v. on the basis of his claim of qualified immunity or, alternatively, for a new trial, primarily on the grounds that the jury’s verdict was excessive. The District Court denied both motions. This appeal followed.We start with the fact, as found by the jury and not challenged on this appeal, that he did not have probable cause to make the arrest. Under the Anderson test, that does not of course resolve the qualified immunity question. Dicksey might still be entitled to immunity if, on an objective assessment of the circumstances, an officer situated as was he reasonably could have believed that there was probable cause to arrest, i.e., to believe that Sevigny had committed criminal offenses.As to that, our inquiry is further narrowed by Dicksey’s concession on this appeal that there was no objectively reasonable basis for believing that Sevigny had committed the offense of willful and wanton damage to real property with which he alternatively charged her. He contends, however, that even so he is entitled to immunity because there was an objectively reasonable basis for believing that probable cause existed to arrest her for the other offense of misdemeanor child abuse.When Dicksey arrested Sevigny, he was totally uncertain about what had happened. His recourse - which confirms his uncertainty -was later to charge her with two separate offenses -for whatever had occurred. Under the circumstances, these involved mutually inconsistent factual theories: that Sevigny herself had run the car into the building; that her child had done so. Both obviously could not have been proven, and any officer acting reasonably would have realized that this made the existence of probable cause for both highly questionable, if not logically impossible. Laying this possibility aside, there is the critical fact here that Dicksey did not avail himself of readily available information that would have clarified matters to the point that one of the offenses would have been flatly ruled out as factually unsupportable. It is evident that had Dicksey made even rudimentary inquiries of neighbors then on the scene, they would have verified Sevigny’s assertion that her child, not she, had done the property damage. It is further evident that in his impatience and irritation with Sevigny, Dicksey simply did not bother to do what any police officer acting reasonably in the circumstances would have done to clarify the factual situation. There was no exigency which prevented his doing so, there being no apparent danger that were Sevigny not immediately arrested on some basis, she would somehow evade prosecution. Had Dicksey learned what easily could have been learned, and in common prudence should have been, there is reason to doubt that any arrest would have been made. To the extent, therefore, that Dicksey made his arrest on a misapprehension of the facts confronting him, his misapprehension was not a reasonable one.Turning to the offense - misdemeanor child abuse -upon which Dicksey now solely relies in asserting his immunity, we think that his apparent understanding of that offense’s application to Sevigny’s conduct was as plainly not an objectively reasonable one. In fairness, we must make that assessment on the basis of the facts as they should have been perceived by a police officer acting reasonably under the circumstances. This means on the basis that, as Sevigny asserted, her child had indeed driven the car into the building. Though it is evident from the record that Dicksey did not believe Sevigny’s account, the fact that he nevertheless charged her with an offense based upon it would not of itself negate either the existence of probable cause or the reasonableness of a belief that it existed. The inquiry is whether, under the circumstances confronted, probable cause to arrest for some offense existed, or appeared reasonably to exist, without regard to the arresting officer’s subjective perceptions of either fact or law.…State v. Byrd, 309 N.C. 132, 305 S.E.2d 724 (1983), overruled on limited grounds, State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987) (to the extent that Byrd held that in “considering circumstantial evidence an inference may not be made from an inference...[it is] overruled”).We agree with the District Court that no police officer acting reasonably could have believed that Sevigny’s conduct in failing to prevent the almost incredible, highly improbable, act by a four year old child might thereby have violated this child abuse statute. Even if the statute could reasonably be understood to reach culpably negligent as well as intentional conduct directly or indirectly inflicting injury upon, or threatening injury to, a child, there was no reasonable basis for seeing in this episode anything more than an instance of the kind of beleaguered, perhaps improvident, inattentiveness that is the occasional unhappy lot of all parents with active young children. It simply cannot be accepted that any reasonable police officer could have understood that by this statute the state Legislature intended to criminalize every parental lapse or misjudgment that creates so attenuated a risk of injury to children.We therefore affirm the District Court’s rejection of Dicksey’s plea of good faith immunity for the act of arresting Sevigny.As to the compensatory award, Dicksey makes much of the fact that Sevigny only proved $3680.00 in special damages. There was also substantial evidence, however, from which the jury could, and presumably did, find that Sevigny suffered extreme emotional distress, including the anxiety of having her fitness as a parent officially investigated.There is also ample evidence to support the award of punitive damages. There was evidence that Dicksey accused Sevigny of lying about the incident but ignored two witnesses who might have verified Sevigny’s story, that he charged her with two completely inconsistent offenses without further investigation, that he interfered with her attempt to post bond, that he initiated an investigation of her care for her children, that he told her that her children would be taken away, and that he told her father that Sevigny had the whole thing coming to her. This evidence sufficed to support the award of punitive damages under North Carolina law. Blackwood v. Cates, 297 N.C. 163, 254 S.E.2d 7 (1979); Ayscue v. Mullen, 78 N.C.App. 145, 336 S.E.2d 863 (1985).Dicksey next argues that the District Court erred by awarding as an item of costs an expert witness fee in excess of the $30.00 provided for by 28 U.S.C. Sec. 1821. The District Court awarded $2,589.88 as an expert witness fee for the testimony of John O’Leary who opined as a qualified expert in law enforcement that no reasonable police officer would have acted as Dicksey had in this case. Dicksey argues that the recent decision of Crawford Fitting Co. v. J.T. Gibbons, Inc., 482?U.S.?437 (1987), prohibits a court from awarding a witness fee beyond that provided for by explicit statutory authority. Sevigny rightly counters that Crawford did not address whether 42 U.S.C. §1988, the statute involved in this case, provided statutory authority for such an award.Though neither side notes it in briefs, we have held that Sec. 1988 does not provide statutory authority for the awarding of compensation for non-legal experts. Davis v. Richmond, Fredericksburg and Potomac R.R.,?803 F.2d 1322?(4th Cir. 1986). In Davis, we held that the plaintiffs would have to base their claims for expert witness fees on the “general equitable powers of the court....” But the rule in Davis only takes us back to Crawford, which held that a court’s equitable powers under Fed.R.Civ.P. 54(d) do not include the power to award witness fees beyond the statutorily prescribed amounts. Crawford and Davis in combination therefore mean that in this circuit a District Court may not grant a witness fee beyond that provided for by other applicable statutes. As §1821 provides for a fee of $30.00 per day, we must remand the case to the District Court to modify the judgment accordingly.Footnotes:2. Dicksey moved before trial for summary judgment on immunity, among other, grounds. The District Court denied the motion, and Dicksey did not then appeal the adverse immunity ruling, as may have been possible under Mitchell v. Forsyth,?472 U.S. 511 (1985). He properly raised the same issue, one of law for the court, by his motion for judgment n.o.v., and the court’s adverse ruling on that motion presents the identical legal issue earlier presented by the summary judgment ruling.5. Objective inquiry into the reasonableness of an officer’s perception of the critical facts leading to an arrest must obviously not take into account facts not available to him at the time. See Anderson v. Creighton, 483 U.S. 635 (proper inquiry is into “information possessed by the...officials”). By the same token, however, it must charge him with possession of all the information reasonably discoverable by an officer acting reasonably under the circumstances. Indeed his subjective beliefs about the matter, however induced, are actually “irrelevant” to the inquiry. As the Seventh Circuit has recently put it in a case quite similar to this one, “[a] police officer may not close his or her eyes to facts that would help clarify the circumstances of an arrest.” BeVier v. Hucal,?806 F.2d 123 (7th Cir. 1986) (officer must be held to knowledge of reasonably discoverable information bearing upon probable cause to arrest for child neglect).WILLIAMSON v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al. 815 F.2d 368 (1987)JERRE S. WILLIAMS, Circuit Judge.Doctrine of sovereign immunity, inheriting constitutional structure, and in part enshrined by Eleventh Amendment, renders United States, its departments, and its employees in their official capacities as agents of the United States, immune from suit except as United States has consented to be sued. U.S.C.A. Const. Amend. 11.One vehicle by which United States has consented to be sued is Federal Tort Claims Act which provides broadly that the United States will accept liability for common torts committed by its agents to same extent and in same manner as liability would attach to private individuals in similar circumstances. 28 U.S.C.A. §§1346, 2671–2680.Failure of Government to use due care in conveying information is not actionable under misrepresentation exception to Federal Tort Claims Act. 28 U.S.C.A. §§1346, 2680(h).Plaintiff’s claim asserting interference with plaintiff’s contracts with his landlord, interference with plaintiff’s contracts with bank, misrepresentation of productive capabilities of his farm, misrepresentation of extent of Farmers Home Administration interest in his property, and misrepresentation of probability of plaintiff obtaining Farmers Home Administration loans upon disposition of various pieces of his property, asserted against United States, its agencies, and individual defendants in their official capacities was barred by doctrine of sovereign immunity under misrepresentation exception to Federal Tort Claims Act, where plaintiff could point to no independent duty of Government or its agents in relation to the alleged misrepresentations. 28 U.S.C.A. §§1346, 2680(h).Sovereign immunity does not shield individual United States officials in their individual, as opposed to their official capacities.Allegations of malice on part of federal official are irrelevant for purpose of determining availability of absolute immunity.To qualify as officers for absolute immunity, requires both that actions of officials be within bounds of their authority and that they be related to discretionary function.Implied right of action against federal officers for constitutional violations only applies against individual officers in their individual capacities, while United States and its officers in pursuit of their official duties remain protected by sovereign immunity.Federal officers performing discretionary tasks enjoy qualified immunity from suits for constitutional violations to extent that their conduct does not violate clearly established law.District Court acted properly in staying discovery in case pending resolution of immunity issues, in view of the fact that doctrines of absolute and qualified immunity both applied to various aspects of plaintiff’s action against Farmers Home Administration personnel, and together with doctrine of sovereign immunity completely shielded officials from liability for alleged misdeeds.Appellant Clyde Williamson appeals the dismissal of his claims against the Department of Agriculture and several federal government officials for deprivation of property without due process of law, tortious interference with contract, and misrepresentation. The District Court had granted the government’s motion for summary judgment. Williamson’s appeal exposes the tension between the need to protect government officials from the misplaced wrath of citizens disappointed by the actions of the officials, and the need to protect those citizens whose disappointment is alleged to be a constitutional injury. We resolve that tension in this case in favor of the government and its officials, and therefore affirm the judgment of the District Court dismissing Williamson’s claims. Appellant Clyde Williamson was a farmer in Adams County, Mississippi. Beginning in April, 1978, appellant applied for and received eleven loans from the Farmers Home Administration (FmHA) totaling $963,110.00. As of September 20, 1985, appellant owed FmHA $616,851.26, with interest accruing on his account at a daily rate of $122.00.Appellant’s suit was filed as an adversary proceeding in the Bankruptcy Court. Appellees filed a Petition for Retention of Jurisdiction with the United States District Court for the Southern District of Mississippi and obtained a stay of discovery pending resolution of that petition. On September 19, 1985, the District Court rendered its decision to retain jurisdiction. On September 30, appellees filed a Motion to Dismiss, and on October 11, they obtained a second stay of discovery pending a ruling on that motion. On April 11, 1986, the District Court, ruling on the Motion to Dismiss as a Rule 56 Motion for Summary Judgment, granted summary judgment for appellees on all appellant’s claims.?Williamson v. United States Department of Agriculture,?635 F.Supp. 114?(S.D.Miss. 1986).In reviewing the summary judgment, we must consider the full record of the case to determine if “there is [any] genuine issue as to any material fact and [if] the moving party is entitled to summary judgment as a matter of law.” Fed.R.Civ.P.?56(c). In doing so, of course, we “must view the evidence in the light most favorable to the party resisting the motion” for summary judgment.?Simon v. United States,?711 F.2d 740?(5th Cir. 1983).Appellant also claims reversible error in the failure of the District Court to permit discovery in this case prior to its granting the motion for summary judgment. “Control of discovery is committed to the sound discretion of the trial court and its discovery rulings will be reversed only where they are arbitrary or clearly unreasonable.”?Mayo v. Tri-Bell Industries, Inc.,?787 F.2d 1007?(5th Cir. 1986);?Dukes v. South Carolina Ins. Co.,?770 F.2d 545?(5th Cir. 1985);?Perel v. Vanderford,?547 F.2d 278?(5th Cir. 1977). Yet if discovery could uncover one or more substantial fact issues, appellant was entitled to reasonable discovery to do so.?Trevino v. Celanese Corp.,?701 F.2d 397?(5th Cir.),?reh’g denied,?707 F.2d 515?(5th Cir. 1983).The District Court dismissed appellant’s claims against the USDA, FmHA, and the individual appellees in their official capacities because each of those appellees were protected by sovereign immunity. We agree with the ruling of the District Court.The doctrine of sovereign immunity is inherent in our constitutional structure and is in part enshrined by the Eleventh Amendment. It renders the United States, its departments, and its employees in their official capacities as agents of the United States immune from suit except as the United States has consented to be sued. While it is “[d]ecried as irrational and immoral by some,... criticized on historical grounds by others,... recognized by all to have little doctrinal coherence, the doctrine of sovereign immunity has nonetheless retained the endorsement of the two institutions that matter - the Supreme Court and Congress.”?Interfirst Bank Dallas, N.A. v. United States,?769 F.2d 299?(5th Cir. 1985),?cert. denied, 475?U.S.?1081?(1986). The?Supreme Court has held repeatedly that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued..., and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell,?445 U.S. 535 (1980),?quoting United States v. Sherwood,?312 U.S. 584?(1941).?See also Stanton v. United States,?434 F.2d 1273?(5th Cir. 1970) (“Thus the District Courts’ jurisdiction over the United States depends entirely upon the terms of the congressional waiver of sovereign immunity.”).One of the vehicles by which the United States has consented to be sued is the Federal Torts Claims Act,?28 U.S.C. §§2671-80. The statute provides broadly that the United States will accept liability for common torts committed by its agents to the same extent and in the same manner as liability would attach to a private individual in similar circumstances.?United States v. Orleans,?425 U.S. 807 (1976);?Thomas v. Calavar Corp.,?679 F.2d 416?(5th Cir. 1982). The consent to be sued upon claims arising from “‘the negligent or wrongful act or omission’ by an officer or employee of the federal government acting within the scope of his employment,”?Williamson,?635 F.Supp. at 116,?citing?28 U.S.C. §2672, is peppered with exceptions, however, which we are bound to apply rigorously.?Sherwood,?312 U.S. at 590;?Ware v. United States,?626 F.2d 1278 (5th Cir. 1980). The District Court held that appellant’s claims were not covered by the FTCA’s waiver because they fell into exceptions created by §§2680(a) and (h), and also that appellant had failed to satisfy the administrative exhaustion requirements of?28 U.S.C. §2675(a). We address these findings in turn.One of the limitations in the FTCA upon the waiver of sovereign immunity is found in?28 U.S.C. §2680(a), which provides that sovereign immunity shall not be waived with respect to:[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.The Supreme Court carefully examined the contours of this section of the FTCA in?Dalehite v. United States,?346 U.S. 15?(1953), and concluded that: the ‘discretionary function or duty’ that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.The scope of the exception was thus early interpreted so broadly that this Circuit was prompted to issue the following caveat:[i]f the Torts Claims Act is to have the corpuscular vitality to cover anything more than automobile accidents in which government officials were driving, the federal courts must reject an absolutist interpretation of?Dalehite....Thus the courts began the difficult task of divining the boundaries of governmental discretion. Some courts emphasized the relative simplicity of asking whether the government-defendant was acting in a planning or policy-making role, or in an?operational or policy-implementing role. This Court focused more upon a broader inquiry into “the nature and quality of the discretion involved.”?This broader inquiry was recently endorsed by the Supreme Court in?United States v. S.A. Empresa de Viacao Aerea Rio Grandense,?467 U.S. 797?(1984).?Empresa?shed light on “several factors useful in determining when the acts of a Government employee are protected from liability by §2680(a).” The Court emphasized that it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.... Thus, the basic inquiry concerning the application of the discretionary function is whether the challenged acts of a Government employee - whatever his or her rank - are of the nature and quality that Congress intended to shield from tort liability.This discretion granted to the Secretary of Agriculture is properly delegated to and is exercised by other FmHA officials, including the County Supervisor and his superiors. Department of Agriculture regulations provide that the types of FmHA loan applications made by appellant shall be approved or denied in the first instance by the County Supervisor and the County Committee.?7 C.F.R. §1910.4. Congress deemed that the relative experience and training of farmers and their prospects for economic success should be factors in determining loan eligibility. The Secretary of Agriculture, in turn, decreed that the County Committee and the County Supervisor “will determine eligibility.”?7 C.F.R. §1910.4(c). Unmistakably those officials are responsible for exercising the statutory discretion Congress gave to the Secretary.?See Poolman v. Nelson,?802 F.2d 304?(8th Cir. 1986). We hold that all the appellees in this case had responsibility for the exercise of discretion within the meaning of §2680(a).We agree with the District Court that the “discretionary function exemption affords the government a defense where there is room for policy judgment and decision making where, as here, loan eligibility, processing and servicing is involved.”?Williamson,?635 F.Supp. at 116. Appellant’s claims regarding loans either made or denied him, asserted against the United States, its agencies, and the individual defendants in their official capacities, cannot be maintained under the FTCA and are therefore barred by sovereign immunity.A second limitation to the FTCA’s waiver of sovereign immunity is found in?28 U.S.C. §2680(h), which provides that sovereign immunity shall not be waived with respect to:[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights....In?Kosak v. United States,?465 U.S. 848?(1984), the Supreme Court noted that a court’s task in applying §2680(h) is “to identify ‘those circumstances which are within the words and reason of the exception’ - no less and no more.”?465 U.S. at 853. The words and reason, in turn, of the misrepresentation exception within §2680(h) were clarified in?Block v. Neal,?460 U.S. 289?(1983). In?Neal,?the Court reaffirmed its earlier interpretation of §2680(h) as relieving the government of tort liability for pecuniary injuries attributable to reliance on negligent or intentional misstatements by the government. In other words, failure of the government to use due care in conveying information is not actionable under the misrepresentation exception. The Court held that §2680(h) did not apply, however, when the government’s failure to use due care constitutes a breach of a separate, independent duty.Appellant’s claims run against not only the United States and its officers in their capacities as agents of the United States, but also against those officers personally. Sovereign immunity does not shield the individual appellees in their individual, as opposed to their official, capacities.?White v. Franklin,?637 F.Supp. 601?(N.D.Miss. 1986); Keese v. United States,?632 F.Supp. 85?(S.D.Tex. 1985). We look, therefore, to other considerations to resolve the tension between protecting government officials from suit and protecting the citizens they serve from tortious?wrongs. The danger to effective government is that “fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”?Harlow v. Fitzgerald,?457 U.S. 800?(1982),?quoting Gregoire v. Biddle,?177 F.2d 579?(2nd Cir. 1949),?cert. denied,?339 U.S. 949 (1950). The Supreme Court, therefore, has embraced the doctrines of absolute and qualified immunity for federal officials. Williams v. Collins,?728 F.2d 721 (5th Cir. 1984).?See also Lage v. Thomas,?585 F.Supp. 403?(N.D.Tex. 1984);?OKC Corp. v. Williams,?489 F.Supp. 576?(N.D.Tex.),?aff’d?614 F.2d 58,?reh’g denied?617 F.2d 1207, cert. denied,?449 U.S. 952 (1980). Furthermore, allegations of malice on the part of the federal official are irrelevant for purposes of determining the availability of absolute immunity.?Barr v. Mateo,?360 U.S. at 575;?Williams v. Collins,?728 F.2d at 728.To qualify as officials for absolute immunity,?Williams v. Collins, required both that the actions of the officials be within the bounds of their authority and that they be related to a discretionary function. The latter requirement has recently come under some criticism.?See Poolman,?802 F.2d at 308. We need not address the relative merits of the one-factor versus the two-factor immunity test since we have found that the acts in question in this case were authorized discretionary acts. In?Currie v. Guthrie,?749 F.2d 185?(5th Cir. 1984), we held that “[a] public official’s action will be considered ‘discretionary’ if it is ‘the result of a judgment or decision which it is necessary that the Government official be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability.”?749 F.2d at 188,?quoting Norton v. McShane,?332 F.2d 855?(5th Cir. 1964),?cert. denied,?380 U.S. 981 (1965). Decisions regarding the eligibility of farmers for FmHA loans are decision that require such freedom.In his pursuit of a checklist of all possible theories of recovery, appellant claims that he is the victim of unconstitutional as well as common-law tortious activity by FmHA officials. In?Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,?403 U.S. 388?(1971), the Supreme Court recognized “that victims of a constitutional violation by a federal agent have an implied right of action to recover damages against the official absent any statute conferring such a right.”?Hessbrook v. Lennon,?777 F.2d 999?(5th Cir. 1985). This implied right of action only applies against the individual appellees in their individual capacities. The United States and its officers in pursuit of their official duties remain protected by sovereign immunity.?Holloman v. Watt, 708 F.2d 1399?(9th Cir. 1983),?cert. denied,?466 U.S. 958 (1984);?Hampton v. United States,?575 F.Supp. 1180 (W.D.Ark. 1983).Appellant claims that FmHA officials deprived him of his property without due process of law by interfering with his contracts with his landlord, by interfering with his application for a loan from another federal agency, and by confiscating crop proceeds in which FmHA had no interest. The District Court found that appellant “has not established that Defendants’ actions rise to the level of constitutional violations, particularly in light of the nature of the federal programs involved and the substantial discretion committed to those administering them.” Williamson,?635 F.Supp. at 117. Thus, the court found that appellant failed to make out a colorable?Bivens?claim.Appellees in any event claim that they are shielded from liability for appellant’s accusations by the doctrine of qualified immunity. Federal officials performing discretionary tasks enjoy qualified immunity from suits for constitutional violations to the extent that their conduct does not violate clearly established law.?Mitchell v. Forsyth,?472 U.S. 511 (1985);?Harlow v. Fitzgerald.In?Bass v. United States Dept. of Agriculture,?737 F.2d 1408?(5th Cir.), reh’g denied,?742 F.2d 1453 (1984), we addressed the heightened pleading requirement necessary to sustain a?Bivens?allegation in an administrative context:What [the plaintiff’s] contention does not face is that if his view were to prevail, every case involving a discretionary administrative decision would automatically become a constitutional case merely by allegation that the law was otherwise than the decision reached. Yet the entire issue in the judicial review of administrative action always is whether the administrative decision was erroneous. The Constitution is not implicated unless the decision goes beyond mere error to an intentional or reckless disregard of the constitutional rights of the person against whom the administrative decision is made. Mere failure to make the “correct” administrative decision does not rise to the level of a constitutional violation.In any event, the record also shows that the government officials, acting in their individual capacities, were entitled to the protection of qualified immunity. They demonstrated that their actions were taken within the scope of their authority. Appellant did not counter with a showing that their actions violated clearly established law.?See Harlow,?457 U.S. at 818;?Saldana v. Garza,?684 F.2d 1159?(5th Cir. 1982),?cert. denied,?460 U.S. 1012 (1983).?Cf. Baddour, Inc. v. United States,?614 F.Supp. 159 (N.D.Miss. 1985).In the particular context of claims against the United States and federal officials, particular considerations weigh heavily. In?Harlow v. Fitzgerald,?the Supreme Court noted that the protection afforded government officials by the doctrines of absolute and qualified immunity would be greatly depreciated if it did not include protection from discovery. The Court specifically referred to?Halperin v. Kissinger,?606 F.2d 1192?(D.C. Cir. 1979),?aff’d in pertinent part,?452 U.S. 713?(1981), for the proposition that close control of discovery is essential to the preservation of meaningful official immunity.?Halperin?noted that uncontrolled discovery in the course of insubstantial lawsuits constitutes a form of harassment imposing an undue burden on public officials and government agencies.?See also Chagnon v. Bell,?642 F.2d 1248 (D.C.Cir. 1980) (rejecting claim of abuse of discretion based on stay of discovery in case against federal officials),?cert. denied, 453 U.S. 911 (1981). For all these reasons, the Supreme Court advised that “[u]ntil this threshold immunity question is resolved, discovery should not be allowed.”?Harlow, 457 U.S. at 818.As an initial response to this claim, we note that appellant made no motion in the trial court to strike those portions of the affidavits not admissible as evidence. To reverse the District Court’s judgment at this stage on grounds unobjected to below would allow a party to “sandbag the [district] court..., selectively opposing the points [it] chose, and on appeal claiming that the unopposed points were defectively presented and required no response.”?In re Teltronics Services,?762 F.2d 185?(2nd Cir. 1985) (rejecting arguments that summary judgment was impermissibly based on affidavits containing inadmissible evidence). We agree with the reasoning of?Teltronics,?and reject appellant’s claim on the basis of his failure to object to the admission of the affidavits in the District Court.All of appellant’s allegations against the United States, its agencies and its officers were properly dismissed in deference to legal implementation of the principle that government officials need room in which to exercise the discretion bestowed upon them by Congress. Congress limited its waiver of sovereign immunity under the Federal Tort Claims Act in pursuit of this objective. Common law and constitutional claims against government officials are subject to absolute and qualified immunity further to implement this objective. The record is detailed and adequate enough to show that this farmer-businessman fell into deeper and deeper financial difficulty in spite of extensive loans by the federal government. When the collapse came, the attempt is made to blame the government for not going further. Sympathy for appellant’s plight cannot overcome the discretionary nature of the federal program. The summary judgment of the District Court in favor of appellees must be affirmed.Footnotes:2. See Nevin v. United States,?696 F.2d 1229?(9th Cir.) (“[W]hether an act or omission falls within the exemption depends generally on whether that act or omission occurred at the planning level or the operational level of government.”),?cert. denied,?464 U.S. 815 (1983);?Gross v. United States,?676 F.2d 295?(8th Cir. 1982) (“The discretionary function exception covers only decisions made at the policy or planning level.... Decisions made at the operational level may still be actionable even though they involve an element of discretion.”).4. The Court went on to note that the FTCA’s legislative history’s “emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”?467 U.S. at 814.14. In the age of law and economics, there has been an assay toward explaining the doctrine of official immunity in terms of the principles of risk-aversion and profit maximization.?E.g. Carson v. Block,?790 F.2d 562?(7th Cir.) (“Private firms may buy insurance for their employees, or give them bonuses or shares of the enterprise to induce them to take risks. The United States does not offer the Secretary of Agriculture a ‘share of the profits’ from federal programs awarding subsidies, and a system under which officials face risks of substantial liability for error without any corresponding prospect for reward for good work is doomed. Only the addled and the foolhardy would disregard these incentives, and the addled and foolhardy do not execute statutes very well.”),?cert. denied, 479 U.S. 1018?(1986).WILSON v. WHITE, 656 F.Supp 877 (S.D.N.Y. 1987)Civil Rights [Key] 13.13 - To recover under civil rights statute, plaintiff must prove deprivation of rights secured by Constitution by defendants acting under color of state law. 42 U.S.C.A. §1983.2. Prisons [Key] 13 (4) - In determining whether prison official’s conduct his constitutional response to security needs or violates prisoners’ constitutional rights, factors to be examined are need for application of force, relationship between the need in amount of force that was used, extent of injury inflicted, and whether force was applied in good faith effort to maintain or restore discipline are maliciously and sadistically for very purpose of causing harm.Constitutional Law [Key] 272 (2) - Attack on prison inmate which is not part of attempts to maintain or restore discipline violates inmate’s due process right to be free from unprovoked attack. U.S.C.A. Const. Amends. 5, 14.“Pro se complaints, moreover, are held to less stringent standards than formal pleadings drafted by lawyers.” Bass v. Jackson, 790 F.2d 260 (2d Cir. 1986) (citing Hains v. Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972)). To recover under §1983 plaintiff must prove that: (1) the defendants deprived him of a right secured by the Constitution; and (2) the defendants acted under the color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970).LUCAS v. O’LOUGHLIN et al., 831 F.2d 232 (11th Cir. U.S.C.A. 1987)TUTTLE, Senior Circuit Judge:County was liable in §1983 action for acts of county sheriff in terminating deputy, where Sheriff was separately elected under Florida Constitution but, in his capacity as Sheriff, had absolute authority over appointment in control of deputies and sheriffs and deputies’ salaries were paid by local taxation and according to budget approved by county commissioners. 42 U.S.C. §1983; West’s F.S.A. §§30.07, 30.53.It was improper for District Court to award §1988 attorney fees to county against plaintiff deputy sheriff in §1983 action based on allegedly wrongful termination of deputy’s employment, were court itself recognized that there was doubt about the correctness of its action in dismissing complaint against county. 42 U.S.C. §§1983, 1988.Deputy sheriff was not entitled to reinstatement to his position upon prevailing in §1983 action alleging that he was wrongfully terminated from his position, where new sheriff had been elected subsequent to the termination and applicable Florida statute authorized sheriff to name such deputies as he saw fit. 42 U.S.C. §1983; West’s F.S.A. §§30.07, 30.53.There can be no dispute about the fact that O’Loughlin was sheriff of St. Johns County and he carried out whatever functions the state law provided for a sheriff to do within the territorial confines of St. Johns County. His salary and that of his deputies were paid out of county funds. The salaries and expenses of his office, including the operation and maintenance of the jail, were budgeted each year by the sheriff and submitted to the board of county commissioners of St. Johns County.We conclude that the same principle applies to this case. Although elected by virtue of state law, he was elected to serve the county as sheriff. In that capacity, he has absolute authority over the appointment and control of his deputies. His and their salaries were paid by local taxation and according to a budget approved by the county commissioners. We conclude, therefore, that his act was the act of St. Johns County. The trial court erred in dismissing the county as a defendant.Footnotes:1. Section 30.53, Fla.Stat. (1985) provides in pertinent part as follows:The independence of the sheriffs shall be preserved concerning the purchase of supplies and equipment, selection of personnel, and the hiring, firing, and setting of salaries of such personnel…Section 30.07, Fla.Stat. (1985) provides with respect to the appointment of deputies as follows:Deputy sheriffs - Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible.ROBISON v. VIA, 821 F.2d 913 (1987)KEARSE, Circuit Judge.Absolute immunity from civil rights claims extends to a prosecutor’s seeking an indictment, because exposing him to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of the case; however, absolute immunity does not extend to his investigative activities independent of the litigation, because such activities are not integral to the judicial process itself.Both police officers and prosecutors enjoy a qualified immunity from suit under §1983 for investigative acts. 42 U.S.C.A. §1983.As a matter of law, qualified immunity defense should be sustained in a civil rights action if court finds that it was not clear at time of official acts that interest asserted by plaintiff was protected by a federal statute or the Constitution.Even if interest asserted by plaintiff was clearly of a type generally protected by federal law, defendant in a §1983 suit entitled to immunity as a matter of law if it is not clear at time of the acts at issue that an exception did not permit those acts. 42 U.S.C.A. §1983.Even if contours of plaintiff’s federal rights and official’s permissible actions were clearly delineated at time of acts complained of, defendant in a §1983 suit may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights. 42 U.S.C.A. §1983.Federal constitutional standards rather than state statutes define requirements of procedural due process. U.S.C.A. Const. Amend. 14.Under doctrine of pendent jurisdiction, where state law claims are joined with a federal claim that has substance sufficient to confer subject matter jurisdiction on the federal court, and the claims derive from a common nucleus of operative fact such that it would ordinarily be expected that they would all be tried in one judicial proceeding, District Court has power to take jurisdiction of the state law claims as well.Exercise of pendent jurisdiction was not appropriate over state law claims against assistant state’s attorney for battery and for infliction of emotional distress resulting from taking children into custody allegedly in violation of Vermont statutes governing deprivation of a parent of custody of his or her children; allegation of force used by attorney was not sufficiently substantial even to confer subject matter jurisdiction on District Court, and emotional distress claim involved statutes which had not been definitively interpreted by state courts.Factors that generally militate against exercise of pendent jurisdiction to permit joint trial of state and federal claims include: substantial predomination of state law issues, whether in terms of proof, of scope of issues raised, or of comprehensiveness of remedy sought; unsettled nature of state law; and likelihood of jury confusion.Exercise of pendent jurisdiction was not appropriate over state law claim against state trooper for mother’s emotional distress resulting from taking of children into custody as part of investigation of abuse reports; claim was far broader in terms of proof, scope, and potential remedy than mother’s §1983 claim against trooper for use of excessive force; in deciding claim, jury would have to decide whether taking of children into custody was privileged under unsettled state law, and likelihood of jury confusion was substantial. 42 U.S.C.A. §1983.…In addition, we conclude that the District Court should decline to take pendent jurisdiction of most of Robison’s state-law claims.Robison’s amended complaint asserted (1) due process claims under §1983 against both defendants for the taking of her children and against Harrison for the use of excessive force against her, and (2) state-law claims against both defendants for intentional infliction of emotional distress as a result of the taking and against Harrison for battery. Jurisdiction was asserted under 28 U.S.C. §1331 (federal question), §1332 (diversity of citizenship), §1343 (civil rights), and pendent jurisdiction. Via and Harrison moved for summary judgment dismissing the entire complaint.In an Opinion and Order dated May 23, 1986, the District Court granted both defendants partial summary judgment on the ground of absolute immunity for all injuries caused after the commencement of juvenile proceedings before Judge Bryan at 6:00 p.m. on August 26, 1981. In all other respects, defendants’ motions were denied. 636 F.Supp. 268. The court held that defendants’ activities prior to contacting Judge Bryan were investigative rather than prosecutorial and therefore were not entitled to absolute immunity. It held that Via and Harrison were not entitled to summary judgment on their defenses of qualified immunity because (a) taking the children into custody pursuant to 33 V.S.A. Sec. 639(3) (1981) must be premised on “immediate danger,” which did not exist because Mr. Robison was not present, and (b) taking Michael and Julia to the State Police barracks had violated the command of 33 V.S.A. Sec. 640 (1981) that a person taking a child into custody “shall immediately and without first taking the child elsewhere ... [d]eliver the child to the juvenile court....”These appeals followed.Via and Robison appeal from so much of the District Court’s order as denied their summary judgment motions, contending principally that they are absolutely or qualifiedly immune from liability on plaintiff’s §1983 claims. For the reasons below, we conclude that they were entitled to summary judgment dismissing all of Robison’s §1983 claims except that for the use of excessive force by Harrison; as to the latter claim, there exist genuine issues of material fact requiring a trial. Further, given the narrow scope of this remaining federal claim, we conclude that most of Robison’s state-law claims should also be dismissed.Via and Harrison contend that they are entitled to absolute immunity from any due process claim based on their taking the children into custody either because they were performing a prosecutorial function or because the importance of investigating allegations of child abuse warrants the granting of absolute immunity. We reject both contentions.Absolute immunity accords protection from liability, from suit, and from any judicial scrutiny of the motive for and reasonableness of official action. It is established that prosecutors performing prosecutorial activities “intimately associated with the judicial phase of the criminal process” enjoy such absolute immunity in an action brought under §1983. Imbler v. Pachtman,?424 U.S. 409 (1976); see Pierson v. Ray,?386 U.S. 547 (1967). Prosecutorial functions were accorded absolute immunity at common law and continue to enjoy such protection from attack under §1983 because “any lesser degree of immunity could impair the judicial process itself.” Malley v. Briggs,?475 U.S. 335 (1986). For similar reasons, such immunity has been extended to other litigating activities of government attorneys, such as initiating and prosecuting child protection litigation. See Walden v. Wishengrad,?745 F.2d 149 (2d Cir. 1984).The granting or denial of absolute immunity depends more, however, on the function being performed than on the office of the defendant, and the absolute immunity accorded a prosecuting attorney is extended only so far as is necessary to the effective functioning of the judicial process. For example, it extends to the prosecutor’s seeking an indictment, because exposing him to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of the case, see Malley v. Briggs, 475 U.S. 335, but it generally does not extend to his investigative activities independent of the litigation, because those activities are not integral to the judicial process itself, see Powers v. Coe,?728 F.2d 97 (2d Cir.1984); Taylor v. Kavanagh,?640 F.2d 450 (2d Cir.1981); Lee v. Willins,?617 F.2d 320 (2d Cir.), cert. denied, 449 U.S. 861 (1980). It also extends to a county attorney’s procurement of an arrest warrant to enforce a trial subpoena in an ongoing action to terminate parental rights, Walden v. Wishengrad, 745 F.2d at 152, but does not extend to a police officer’s applying for a pre-proceeding arrest warrant since, in so doing, the officer is not “a central actor in the judicial process,” Malley v. Briggs, 475 U.S. 335. Nor does it extend to a prosecutor’s participation in the execution of an arrest warrant since arrests and seizures are normally police functions, and they do not become prosecutorial functions merely because a prosecutor has chosen to participate. See Barr v. Abrams,?810 F.2d 358 (2d Cir.1987) (execution of arrest warrant “generally would carry the prosecutors out of the realm of Imbler and into Harlow [v. Fitzgerald,?457 U.S. 800(1982) (qualified immunity)]”); see also Myers v. Morris,?810 F.2d 1437 (8th Cir. 1987) (prosecutor’s participation in removal of children is not tantamount to case initiation where parents have not been arrested in connection with alleged molestation of those children).Nor are we persuaded that public officials are entitled to absolute immunity for the removal of children from the custody of their parents simply because they have received a complaint of child abuse. In determining whether a particular function is entitled to absolute immunity from suit under §1983, our role is to interpret Congress’s intent in enacting that section in 1871, and in interpreting that intent, we are guided in large part by the common-law tradition. If the defendant official can point to a common-law counterpart to the privilege he asserts, we will normally uphold the privilege unless to do so would be incompatible with the history or purposes of §1983. See Malley v. Briggs, 475 U.S. 335; City of Newport v. Fact Concerts, Inc.,?453 U.S. 247 (1981); Owen v. City of Independence,?445 U.S. 622 (1980), and cases cited therein. On the other hand, if the defendant cannot show that his actions would have been protected by absolute immunity at common law, he will have a most difficult task in seeking to persuade us that there are compelling policy considerations necessitating the grant of absolute immunity against a suit challenging those actions under §1983. See Malley v. Briggs, 475 U.S. 335; (“Since the statute on its face does not provide for any immunities, we would be going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871.”). Absolute immunity would be accorded to such a defendant only if he were able to show that the function at issue is “so sensitive as to require a total shield from liability,” Harlow v. Fitzgerald,?457 U.S. 800 (1982), and that absolute immunity is “essential” if that function is to be properly performed, Butz v. Economou,?438 U.S. 478 (1978). The Court has rarely yielded to such entreaties and has denied absolute immunity to such important functions as the apprehension of felons, see Malley v. Briggs, 475 U.S. 335, and the protection of national security, see Mitchell v. Forsyth,?472 U.S. 511 (1985). Since recognition of a qualified immunity, for reasons discussed in Part II.B below, “provides ample protection to all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, qualified immunity has become the norm for the protection of official action, see Harlow v. Fitzgerald, 457 U.S. at 807, and we are unaware of any instance in which the Supreme Court or this Court has accorded absolute immunity in a §1983 action for the performance of a function that would have been granted a qualified immunity at common law.Nor have they succeeded in persuading us that the official investigation of alleged child abuse is a function so sensitive as to require a total shield from judicial review or that it cannot be performed properly unless all scrutiny is denied. While the investigation of such allegations is obviously vital to interests of the child and of society as a whole, it is not significantly more important a function in the overall scheme of things than the apprehension of felons or the protection of the nation’s security, both of which have been denied absolute immunity. We also doubt that officials’ fulfillment of their responsibility to investigate such complaints will be decreased by according them qualified rather than absolute immunity.Further, we think the delicate nature of the circumstances surrounding such an investigation argues strongly for the granting of only a qualified immunity, in which the objective reasonableness of a removal of the child from the parents’ custody would be subject to judicial review. The proper investigation of a child abuse complaint against a parent will normally require that the alleged victim be questioned outside the presence of the parents, and the inquiry into possible sexual abuse is often made difficult by the fact that the sexually abused child frequently will refuse at first to admit the fact of sexual molestation, see generally Myers v. Morris, 810 F.2d at 1459. The difficulty of pursuing the facts argues for leeway in the investigation; yet we cannot conclude that this justifies absolute immunity for any and every removal of children from their parents’ custody following receipt of a complaint of such child abuse. Against the need for taking the children in order to pursue the investigation we must balance that “most essential and basic aspect of familial privacy -the right of the family to remain together without the coercive interference of the awesome power of the state,” Duchesne v. Sugarman,?566 F.2d 817 (2d Cir. 1977), and we think the strong emotional response provoked in anyone hearing an allegation of child abuse counsels against according an official absolute immunity for a taking in the wake of any and every such allegation, lest the official power itself become more likely to be abused. Nor could we rule that absolute immunity for taking the child is appropriate when done in response to a complaint that is credible or in circumstances that bespeak emergency, for the very introduction of such circumstantial qualifiers leads us out of the realm of absolute immunity, in which evaluation of motive and reasonableness is forbidden, and into the realm of qualified immunity.Both police officers and prosecutors enjoy a qualified immunity from suit under §1983 for investigative acts. See Malley v. Briggs, 475 U.S. 335; Taylor v. Kavanagh, 640 F.2d at 452. This immunity shields them both “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. at 818, and “from suit,” Mitchell v. Forsyth, 472 U.S. at 526. In order to implement the protection from suit, the standard governing the availability of this defense has evolved into one of objective reasonableness, designed to “permit the resolution of many insubstantial claims on summary judgment,” Harlow v. Fitzgerald, 457 U.S. at 818.There are a number of ways in which a defendant official may establish a defense of qualified immunity under §1983. First, purely as a matter of law the defense should be sustained if the court finds that it was not clear at the time of the official acts that the interest asserted by the plaintiff was protected by a federal statute or the Constitution. In Procunier v. Navarette, 434 U.S. 555 (1978), for example, prison officials were entitled to summary dismissals of claims that they violated a prisoner’s rights under the First and Fourteenth Amendments by interfering with his mail because the prisoner’s mail rights under those amendments “had not yet been declared.”Second, even if the interest asserted by the plaintiff was clearly of a type generally protected by federal law, the defendant is entitled to immunity as a matter of law if it was not clear at the time of the acts at issue that an exception did not permit those acts. Thus, in Mitchell v. Forsyth, the United States Attorney General was held entitled to qualified immunity from a suit seeking damages for a warrantless wiretap because, although an individual’s right in general to be free of such warrantless intrusions was well established, there was, at the time of the challenged wiretap, a legitimate unresolved question as to the existence of a national-security exception permitting such a wiretap. See 472 U.S. at 531.Third, even if the contours of the plaintiff’s federal rights and the official’s permissible actions were clearly delineated at the time of the acts complained of, the defendant may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights. See Malley v. Briggs. Though this third route to exoneration, unlike the first two, has its principal focus on the particular facts of the case, it too may lead to summary judgment if the defendant “adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant” to believe that he was acting in a fashion that did not clearly violate an established federally protected right. Halperin v. Kissinger,?807 F.2d 180 (D.C.Cir. 1986). For example, it has long been clearly established that an arrest without probable cause is a constitutional violation. Nonetheless, the arresting officer is entitled to qualified immunity as a matter of law if the undisputed facts and all permissible inferences favorable to the plaintiff show either (a) that it was objectively reasonable for the officer to believe that probable cause existed, or (b) that officers of reasonable competence could disagree on whether the probable cause test was met. See Malley v. Briggs; Myers v. Morris, 810 F.2d at 1454 (denial of summary judgment reversed when undisputed facts showed that the existence of probable cause for an arrest warrant was at least arguable); Floyd v. Farrell,?765 F.2d 1 (1st Cir. 1985).Given the undisputed evidence of record, and even drawing all permissible inferences from it in favor of Robison, we conclude that no rational juror could find it not objectively reasonable for Via and Harrison to believe that Julia was the object of ongoing sexual abuse, that Michael was the object of beatings, and that Robison could not be relied on to protect the children from further harm during the time it would take to procure a court order. Accordingly, Via and Harrison enjoyed qualified immunity from Robison’s due process claims for the deprivation of custody of her children.Via and Harrison also seek reversal of the District Court’s denial of their motions for summary dismissal of Robison’s §1983 claims for the excessive use of force, contending that they have immunity from suit for the force used in taking custody of the children; Harrison argues also that, in any event, the amount of force he used was not excessive. We conclude that Robison has failed as a matter of law to show any factual basis for such a claim against Via and that Via was therefore entitled to summary judgment dismissing this claim. We conclude that Harrison’s challenge to the §1983 claim against him involves factual issues that, in light of Robison’s deposition testimony, were properly not resolved on summary judgment.Not every push or shove by a state officer constitutes a violation of substantive due process. Whether the constitutional line has been crossed depends on “such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Johnson v. Glick,?481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033 (1973). None of Robison’s allegations against Via comes close to describing force that was injurious, malicious, or excessive. Notably, while the first count of the amended complaint complained of both “[d]efendants’ taking of [the] children,” it complained only of “Harrison’s assaultive behavior,” alleging that “Harrison shoved and struck [her].” The second count of that pleading alleged that Harrison’s actions constituted a battery; neither that count nor any other alleged that Via had touched Robison. Consistent with the tenor of her pleading, at her deposition Robison did not testify that Via had participated in or authorized any of the assaultive acts attributed to Harrison. The meager assertion that Via had pushed or pulled or pried at Robison’s fingers, even if it did contradict Via’s statement that she had not so much as touched Robison, created at most an issue that was not material since it was entirely insufficient to show excessive force.Robison’s assertions as to the use of force by Harrison were not so meagre. She testified that Harrison “pushed” her against the inside of the door of her car, “yanked” her out, “threw [her] up against the fender,” and “twisted [her] arm behind [her] back.” Robison testified that she suffered bruises lasting a “couple weeks.” We have held that assertions such as these are sufficient to prevent the summary dismissal of a §1983 claim for excessive force. See Bellows v. Dainack,?555 F.2d 1105 (2d Cir. 1977).Our conclusions that both of Robison’s §1983 claims against Via and Robison’s §1983 claim against Harrison for deprivation of custody should have been summarily dismissed have implications for the proper treatment of the state-law claims asserted against each defendant and for the proper circumscription of the jury’s consideration of the remaining claims against Harrison.As to Robison’s emotional distress claim, though the allegations of custody deprivation are substantial enough to give the court power to exercise pendent jurisdiction, prudential considerations dictate that it decline to do so. This claim depends, in part, on the acceptance of Robison’s view as to the requirements of §§639 and 640 of the Vermont statutes governing the removal of a child from parental custody. These provisions have not, so far as we are aware, been subject to definitive interpretations by the Vermont state courts, and, as we have noted, it may be that Vermont’s concept of “immediate danger” will differ from the concept of “emergency” applicable to a federal due process claim. Absent a violation of federal constitutional rights, the limits, if any, to be placed on official conduct in responding to allegations of child abuse are strictly a matter of state law. Where the District Court is not required to resolve novel state-law issues, it is often preferable to decline pendent jurisdiction so that state courts can develop and apply state law on such issues. See Fay v. South Central Colonie School District, 802 F.2d at 34; cf. Mayer v. Oil Field Systems Corp.,803 F.2d 749 (2d Cir.1986). Since there are no other viable claims against Via, the federal court should not take pendent jurisdiction of the claim that Via’s taking of the children caused Robison emotional distress in violation of state law.With regard to the state-law claims against Harrison, the considerations discussed above, as well as others, require that the court decline to exercise pendent jurisdiction of the emotional distress claim, even though a federal claim against him is to be tried. Factors that generally militate against the exercise of pendent jurisdiction to permit a joint trial of state and federal claims include (1) the substantial predomination of state-law issues, “whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought,” (2) the unsettled nature of state law, and (3) the “likelihood of jury confusion.” United Mine Workers of America v. Gibbs, 383 U.S. at 726; see also Moor v. County of Alameda,?411 U.S. 693 (1973). Each of these factors dictates dismissal of the claim against Harrison for emotional distress, for Robison’s amended complaint makes plain that this claim challenges Harrison’s decision to take the Robison children into custody as “wrongful,” “extreme and outrageous,” and violative of state statutes. This claim is therefore far broader in terms of proof, scope, and potential remedy than her §1983 claim against Harrison for the use of excessive force. Further, as discussed in Part IV.B below, in deciding the §1983 claim, the jury should be instructed that Harrison’s decision to take custody was privileged under §1983 and that he was therefore privileged to use nonexcessive force in taking custody. In deciding Robison’s intentional infliction claim, however, the jury itself would have to decide whether the taking of custody was privileged under state law. The likelihood of jury confusion would plainly be substantial even if the meaning of the pertinent state statutes were settled. In all the circumstances, we conclude that it would be an abuse of discretion for the District Court to exercise pendent jurisdiction over the state-law claim for emotional distress resulting from the taking.Third, the jury should be advised as to any difference between the excessiveness requirements of the §1983 claim and those of the state-law battery claim, for, in general, “the constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery....” Johnson v. Glick, 481 F.2d at 1033. Thus, though it may be that under state law the use of any force in excess of the amount needed to accomplish the privileged taking of the children could expose Harrison to liability for battery, see Chase v. Watson, 56 A. at 11; but cf. Restatement (Second) of Torts §132 comment a (1965) (no liability for force used in making arrest unless force is “clearly” excessive), the standard for liability under §1983 is generally that the amount of force must have been “such as to ‘offend hardened sensibilities’” or have constituted force that was “‘brutal’ and ‘offensive to human dignity,’” Johnson v. Glick, 481 F.2d at 1033 (quoting Rochin v. California, 342 U.S. at 172).Finally, the instructions should make clear that, if the jury finds Harrison liable for excessive use of force, any damage award must be strictly limited to the injury caused by the excessive component of the force used. Damages may not properly be awarded either for the nonexcessive component of the force used or for the taking of the Robison children into custody. Cf. NAACP v. Claiborne Hardware Co.,?458 U.S. 886 (1982) (damages cannot be awarded for part of course of conduct that is protected activity). Given the number and variety of distinctions that the jury will likely be required to draw, both as to liability issues and as to damages issues, the District Court might well consider submitting written interrogatories to the jury pursuant to Fed.R.Civ.P. 49 in order to ensure that each of the pertinent factors is independently considered and decided.ALTIMARI, Circuit Judge, concurring in part and dissenting in part.In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.If we were reviewing the denial of a 12(b)(6) motion, I would have no difficulty in finding that these allegations stated a claim upon which relief could be granted. Indeed, the proposition is well established that allegations such as Robison’s are sufficient to withstand dismissal under Fed.R.Civ.P. 12(b)(6). See Massop v. Coughlin,?770 F.2d 299?(2d Cir. 1985); Hodges v. Stanley,?712 F.2d 34?(2d Cir. 1983); see also Conley v. Gibson,?355 U.S. 41 (1957) (“complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”).LATHAN et al. v. BLOCK et al., 627 F.Supp. 397 (1986)VAN SICKLE, Senior District Judge.Where plaintiffs have not attempted to effect service on parties identified only by official title and not named, complaint would be dismissed as against those parties to the extent that suit was against them in their individual capacities.In support of their motion to dismiss, Defendants argue: 1) that Plaintiffs failed to state a claim upon which relief may be granted because a right to the procedural due process which Plaintiffs seek is not established under the federal Constitution, FmHA’s regulations, or the federal APA; 2) that in so far as Plaintiffs seek recovery under a tort theory, they have not complied with provisions of the Federal Tort Claims Act; 3) that in so far as Plaintiffs seek retroactive relief, their claims are barred by sovereign immunity; and 4) that Plaintiffs have not properly named or served all of the defendants.Plaintiffs’ first and fifth claims for relief concern allegations of deprivation of rights secured by the due process clause of the Fifth Amendment. Defendants argue the actions challenged are not protected by the Fifth Amendment because they are not, state actions.It is a basic principle of constitutional law that due process protections apply only to such action as may fairly be said to be that of the government. Blum v. Yaretsky, 457 U.S. 991 (1982). A governmental body may be held responsible for a private entity’s decision only when the governmental body has exercised coercive power or has provided such significant encouragement, either overt or covert, that the private entity’s choice must in law be deemed to be that of the government. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the government responsible for those initiatives. Defendants assert that the actions challenged here are those of private lien holders, were not subject to the strictures of the due process clause, rather than of FmHA.Defendants argue that, even if Plaintiffs are entitled to some form of due process before a privately held lien is foreclosed, they are not entitled to the “buy-out” program described in the second form of requested injunctive relief.This court will not address the propriety of the form of relief at this time. This court concludes that the motion to dismiss, in so far as it concerns the first and fifth claims for relief, must be denied.Plaintiffs’ fourth claim for relief is that, to the extent FmHA’s regulations allow Defendants to take various loan servicing actions without providing procedural due process prior to taking the action, those regulations are in violation of the Fifth Amendment. Plaintiffs have not addressed this claim in their brief on the motion to dismiss. This court considers this claim to raise issues similar to those of the first and fifth claims. If Plaintiffs can establish that FmHA’s regulations allow it to act in concert with private lien holders to deprive Plaintiffs of a property or liberty interest without due process of law, Plaintiffs may establish a right to relief under this claim. The motion to dismiss, in so far as it concerns the fourth claim for relief, must be denied.Plaintiffs’ seventh claim is that Defendants’ conduct “represent[s] tortious behavior of such a willful and malicious nature as to render the class Plaintiffs’ contractual obligations, which might otherwise be due, null and void.” Defendants assert that they are entitled to dismissal of this claim because Plaintiffs have not complied with jurisdictional prerequisites for bringing a claim either in tort or in contract. Once again, this court must consider the issue without the benefit of Plaintiffs’ response to Defendants’ contentions.Defendants’ argument is twofold: that Plaintiffs’ claim concerns actions which are not within the ambit of the Federal Tort Claims Act (FTCA) waiver of sovereign immunity, and that, even if sovereign immunity were waived, Plaintiffs’ failure to file an administrative claim precludes their action in this court. Under the FTCA, the federal government retains its immunity from suit for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. §2680(a). Butz v. Economou, 438 U.S. 478 (1978). The federal government also retains its immunity from claims arising from certain intentional and malicious acts.The relief sought is indeed broad. Plaintiffs seek, on a nationwide basis, the return of property subject to prior foreclosures. In so far as title to those properties is now held by parties other than FmHA, this court is without power to order the title holders to return the properties to Plaintiffs. Those titleholders are not before this court, and Plaintiffs have suggested no basis for relief as against those parties.However, this action is against federal officials rather than against the federal government itself.… To that extent, this court is not prepared to accept Defendants’ theory of sovereign immunity.Plaintiffs have identified as defendants 1) John R. Block, Secretary of Agriculture; 2) Frank W. Naylor, Jr., Under Secretary of Agriculture; 3) FmHA; 4) Charles W. Shuman, Administrator of FmHA; and 5) All State Directors, All District Directors, and All County Supervisors. The complaint states that all the named defendants are sued in their official capacities. The caption of the complaint suggests that those defendants not named, but identified, are sued in both individual and official capacities.Plaintiffs’ complaint includes the following certification of service:I, Jerald W. Barringer, pursuant to F.R.C.P. Rule 4(d)(4) & (5), have delivered a copy of the summons and of the complaint to the United States attorney for the District Court of North Dakota, Southwestern Division, and have sent a copy of the summons and of the complaint by certified mail, return receipt requested, to the Attorney General of the United States at Washington, District of Columbia, and have sent a copy of the summons and of the complaint by certified mail, return receipt requested, to the individually named defendants as officers and agents of the United States.28 U.S.C. §1391(e). Also relevant are Fed.R.Civ.P. 10(a), requiring that the caption of the complaint include the name of each of the parties, and Fed.R.Civ.P. 25(d), providing that one a public officer is sued in his or her official capacity, he or she may be described by official title rather than by name.Plaintiffs’ brief on the motion to dismiss addresses sufficiency of service only briefly:Finally Defendants maintained that since they were named individually, based on the tort claim issue, and they weren’t served properly, they should all be dismissed completely. If sovereign immunity prevents the tort claim relief, then the individual aspects of the captioned class action will already have been taken care of. As to the administrative claims aspect of the suit, naming the Defendants in their official capacity and serving the parties pursuant to the rules on class actions suffices to eliminate the sovereign immunity bar. As a result, Defendants’ arguments are without merit.The meaning of Plaintiffs’ reference to serving the parties pursuant to the rules on class actions is not apparent to this court. In any event, Plaintiffs have not addressed the question of sufficiency of service of those parties identified but not named in the caption of the complaint.Fed.R.Civ.P. 4(d)(5) is clear: service upon an officer of the United States is effected by sending a copy of the summons and of the complaint by registered or certified mail to the officer as well as to the United States. See Hutchinson v. United States, 677 F.2d 1322 (9th Cir. 1982); Lawrence v. Acree, 79 F.R.D. 669 (D.D.C. 1978); Wright & Miller, Federal Practice and Procedure: Civil §1107 (1967 & Supp. 1985). Plaintiffs have not attempted to effect service upon each of the parties identified by official title but not named. The complaint will therefore be dismissed as against those parties. See C & L Farms, Inc. V. Federal Crop Insurance Corporation, 771 F.2d 407 (8th Cir. 1985) (District Court has discretion to determine appropriate remedy for defective service).It is well recognized that a federal agency cannot be sued eo nominee without the consent of Congress. Blackmar v. Guerre, 342 U.S. 512 (1952); Dore v. Schultz, 582 F.Supp. 154 (F.D.N.Y. 1984); Wright & Miller, Federal Practice and Procedure: Jurisdiction 2d §3655 (1985). Plaintiffs have not demonstrated that Congress has consented to suit against FmHA in its own name. Therefore, this court concludes that the complaint must be dismissed as against that agency.GREEN, et al. v. MANSOUR, 474 U.S. 64, 106 S.Ct. 423 (1986)Justice REHNQUIST delivered the opinion of the Court.Eleventh Amendment and principles governing declaratory relief forbade either “notice of relief” and declaration that Michigan welfare authorities’ prior conduct in prohibiting deduction of child care costs and including stepparent income and calculating eligibility for AFDC benefits violated federal law, following statutory amendment requiring states to deduct child care expenses include stepparent income; there was no continuing violation of federal law to enjoin and no validating injunction to which notice could attach and no basis for using notice is a case management device ancillary to prospective relief and a declaration of past violations would have same effect as award of damages for restitution because of res judicata effect; disapproving Appleyard v. Wallace, 754 F.2d 955; Randall v. Lukhard, 729 F.2d 966; Beltran v. Myers, 701 F.2d 91 and Silva v. Vowell, 621 F.2d 640. 28 U.S.C.A. §2201; 42 U.S.C.A. §1983; Social Security Act, §402, as amended, 42 U.S.C.A. §602; U.S.C.A. Const. Amend. 11.Petitioners brought two separate class actions in the United States District Court for the Eastern District of Michigan against respondent Director of the Michigan Department of Social Services, claiming that respondent’s calculations of benefits under the federal Aid to Families with Dependent Children (AFDC) program violated certain provisions of the federal law. Before a final determination on the merits of either case could be made, Congress amended the relevant statutory provisions. It is undisputed that respondent’s calculations thereafter have conformed to federal law. Notwithstanding this fact, petitioners claim that they were entitled to have the District Court award them both “notice relief” and a declaration that respondent’s prior conduct violated federal law. The District Court denied petitioners both forms of relief, and the Court of Appeals for the Sixth Circuit affirmed. Now from the judgment of the Court of Appeals, holding that the Eleventh Amendment to the United States Constitution and applicable principles governing the issuance of declaratory judgments forbid the award of either form of relief.…There is no claim that respondent’s current childcare deduction policy violates federal law.The District Court granted respondent’s motions to dismiss in each case. It held in each that the changes in federal law rendered moot the claims for prospective relief, and that the remaining claims for declaratory and notice relief related solely to past violations of federal law. Such retrospective relief, the court determined, is barred by the Eleventh Amendment.The Court of Appeals affirmed in a consolidated appeal. Banas v. Dempsey, 742 F.2d 277 (1984). It agreed that the changes in federal law rendered moot the claims for prospective relief. It also agreed that because the sought-after notice of declaratory relief is retrospective in nature, relief is barred by Edelman v. Jordan, 415 U.S. 651 (1974). It reasoned that when there is no prospective relief to which notice can be ancillary, even notice of the sort approved in Quern v. Jordan, 440 U.S. 332 (1979), cannot escape the Eleventh Amendment bar. Declaratory relief is similarly barred under such circumstances, it explained, because such relief could relate solely to past violations of federal law.The Eleventh Amendment confirms that “the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). Because of the Eleventh Amendment, States may not be sued in federal court unless they consent to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity. The landmark case of Ex parte Young, 209 U.S. 123 (1908), creating exception to this general principle by asserting that a suit challenging the constitutionality of a state official’s action in enforcing state law is not one against the State. The theory of Young was that an unconstitutional statute is void, and therefore does not “impart to [the official] any immunity from responsibility to the supreme authority of the United States.” Young also held that the Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law. We have refused to extend the reasoning of Young, however, to claims for retrospective relief. See Pennhurst, 465 U.S. at 102; Quern v. Jordan, 440 U.S. at 337; Edelman v. Jordan, 415 U.S. at 668.Quern was the last chapter and the litigation that initially gave rise to Edelman v. Jordan. The plaintiffs in that litigation challenged a State’s administration of the federal-state program for Aid to the Aged, Blind, or Disabled (AABD). The District Court issued a declaratory judgment that current state regulations governing the administration of the program violated federal regulations then in effect. It therefore permanently enjoined the state officials from continuing to violate federal law. Although the language of the declaratory judgment was no broader than necessary to complement the injunction against the current violation of federal law, it implied that the defendants had violated federal law in the past. The District Court therefore issued a second injunction ordering the defendants to release and remit all AABD benefits that they had wrongfully withheld on account of their past violations of federal law. The Court of Appeals affirmed, Jordan v. Weaver, 472 F.2d 985 (CA7 1973), but we reversed, holding that the Eleventh Amendment barred the injunction ordering retroactive benefits because it was effectively an award of money damages for past violations of federal law. Edelman v. Jordan, 415 U.S. at 666.Our review of the long, drawn-out Jordan litigation convinces us that neither the Court of Appeals nor this Court conceived of the requested notice allowed in that case to be an independent form of relief. We simply held that the specific order fell within the Ex parte Young exception to the Eleventh Amendment principle of sovereign immunity because it was ancillary to a valid injunction previously granted and was sufficiently narrow to retain its character as a mere case-management device. The notice in Quern v. Jordan did nothing other than inform a diverse and partially victorious class concerning the extent of the judgment in its favor, cf. Fed. Rule Civ.Proc. 23(d)(2), and that the federal courts could do no more for them. There was no suggestion that the notice itself would bind state officials in any way, or that such notice would be routinely available as a form of relief in other cases. Because “notice relief” is not the type of remedy designed to prevent ongoing violations of federal law, the Eleventh Amendment limitation on the Art. III power of federal courts prevents them from ordering it as an independent form of relief.Measured by the standards of Quern, however, a request for a limited notice order will escape the Eleventh Amendment bar if the notice is ancillary to the grant of some other appropriate relief that can be “noticed.” Because there is no continuing violation of federal law to enjoin in this case, an injunction is not available. Therefore, notice cannot be justified as a mere case-management device that is ancillary to a judgment awarding valid prospective relief. Petitioners argue, however, that they are entitled to a declaratory judgment that respondent violated federal law in the past. Only if petitioners are correct in this assertion can they properly claim a right to “notice” of a judgment under the principles of Quern.The Declaratory Judgment Act of 1934, 28 U.S.C. §2201, permits a federal court to declare the rights of a party whether or not further relief is or could be sought, and we have held that under this Act declaratory relief may be available even though an injunction is not. Steffel v. Thompson, 415 U.S. 452 (1974). But we have also held that the declaratory judgment statute “is an enabling Act, which confers a discretion of the courts rather than an absolute right upon the litigant.” Public Service Comm’n v. Wycoff Co., 344 U.S. 237 (1952). The propriety of issuing a declaratory judgment may depend upon equitable considerations, see Samuels v. Mackell, 401 U.S. 66 (1971), and is also “informed by the teachings and experience concerning the functions and extent of federal judicial power.”Wycoff, 344 U.S. at 243; cf. Younger v. Harris, 401 U.S. 37 (1971).In applying these principles, we have held that a declaratory judgment is not available in a number of instances. In Great Lakes Co. v. Huffman, 319 U.S. 293 (1943), we held that a declaratory judgment was not available to obtain a determination of the constitutionality of a state tax even though the relevant federal statute prohibited federal courts only from issuing injunctions against the collection of such taxes. We held in Samuels v. Mackell, that a declaratory judgment declaring a state criminal statute unconstitutional was unavailable where it would have much the same effect as an injunction prohibiting enforcement of the statute, and the latter was barred by traditional principles of equity, comity, and federalism. In Wycoff, we held that it was inappropriate to issue a declaratory judgment deciding whether the plaintiff’s business was interstate commerce and therefore potentially immune from state regulation. We reasoned that if the federal judgment were res judicata in subsequent state proceedings, then the federal court will have lifted the case out of the state court before the state agency or court can hear it. On the other hand, if the federal judgment would not have such an effect, then it would “serv[e] no useful purpose as a final determination of rights.”Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS join, dissenting.Furthermore, I strenuously disagree with the Court’s suggestion that the balance it has struck sufficiently protects the supremacy of federal law. It may be true that the availability of prospective relief of the sort awarded in Ex parte Young, 209 U.S. 123 (1908), gives, as the Court puts it, some “life” to the Supremacy Clause. That this rule saves the Clause from being completely moribund does not, however, alter the reality that it is insufficient to ensure that federal law is paramount. From this day forward, at least with regard to welfare programs, States may refuse to follow federal law with impunity, secure in the knowledge that all they need do to immunize themselves from accountability and federal courts is to conform their policies to federal law on the eve of judgment in a suit brought to secure “prospective” injunctive relief. During the period of noncompliance, States save money by not paying benefits according to the criteria established by federal law, while needy individuals designated by Congress as the beneficiaries of welfare programs are cheated of their federal rights. Once again, the Court’s doctrine “require[s] the federal courts to protect States that violate federal law from the legal consequences of their conduct.” Atascadero, 473 U.S. at 258. Surely the Supremacy Clause requires a different result.Because the disputes in the instant case are between citizens and their own State and because a federal question is the source of federal-court jurisdiction, the Eleventh Amendment, properly construed, is no bar to petitioners’ suits.Justice MARSHALL, with whom Justice BRENNAN and Justice STEVENS join, dissenting.Justice BRENNAN’s opinion cogently explains how the decision of the majority today repudiates Quern v. Jordan, 440 U.S. 332 (1979). The Court in that case did not approve notice relief as a “mere case-management device,” nor does the majority suggest how informing class members of state administrative procedures serves a case-management function in the federal-court litigation. Rather, the Quern Court, explicitly posing the question whether “the modified notice contemplated by the Seventh Circuit constitute[s] permissible prospective relief or a retroactive award which requires the payment of funds from the state treasury,” concluded that “this relief falls on the Ex parte Young side of the Eleventh Amendment line rather than on the Edelman side.”In abandoning the result it reached six years ago, the majority misapplies its own Eleventh Amendment jurisprudence. The majority states that there are two kinds of remedies that can be sought against a state officer: prospective relief “designed to end a continuing violation of federal law,” and retrospective relief serving mere “compensatory or deterrence interests.” Only in the former class of relief, it concludes, do the federal interests involved outweigh the Eleventh Amendment interests implicated by a suit against a state officer in his official capacity. “Prospective” and “retrospective” labels, however, should be irrelevant to analysis of this case. The notice relief at issue here imposes no significant costs on the State, creates no direct liabilities against the State, and respects the institutions of state government. See Quern, at 347. This Court has never held that the Eleventh Amendment poses any bar to such relief. Indeed, notice of the availability of possible relief through existing state administrative remedies, where the state agency and state courts would be the sole arbiters of what relief would be granted, assists in the vindication of state law by informing class members that they may have causes of action under that law. In the Eleventh Amendment balance set up by the majority opinion, it is thus hard to see what weight, if any, exists on the State’s side of the scale, and why that weight should overcome the interest in vindicating federal law.POOLMAN v. NELSON, 802 F.2d 304 (1986)JOHN R. GIBSON, Circuit Judge.Federal officials enjoy immunity from common-law tort liability for actions taken within the outer perimeter of their line of duty.A distinction need not be made between discretionary and ministerial acts and determining whether a federal official enjoys immunity from common-law tort liability because of actions taken within outer perimeter of his line of duty since to do so would only shift focus from central question whether actions were sufficiently within official’s scope of authority.An act within the outer perimeter of a federal official’s line of duty must be more or less connected with general matters committed by law to official’s control or supervision rather than manifestly or palpably beyond his authority in order for immunity to occur.Kenneth and Jeffrey Poolman appeal from a summary judgment entered against them on their fraudulent misrepresentation claim against Gerald Nelson regarding Jeffrey Poolman’s application for a farm loan. The sole issue in this appeal is whether the District Court?erred in holding that Nelson, an employee of the United States Farmers Home Administration, is absolutely immune from liability because his alleged tortious actions were within the outer perimeter of his line of duty. The Poolmans contend that the law of this circuit affords immunity to a federal official from common law tort liability only if that official was both acting within the outer perimeter of his authority and engaging in the exercise of a discretionary function, and they further argue that the District Court erred in granting summary judgment because Nelson failed both of these tests. We affirm the judgment of the District Court.When reviewing a grant of summary judgment, all facts must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences to be drawn from the facts. Mandel v. United States, 719 F.2d 963 (8th Cir. 1983). We so state the facts based on the record before the District Court.In reviewing a District Court decision granting a motion for summary judgment, we apply the same standard as the District Court. Mandel v. United States, 719 F.2d at 965. Summary judgment should be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Summary judgment is an extreme remedy and is not to be granted unless the moving party has established his right to a judgment with such clarity as to leave no room for controversy, and the other party is not entitled to recover under any discernible circumstances. See also Portis v. Folk Construction Co., 694 F.2d 520 (8th Cir. 1982).The Poolmans first contend that the District Court erred in granting summary judgment based solely on a finding that Nelson’s alleged tortious activity was within the outer perimeter of his line of duty. They argue that in order for a federal official to be immune from common law tort liability, the law of this circuit requires both that the official’s actions were within the outer perimeter of his line of duty and that the official was engaged in the exercise of a discretionary function.Affording immunity from common law tort liability to federal officials acting within the outer perimeter of their duties fosters the concerns expressed by the Court in Barr:It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties -suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.This is not to say that the discretionary or ministerial nature of an activity is never relevant in determining whether an official’s acts are within the outer perimeter of his scope of authority. Undoubtedly, this outer perimeter fluctuates in relation to the degree of discretionary authority afforded an official. In some situations it is necessary to determine the degree of discretion afforded a government official in order to ascertain whether the official acted within the outer perimeter of his line of duty. See Youngstrom v. Dunn, 447 F.2d 948 (8th Cir. 1971); Gross v. Sederstrom, 429 F.2d 96 (8th Cir. 1970). But to require the often amorphous distinction between discretionary and ministerial acts as a prerequisite to determining whether immunity exists only shifts the focus from the central question of whether the complained of acts were sufficiently within the officer’s scope of authority such that he should enjoy immunity in order to assure “the fearless, vigorous, and effective administration of policies of government.” Barr v. Matteo, 360 U.S. at 571.The District Court applied the test enunciated in Gross v. Sederstrom, 429 F.2d at 96, to determine whether an official has acted within the outer perimeter of his line of duty: “[T]he act must have more or less connection with the general matters committed by law to the officer’s control or supervision, and not be manifestly or palpably beyond his authority.” (Quoting Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), cert. denied, 380 U.S. 981 (1965)).An assessment of Nelson’s functions and duties is the “starting point” in determining whether he acted within the outer perimeter of his authority. Doe v. McMillan, 412 U.S. 306 (1973). The record includes a detailed job description of Nelson’s position as County Supervisor for FmHA. The Introduction to this job description indicates the wide ranging authority a County Supervisor has over FmHA matters in the county or counties he supervises. This Introduction is followed by an extensive enumeration of a County Supervisor’s principal duties and responsibilities. These duties and responsibilities dictate the need for a County Supervisor to constantly interact with private individuals to further the services FmHA provides to the individuals and entities in the Supervisor’s geographic area. We cannot conclude that Nelson exceeded the bounds of his control and supervision by, at his discretion, engaging in communications with the Poolmans concerning the status of Jeffrey Poolman’s loan application. The Poolmans contend, however, that we must examine the specific nature of these communications. They argue that even if the subject matter of the communications fell within the scope of Nelson’s duties, the tortious nature of the statements abrogates immunity. As we indicated in Bushman, 755 F.2d at 653, such a finding would debilitate the immunity defense:[T]o separate the activity that constitutes the wrong from its surrounding context-an otherwise proper exercise of authority-would effectively emasculate the immunity defense. Once the wrongful acts are excluded from an exercise of authority, only innocuous activity remains to which immunity would be available. Thus, the defense would apply only to conduct for which it is not needed.Therefore, we affirm the judgment of the District Court.HEANEY, Circuit Judge, concurring.The result reached is a very harsh one. The Poolmans lose their life’s savings, the seller gets a windfall and the errant federal employee goes free. Unfortunately, the decisions of the Supreme Court appear to require that the District Court be affirmed. I thus have no alternative but to concur.JACKSON v. STATE, 498 So.2d 906 (1986)BARKETT, Justice.This is an appeal from convictions for robbery and first-degree murder and a sentence of death. We have jurisdiction. Art. V, §3(b)(1), Fla. Const. We reverse and remand for a new trial.Appellant was charged with the robbery of a hardware store and the murder of its owner. The evidence indicated that when the store owner grappled with appellant’s brother in an effort to keep the last five dollars remaining in the cash register, appellant shot and killed him. Only one shot was fired. Appellant challenges his convictions on three separate grounds and his sentence on several others.Appellant’s first allegation of error concerns the trial court’s decision, pursuant to the state’s?motion, to call appellant’s mother as a court witness. After she had been sworn, she testified, in response to the prosecutor’s question, that her son had?not?admitted to her that he had robbed the hardware store and killed its owner. The?state?anticipated this very testimony as it was consistent with her earlier sworn deposition testimony. The sole purpose of the?state’s?motion to have appellant’s mother called as a court witness was to provide the?state?the opportunity to place before the jury (under the guise of impeachment) the subsequent testimony of a police officer who said that the mother had told him that?her son had admitted his guilt. There is no question that, standing alone, the officer’s testimony would be inadmissible. The introduction of the officer’s testimony under the guise of “impeachment” under these convoluted circumstances makes his testimony no more admissible.We are cognizant of the general rule which permits the trial court to call a witness as a court witness if his or her expected testimony conflicts with prior statements.?See Delanie v.?State,?362?So.2d?689 (Fla. 2d DCA 1978).?See also?McCloud v.?State, 335?So.2d?257 (Fla. 1976). That general rule, however, has been clarified by this Court’s recent opinion in?Brumbley v.?State,?453?So.2d?381 (Fla. 1984). In?Brumbley, we held that a party may not impeach a court’s witness with prior inconsistent statements unless that witness’s in-court testimony proves adverse, i.e., “actually harmful,” to the impeaching party.?We explained that the “purpose of allowing evidence of prior inconsistent statements is to counteract the effect of testimony harmful to the interest of the impeaching party.”?See also Hernandez v.?State,?156 Fla. 356, 22?So.2d?781 (1945). Implicit in being considered harmful to the interest of the impeaching party is that the testimony of the witness is relevant, material, and necessary to the factual question in issue. Indeed, in practically every Florida case where a witness has been called as a court witness, that witness has been an eyewitness and therefore able to provide direct, firsthand knowledge of the facts pertaining to the transaction in question.?Brumbley,?453?So.2d?at 383?(participant and eyewitness to the murder); McCloud,?335?So.2d?at 259?(eyewitness to the crime);?Daugherty v.?State,?154 Fla. 308, 17?So.2d?290 (1944)?(eyewitness);?Olive v.?State,?131 Fla. 548, 179 So. 811 (1938)?(eyewitness);?Morris v.?State,?100 Fla. 850, 130 So. 582 (1930)?(eyewitness); Brown v.?State,?91 Fla. 682, 108 So. 842 (1926)?(eyewitness);?Delanie,?362?So.2d?at 690?(victim and eyewitness of the crime); Chapman v.?State,?302?So.2d?136 (Fla. 2d DCA 1974)?(accomplice and eyewitness to the crime).?But see?Williams v.?State,?353?So.2d?956 (Fla. 1st DCA 1978) (not an eyewitness).?See also?Buchanan v.?State,?95 Fla. 301, 116 So. 275 (1928) (unclear if eyewitness);?Matera v.?State,?218?So.2d?180 (Fla. 3d DCA)?(unclear if court witness was eyewitness),?cert. denied,?225?So.2d?529 (Fla.),?cert. denied,?396 U.S. 955 (1969).In the case at bar, appellant’s mother had no firsthand knowledge of the commission of the crime. She was not present and was not involved. In short, she had no information that would impact upon the?state’s?case regarding the commission of the crime. The sum and substance of her testimony at trial was simply that her son had not told her that he had committed the crime. We fail to see how that testimony is relevant much less adverse to the?state’s?case. The sleight of hand used to admit otherwise inadmissible evidence is clearly exposed when one examines the mother’s testimony separately from that of the police officer. Neither side would be permitted to place a witness on the stand merely to say that they knew nothing of the event in question. The testimony of the mother to the effect that her son did?not?admit his guilt to her cannot be considered relevant to the issue of guilt or adverse to any aspect of the case having been presented by the?state. We note that she did?not?provide an alibi or say that appellant told her that he did not commit the crimes. She merely testified that her son had never told her that he was guilty; she did not affirmatively testify to the defendant’s innocence. Accordingly, regardless of who called her, the mother’s testimony was inadmissible.Moreover, we agree with our sister courts in New Jersey and Illinois which held under very similar circumstances that the concept of impeachment cannot be used in this manner to admit the police officer’s otherwise inadmissible testimony.?People v. Johnson,?333 Ill. 469, 165 N.E. 235 (1929);?State?v. Ross,?80 N.J. 239, 403 A.2d 457 (1979). Our holding in this regard is also consistent with the well-established evidentiary principle that counsel may not “get in through the back door that which he could not have gotten in through the front door.”?See?Perry v.?State,?356?So.2d?342 (Fla. 1st DCA),?cert. denied,?364?So.2d?889 (Fla. 1978). The officer’s recitation of the statement purportedly made by appellant’s mother was hearsay and, therefore, inadmissible as substantive evidence. Counsel’s introduction of that testimony under the guise of impeachment was little more than a thinly veiled artifice to place before the jury that which would be otherwise inadmissible.?See generally?Foremost Dairies, Inc. v. Cutler,?212?So.2d?37 (Fla. 4th DCA 1968). We have held that such sham impeachment of a non-adverse witness by introduction of that witness’s prior statements “as substantive evidence through the mouth of another witness” is “nothing more than the veriest hearsay, and is inadmissible.”?Jackson?v.?State,?451?So.2d?458 (Fla. 1984)?(quoting?Adams v.?State,?34 Fla. 185, 15 So. 905 (1894)). We agree with appellant’s contention that the trial court erred in allowing the state?to introduce the police officer’s testimony regarding the mother’s prior unsworn statement.However, the erroneous admission of both the mother’s and policeman’s testimony was preceded by the initial error in permitting the mother to be called as a court witness. Permitting a court to abandon its position of neutrality by calling a witness as its own was intended to prevent the manifest injustice which might occur if the testimony of an eyewitness to a crime was not placed before the jury because of the inability of either party to vouch for that witness. We believe that court witnesses should be limited to those situations where there is an eyewitness to the crime whose veracity or integrity is reasonably doubted.Appellant next complains that the trial court erroneously permitted the?state?to impeach a key defense witness, David Shorey, by discussing the details of a murder committed by that witness. During cross-examination of Shorey, the prosecutor asked: “You’re living [in?state?prison], because you pled guilty to first degree murder, because you were charged with beating an old man with a pipe?” Over defense counsel’s immediate objection, the trial court allowed the prosecutor to continue questioning Shorey concerning the details of the prior homicide. Appellant contends that the trial court erred by permitting this questioning. We agree.Preliminarily, neither party disputes that a witness may be impeached by reference to a prior conviction.?See?§90.610, Fla.Stat. (1985). The underlying specifics of the crime, however, may not be presented to the jury.?See?Fulton v.?State,?335?So.2d?280 (Fla. 1976);?McArthur v. Cook,?99?So.2d?565 (Fla. 1957);?Sneed v.?State,?397 So.2d?931 (Fla. 5th DCA 1981). Because the prosecutor in the instant action highlighted the details of the witness’s crime, the questioning was improper and should not have been admitted.Appellant’s third allegation of error concerns the improper admission of a prosecution witness’s prior consistent statements in an effort to buttress that witness’s credibility. State?witness Freddie Williams, a co-prisoner with appellant, testified at trial that he overheard appellant admit to robbing the store and killing the owner. A Detective Kappel was subsequently permitted to testify about his pre-trial conversation with Williams wherein Williams told him that which Williams testified to at trial.Appellant argues that Kappel’s recitation of Williams’ prior consistent statements was improper. Again, we agree. It is well settled that a witness’s prior consistent statements are generally inadmissible to corroborate that witness’s testimony.?See?Van Gallon v.?State,?50?So.2d?882 (Fla. 1951);?Hendrieth v.?State,?483?So.2d?768 (Fla. 1st DCA?1986);?McRae v.?State,?383?So.2d?289 (Fla. 2d DCA 1980). An exception to the rule is recognized, however, when such statements are “introduced to rebut an express or implied charge against the witness of improper influence, motive, or recent fabrication.”?Gardner v.?State,?480?So.2d?91 (Fla. 1985). The?state?argues that Williams’ prior consistent statements were in fact introduced to rebut defense counsel’s suggestion that Williams’ testimony stemmed from an improper motive - namely, to curry favor with the?state?regarding his own imminent prosecution.We find the exception noted in?Gardner?to be inapplicable to the facts of this case. As noted in?McElveen v.?State,?415?So.2d?746 (Fla. 1st DCA 1982),?”[t]he exception involving impeachment by bias or corruption or improper motive is only applicable where the prior consistent statement was made ‘prior?to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.’”?Accord?Kellam v. Thomas, 287?So.2d?733 (Fla. 4th DCA 1974).?See also?Parker v.?State,?476?So.2d?134 (Fla. 1985). Here, the record indicates that defense counsel intimated, while cross-examining Williams, that the witness had an improper motive for falsifying the facts from the very moment he learned of the hardware store robbery. Thus, his prior consistent statements were made?after,?not before, the alleged motive to falsify had arisen. The exception discussed in?Gardner?is therefore inapplicable to the case at bar. The witness’s prior consistent statements were erroneously admitted.We conclude that the combined prejudicial effect of these errors effectively denied appellant his constitutionally guaranteed right to a fair trial. Accordingly, we reverse his conviction and remand for a new trial.DANIELS v. WILLIAMS, 474 U.S. 327, 106 S.Ct. 662 (1986)Justice REHNQUIST delivered the opinion of the Court.The due process clause is not implicated by a state official’s negligent act causing unintended loss of or injury to life, liberty or property. U.S.C.A. Const. Amend. 14.Mere lack of due care by a state official does not “deprive” an individual of life, liberty or property under the Fourteenth Amendment; overruling Parratt v. Taylor, 415 U.S. 527. U.S.C.A. Const. Amend. 14.The Due Process Clause was intended to secure an individual from an abuse of power by government officials. Far from an abuse of power, lack of due care, such as respondent’s alleged negligence here, suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Due Process Clause would trivialize the centuries-old principle of due process of law.?Parratt v. Taylor,?451 U.S. 527 (1981) overruled to the extent that it states otherwise.In this §1983 action, petitioner seeks to recover damages for back and ankle injuries allegedly sustained when he fell on a prison stairway. He claims that, while an inmate at the city jail in Richmond, Virginia, he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail. Respondent’s negligence, the argument runs, “deprived” petitioner of his “liberty” interest in freedom from bodily injury, see Ingraham v. Wright,?430 U.S. 651 (1977); because respondent maintains that he is entitled to the defense of sovereign immunity in a state tort suit, petitioner is without an “adequate” state remedy, cf.?Hudson v. Palmer,?468 U.S. 517 (1984). Accordingly, the deprivation of liberty was without “due process of law.”…”Not only does the word ‘deprive’ in the Due Process Clause connote more than a negligent act, but we should not “open the federal courts to lawsuits where there has been no affirmative abuse of power.”The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Historically, this guarantee of due process has been applied to?deliberate?decisions of government officials to deprive a person of life, liberty, or property.?E.g., Davidson v. New Orleans,?96 U.S. 97 (1878) (assessment of real estate);?Rochin v. California,?342 U.S. 165 (1952) (stomach pumping);?Bell v. Burson,?402 U.S. 535 (1971) (suspension of driver’s license);?Ingraham v. Wright,?430 U.S. 651 (1977) (paddling student);?Hudson v. Palmer,?468 U.S. 517 (1984) (intentional destruction of inmate’s property). No decision of this Court before?Parratt?supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv.L.Rev. 366, 368 (1911), was “‘intended to secure the individual from the arbitrary exercise of the powers of government,’”?Hurtado v. California,?110 U.S. 516 (1884) (quoting?Bank of Columbia v. Okely,?4 Wheat. (17 U.S.) 235, 4 L.Ed. 559 (1819)). See also?Wolff v. McDonnell,?418 U.S. 539 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government,?Dent v. West Virginia,?129 U.S. 114 (1889)”);?Parratt,?541 U.S., at 549. By requiring the government to follow appropriate procedures when its agents decide to “deprive any person of life, liberty, or property,” the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement them,?e.g., Rochin,?it serves to prevent governmental power from being “used for purposes of oppression,” Murray’s Les v. Hoboken Land & Improvement Co.,?18 How. (59 U.S.) 272 (1856) (discussing Due Process Clause of Fifth Amendment).We think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate’s property, are quite remote from the concerns just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law.…Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that “‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,’“?Paul v. Davis,?424 U.S. 693 (1976), quoted in?Parratt v. Taylor,?451 U.S., at 544.Petitioner also suggests that artful litigants, undeterred by a requirement that they plead more than mere negligence, will often be able to allege sufficient facts to support a claim of intentional deprivation. In the instant case, for example, petitioner notes that he could have alleged that the pillow was left on the stairs with the intention of harming him. This invitation to “artful” pleading, petitioner contends, would engender sticky (and needless) disputes over what is fairly pleaded. What’s more, requiring complainants to allege something more than negligence would raise serious questions about what “more” than negligence - intent, recklessness or “gross negligence” is required,?and indeed about what these elusive terms mean. See Reply Brief for Petitioner 9 (“what terms like willful, wanton, reckless, or gross negligence mean” has “left the finest scholars puzzled”). But even if accurate, petitioner’s observations do not carry the day. In the first place, many branches of the law abound in nice distinctions that may be troublesome but have been thought nonetheless necessary:“I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized.”?LeRoy Fibre Co. v. Chicago, M. & St. P.R. Co.,?232 U.S. 340 (1914).WILLIAMS v. SMITH, 781 F.2d 319 (1986)MANSFIELD, Circuit Judge.In actions under 42 U.S.C.A. §1983, good faith or qualified immunity is affirmative defense which must be pleaded by defendant officials.Once qualified immunity is pleaded in action under 42 U.S.C.A. §1983, plaintiff’s complaint will be dismissed unless defendant’s alleged conduct, when committed, violated clearly established statutory or constitutional rights of which reasonable person would have known.State prison inmate’s due process right not to be convicted in disciplinary hearing based only on unsworn, written report of prison official was not clearly established in 1983, and thus prison guard and superintendent could claim qualified immunity from inmate’s civil rights action based on inmate’s being convicted in disciplinary proceeding, since it was still unclear when inmate was convicted whether written, unsworn report satisfied requirement that disciplinary convictions be supported by some or a modicum of evidence, and decision of state trial court requiring conviction to be supported by more than guard’s report was still pending on appeal. 42 U.S.C.A. §1983.State prison guard and superintendent were not sheltered by qualified immunity from inmate’s civil rights complaint, liberally construed, alleged that guard and superintendent had impaired inmate’s right to call witnesses at his disciplinary hearing and where that right had initially been recognized nine years before inmate’s disciplinary proceeding was held. 42 U.S.C.A. §1983.Personal involvement of defendants in alleged constitutional deprivations is prerequisite to award of damages under 42 U.S.C.A. §1983.Defendant may be personally involved in constitutional deprivation within meaning of 42 U.S.C.A. §1983. In several ways: defendant may have directly participated in infraction; supervisory official, after learning of violation through report or appeal, may have failed to remedy the wrong; supervisory official may be liable because he or she created policy or custom under which unconstitutional practices occurred or allowed such policy or custom to continue; and supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused unlawful condition or event.James Williams, an inmate of the New York State Correctional Facility at Attica (“Attica”), appeals an order of the Western District of New York, John T. Curtin Chief Judge, granting summary judgment dismissing his action under 42 U.S.C. §1983 (1982) against defendants Harold J. Smith, Superintendent of Attica, and W. Morgan, Correctional Officer. The complaint alleged that the defendants had violated Williams’ constitutional rights in the conduct of a prison disciplinary hearing. The District Court found that Williams had failed to raise an issue of material fact regarding the personal involvement of Morgan and Smith in the alleged violation of his rights. We affirm as to Morgan and reverse as to Smith.Because Williams was a pro se litigant, his complaint must be liberally construed. Estelle v. Gamble,?429 U.S. 97 (1976); Haines v. Kerner,?404 U.S. 519 (1972); Patrick v. Le Fevre,?745 F.2d 153 (2d Cir. 1984). He contends that it sufficiently alleged violation of his constitutional rights in two respects. First he argues that it should be read to allege that defendants violated his due process right not to be convicted in a disciplinary hearing based only on the unsworn, written report of a prison official. Though Williams’ 30-day incarceration in keep lock triggered due process protections, McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983); McKinnon, 568 F.2d at 936, we cannot say that it was clearly established in 1983 that those protections barred conviction in a prison disciplinary hearing based only on a guard’s unsworn, written report. Such a conviction need only be supported by “some” or “a modicum” of evidence. Superintendent, Mass. Corr. Inst. Walpole v. Hill, 472?U.S.?445 (1985). It is unclear whether a written, unsworn report satisfies that requirement.Williams argues, however, that Jones v. Smith, 120 Misc.2d 445, 466 N.Y.S.2d 175 (Sup.Ct.1983), aff’d mem., 101 A.D.2d 705, 475 N.Y.S.2d 809 (4th Dept. 1984), aff’d on other grounds, 64 N.Y.2d 1003, 489 N.Y.S.2d 50, 478 N.E.2d 191 (1985), clearly established that his conviction had to be supported by more than Morgan’s report. Even assuming arguendo that a single decision of a state’s trial court can “clearly establish” federal constitutional rights, we disagree. The decision was rendered August 3, 1983, made available in legal reporters only some time later, and eventually affirmed, on other grounds, in 1985. The hearing at issue in this case occurred on September 27, 1983, less than two months after the decision was rendered by the Wyoming County Supreme Court and while the appeal was pending. We cannot say that a reasonable prison official should on that date have known of Jones or the law it promulgated.Plaintiff also claims, however, that his complaint alleged that the defendants violated his due process right “to call witnesses and present evidence in his defense, ‘when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals.’“ McCann, 698 F.2d at 122 (quoting Wolff v. McDonnell,?418 U.S. 539 (1974)). See also Ponte v. Real, 471?U.S.?491 (1985). The prisoner’s right to call witnesses was initially recognized in 1974, Wolff, 418 U.S. at 556, and was clearly established in 1979, McCann, 698 F.2d at 124. Williams’ complaint, liberally construed, alleged that defendants impaired that right. Williams noted in his complaint that the New York Supreme Court had found his imprisonment in keep lock to have been illegal and sought damages for that “illegal” incarceration. Defendants concede that the Supreme Court’s decision rested on the fact the Hearing Officer failed to call Williams’ witness. It may reasonably be inferred that Williams claimed that the incarceration was illegal for the same reasons relied on by the New York Supreme Court. The District Court’s conclusion that the defendants were sheltered from suit by qualified immunity was therefore erroneous.The District Court’s dismissal of Williams’ complaint also rested on its conclusion that Williams had failed adequately to address defendants’ claim that they did not “personally know, acquiesce or participate in any deprivation of plaintiff’s constitutional rights.” Section 1983 imposes liability for “conduct which ‘subjects, or causes to be subjected’ the complainant to a deprivation of a right secured by the Constitution and laws.” Rizzo v. Goode, 423 U.S. 362 (1976). Accordingly, “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §1983.” McKinnon, 568 F.2d at 934.Construing plaintiff’s pro se complaint liberally, as we must, we conclude that he has raised an issue of material fact regarding Smith’s, but not Morgan’s, personal involvement in allegedly depriving him of his right to call witnesses at his disciplinary hearing.A defendant may be personally involved in a constitutional deprivation within the meaning of 42 U.S.C. §1983 in several ways. The defendant may have directly participated in the infraction, see Johnson v. Glick,?481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033 (1973) (prison guard liable for beating inmate); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied,?404 U.S. 1049 (1972) (Prison warden liable for ordering that inmate be placed in solitary confinement). A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong, see United States ex rel. Larkins v. Oswald,?510 F.2d 583 (2d Cir. 1975). A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue, see McCann, 698 F.2d at 125; Turpin v. Mailet,?619 F.2d 196 (2d Cir.), cert. denied, 449 U.S. 1016 (1980); Duchesne v. Sugarman,?566 F.2d 817 (2d Cir. 1977). Lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event, see Wright v. McMann, 460 F.2d 126 (2d Cir. 1972) (warden responsible for condition of disciplinary units at prison). Cf. Owens v. Haas,?601 F.2d 1242 (2d Cir.), cert. denied, 444 U.S. 980 (1979) (municipality liable for gross negligence in training its prison guards).Officer Morgan’s involvement in this case does not fall within any of these categories. He claims that his “participation in the events described in the complaint was limited to preparing and submitting an Inmate Misbehavior Report.” The transcript of the hearing, the Hearing Record Sheet and the Hearing Disposition Sheet bear him out. Lieutenant Komanecky adjudicated the complaint. Morgan was not present and did not testify. Morgan has, accordingly, documented his assertion of no personal involvement. Williams offers no concrete evidence to the contrary. Indeed, he does not allege Morgan aided in the hearing but claims, “[i]f Morgan filed a false misbehavior report which initiated the procedurally flawed disciplinary hearing, he should be liable for the Due Process violations [occurring at the hearing].” The filing of a false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing. Sommer v. Dixon, 709 F.2d 173 (2d Cir.), cert. denied, 464 U.S. 857 (1983).HESSBROOK v. LENNON, 777 F.2d 999 (1986)GARWOOD, Circuit Judge.Even where only money damages are sought, maintenance of a Bivens claim by a federal prisoner, at least where he complains of his treatment as a prisoner by prison authorities and the allegedly tortious conduct is not clearly wholly outside the Federal Tort Claims Act, does not alone suffice to excuse requirement that prisoner exhaust possibly available administrative remedies. 28 U.S.C.A. §§1346, 2671 et seq.The Federal Tort Claims Act provides a waiver of sovereign immunity of the United States for negligence actions, but not for certain intentional torts, which if they violated a constitutional right would often be actionable instead by Bivens type suit. 28 U.S.C.A. §§1346, 2671 et seq.Exhaustion of administrative remedies doctrine requires not only that administrative remedies selected by the complainant be first exhausted, but instead that all those prescribed administrative remedies which might provide appropriate relief be pursued prior to seeking relief in federal court.Mere fact that punitive damages are requested in a prisoner’s action against the United States does not suffice to excuse prisoner from administrative exhaustion requirement. 28 U.S.C.A. §2674.On August 30, 1982, appellees filed a motion to dismiss, alleging Hessbrook’s failure to exhaust administrative remedies, and his failure to file a Federal Tort Claims Act (FTCA) claim. On March 8, 1983, the District Court directed appellant to show cause why his suit should not be dismissed for nonexhaustion. Appellant responded by arguing that he should be excused from the exhaustion requirement because the administrative remedies available to him were inadequate. He predicated this assertion primarily on the contention that prison officials had no authority to award money damages for constitutional torts. Appellant did acknowledge that he might be able to obtain compensatory damages under the FTCA, but not punitive damages. The magistrate recommended dismissal for appellant’s failure to exhaust, basing his recommendation in part upon a determination that a federal prisoner “challenging the conditions of his confinement” must first seek redress through the Federal Bureau of Prisons, which has been charged with primary responsibility for the supervision of prisoners. The magistrate also found that Hessbrook had failed to show that he had no effective means other than through the Judiciary to remedy the alleged infringement of his constitutional rights, a prerequisite for a Bivens action. Over appellant’s objections to the magistrate’s recommendations, the District Court, on December 6, 1983, dismissed appellant’s suit without prejudice. This appeal followed.Bivens actions are “premised on the theory that victims of a constitutional violation by a federal agent have an implied right of action to recover damages against the official absent any statute conferring such a right.” Muhammad v. Carlson,?739 F.2d 122 (3d Cir. 1984).The FTCA provides a remedy for a “negligent or wrongful act or omission” by an officer or employee of the federal government acting within the scope of his employment. 28 U.S.C. §2672. Certain specific kinds of tort claims, however, are expressly excluded from the FTCA. 28 U.S.C. §2680(h). Thus, broadly speaking, the FTCA provides a waiver of the sovereign immunity of the United States for negligence actions, but not for certain intentional torts, which, if they violated a constitutional right, would often be actionable instead by a Bivens-type suit. Congress amended the FTCA exclusions section in 1974 to expressly retain a subset of the otherwise excluded torts, when committed by federal “investigative or law enforcement officers.”Nor, contrary to appellant’s assertions, is it clear that the FTCA will not afford him adequate relief for his claim. The FTCA provides that up to $25,000 in monetary damages may ultimately be obtained, in proper circumstances and with the authorization of the Attorney General, through administrative channels prior to the recourse to the courts; this includes up to $2,500 as an administrative settlement by the Director of the Bureau without the need for the Attorney General’s approval. See 28 U.S.C. §2672; 28 C.F.R. §§0.96(1), 0.172; cf. id. §14.6(a). The regulations additionally appear to admit of the possibility that the Attorney General might, in a proper case, grant settlement exceeding even the $25,000 limitation. See 28 C.F.R. §0.172(b) (“Assistant Attorney General shall have authority to adjust, determine, compromise, and settle any other claim involving the Department [of Justice] under Section 2672 of Title 28.”); see also 28 C.F.R. §§14.6, 0.160-0.170.We point out that there is always the possibility of recourse to the courts in the event that an administrative determination concludes that liability is lacking, or if the award proposed is insufficient or otherwise unacceptable. The statute and regulations provide only that, if accepted, an administrative settlement relieves the United States and its employees of further liability. See 28 U.S.C. §2672; cf. 28 C.F.R. §0.172(a) (“proposed adjustment, compromise, settlement, or award”); id., §543.30; id., §543.31(e) (“Regional Counsel of Bureau authorized to proposed [sic ] to the claimant a settlement”); id., §543.31(f) (same, for General Counsel of Bureau); id., §543.31(h) (“An individual whose claim is denied may elect to institute suit.”). The FTCA nowhere provides that exhaustion is not required for claims in excess of the statutory limits on administrative awards. We therefore reject appellant’s contention that available administrative remedies are wholly inadequate, and that requiring exhaustion is consequently inappropriate.Perhaps more problematical is that appellant arguably seeks punitive damages. Punitive damages are not available under the FTCA. See 28 U.S.C. §2674. They may, however, be available in Bivens actions. Carlson v. Green, 446 U.S. 14. Appellant’s complaint does not specifically pray for punitive damages, but it does ask for $1.5 million in money damages. These are, in effect, claimed as actual damages, since the complaint asserts “medical and mental damage being to the extent of $1,500,000.” However, appellant, in his “Motion to Proceed Without Exhaustion of Administrative Procedures,” asserted below that this “implies he is seeking punitive as well as compensatory damages.” Hence, appellant asserted that he “should not be relegated to a remedy under the FTCA.” The allegations of the complaint are not affirmatively inconsistent with entitlement to punitive damages, were such properly requested. However, it is not necessarily true that an inability to administratively award punitive damages would, in any event, preclude the achievement of a satisfactory administrative settlement. Cf. Parratt v. Taylor,?451 U.S. 527 (1981). We think that the mere fact that punitive damages are requested, therefore, should not suffice to excuse a prisoner from the administrative exhaustion requirement. Thus, for the same reasons that we determine prevent the mere assertion of money damages in excess of the statutory and regulatory limits on proposed administrative awards from precluding the exhaustion requirement, we think that its application is not excused merely by virtue of a prayer for punitive damages.“[A] plaintiff seeking a damages remedy under the Constitution must first demonstrate that his constitutional rights have been violated.” Davis v. Passman,?442 U.S. 228 (1979). It is by no means clear that appellant has here alleged facts sufficient to reflect that he has been the victim of cruel or unusual punishment in contravention of the Eighth Amendment. The criteria outlined in Bell v. Wolfish,?441 U.S. 520 (1979), are instructive. In that case, the Supreme Court considered whether certain local pre-trial detention conditions and practices offended the constitutional rights of detainees:“A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.... Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’”The factual allegations of appellant’s complaint are amenable to the interpretation that mere negligent acts or omissions by FCI employees are charged, as we have indicated. Thus, the requirement that the defendant’s actions be intentional is not necessarily and plainly satisfied on the face of appellant’s complaint. Should appellant’s conclusory allegation that he received constitutionally prescribed “punishment” fail on the merits, his characterization of his complaint as a Bivens action necessarily fails also. A court entertaining this suit, and subject to the rule that original pro se complaints are to be liberally construed, would then be left with only ordinary negligence claims, cognizable only under the FTCA. This observation, and considerations of judicial economy, reinforce our conclusion that appellant here should be required to exhaust available administrative remedies before seeking redress in the courts.We note also that the Congress has, in a similar context -that of federal prisoners’ assertions of §1983 actions -provided an exception to the usual “no exhaustion rule” applicable to §1983 claims. See 42 U.S.C. §1997e; cf. Patsy v. Board of Regents, 457 U.S. 496. Unlike the situation which obtains for §1983, there is no long-standing judicial or statutory rule against imposing a requirement for exhaustion of federal administrative remedies in constitutional tort cases. To the contrary, and in contrast to the character of the legislative history regarding exhaustion for §1983, both the legislative history of the FTCA and the language of the Act itself indicate Congress’ intention that administrative relief be a prerequisite to suit in the courts for tort claims. Section 2674 is an explicit example. We perceive no reason to depart from this policy, especially where, as here, it is only the claimant’s own characterization of his claim which forms the basis for the asserted excuse from the exhaustion requirement. The exhaustion requirement reflects a judicial recognition of the separation of powers in our federal system, and should not be so lightly disregarded.Footnotes:3. The Carlson v. Green Court indicated that two conditions might “defeat” a Bivens cause of action in a particular case: “when defendants demonstrate ‘special factors counselling hesitation in the absence of affirmative action by Congress’...[or] when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.” (Quoting and citing Bivens; citing Davis v. Passman,?442 U.S. 228 (1979)). Neither consideration is conclusive here. Congress has not expressly indicated that constitutional tort claims are to be brought only under the FTCA; nor has there been an absence of “affirmative action by Congress” in the areas of such tort claims against the government, as evidenced by the FTCA itself and its comprehension of some Bivens-type claims. See 28 U.S.C. §2680(h). Even though an exhaustion requirement is attached statutorily to the FTCA, the possibility of appellant’s independent maintenance of a Bivens action does not necessarily compel the conclusion that he may therefore be excused from an exhaustion requirement simply because he asserts that he is not maintaining an FTCA action.4. The relevant list of exclusions includes “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights....” 28 U.S.C. §2680(h).5. These generally Bivens-type torts specifically within the scope of the FTCA are: “any claim arising...out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution,” when committed by such officers. 28 U.S.C. §2680(h) (1974). The subsection goes on to define “investigative or law enforcement officer” as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of federal law.” Prison officials may make searches of inmates’ quarters and may seize evidence. It is arguable, therefore, that they come within the ambit of this definition; if so, then even some intentional torts by prison officials would be actionable under the FTCA. Further, even if prison officials are not “investigative or law enforcement officer[s],” nevertheless their torts of the variety not listed in the first (exclusionary) clause of section 2680(h) might be within the FTCA notwithstanding that they were to some extent intentional.6. Appellant’s complaint alleges that he was given a size and type of shoe ill-suited to his particular medical conditions - diabetes (one symptom of which is poor circulation to the extremities, which may result in swelling) and a former injury, including broken bones in his right foot- despite his requests for alternative footwear. He maintains that on several occasions he requested medical attention, to which the alleged response was, “When your feet get bad enough, we will do something with them.” His complaint does note that he finally did receive medical attention (but only when his foot “swelled and turned blue to the point that he could no longer walk”), which he asserts was inadequate, as well as some different (“Hush Puppy”-type) shoes, which he claims were too large and did not provide adequate support for his injured foot.Although his complaint does allege that the defendants “have acted, and are acting in concert with one another in a vicious, and determined [sic] to deprive your Plaintiff of proper medical care, and to further Plaintiff’s pain, and suffering to such extent as to cause permanent mental disorder through constant paranoia, thereby causing Plaintiff to contemplate the comforts of suicide,” we note that the specific acts and omissions in the complaint were allegedly by employees under the defendants’ supervision, not by defendants themselves, with the possible exception of defendant French. Nor is there any allegation or other indication in the complaint or in any of the pleadings that any of the defendants ordered or otherwise instructed their subordinates to deny appellant suitable shoes or medical attention. The complaint also recites that “as Warden of FCI, Bastrop, Texas; Defendant Lennon is responsible for and approves [sic] all acts of negligence on behalf of his employees therein. (i.e., Defendants, French and Defendant Saxmn [sic].”9. The Third Circuit has characterized this administrative FTCA procedure as a “narrow exception” to the general prohibition against filing tort claims in the Bureau’s Administrative Remedy Procedure. Muhammad v. Carlson,?739 F.2d 122 (3d Cir. 1984). The Sixth Circuit used this regulatory language to infer a total ban of tort claims from among federal prisoners’ administrative remedies: “Administrative officials, therefore, do not have the authority to award monetary damages for tort claims against the government or against other officials.” Goar v. Civiletti,?688 F.2d 27 (6th Cir. 1982). This conclusion appears to us to give insufficient weight to the broadly inclusive wording of 28 U.S.C. §§2672, 2675 and of 28 C.F.R. §§0.172(a) and 543.30. See also 28 C.F.R. §§0.96(1), 14.2(b)(1) and 14.3(b). We think the relevant subparts are entirely distinct, and therefore respectfully disagree with the characterizations of the tort filings prohibition of 28 C.F.R. §542.12 by our sister circuits.12. The Court, in a §1983 case specifically concerned with whether a denial of medical attention constituted a violation of the Eighth Amendment, said that “deliberate indifference to serious medical needs constituted the ‘unnecessary and wanton infliction of pain’...prescribed by the Eighth Amendment.” Estelle v. Gamble,?429 U.S. 97 (1976). The Court concluded that, “how[ever] evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under [42 U.S.C.] §1983.” But “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’ Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”14. The Brice opinion deals with two separate suits, one by Brice and one by Gowler. In the Bivens claim of the prisoner Brice “[t]he relief sought was monetary damages from each defendant and ‘what other relief the court deems fair,’” while prisoner Gowler’s claim sought “declaratory and injunctive relief and monetary damages, both compensatory and punitive.” Brice, 604 F.2d at 665. The Brice opinion in no way predicates its exhaustion holding on any determination that prisoner Brice’s suit was for more than money damages.UNITED STATES, et al., v. LOCKE, et al., 471 U.S. 84, 105 S.Ct. 1785 (1985)JUSTICE MARSHALL delivered the opinion of the Court.Appeal under statute authorizing appeal to Supreme Court from decisions invalidating acts of Congress brings before Supreme Court not merely the constitutional questions but the entire case, including nonconstitutional questions actually decided by lower court as well as nonconstitutional grounds presented to, but not passed on, by the lower court. 28 U.S.C.A. §1252.Deference to supremacy of the Legislature, as well as recognition that Congressman typically vote on the language of the bill, generally requires Supreme Court to assume that the legislative purpose is expressed by the ordinary meaning of the words used in the statute.We look next to the substantive effect of §314(c) to determine whether Congress is nonetheless barred from enacting it because it works an impermissible intrusion on constitutionally protected rights. With respect to the regulation of private property, any such protection must come from the Fifth Amendment’s proscription against the taking of private property without just compensation. On this point, however,?Texaco?is controlling: “this Court has never required [Congress] to compensate the owner for the consequences of his own neglect.” 454 U.S. at?530. Appellees failed to inform themselves of the proper filing deadline and failed to file in timely fashion the documents required by federal law. Their property loss was one appellees could have avoided with minimal burden; it was their failure to file on time - not the action of Congress - that caused the property right to be extinguished. Regulation of property rights does not “take” private property when an individual’s reasonable, investment-backed expectations can continue to be realized as long as he complies with reasonable regulatory restrictions the Legislature has imposed.?See Miller v. Schoene,?276 U.S. 272 (1928);?Terry v. Anderson,?95 U.S. at?632;?cf. 30 U.S.?Barney’s Lessee,?5 Pet. 457,?30 U.S. 465 (1831) (“What right has any one to complain, when a reasonable time has been given him, if he has not been vigilant in asserting his rights?”).JUSTICE O’CONNOR, concurring.Although “it is well settled that the Government may not be estopped on the same terms as any other litigant,”?we have never held that the Government can extinguish a vested property interest that has been legally held and actively maintained for more than 20 years merely because the private owners relied on advice from agency personnel concerning a poorly worded statutory deadline and consequently missed a filing deadline by one day. Thus, if the District Court ultimately determines that appellees reasonably relied on communications from the BLM in making their annual filing on December 31, 1980, our previous decisions would not necessarily bar application of the doctrine of equitable estoppel. Accordingly, the fact that the Court reverses the decision of the District Court does not establish that appellees must ultimately forfeit their mining claims.JUSTICE POWELL, dissenting.In the present case, there is no claim that a yearly filing requirement is itself unreasonable. Rather, the claim arises from the fact that the language “prior to December 31” creates uncertainty as to when an otherwise reasonable filing period ends. Given the natural tendency to interpret this phrase as “by the end of the calendar year,” rather than “on or before the next-to-the-last day of the calendar year,” I believe this uncertainty violated the standard of certainty and definiteness that the Constitution requires. The statement in at least one of the Government’s own publications that filing was required “on or before December 31,” Department of the Interior, Staking a Mining Claim on Federal Lands 10 (1978), supports this conclusion. Terminating a property interest because a property holder reasonably believed that, under the statute, he had an additional day to satisfy any filing requirements is no less arbitrary than terminating it for failure to satisfy these same conditions in an unreasonable amount of time.?Cf. Wilson v. Iseminger,?185 U.S. 55 (1902);?Terry v. Anderson,?95 U.S. 628 (1877). Although the latter may rest on impossibility, the former rests on good faith performance a day late of what easily could have been performed the day before. Neither serves a purpose other than forcing an arbitrary forfeiture of property rights to the State.DENNIS, et al., v. WARREN, et al., 779 F.2d 245 (1985)ROBERT MADDEN HILL, Circuit JudgeArrest and detention violated arrestee’s rights under Fourth and Fourteenth Amendments, where deputy sheriff had no arrest warrant, acted under civil summons, which he knew could not authorize lawful arrest, failed to release arrestee even after realizing his mistake, and deputy’s actions in arresting, detaining and finally releasing arrestee were product of wishes of attorney. U.S.C.A. Const. Amends. 4, 14.Individual’s right to be free from unlawful arrest and detention is federally protected right, violation of which may be grounds for suit under 42 U.S.C.A. §1983.Deputy sheriff’s acts in arresting individual were not shielded from liability for civil damages, where deputy sheriff acted on basis of civil summons, and reasonable police officer could not have believed such acts were permissible.Sheriff was not liable under 42 U.S.C.A. §1983 for illegal arrest performed by his deputy, where sheriff was neither personally involved in arrest or detention of arrestee, nor was there causal connection between his acts and violation of arrestee’s federal rights.Sheriff was liable for damages under Mississippi statute [Miss. Code 1972, §19-25-19] which renders sheriffs liable for acts of their deputies, where deputy had performed illegal arrest and detained arrestee.Evidence supported punitive damage award of $10,000; there was evidence that deputy sheriff acted with willful, wanton and reckless disregard of arrestee’s rights when he illegally arrested and detained arrestee.District Court’s award of attorney fees under 42 U.S.C.A. §1988 will not be disturbed absent abuse of discretion.District Court did not abuse its discretion in awarding attorney fees under 42 U.S.C.A. §1988 even though no contemporaneous time records were filed in support of requested fees, where District Court found noncontemporaneous time records accurately reflected amount of attorney time actually expended.According to his testimony, Kelly read the papers given him by Bustin sometime after Dennis was jailed. Kelly, who had over twenty years of experience in law enforcement, knew the difference between a “summons,” which could not serve as the basis for a valid arrest, and a “writ,” which could authorize an arrest. Although the word “summons” was written on the top of the papers, he did not release Dennis when he realized the illegality of the arrest. Kelly testified that he believed only a judge or the sheriff had authority to release an incarcerated person.Kelly and Warren contend that Kelly’s actions did not constitute a violation of Dennis’ federally secured rights under 42 U.S.C. §1983. They claim his actions were “no more than simple negligence,” and “certainly not willful and malicious,” and thus not a violation of Dennis’ rights. We disagree.A §1983 plaintiff must show two essential elements. “First, the conduct complained of must have been committed by a person acting under color of state law; and second, this conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Augustine v. Doe,?740 F.2d 322 (5th Cir. 1984). It is undisputed that Kelly acted under the color of state law in arresting and jailing Dennis. The next question is whether Dennis’ federal rights were violated.We have no difficulty in finding that the arrest and detention violated Dennis’ rights under the Fourth and Fourteenth Amendments. Kelly arrested Dennis without the slightest hint of probable cause, or even a reasonable suspicion, that Dennis had committed a crime. Kelly had no arrest warrant. Kelly acted on the basis of a civil summons, which he knew could not authorize a lawful arrest. Kelly failed to release Dennis even after realizing his mistake. The evidence indicated that Kelly’s actions in arresting, detaining, and finally releasing Dennis were a product of the wishes of an attorney. An individual’s right to be free from such unlawful arrest and detention is a federally protected right, the violation of which may be grounds for a suit under §1983. See Duriso v. K-Mart No. 4195, Division of S.S. Kresge Co.,?559 F.2d 1274 (5th Cir. 1977); Nesmith v. Alford,?318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975 (1964).The District Court found Kelly personally liable for damages under §1983. Kelly now argues that he acted in good faith and is entitled to the defense of qualified immunity. Kelly argues that his discretionary acts in arresting and detaining Dennis thus do not expose him to liability for damages.Kelly’s acts are not shielded from liability for civil damages, as they constitute violations of clearly established law. See Harlow v. Fitzgerald,?457 U.S. 800 (1982). We recognize that not every wrongful arrest is a violation of well-settled law. See Saldana v. Garza,?684 F.2d 1159 (5th Cir. 1982), cert. denied, 460 U.S. 1012 (1983). However, we conclude that a reasonable police officer could not have believed Kelly’s acts were permissible. To arrest someone on the basis of a civil summons, following an attorney’s directions to “Go out and get him,” and to hold him until that attorney orders his release, is not within the imaginable scope of lawful police conduct.The District Court correctly recognized that Sheriff Warren was not liable under §1983, since he was neither personally involved in the arrest or detention of Dennis, nor was there a causal connection between his acts and the violations of Dennis’ federal rights. See Lozano v. Smith,?718 F.2d 756 (5th Cir. 1983). However, the District Court held Warren liable for damages under a Mississippi statute which provides that “[a]ll sheriffs shall be liable for the acts of their deputies, and for money collected by them.” Miss. Code Ann. §19-25-19 (1972). Warren claims that Mississippi law provides at most only for an award against him in his official capacity, not in an individual capacity.The statute on its face appears to provide for personal liability of the sheriff; no mention is made of liability running only in his official capacity. While this provision has not been interpreted with regard to a deputy’s acts in making an unlawful arrest, the Mississippi Supreme Court has held that where a deputy has negligently driven an official automobile “the sheriff is liable to a person injured as a proximate result thereof.” Poole v. Brunt, 338 So.2d 991 (Miss. 1976); see also Barr v. Davis, 369 So.2d 513 (Miss. 1979) (reversing demurrer, sheriff and deputy both liable for deputy’s negligent driving on official business); Bearry v. Stringfellow, 246 Miss. 123, 149 So.2d 500 (1963) (affirming judgment against sheriff for deputy’s fatal shooting of suspect). Poole favorably quotes this passage from Annot., 15 A.L.R.3d 1189, 1201: “Generally speaking, even though a sheriff is personally liable for an act of his deputy, it does not necessarily follow that his bondsman is also liable.” 338 So.2d at 995. It thus appears that Mississippi law provides for a sheriff’s liability under §19-25-19 to be personal in nature.MITCHELL v. FORSYTH, 472 U.S. 511, 105 S.Ct. 2806 (1985)JUSTICE WHITE delivered the opinion of the Court.Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.Considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President of the United States do not demand similar immunity for Cabinet officers or other high executive officials.Under the standard of qualified immunity, the Attorney General is entitled to immunity so long as his actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.Former Attorney General was not absolutely immune from suit for damages arising out of allegedly unconstitutional conduct in performing his national security functions when he permitted domestic electronic surveillance of telephone conversations without prior judicial authorization.Although 28 U.S.C.A. §1291 vests the Courts of Appeals with jurisdiction over appeals from “final decisions” of District Courts, a decision “final” within meaning of statute does not necessarily mean last order possible to be made in the case; thus, decision of District Court is appealable if it falls within that small class which finally determines claims of right separate from, and collateral to, rights asserted in action, too important to be denied review and too independent of cause itself to require that appellate consideration be deferred until whole case is adjudicated.A major characteristic of denial or granting of a claim appealable under collateral order doctrine is that unless it can be reviewed before proceedings terminate, it never can be reviewed at all.Denial of substantial claim of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in civil damages action.Unless plaintiff’s allegations stated claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before commencement of discovery.Even if plaintiff’s complaint adequately alleges commission of act that violated clearly established law, defendant claiming qualified immunity is entitled to summary judgment if discovery fails to uncover evidence sufficient to create genuine issue as to whether defendant in fact committed those acts.An appealable interlocutory decision must conclusively determine disputed question, and question must involve claim of rights separable from, and collateral to, rights asserted in action.Former Attorney General was entitled to qualified immunity from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions by authorizing a wiretap without prior judicial authorization, even though his actions violated the Fourth Amendment, since when wiretap took place, it was not clearly established that the wiretap was unconstitutional. U.S.C.A. Const. Amend. 4.In 1970, petitioner, who was then the Attorney General, authorized a warrantless wiretap for the purpose of gathering intelligence regarding the activities of a radical group that had made tentative plans to take actions threatening the Nation’s security. During the time the wiretap was installed, the Government intercepted three conversations between a member of the group and respondent. Thereafter, this Court in?United States v. United States District Court,?407 U.S. 297, ruled that the Fourth Amendment does not permit warrantless wiretaps in cases involving domestic threats to the national security. Respondent then filed a damages action in Federal District Court against petitioner and others, alleging that the surveillance to which he had been subjected violated the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act. Ultimately, the District Court, granting respondent’s motion for summary judgment on the issue of liability, held that petitioner was not entitled to either absolute or qualified immunity. The Court of Appeals agreed with the denial of absolute immunity, but held, with respect to the denial of qualified immunity, that the District Court’s order was not appealable under the collateral order doctrine.Held:1. Petitioner is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions. His status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity. The considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President do not demand a similar immunity for Cabinet officers or other high executive officials. Nor does the nature of the Attorney General’s national security functions-as opposed to his prosecutorial functions-warrant absolute immunity. Petitioner points to no historical or common law basis for absolute immunity for officers carrying out tasks essential to national security, such as pertains to absolute immunity for judges, prosecutors, and witnesses. The performance of national security functions does not subject an official to the same risks of entanglement in vexatious litigation as does the carrying out of the judicial or “quasijudicial” tasks that have been the primary wellsprings of absolute immunities. And the danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity. 2. The District Court’s denial of qualified immunity, to the extent it turned on a question of law, is an appealable “final decision” within the meaning of 28 U.S.C. §1291 notwithstanding the absence of a final judgment. Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Such entitlement is an?immunity from suit?rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of the denial of absolute immunity indicates that the denial of qualified immunity should be similarly appealable under the “collateral order” doctrine; in each case, the District Court’s decision is effectively unreviewable on appeal from a final judgment. The denial of qualified immunity also meets the additional criteria for an appealable interlocutory order: it conclusively determines the disputed question, and it involves a claim of rights separable from, and collateral to, rights asserted in the action.3. Petitioner is entitled to qualified immunity from suit for his authorization of the wiretap in question notwithstanding his actions violated the Fourth Amendment. Under Harlow v. Fitzgerald,?457 U.S. 800, petitioner is immune unless his actions violated clearly established law. In 1970, when the wiretap took place, well over a year before Keith,?was decided, it was not clearly established that such a wiretap was unconstitutional.Shortly thereafter, this Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps in cases involving domestic threats to the national security.?United States v. United States District Court,?407 U.S. 297?(1972). In the wake of the?Keith?decision, Forsyth filed this lawsuit against John Mitchell and several other defendants in the United States District Court for the Eastern District of Pennsylvania. Forsyth alleged that the surveillance to which he had been subjected violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§2510-2520, which sets forth comprehensive standards governing the use of wiretaps and electronic surveillance by both governmental and private agents. He asserted that both the constitutional and statutory provisions provided him with a private right of action; he sought compensatory, statutory, and punitive damages.Discovery and related preliminary proceedings dragged on for the next five-and-a-half years. By early 1978, both Forsyth and Mitchell had submitted motions for summary judgment on which the District Court was prepared to rule. Forsyth contended that the uncontested facts established that the wiretap was illegal and that Mitchell and the other defendants were not immune from liability; Mitchell contended that the decision in Keith?should not be applied retroactively to the wiretap authorized in 1970 and that he was entitled either to absolute prosecutorial immunity from suit under the rule of Imbler v. Pachtman,?424 U.S. 409?(1976), or to qualified or “good faith” immunity under the doctrine of?Wood v. Strickland,?420 U.S. 308?(1975).The court found that there was no genuine dispute as to the facts that the FBI had informed Mitchell of the ECCSL’s plots, that Mitchell had authorized the warrantless tap on Davidon’s phone, and that the ostensible purpose of the tap was the gathering of intelligence in the interest of national security. Such a wiretap, the court concluded, was a clear violation of the Fourth Amendment under?Keith,?which, in the court’s view, was to be given retroactive effect. The court also rejected Mitchell’s claim to absolute immunity from suit under?Imbler v. Pachtman: Imbler,?the court held, provided absolute immunity to a prosecutor only for his acts in “initiating and pursuing a criminal prosecution”; Mitchell’s authorization of the wiretap constituted the performance of an investigative rather than prosecutorial function.?Forsyth v. Kleindienst,?447 F.Supp. 192 (1978). Although rejecting Mitchell’s claim of absolute immunity, the court found that Mitchell was entitled to assert a qualified immunity from suit and could prevail if he proved that he acted in good faith. Applying this standard, with its focus on Mitchell’s state of mind at the time he authorized the wiretap, the court concluded that neither side had met its burden of establishing that there was no genuine issue of material fact as to Mitchell’s good faith. Accordingly, the court denied both parties’ motions for summary judgment.Mitchell appealed the District Court’s denial of absolute immunity to the United States Court of Appeals for the Third Circuit, which remanded for further factfinding on the question whether the wiretap authorization was “necessary to [a]...decision to initiate a criminal prosecution” and thus within the scope of the absolute immunity recognized in?Imbler v. Pachtman.?Forsyth v. Kleindienst,?599 F.2d 1203 (1979). On remand, the District Court held a hearing on the question whether the wiretap served a prosecutorial purpose. On the basis of the hearing and the evidence in the record, the court concluded that Mitchell’s authorization of the wiretap was not intended to facilitate any prosecutorial decision or further a criminal investigation. Mitchell himself had disavowed any such intention and insisted that the only reason for the wiretap was to gather intelligence needed for national security purposes. Taking Mitchell at his word in this regard, the court held to its conclusion that he was not entitled to absolute prosecutorial immunity.At the same time, the court reconsidered its ruling on qualified immunity in light of Harlow v. Fitzgerald,?457 U.S. 800?(1982), in which this Court purged qualified immunity doctrine of its subjective components and held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The District Court rejected Mitchell’s argument that under this standard he should be held immune from suit for warrantless national security wiretaps authorized before this Court’s decision in?Keith:?That decision was merely a logical extension of general Fourth Amendment principles and in particular of the ruling in?Katz v. United States,?389 U.S. 347?(1967), in which the Court held for the first time that electronic surveillance unaccompanied by physical trespass constituted a search subject to the Fourth Amendment’s warrant requirement. Mitchell and the Justice Department, the court suggested, had chosen to “gamble” on the possibility that this Court would create an exception to the warrant requirement if presented with a case involving national security. Having lost the gamble, Mitchell was not entitled to complain of the consequences. The court therefore denied Mitchell’s motion for summary judgment, granted Forsyth’s motion for summary judgment on the issue of liability, and scheduled further proceedings on the issue of damages.?Forsyth v. Kleindienst,?551 F.Supp. 1247 (1982). Mitchell again appealed, contending that the District Court had erred in its rulings on both absolute immunity and qualified immunity. Holding that it possessed jurisdiction to decide the denial of absolute immunity issue despite the fact that it was a pretrial order and arguably not a final judgment, the Court of Appeals rejected Mitchell’s argument that the national security functions of the Attorney General entitled him to absolute immunity under?Imbler v. Pachtman?or otherwise. With respect to the denial of qualified immunity, the Court of Appeals held that the District Court’s order was not appealable under the collateral order doctrine of?Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. 541?(1949). Fearing that allowing piecemeal appeals of such issues would unduly burden appellate courts, the court was unwilling to hold that the goal of protecting officials against frivolous litigation required that orders denying qualified immunity be immediately appealable. Forsyth’s claim, the court noted, was not a frivolous one, and the policies underlying the immunity doctrine would therefore not be frustrated if Mitchell were forced to wait until final judgment to appeal the qualified immunity ruling. Forsyth v. Kleindienst,?729 F.2d 267 (1984). The court therefore remanded the case to the District Court for further proceedings leading to the entry of final judgment, and Mitchell filed a timely petition for certiorari seeking review of the court’s rulings on both absolute and qualified immunity.As the Nation’s chief law enforcement officer, the Attorney General provides vital assistance to the President in the performance of the latter’s constitutional duty to “preserve, protect, and defend the Constitution of the United States.” U.S.Const., Art. II, §1, cl. 8. Mitchell’s argument, in essence, is that the national security functions of the Attorney General are so sensitive, so vital to the protection of our Nation’s well-being, that we cannot tolerate any risk that in performing those functions he will be chilled by the possibility of personal liability for acts that may be found to impinge on the constitutional rights of citizens. Such arguments, “when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration.” Keith,?407 U.S. at?319. Nonetheless, we do not believe that the considerations that have led us to recognize absolute immunities for other officials dictate the same result in this case.Our decisions in this area leave no doubt that the Attorney General’s status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity: the considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President of the United States do not demand a similar immunity for Cabinet officers or other high executive officials.?See Harlow v. Fitzgerald, 457 U.S. 800?(1982);?Butz v. Economou.?Mitchell’s claim, then, must rest not on the Attorney General’s position within the Executive Branch, but on the nature of the functions he was performing in this case.?See Harlow v. Fitzgerald,?at?457 U.S. 810. Because Mitchell was not acting in a prosecutorial capacity in this case, the situations in which we have applied a functional approach to absolute immunity questions provide scant support for blanket immunization of his performance of the “national security function.”First, in deciding whether officials performing a particular function are entitled to absolute immunity, we have generally looked for a historical or common law basis for the immunity in question. The legislative immunity recognized in?Tenney v. Brandhove,?for example, was rooted in the long struggle in both England and America for legislative independence, a presupposition of our scheme of representative government. The immunities for judges, prosecutors, and witnesses established by our cases have firm roots in the common law.?See Briscoe v. LaHue,?at?460 U.S. 330. Mitchell points to no analogous historical or common law basis for an absolute immunity for officers carrying out tasks essential to national security.Second, the performance of national security functions does not subject an official to the same obvious risks of entanglement in vexatious litigation as does the carrying out of the judicial or “quasijudicial” tasks that have been the primary wellsprings of absolute immunities. The judicial process is an arena of open conflict, and in virtually every case there is, if not always a winner, at least one loser. It is inevitable that many of those who lose will pin the blame on judges, prosecutors, or witnesses and will bring suit against them in an effort to relitigate the underlying conflict.?See Bradley v. Fisher,?13 Wall. 335,?80 U.S. 348?(1872). National security tasks, by contrast, are carried out in secret; open conflict and overt winners and losers are rare. Under such circumstances, it is far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation. Whereas the mere threat of litigation may significantly affect the fearless and independent performance of duty by actors in the judicial process, it is unlikely to have a similar effect on the Attorney General’s performance of his national security tasks.Third, most of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help to prevent abuses of authority from going unredressed. Legislators are accountable to their constituents,?see Tenney v. Brandhove,?at?341 U.S. 378, and the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results. Similar built-in restraints on the Attorney General’s activities in the name of national security, however, do not exist. And despite our recognition of the importance of those activities to the safety of our Nation and its democratic system of government, we cannot accept the notion that restraints are completely unnecessary. As the Court observed in?Keith,?the label of “national security” may cover a multitude of sins:“National security cases...often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech.... History abundantly documents the tendency of Government - however, benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies.... The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” 407 U.S. at?313-314.The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.We emphasize that the denial of absolute immunity will not leave the Attorney General at the mercy of litigants with frivolous and vexatious complaints. Under the standard of qualified immunity articulated in?Harlow v. Fitzgerald,?the Attorney General will be entitled to immunity so long as his actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818. This standard will not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the?Harlow?standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he?should?be made to hesitate....” This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.Although 28 U.S.C. §1291 vests the courts of appeals with jurisdiction over appeals only from “final decisions” of the District Courts, “a decision?final” within the meaning of §1291 does not necessarily mean the last order possible to be made in a case. Gillespie v. United States Steel Corp.,?379 U.S. 148 (1964). Thus, a decision of a District Court is appealable if it falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. at?546.A major characteristic of the denial or granting of a claim appealable under Cohen’s “collateral order” doctrine is that “unless it can be reviewed before [the proceedings terminate], it never can be reviewed at all.”?Stack v. Boyle,?342 U.S. 1 (1952);?see also United States v. Hollywood Motor Car Co.,?458 U.S. 263?(1982). When a District Court has denied a defendant’s claim of right not to stand trial, on double jeopardy grounds, for example, we have consistently held the court’s decision appealable, for such a right cannot be effectively vindicated after the trial has occurred.?Abney v. United States,?431 U.S. 651?(1977). Thus, the denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action. See Nixon v. Fitzgerald,?457 U.S. 731?(1982);?cf. Helstoski v. Meanor,?442 U.S. 500 (1979).At the heart of the issue before us is the question whether qualified immunity shares this essential attribute of absolute immunity-whether qualified immunity is in fact an entitlement not to stand trial under certain circumstances. The conception animating the qualified immunity doctrine as set forth in?Harlow v. Fitzgerald,?457 U.S. 800?(1982), is that “where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’“ Quoting Pierson v. Ray,?386 U.S. 547 (1967). As the citation to Pierson v. Ray?makes clear, the “consequences” with which we were concerned in?Harloware not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial-distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Harlow,?457 U.S. at?816. Indeed,?Harlow?emphasizes that even such pretrial matters as discovery are to be avoided if possible, as “[i]nquiries of this kind can be peculiarly disruptive of effective government.”With these concerns in mind, the?Harlow?Court refashioned the qualified immunity doctrine in such a way as to “permit the resolution of many insubstantial claims on summary judgment” and to avoid “subject[ing] government officials either to the costs of trial or to the burdens of broad-reaching discovery” in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.?Even if the plaintiff’s complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.?Harlow?thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an?immunity from suit?rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the District Court’s decision is effectively unreviewable on appeal from a final judgment.An appealable interlocutory decision must satisfy two additional criteria: it must “conclusively determine the disputed question,”?Coopers & Lybrand v. Livesay,?437 U.S. 463 (1978), and that question must involve a “clai[m] of right separable from, and collateral to, rights asserted in the action,”?Cohen,?at?337 U.S. 546. The denial of a defendant’s motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements. Such a decision is “conclusive” in either of two respects. In some cases, it may represent the trial court’s conclusion that even if the facts are as asserted by the defendant, the defendant’s actions violated clearly established law and are therefore not within the scope of the qualified immunity. In such a case, there will be nothing in the subsequent course of the proceedings in the District Court that can alter the court’s conclusion that the defendant is not immune. Alternatively, the trial judge may rule only that, if the facts are as asserted by the plaintiff, the defendant is not immune. At trial, the plaintiff may not succeed in proving his version of the facts, and the defendant may thus escape liability. Even so, the court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to?stand trial?on the plaintiff’s allegations, and because “[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred,” it is apparent that “Cohen’s threshold requirement of a fully consummated decision is satisfied” in such a case.?Abney v. United States,?431 U.S. at?659.CHIEF JUSTICE BURGER, concurring in part.In?Gravel v. United States,?408 U.S. 606?(1972), we held that aides of Members of Congress who implement the legislative policies and decisions of the Member enjoy the same absolute immunity from suit under the Speech and Debate Clause that the Members themselves enjoy. As I noted in dissent in?Harlow v. Fitzgerald,?457 U.S. 800 (1982), the logic underlying?Gravel?applies equally to top Executive aides. A Cabinet officer-and surely none more than the Attorney General-is an “aide” and arm of the President in the execution of the President’s constitutional duty to “take Care that the Laws be faithfully executed.” It is an astonishing paradox that the aides of the 100 Senators and 435 Representatives share the absolute immunity of the Member, but the President’s chief aide in protecting internal national security does not. I agree that the petitioner was entitled to absolute immunity for actions undertaken in his exercise of the discretionary power of the President in the area of national security.JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part.I join Parts I, III, and IV of the majority opinion and the judgment of the Court. Our previous cases concerning the qualified immunity doctrine indicate that a defendant official whose conduct did not violate clearly established legal norms is entitled to avoid trial.?Davis v. Scherer,?468 U.S. 183?(1984);?Harlow v. Fitzgerald,?457 U.S. 800 (1982). This entitlement is analogous to the right to avoid trial protected by absolute immunity or by the Double Jeopardy Clause. Where the District Court rejects claims that official immunity or double jeopardy preclude trial, the special nature of the asserted right justifies immediate review. The very purpose of such immunities is to protect the defendant from the burdens of trial, and the right will be irretrievably lost if its denial is not immediately appealable.?See Helstoski v. Meanor,?442 U.S. 500 (1979);?Abney v. United States,?431 U.S. 651 (1977). I agree that the District Court’s denial of qualified immunity comes within the small class of interlocutory orders appealable under?Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. 541?(1949).JUSTICE STEVENS, concurring in the judgment.Some public officials are “shielded by absolute immunity from civil damages liability.” Nixon v. Fitzgerald,?457 U.S. 731?(1982). For Members of Congress that shield is expressly provided by the Constitution. For various state officials the shield is actually a conclusion that the Congress that enacted the 1871 Civil Rights Act did not intend to subject them to damages liability. Federal officials have also been accorded immunity by cases holding that Congress did not intend to subject them to individual liability even for constitutional violations.?Bush v. Lucas,?462 U.S. 367?(1983). The absolute immunity of the President of the United States rests, in part, on the absence of any indication that the authors of either the constitutional text or any relevant statutory text intended to subject him to damages liability predicated on his official acts.When the Attorney General, the Secretary of State, and the Secretary of Defense make erroneous decisions on matters of national security and foreign policy, the primary liabilities are political. Intense scrutiny, by the people, by the press, and by Congress, has been the traditional method for deterring violations of the Constitution by these high officers of the Executive Branch. Unless Congress authorizes other remedies, it presumably intends the retributions for any violations to be undertaken by political action. Congress is in the best position to decide whether the incremental deterrence added by a civil damages remedy outweighs the adverse effect that the exposure to personal liability may have on governmental decisionmaking. However the balance is struck, there surely is a national interest in enabling Cabinet officers with responsibilities in this area to perform their sensitive duties with decisiveness and without potentially ruinous hesitation.If the Attorney General had violated the provisions of Title III, as JUSTICE WHITE argued in?Keith,?he would have no immunity. Congress, however, had expressly refused to enact a civil remedy against Cabinet officials exercising the President’s powers described in §2511(3). In that circumstance, I believe the Cabinet official is entitled to the same absolute immunity as the President of the United States. Indeed, it is highly doubtful whether the rationale of?Bivens v. Six Unknown Federal Narcotics Agents,?403 U.S. 388?(1971), even supports an implied cause of action for damages after Congress has enacted legislation comprehensively regulating the field of electronic surveillance but has specifically declined to impose a remedy for the national security wiretaps described in §2511(3). Bush v. Lucas,?462 U.S. 367?(1983). Congress’ failure to act after careful consideration of the matter is a factor counselling some hesitation.JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.I disagree, however, with the Court’s holding that the qualified immunity issue is properly before us. For the purpose of applying the final judgment rule embodied in 28 U.S.C. §1291, I see no justification for distinguishing between the denial of Mitchell’s claim of qualified immunity and numerous other pretrial motions that may be reviewed only on appeal of the final judgment in the case. I therefore dissent from its holding that denials of qualified immunity, at least where they rest on undisputed facts, are generally appealable.The Court acknowledges that the trial court’s refusal to grant Mitchell qualified immunity was not technically the final order possible in the trial court. If the refusal is to be immediately appealable, therefore, it must come within the narrow confines of the collateral order doctrine of?Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. 541?(1949), and its progeny. Although the Court has, over the years, varied its statement of the?Cohen?test slightly, the underlying inquiry has remained relatively constant. “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay,?437 U.S. 463 (1978).We have always read the?Cohen?collateral order doctrine narrowly, in part because of the strong policies supporting the §1291 final judgment rule. The rule respects the responsibilities of the trial court by enabling it to perform its function without a Court of Appeals peering over its shoulder every step of the way. It preserves scarce judicial resources that would otherwise be spent in costly and time-consuming appeals. Trial court errors become moot if the aggrieved party nonetheless obtains a final judgment in his favor, and appellate courts need not waste time familiarizing themselves anew with a case each time a partial appeal is taken. Equally important, the final judgment rule removes a potent weapon of harassment and abuse from the hands of litigants. As Justice Frankfurter, writing for the Court in?Cobbledick v. United States,?309 U.S. 323 (1940), noted, the rule “avoid[s] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.”Although the qualified immunity question in this suit is not identical to the ultimate question on the merits, the two are quite closely related. The question on the merits is whether Mitchell violated the law when he authorized the wiretap of Davidon’s phone without a warrant. The immunity question is whether Mitchell violated clearly established law when he authorized the wiretap of Davidon’s phone without a warrant. Assuming with the Court that all relevant factual disputes in this case have been resolved, a necessary implication of a holding that Mitchell was not entitled to qualified immunity would be a holding that he is indeed liable. Moreover, a trial court seeking to answer either question would refer to the same or similar cases and statutes, would consult the same treatises and secondary materials, and would undertake a rather similar course of reasoning. At least in the circumstances presented here, the two questions are simply not completely separate.Even if something less than complete separability were required, the Court’s toothless standard disserves the important purposes underlying the separability requirement. First, where a pretrial issue is entirely separate from the merits, interlocutory review may cause delay and be unjustified on various grounds, but it at least is unlikely to require repeated appellate review of the same or similar questions. In contrast, where a pretrial issue is closely related to the merits of a case and interlocutory review is permitted, post-judgment appellate review is likely to require the appellate court to reexamine the same or similar legal issues. The Court’s holding today has the effect of requiring precisely this kind of repetitious appellate review. In an interlocutory appeal on the qualified immunity issue, an appellate court must inquire into the legality of the defendant’s underlying conduct. As the Court has recently noted, “[m]ost pretrial orders of district judges are ultimately affirmed by appellate courts.”?Richardson-Merrell Inc. v. Koller,?at?472 U.S. 434. Thus, if the trial court is, as usual, affirmed, the appellate court must repeat the process on final judgment. Although I agree with the Court that the legal question in each review would be “conceptually” different, the connection between the research, analysis, and decision of each of the issues is apparent; much of the work in reviewing the final judgment would be duplicative.A second purpose of the separability requirement derives from our recognition that resolution of even the most abstract legal disputes is advanced by the presence of a concrete set of facts. If appeal is put off until final judgment, the fuller development of the facts at that stage will assist the appellate court in its disposition of the case. Simply put, an appellate court is best able to decide whether given conduct was prohibited by established law if the record in the case contains a full description of that conduct.?See Kenyatta v. Moore,?744 F.2d 1179 (CA5 1984).In short, the Court’s “conceptual distinction” test for separability finds no support in our cases and fails to serve the underlying purposes of the final judgment rule. To the extent it requires that only trial court orders concerning matters of law be appealable, it requires only what I had thought was a condition of?any?appellate review, interlocutory or otherwise. The additional thrust of the test seems to be that an appealable order must not be identical to the merits of the case. If the test for separability is to be this weak, I see little profit in maintaining the fiction that it remains a prerequisite to interlocutory appeal.The question is thus whether the possibly beneficial effects of avoiding trial in this small subset of cases justify the Court’s declaration that the right to qualified immunity is a right not to stand trial at all. The benefits seem to me to be rather small. Most meritless cases will be dismissed at the early stages, thus minimizing the extent to which officials are distracted from their duties. Officials aware of the extensive protection offered by qualified immunity would be deterred only from activities in which there is at least a strong scent of illegality; deterrence from many such activities (those that are clearly unlawful) is precisely one of the goals of official liability. Finally, I cannot take seriously the Court’s suggestion that officials who would otherwise be deterred from taking public office will have their confidence restored by the possibility that mistaken trial court qualified immunity rulings in some small class of cases that might be brought against them will be overturned on appeal before trial.Footnotes:3. Forsyth had moved for dismissal of the appeal on the ground that it was interlocutory and therefore not within the Court of Appeals’ jurisdiction under 28 U.S.C. §1291. A motions panel of the Third Circuit held that the denial of absolute immunity was an appealable order under?Nixon v. Fitzgerald,?457 U.S. 731?(1982), and that the issue of the appealability of a denial of qualified immunity was debatable enough to justify referring it to the merits panel.?Forsyth v. Kleindienst,?700 F.2d 104 (1983). Judge Sloviter dissented, arguing that Mitchell’s arguments regarding absolute immunity were frivolous in light of the Third Circuit’s earlier consideration of the same issue. In addition, Judge Sloviter argued that a denial of qualified immunity-unlike a denial of absolute immunity-was not immediately appealable under the collateral order doctrine of?Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. 541?(1949), because the issue of objective good faith was neither separate from the merits of the underlying action nor effectively unreviewable on appeal from a final judgment.4. Judge Weis, dissenting, argued that the point of the immunity doctrine was protecting officials not only from ultimate liability but also from the trial itself, and that the vindication of this goal required immediate appeal. On the merits, Judge Weis would have reversed the District Court’s immunity ruling on the ground that until?Keith?was decided it was not clearly established that the warrantless wiretapping in which Mitchell had engaged was illegal.5. The First, Eighth, and District of Columbia Circuits have held such orders appealable, see Krotan v. United States,?742 F.2d 24 (CA1 1984);?Evans v. Dillahunty,?711 F.2d 828 (CA8 1983);?McSurely v. McClellan,?225 U.S.App.D.C. 67, 697 F.2d 309 (1982), while the Fifth and Seventh Circuits have joined the Third Circuit in holding that the courts of appeals lack jurisdiction over interlocutory appeals of qualified immunity rulings,?see Kenyatta v. Moore,?744 F.2d 1179 (CA5 1984);?Lightner v. Jones,?752 F.2d 1251 (CA7 1985). The Fourth Circuit has held that a District Court’s denial of qualified immunity is not appealable when the plaintiff’s action involves claims for injunctive relief that will have to be adjudicated regardless of the resolution of any damages claims.?England v. Rockefeller,?739 F.2d 140 (1984);?Bever v. Gilbertson,?724 F.2d 1083,?cert. denied, 469 U.S. 948?(1984). Because this case does not involve a claim for injunctive relief, the propriety of the Fourth Circuit’s approach is not before us, and we express no opinion on the question.7. It is true that damages actions are not the only conceivable deterrents to constitutional violations by the Attorney General. Mitchell suggests, for example, the possibility of declaratory or injunctive relief and the use of the exclusionary rule to prevent the admission of illegally seized evidence in criminal proceedings. However, as Justice Harlan pointed out in his concurring opinion in?Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), such remedies are useless where a citizen not accused of any crime has been subjected to a completed constitutional violation: In such cases, “it is damages or nothing.”?Other possibilities mentioned by Mitchell-including criminal prosecution and impeachment of the Attorney General-would be of dubious value for deterring all but the most flagrant constitutional violations.1. “The Senators and Representatives...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” U.S.Const. Art. I, §6, Cl. 1.7. Cf. Pierson v. Ray,?386 U.S. 547?(1967) (“[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 and corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation”);?Imbler v. Pachtman,?424 U.S. at?424 (“The public trust of the prosecutor’s office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages”).8. Cf. Pierson v. Ray,?386 U.S. at?554?(“It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants”).2. I thus do not believe that mere “factual overlap,”?is sufficient to show lack of separability. Rather, it is the?legal?overlap between the qualified immunity question and the merits of the case that renders the two questions inseparable. As the text makes clear, when a trial court renders a qualified immunity decision on a summary judgment motion, it must make a legal determination very similar to the legal determination it must make on a summary judgment motion on the merits. Similarly, there may be cases in which, after all of the evidence has been introduced, the defendant official moves for a directed verdict on the ground that the evidence actually produced at trial has failed to make a factual issue of the question whether the defendant violated clearly established law. The trial court’s decision on the defendant’s directed verdict motion would involve legal questions quite similar to a motion by the defendant for a directed verdict on the merits of the case. The point is that, regardless of when the defendant raises the qualified immunity issue, it is similar to the question on the merits at the same stage of the trial. In contrast, the trial court’s decision on absolute immunity or double jeopardy-at whatever stage it arises-will ordinarily not raise a legal question that is the same, or even similar, to the question on the merits of the case.5. The Court also states that “[a]n appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiff’s version of the facts, nor even determine whether the plaintiff’s allegations actually state a claim.” The first part of this statement is correct, and would equally be true of any motion for judgment on the pleadings. Yet I have never seen a plausible argument that a motion for judgment on the pleadings is immediately appealable, in part because such a motion is plainly?not?separable from the merits of the case. The second part of the statement is also correct, and does indeed explain the difference between a qualified immunity determination and an ordinary motion for judgment on the pleadings or summary judgment motion. Yet the fact that a qualified immunity determination is?different?in some respect from a judgment on the pleadings is hardly ground for a finding that it is sufficiently separate to be immediately appealable.6. The “conceptual distinction” test is also inconsistent with the Court’s decision in Richardson-Merrell Inc. v. Koller,?472 U.S.?424. The Court here notes that “a question of immunity is separate from the merits of the underlying action for purposes of the?Cohen?test even though a reviewing court must consider the plaintiff’s factual allegations in resolving the immunity issue.” Yet the?Richardson-Merrell?Court evidently believes that the attorney disqualification issue is not separable from the merits because the Court of Appeals must evaluate,?inter alia,?”respondent’s claim on the merits, [and] the relevance of the alleged instances of misconduct to the attorney’s zealous pursuit of that claim.”8. The numerous legal rights traditionally recognized as immunities include everything from the now-dormant charitable immunity in tort law, W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §133 (5th ed. 1984), to the state action immunity in antitrust law,?see Parker v. Brown,?317 U.S. 341?(1943), and the doctrine of sovereign immunity. Federal statutes also contain numerous provisions granting immunities.?See?15 U.S.C. §78iii(b) (good faith immunity for self-regulatory organizations from liability for disclosures relating to financial difficulties of certain securities dealers); 33 U.S.C. §1483 (immunity for foreign government vessels from pollution control remedies); 46 U.S.C. §1304 (immunities of carrier of goods by sea); 46 U.S.C.App. §1706 (1982 ed., Supp. III) (immunity from antitrust laws for certain agreements among carriers of goods by sea).10. Of course, an official sued in his official capacity may not take advantage of a qualified immunity defense.?See Brandon v. Holt,?469 U.S. 464?(1985).BASS v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., 737 F.2d 1408 (1984)JERRE S. WILLIAMS, Circuit Judge.The Court of Appeals, Jerre S. Williams, Circuit Judge, held that: (1) issue as to propriety of certain instructions was not reserved for appeal; (2) District Court properly instructed on qualified immunity; (3) mere failure to make the “correct” decision does not rise to level of a constitutional violation; and (4) farmer was required to show that defendants’ conduct was intentional or reckless to constitute a due process violation.Entire issue in judicial review of administrative action always is whether the administrative decision was erroneous, and the Constitution is not implicated unless the decision goes beyond mere error to an intentional or reckless disregard of the constitutional rights of the person against whom the administrative decision is made. U.S.C.A. Const. Amend. 5.Mere failure to make the “correct” administrative decisions does not rise to the level of a constitutional violation. U.S.C.A. Const. Amend. 5.In reviewing administrative action a court must decide whether the agency’s decision was based on consideration of relevant factors and whether there has been a clear error of judgment, and the court may not substitute its judgment for that of the agency.In a trial before a jury, plaintiff J.C. Bass sought to prove that officials of the Farmers Home Administration (FmHA) violated his Fifth Amendment due process rights by refusing to make continued loans to him under the FmHA Emergency Loan Program. The jury rendered a verdict for the defendants. On appeal, Bass questions the court’s instructions to the jury. He also contends that the court erroneously submitted questions of law to the jury. Finding no error, we affirm.Bass filed this suit in the United States District Court in July 1980. The original complaint was superseded by an amended complaint filed in January 1983. Named as defendants were the Department of Agriculture; the Farmers Home Administration; Bob Bergland, former Secretary of Agriculture; Gordon Cavenaugh, former Administrator of FmHA; Mark Hazard, former Mississippi State Director of FmHA; Wesley F. Kent, District Director; L. Adrian Wood, former Amite County Supervisor of FmHA; and David K. Smith, the then Amite County Supervisor of FmHA. The amended complaint averred that the defendants had deprived Bass of both his substantive and procedural due process rights guaranteed under the Fifth Amendment.As to the substantive due process claim, Bass complained that the defendants had acted arbitrarily and capriciously by denying him the right to participate in and exercise his rights under the FmHA program. Specifically, Bass alleged, inter alia, that the defendants had arbitrarily reduced his loan request of August 1978 from $344,800 to $150,000; that the defendants deceptively misled him into thinking that he would receive the $344,800 loan; and that the defendants deliberately used dilatory tactics in making a decision on the loan request, all to his economic detriment.As to the procedural due process claim, Bass asserted that although he was given an administrative hearing to appeal the denial of the loan, the hearing was ineffectual because he was not informed prior to the hearing of the main issue to be discussed, i.e., his failure to account for property securing the prior loans, and because defendants refused to follow the decision of the hearing officer.The District Court’s instructions to the jury included the following:[The plaintiff] must prove by a preponderance of the evidence that he had a property interest in the loan being applied for and which was denied him and that the individual defendant or defendants intentionally or recklessly violated his constitutional rights by depriving him of his property without due process of law, in order to recover a verdict against either one of these defendants.Conduct, of course, is not unconstitutional merely because it might harm a citizen. It is unconstitutional only if it violates a standard of care that was due Mr. Bass under the circumstances of this case.Plaintiff must prove culpability on the part of the defendants or either of them to recover on such a civil rights claim as made in this case against these two defendants.You must find for the defendants if you find that that their actions were merely inadvertent or constituted simple negligence.[The] protection for federal officials against being held liable for money damages for violation of constitutional or federal statutory rights is called “qualified immunity.” In order to have its protection it is the burden of each defendant to show -and the burden is on the defendant who is asserting this particular defense -to prove by a preponderance of the evidence that he is entitled to qualified immunity. As I have said, you are to decide only whether the defendant has established his entitlement to immunity if you have already concluded from a preponderance of the evidence that he has committed an act which under the instructions I have given you would make him liable to the plaintiff.The second element of [the] qualified immunity defense...requires the defendant to establish that he indeed believed in good faith that his actions were lawful at the time he acted.Bass presents the following challenges to the court’s instructions:1. The trial court should not have submitted to the jury the question of whether Bass possessed a protected property interest in the requested loans; rather, the court should have ruled on this issue as a matter of law.2. Since Bass was claiming a constitutional violation, the trial court should not have instructed the jury on standard of care.3. Assuming arguendo the relevancy of the question of standard of care, the trial court erroneously instructed the jury that the defendants could be found liable for a constitutional violation only if they acted intentionally or recklessly.4. The trial court should not have given an instruction on qualified immunity.5. Even if an instruction on qualified immunity should have been given, the court’s instructions permitted the jury to make a finding of qualified immunity based upon a subjective standard -i.e., the good faith belief of the defendants in the propriety of their actions -in contravention of Harlow v. Fitzgerald,?457 U.S. 800 (1982).Appellees contend that Bass failed to preserve points 1, 4, and 5 for appeal because he did not object at trial to the court’s instructions on these issues. Fed.R.Civ.P. 51. This Court has consistently held that assertions of error based upon the giving of or failure to give instructions will not be considered unless the complaining party objects in the manner provided by the rule. Delancey v. Motichek Towing Service, Inc.,?427 F.2d 897 (5th Cir. 1970); Nowell v. Dick,?413 F.2d 1204 (5th Cir. 1969); Guest House Motor Inn, Inc. v. Duke,?384 F.2d 927 (5th Cir. 1967).Bass concedes that he failed to object to the court’s instructions on points 1, 4, and 5. He contends, however, that these issues were preserved for appeal under the established rule that formal objection is not necessary if the trial judge was fairly apprised of the nature of the objection. See Williams v. Hennessey,?328 F.2d 490 (5th Cir. 1964). As to point 1, Bass clearly failed to show, however, that he in any manner apprised the trial court of his objection to the court’s submission to the jury the question of whether he possessed a property interest in the loans. Point 1 is waived.As to points 4 and 5, regarding the court’s instructions on qualified immunity, Bass contends that the discussion which took place in connection with the defendants’ motion to dismiss adequately apprised the court of Bass’s position on these two issues. During this discussion, Bass’s counsel pointed out that in Harlow v. Fitzgerald,?457 U.S. 800, the Supreme Court stated that “[i]f the law [is] clearly established, the immunity defense ordinarily should fail since a reasonably competent public official should know the law governing his conduct.” In response, the District Court acknowledged that the defendants “wouldn’t have qualified immunity under any circumstances if they knew or should have known what the law was.” The crux of Bass’s argument to the court during this discussion was that if it were shown that the defendants had violated clearly established law, the defendants would be unable to rely upon qualified immunity as a defense.In this discussion, Bass conceivably raised the question of whether an instruction on qualified immunity should be given. Even though he discussed Harlow, he did not raise the question of the legal standard the jury should have been instructed to use in the event the court chose to give an instruction on qualified immunity. Nor did he question the content of the immunity instructions once they had been formulated. After the jury instructions were given, the court asked counsel for both sides if they had any objections to the instructions. Bass objected to the instruction on standard of care but made no objection to the immunity instructions.Since the actual content of the immunity instructions was not objected to at trial, the issue was not properly preserved for appeal. We, therefore, do not address the argument raised by Bass in point 5. In view of the fact that Bass at least raised the question of whether an immunity instruction should be given, we do address point 4.The record shows that Bass failed to prove as a matter of law that the defendants had violated clearly established law. Since a question of fact existed as to whether the defendants had violated clearly established law, the District Court properly gave instructions on qualified immunity based on the contingency that the jury might find that the defendants had not violated clearly established agency regulations but nonetheless had violated Bass’s Fifth Amendment due process rights. In the event the jury made such a determination, it then would have been required to consider whether the defendants were entitled to qualified immunity. Upon our review, we conclude, therefore, that the instruction on qualified immunity, point 4, was properly given. Its content, point 5, is not at issue.Bass also urges this Court to review points 1 and 5 under the well-established rule that an appellate court may consider an issue raised on appeal which was not objected to at trial if the issue presents a fundamental error of law which is apparent on the face of the record and which would result in injustice if the error is not corrected on appeal. Industrial Development Board v. Fuqua Industries, Inc.,?523 F.2d 1226 (5th Cir. 1975). We have no such fundamental error on the face of the record here.We will not reverse for an alleged error in the jury instructions if we find, based upon the record, that the challenged instruction could not have affected the outcome of the case. See, e.g., Eastburn v.?Ford Motor Company,?471 F.2d 21 (5th Cir. 1972). Our review of the entire record convinces us that the evidence presented at trial overwhelmingly supports the jury’s verdict. We therefore conclude that any alleged errors in the jury instructions involved in points 1 and 5 were harmless and that no injustice resulted from the court’s instructions as given.Bass properly preserved by objection the issue of standard of care, points 2 and 3. We, therefore, turn our attention to a discussion of this issue.In its essence this case constitutes a challenge to administrative decisions which were based upon detailed administrative regulations and procedures. Bass undertakes to elevate this case above the level of administrative and judicial review of administrative action by alleging that the decisions made were not only erroneous, but unconstitutionally so. The constitutional issue is couched in a two-pronged attack on the court’s instructions to the jury regarding the standard of care. Bass maintains the court should not have placed before the jury an issue on the standard of care. According to his contentions, traditional tort concepts defining standard of care have no place in actions where a constitutional violation is alleged. He maintains that “if there is a clear [constitutional] violation, it is inappropriate to ask how bad it was.” As authority for this proposition, Bass cites Rodriguez v. Ritchey,?556 F.2d 1185 (5th Cir. 1977), cert. denied, 434 U.S. 1047 (1978), where Judge Goldberg stated:…Admittedly, one approach to measuring the agents’ Fourth and Fifth Amendment duty would be to press into service traditional tort concepts. We could ask whether the Constitution proscribes conduct that is negligent, grossly negligent, reckless, or intentional. Before we rush into a debate over which standard to adopt, however, a preliminary observation deserves emphasis.Judge Goldberg goes on to note that in Estelle v. Gamble,?429 U.S. 97 (1976), the Supreme Court held that a prison doctor’s delivery of medical care violates the Eighth Amendment only if it constitutes “deliberate indifference”, while in United States v. Augurs,?427 U.S. 97 (1976), the Court held that a prosecutor may run afoul of constitutional dictates when his conduct constitutes mere negligence. Thus Judge Goldberg noted:I see no reason to attempt to catalog the various constitutional rights in terms of whether mere negligence would establish a violation. The important point is that the standards would vary.Standard of care issues are constantly applied in cases involving constitutional claims. Bass’s claim is without foundation in the law. We further conclude that the particular instruction given by the trial court -that the defendant’s conduct had to be intentional or reckless in order to constitute a constitutional violation -was the proper standard in this case involving the application of complex administrative standards used to reach discretionary decisions.In giving its instruction on the standard of care, the District Court relied on Beard v. Mitchell, 604 F.2d 485?(7th Cir. 1979). In Beard the plaintiff brought a civil rights action against FBI agent Mitchell alleging that the agent’s reckless conduct during his investigation resulted in a deprivation of the plaintiff’s brother’s constitutional rights. The Seventh Circuit approved the court’s instructions to the jury to find for the agent if it concluded that the agent’s actions were merely inadvertent or negligent and that plaintiff had the burden of proving that the agent’s personal acts were done either intentionally or with reckless disregard of the constitutional rights involved. The court noted that in the context of a Fifth Amendment due process claim, conduct is only unconstitutional if it is violative of the standard of care due a citizen under a specific set of circumstances.Beard is in accordance with the established law. Most of the relevant cases have involved actions brought by a plaintiff under 42 U.S.C. §1983. In Williams v. Kelley,?624 F.2d 695 (5th Cir. 1980), cert. denied, 451 U.S. 1019 (1981), a jail prisoner, while being subdued, died as a result of the defendant police officer’s application of a choke hold. We found no §1983 liability since the evidence showed that the officer was guilty of no more than “negligent performance of lawful custodial functions” which “did not constitute ‘the sort of abuse of government power’ that is cognizable under §1983.” In Bowen v. Watkins,?669 F.2d 979 (5th Cir. 1982), we held that supervisory officials may be liable under §1983 when their failure to supervise amounts to gross negligence or deliberate indifference. We find that the District Court’s instructions on standard of care were correct.GARWOOD, Circuit Judge, Concurring:I concur generally in Judge Williams’ cogent opinion. I add these remarks only to state my understanding that we merely assume that, but do not determine whether, Bass’ allegations sufficed to state a claim under the theory of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,?403 U.S. 388 (1971), on which he sought to ground his suit. The only constitutional rights, procedural or substantive, claimed by Bass are those under the due process clause of the Fifth Amendment. Equal protection, First Amendment and other constitutional claims are not presented. Bass’ due process claim rests on the assertion of a property interest, and it appears that no liberty interest is implicated. Considering our decision in McCachren v. United States Department of Agriculture, 599 F.2d 655 (5th Cir. 1979), the nature of the federal programs involved and the substantial discretion committed to those administering them, there is certainly a serious question whether Bass alleged any character of property interest. However, McCachren was not cited by either party to the court below, or to us, and counsel for the defendants informed us at oral argument that he was unaware of it. Accordingly, and in light of our affirmance, it is not inappropriate to pretermit consideration of this aspect of the case.STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984)Justice O’CONNOR delivered the opinion of the Court.Respondent pleaded guilty in a Florida trial court to an indictment that included three capital murder charges. In the plea colloquy, respondent told the trial judge that, although he had committed a string of burglaries, he had no significant prior criminal record and that, at the time of his criminal spree, he was under extreme stress caused by his inability to support his family. The trial judge told respondent that he had “a great deal of respect for people who are willing to step forward and admit their responsibility.” In preparing for the sentencing hearing, defense counsel spoke with respondent about his background, but did not seek out character witnesses or request a psychiatric examination. Counsel’s decision not to present evidence concerning respondent’s character and emotional state reflected his judgment that it was advisable to rely on the plea colloquy for evidence as to such matters, thus preventing the State from cross-examining respondent and from presenting psychiatric evidence of its own. Counsel did not request a presentence report, because it would have included respondent’s criminal history and thereby would have undermined the claim of no significant prior criminal record. Finding numerous aggravating circumstances and no mitigating circumstance, the trial judge sentenced respondent to death on each of the murder counts. The Florida Supreme Court affirmed, and respondent then sought collateral relief in state court on the ground,?inter alia,?that counsel had rendered ineffective assistance at the sentencing proceeding in several respects, including his failure to request a psychiatric report, to investigate and present character witnesses, and to seek a presentence report. The trial court denied relief, and the Florida Supreme Court affirmed. Respondent then filed a habeas corpus petition in Federal District Court advancing numerous grounds for relief, including the claim of ineffective assistance of counsel. After an evidentiary hearing, the District Court denied relief, concluding that, although counsel made errors in judgment in failing to investigate mitigating evidence further than he did, no prejudice to respondent’s sentence resulted from any such error in judgment. The Court of Appeals ultimately reversed, stating that the Sixth Amendment accorded criminal defendants a right to counsel rendering “reasonably effective assistance given the totality of the circumstances.” After outlining standards for judging whether a defense counsel fulfilled the duty to investigate nonstatutory mitigating circumstances and whether counsel’s errors were sufficiently prejudicial to justify reversal, the Court of Appeals remanded the case for application of the standards.Held:1. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The same principle applies to a capital sentencing proceeding - such as the one provided by Florida law - that is sufficiently like a trial in its adversarial format and in the existence of standards for decision that counsel’s role in the proceeding is comparable to counsel’s role at trial.2. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case.(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.3. A number of practical considerations are important for the application of the standards set forth above. The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. A court need not first determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial. And in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. §2254(d), but is a mixed question of law and fact.4. The facts of this case make it clear that counsel’s conduct at and before respondent’s sentencing proceeding cannot be found unreasonable under the above standards. They also make it clear that, even assuming counsel’s conduct was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence.693 F.2d 1243, reversed.O’CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part. MARSHALL, J., filed a dissenting opinion.During a 10-day period in September 1976, respondent planned and committed three groups of crimes, which included three brutal stabbing murders, torture, kidnapping, severe assaults, attempted murders, attempted extortion, and theft. After his two accomplices were arrested, respondent surrendered to police and voluntarily gave a lengthy statement confessing to the third of the criminal episodes. The State of Florida indicted respondent for kidnapping and murder and appointed an experienced criminal lawyer to represent him.At the sentencing hearing, counsel’s strategy was based primarily on the trial judge’s remarks at the plea colloquy as well as on his reputation as a sentencing judge who thought it important for a convicted defendant to own up to his crime. Counsel argued that respondent’s remorse and acceptance of responsibility justified sparing him from the death penalty. Counsel also argued that respondent had no history of criminal activity and that respondent committed the crimes under extreme mental or emotional disturbance, thus coming within the statutory list of mitigating circumstances. He further argued that respondent should be spared death because he had surrendered, confessed, and offered to testify against a codefendant and because respondent was fundamentally a good person who had briefly gone badly wrong in extremely stressful circumstances. The State put on evidence and witnesses largely for the purpose of describing the details of the crimes. Counsel did not cross-examine the medical experts who testified about the manner of death of respondent’s victims.The trial judge found several aggravating circumstances with respect to each of the three murders. He found that all three murders were especially heinous, atrocious, and cruel, all involving repeated stabbings. All three murders were committed in the course of at least one other dangerous and violent felony, and since all involved robbery, the murders were for pecuniary gain. All three murders were committed to avoid arrest for the accompanying crimes and to hinder law enforcement. In the course of one of the murders, respondent knowingly subjected numerous persons to a grave risk of death by deliberately stabbing and shooting the murder victim’s sisters-in-law, who sustained severe in one case, ultimately fatal - injuries.With respect to mitigating circumstances, the trial judge made the same findings for all three capital murders. First, although there was no admitted evidence of prior convictions, respondent had stated that he had engaged in a course of stealing. In any case, even if respondent had no significant history of criminal activity, the aggravating circumstances “would still clearly far outweigh” that mitigating factor. Second, the judge found that, during all three crimes, respondent was not suffering from extreme mental or emotional disturbance and could appreciate the criminality of his acts. Third, none of the victims was a participant in, or consented to, respondent’s conduct. Fourth, respondent’s participation in the crimes was neither minor nor the result of duress or domination by an accomplice. Finally, respondent’s age (26) could not be considered a factor in mitigation, especially when viewed in light of respondent’s planning of the crimes and disposition of the proceeds of the various accompanying thefts.If there is only one plausible line of defense, the court concluded, counsel must conduct a “reasonably substantial investigation” into that line of defense, since there can be no strategic choice that renders such an investigation unnecessary. The same duty exists if counsel relies at trial on only one line of defense, although others are available. In either case, the investigation need not be exhaustive. It must include “an independent examination of the facts, circumstances, pleadings and laws involved.” (Quoting Rummel v. Estelle, 590 F.2d 103 (CA5 1979)). The scope of the duty, however, depends on such facts as the strength of the government’s case and the likelihood that pursuing certain leads may prove more harmful than helpful.If there is more than one plausible line of defense, the court held, counsel should ideally investigate each line substantially before making a strategic choice about which lines to rely on at trial. If counsel conducts such substantial investigations, the strategic choices made as a result “will seldom if ever” be found wanting. Because advocacy is an art and not a science, and because the adversary system requires deference to counsel’s informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment.Having outlined the standards for judging whether defense counsel fulfilled the duty to investigate, the Court of Appeals turned its attention to the question of the prejudice to the defense that must be shown before counsel’s errors justify reversal of the judgment. The court observed that only in cases of outright denial of counsel, of affirmative government interference in the representation process, or of inherently prejudicial conflicts of interest had this Court said that no special showing of prejudice need be made. For cases of deficient performance by counsel, where the government is not directly responsible for the deficiencies and where evidence of deficiency may be more accessible to the defendant than to the prosecution, the defendant must show that counsel’s errors “resulted in actual and substantial disadvantage to the course of his defense.” This standard, the Court of Appeals reasoned, is compatible with the “cause and prejudice” standard for overcoming procedural defaults in federal collateral proceedings and discourages insubstantial claims by requiring more than a showing, which could virtually always be made, of some conceivable adverse effect on the defense from counsel’s errors. The specified showing of prejudice would result in reversal of the judgment, the court concluded, unless the prosecution showed that the constitutionally deficient performance was, in light of all the evidence, harmless beyond a reasonable doubt.The Court of Appeals thus laid down the tests to be applied in the Eleventh Circuit in challenges to convictions on the ground of ineffectiveness of counsel. Although some of the judges of the court proposed different approaches to judging ineffectiveness claims either generally or when raised in federal habeas petitions from state prisoners, and although some believed that no remand was necessary in this case, a majority of the judges of the en banc court agreed that the case should be remanded for application of the newly announced standards. Summarily rejecting respondent’s claims other than ineffectiveness of counsel, the court accordingly reversed the judgment of the District Court and remanded the case. On remand, the court finally ruled, the state trial judge’s testimony, though admissible “to the extent that it contains personal knowledge of historical facts or expert opinion,” was not to be considered admitted into evidence to explain the judge’s mental processes in reaching his sentencing decision. See Fayerweather v. Ritch,?195 U.S. 276 (1904).In a long line of cases that includes Powell v. Alabama,?287 U.S. 45 (1932), Johnson v. Zerbst,?304 U.S. 458 (1938), and Gideon v. Wainwright,?372 U.S. 335 (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”Because of the vital importance of counsel’s assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. See Argersinger v. Hamlin,?407 U.S. 25 (1972); Gideon v. Wainwright; Johnson v. Zerbst. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair….Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. See Cuyler v. Sullivan,?446 U.S., at 346….…A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance….One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan,?446 U.S., at 345, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see Fed. Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan,?446 U.S., at 350. Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, cf. United States v. Valenzuela-Bernal,?458 U.S. 858 (1982), and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors “impaired the presentation of the defense.” That standard, however, provides no workable principle. Since any error, if it is indeed an error, “impairs” the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless decision maker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decision maker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decision maker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel’s selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge’s sentencing practices, should not be considered in the prejudice determination.The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel’s errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer - including an appellate court, to the extent it independently reweighs the evidence - would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.Justice MARSHALL, dissenting.The debilitating ambiguity of an “objective standard of reasonableness” in this context is illustrated by the majority’s failure to address important issues concerning the quality of representation mandated by the Constitution. It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case. Is a “reasonably competent attorney” a reasonably competent adequately paid retained lawyer or a reasonably competent appointed attorney? It is also a fact that the quality of representation available to ordinary defendants in different parts of the country varies significantly. Should the standard of performance mandated by the Sixth Amendment vary by locale? The majority offers no clues as to the proper responses to these questions.The majority defends its refusal to adopt more specific standards primarily on the ground that “no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” I agree that counsel must be afforded “wide latitude” when making “tactical decisions” regarding trial strategy, but many aspects of the job of a criminal defense attorney are more amenable to judicial oversight. For example, much of the work involved in preparing for a trial, applying for bail, conferring with one’s client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards.I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government’s evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.Second and more fundamentally, the assumption on which the Court’s holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.In Chapman v. California,?386 U.S. 18 (1967), we acknowledged that certain constitutional rights are “so basic to a fair trial that their infraction can never be treated as harmless error.” Among these rights is the right to the assistance of counsel at trial. See Gideon v. Wainwright,?372 U.S. 335 (1963).In my view, the right to effective assistance of counsel is entailed by the right to counsel, and abridgment of the former is equivalent to abridgment of the latter. I would thus hold that a showing that the performance of a defendant’s lawyer departed from constitutionally prescribed standards requires a new trial regardless of whether the defendant suffered demonstrable prejudice thereby.I respectfully dissent.Footnotes:1.The Court’s judgment leaves standing another in an increasing number of capital sentences purportedly imposed in compliance with the procedural standards developed in cases beginning with Gregg v. Georgia,?428 U.S. 153 (1976). Earlier this Term, I reiterated my view that these procedural requirements have proven unequal to the task of eliminating the irrationality that necessarily attends decisions by juries, trial judges, and appellate courts whether to take or spare human life. Pulley v. Harris,?465 U.S. 37 (1984). The inherent difficulty in imposing the ultimate sanction consistent with the rule of law, see Furman v. Georgia,?408 U.S. 238 (1972); McGautha v. California,?402 U.S. 183 (1971), is confirmed by the extraordinary pressure put on our own deliberations in recent months by the growing number of applications to stay executions. See Wainwright v. Adams,?466 U.S. 964 (1984) (stating that “haste and confusion surrounding...decision [to vacate stay] is itself degrading to our role as judges”); Autry v. McKaskle,?465 U.S. 1085 (1984) (criticizing Court for “dramatically expediting its normal deliberative processes to clear the way for an impending execution”); Stephens v. Kemp,?464 U.S. 1027 (1983) (contending that procedures by which stay applications are considered “undermines public confidence in the courts and in the laws we are required to follow”); Sullivan v. Wainwright,?464 U.S. 109 (1983) (accusing lawyers seeking review of their client’s death sentences of turning “the administration of justice into [a] sporting contest”); Autry v. Estelle,?464 U.S. 1(1983) (suggesting that Court’s practice in reviewing applications in death cases “injects uncertainty and disparity into the review procedure, adds to the burdens of counsel, distorts the deliberative process within this Court, and increases the risk of error”). It is difficult to believe that the decision whether to put an individual to death generates any less emotional pressure among juries, trial judges, and appellate courts than it does among Members of this Court.WILLIAMS v. COLLINS, et al., 728 F.2d 721 (1984)PATRICK E. HIGGINBOTHAM, Circuit Judge:Under law of case doctrine, complaint contained only common-law tort claims in addition to constitutional claims dismissed by District Court, notwithstanding that both District Court and defendants mistakenly assumed that complaint contained other constitutional claims, where plaintiff, in urging Court of Appeals to refuse to hear defendants’ interlocutory appeal, explicitly stated that remaining claims in complaint were based not on alleged constitutional violations, but on alleged state common-law ernment’s notice of appeal from denial of motion to dismiss former government employees common-law tort claim was not fatally defective on ground it named “United States” as defendant rather than nine federal officials who participated in personal and administrative proceedings which resulted in his removal from federal employment, where all parties were fairly and timely apprised of appeal, including former employee who was properly named.For purposes of determining whether United States or officer or agency thereof is party to civil action so as to entitle party to 60 days within which to file appeal from entry of judgment or order, 60-day filing period applies if defendant officers were acting under “color of office” or if defendant officers were acting under “color of law” or “lawful authority” or if any party in case was represented by government attorney. F.R.A.P. Rule 4(a), 28 U.S.C.A.Absolute immunity asserted by federal officials who participated in personal and administrative proceedings which resulted in plaintiff’s removal from federal employment protected defendants from trial as well as liability, and therefore, defendants had no full and effective review after trial; thus, order rejecting claim of absolute immunity to common-law tort claim was appealable.Denials of absolute liability to government officials are appealable when entitlement to immunity is sufficiently free of fact question as to present question of law.Former employee’s allegations of violation of due process arising out of administrative proceedings that led to his loss of federal employment were substantial enough to create subject-matter jurisdiction over pendent common-law tort claims, notwithstanding contention that federal claims were precluded by prior Court of Appeals decision, where argument that prior decision could be distinguished was nonfrivolous. U.S.C.A. Const. Amend. 5.Federal officials enjoy absolute immunity from common-law tort liability for actions within scope of their authority; furthermore, absolute immunity does not hinge on functional analysis as with constitutional torts.All that is necessary for federal officials to enjoy absolute immunity from common-law tort liability for actions within scope of their authority is that action of federal official bear some reasonable relation to and connection with his duties and responsibilities and that action of official is connected with discretionary function.Conduct of defendants, federal officials exercising discretionary function in connection with personal and administrative proceedings which resulted in employee’s removal from federal employment, even if tortious, was within outer bounds of their authority, entitling defendants to absolute immunity from common-law liability where allegedly defamatory statements were made in connection with termination proceedings, transfer of employee under escort during course of investigation was reasonably calculated to help investigation, search of employee’s desk and office, whether part of investigation or simple inventory of material, was within defendants’ line of duty, and defendants had duty to investigate employee’s behavior and seek removal if necessary.Officials of the Army Corps of Engineers appeal from the denial of their motion for dismissal or summary judgment, claiming that the doctrine of absolute immunity under Barr v. Matteo, 360 U.S. 564 (1959), insulates them from liability to Williams on his common law tort claims. We hold that orders denying absolute immunity are automatically appealable under Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. 541 (1949), and finding defendants immune, reverse on the merits.On April 26, 1982, Williams sued nine federal officials who participated in personnel and administrative proceedings which resulted in his removal from federal employment.?His complaint contained two types of claims. First, he alleged constitutional claims of violations of due process arising out of the administrative proceedings that led to his loss of federal employment.?Second, he advanced common law tort claims. Defendants moved to dismiss, or in the alternative for summary judgment. The District Court dismissed the due process claims, reasoning that these constitutional claims against Williams’ superiors were precluded by Bush v. Lucas,?647 F.2d 573?(5th Cir. 1981), affirmed, 462 U.S. 367 (1983), and Broussard v. United States Postal Service,?674 F.2d 1103?(5th Cir. 1982). The District Court denied the motion directed to the remaining claims, finding that material issues of fact remained as to defendants’ entitlement to official immunity.By order filed May 11, 1983, No. 83-9001, this court refused to allow a §1292(b) interlocutory appeal by defendants from the refusal to dismiss what they believed were several constitutional claims that Williams had alleged in addition to his due process claims. In his response to defendants’ attempt to appeal, Williams denied that any further constitutional claims remained, and stated that “[t]he case is now proceeding under Mississippi law on the common law torts of Tortious Interference with Contract Rights, Slander and Defamation, False Imprisonment, and Trespass/Invasion of Privacy.” Relying on Williams’ representations made as master of his own complaint, the court dismissed the interlocutory appeal, stating explicitly that the remaining claims in Williams’ complaint “are based not on alleged constitutional violations, but on alleged state common law violations.” Williams now contends that he did not mean to say what he said in urging this court to refuse to hear defendants’ interlocutory appeal, and says that his common law tort claims also double as constitutional claims. We consider it the law of the case that Williams’ complaint contained only common law tort claims in addition to the constitutional claims dismissed by the District Court, notwithstanding that both the District Court and defendants mistakenly assumed the complaint contained other constitutional claims.We face at the outset the issue of whether we have appellate jurisdiction. Williams urges that no appellate jurisdiction exists. He alleges, first, that the government’s notice of appeal is fatally defective because it names the “United States” as defendant rather than any of the actual defendants in the suit, second, that the government’s appeal was not timely filed since the thirty-day, and not the sixty-day time limit applies to this case, and third, that the District Court’s order is not “final” and therefore not appealable at all.Williams’ first objection to the sufficiency of the notice of appeal is without merit. See Smith v. Atlas Off-Shore Boat Service, Inc.,?653 F.2d 1057 (5th Cir. 1981). All parties were fairly and timely apprised of the appeal, including Williams, who was properly named.Williams’ second point arises because of ambiguity in Federal Rule of Appellate Procedure 4(a), providing 30 days as the norm for filing a notice of appeal, “but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days.” The difficulty is that Williams has purported to sue the defendant government officers only in their “individual” capacity. The Ninth Circuit, in Wallace v. Chappell,?637 F.2d 1345 (9th Cir. 1981) recently overturned its own precedent applying the 30-day time limit in a case involving a government officer sued in his individual capacity for possibly government-related activity. See Michaels v. Chappell,?279 F.2d 600?(9th Cir. 1960), cert. denied, 366 U.S. 940 (1961). We are persuaded of the wisdom of the Ninth Circuit’s reading of the rule.Whenever the alleged grievance arises out of a government activity, the 60-day filing period of Rule 4(a) applies if: (a) the defendant officers were acting under color of office, or (b) the defendant officers were acting under color of law or lawful authority,?or (c) any party in the case is represented by a government attorney. Color of law exists when a “private” organization or individual is “so closely entwined” with the government that private action becomes “state action.” Smith v. Young Men’s Christian Ass’n of Montgomery,?462 F.2d 634 (5th Cir. 1972).Williams’ third ground for dismissal raises the issue of whether District Court orders rejecting claims of absolute immunity are appealable under the Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. 541 (1949) collateral order doctrine. It also raises the subsidiary question of whether appealability obtains in all circumstances, or whether it turns on the circumstances of each case. The Supreme Court was confronted with this issue in Nixon v. Fitzgerald,?457 U.S. 731 (1982).?But Nixon did not make clear whether the Court endorsed appealability under Cohen in all circumstances, as a class, or only when the appeal raises urgent, unsettled questions of law.The injection of the “serious and unsettled” element generates the uncertainty. Other cases finding District Court orders before final judgment appealable as a class do so by discounting the significance of this case-by-case restriction, Abney, 431 U.S. 662,?or ignoring it altogether. Helstoski, 442 U.S. at 506; Stack v. Boyle,?342 U.S. 1 (1951). Abney & Helstoski involved claimed immunities that encompassed not only liability,?but also immunity from trial itself. Cohen’s third element of “unreviewability on appeal from a final judgment” was met in Abney, Helstoski and Stack because the right at stake would have been irretrievably lost by the continuation of trial court proceedings -whether or not the legal issue presented by the particular case was clearly settled. The Nixon Court’s reliance on the “serious and unsettled” element, if taken for all its worth, narrows the substantive protection of the accorded immunity to protection from ultimate liability.Two points weigh against that conclusion. First, Nixon ‘s emphasis upon the unsettled question of law aspect may reflect only its rejection of the D.C. Circuit’s finding, a simple checkmating in conformity with the Court’s traditional practice of declining to decide questions unnecessary to resolution of the case before it. Second, Harlow -which relied on Nixon’s jurisdictional analysis to establish its own jurisdiction -placed great emphasis, in its decision to eliminate the subjective prong of qualified immunity, on the use of constitutional tort immunities to avoid unnecessary trials and minimize governmental disruption caused by litigation and discovery. In particular, Harlow contemplated that eliminating the subjective standard would facilitate pretrial disposition of the cases. That rationale would seem to press official immunity questions into the Abney-Helstoski category.The D.C. Circuit has recently concluded that Harlow’s rationale does do precisely that. In McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982), that court held that both the qualified and absolute prongs of the immunity doctrine are intended to protect government officials not only from liability, but also from the rigors and disruptions of trial. It accordingly held that District Court orders denying immunity, whether absolute or qualified, are appealable per se as a class, under the collateral order doctrine.Other circuits have declined to go so far. The Tenth Circuit exercised jurisdiction over a denial of absolute immunity claimed under Barr v. Matteo, 360 U.S. 564 (1959) after deciding that the appeal raised a “serious and unsettled” question. In the process, it noted that a claim of absolute immunity “contests a plaintiff’s right to ‘hale [a defendant] into court.’“ Chavez v. Singer,?698 F.2d 420 (10th Cir. 1983). But it then hedged this statement, saying that the “right to immunity... is arguably lost once the trial is held.”The Eighth Circuit explicitly stated that Nixon and Harlow did not require as broad a rule as the one adopted in McSurely. Evans v. Dillahunty,?711 F.2d 828 (8th Cir. 1983). Therefore, “[i]n the absence of a clear mandate,” it decided on a rule recognizing “the importance of avoiding piecemeal appeals where possible.” It held:That motions for summary judgment and motions to dismiss that are premised on absolute or qualified immunity are immediately appealable in cases that meet the following criteria: 1) The essential facts are not in dispute (this criterion may be satisfied if the trial court makes specific findings of fact, or if the parties stipulate to the relevant facts); and 2) the determination of whether the government official is entitled to immunity is solely a question of law.The only other relevant circuit decisions support the idea that denials of absolute immunity are appealable as a class, but that qualified immunity denials must be treated differently. In Forsyth v. Kleindienst,?599 F.2d 1203?(3d Cir. 1979), cert. denied sub nom. Mitchell v. Forsyth, 453 U.S. 913 (1981) (Forsyth I), a pre-Nixon and Harlow decision, the Third Circuit held that absolute immunity grants the constitutional tort “defendant the right not to be subjected to trial, not just the right not to be found guilty,” but that denials of qualified immunity do not satisfy Cohen and are not appealable.?The “serious and unsettled” question requirement was not at issue in Forsyth I. In Forsyth v. Kleindienst,?700 F.2d 104 (3d Cir. 1983) (Forsyth II), the majority believed itself bound by the Forsyth I panel’s holding that rejections of absolute immunity are appealable as a class, despite the dissent’s argument that Nixon made clear that there must be a “serious and unsettled” question present.We are persuaded that the absolute immunity here asserted protects a defendant from trial as well as liability. See Spiess v. C. Itoh Co.,?725 F.2d 970?(5th Cir. 1984). It follows for us that defendants have no full and effective review after trial. The order rejecting their claim of absolute immunity is appealable.We turn now to defendants’ primary argument that they are absolutely immune from liability for the common law torts alleged by Williams. Federal officials enjoy absolute immunity from common law tort liability for actions within the scope of their authority. Barr v. Matteo, 360 U.S. 564 (1959); Claus v. Gyorkey,?674 F.2d 427?(5th Cir. 1982). This absolute immunity does not hinge on a functional analysis as with constitutional torts. Evans v. Wright,?582 F.2d 20?(5th Cir.1978). Nixon and Harlow both affirm Barr. All that is necessary is that “the action of the federal official bear some reasonable relation to and connection with his duties and responsibilities...,” Claus v. Gyorkey, 674 F.2d at 431, quoting Scherer v. Brennan,?379 F.2d 609 (7th Cir. 1967), cert. denied, 389 U.S. 1021 (1967), and that the action of the official is connected with a “discretionary function.” Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), cert. denied, 380 U.S. 981 (1965). As is evident from the earlier description of their jobs, all of the defendants were federal officials exercising discretionary functions, from Williams’ immediate supervisor to officials higher in the chain of command.Williams complains of four different actions involving different sub-groups of defendants. First, he alleges defendants Woods and Cooke slandered and defamed him. Williams’ affidavit alleges vaguely that he has been informed that Woods and Cooke made slanderous remarks to third persons. This hearsay is not competent evidence to create a genuine issue of material fact. See Pan-Islamic Trade Corp. v. Exxon Corp.,?632 F.2d 539 (5th Cir. 1980), cert. denied,?454 U.S. 927 (1981); Broadway v. City of Montgomery, Alabama,?530 F.2d 657?(5th Cir. 1976). Williams further points to one of Cooke’s written memoranda recommending that Williams’ misdeeds be “fully and publicly acknowledged.” This dangling statement by itself plainly evidences no action beyond the scope of Cooke’s authority. Finally, although the administrative record of Williams’ termination proceedings naturally contains many negative statements about Williams, all were made in connection with those proceedings. There is no evidence in the record to support Williams’ claim that Woods and Cooke made statements about Williams that were outside “the outer perimeter of [their] line of duty.” Barr v. Matteo, 360 U.S. at 575.Second, Williams alleges that defendants Collins, Witherspoon, Woods, and Cooke falsely “imprisoned” Williams. In order to get Williams out of the way of the investigation, his superiors temporarily assigned Williams to work in Vicksburg. Defendants required Williams to travel under escort to Vicksburg, and ordered him to stay there. Williams does not, however, allege that defendants used physical force or the threat of physical force to coerce him, but rather that his refusal to cooperate would have resulted in the loss of his job. This transfer of an employee under investigation was reasonably related to defendants’ duties. Defendants took steps that could be reasonably calculated to help the investigation, and could reasonably have made Williams’ cooperation a prerequisite for holding his job.Third, Williams alleges that defendants Shockey, Witherspoon, Collins and Cooke exceeded their authority in searching his desk and office, including a locked desk drawer, without a warrant, and in temporarily seizing the personal items in the desk for safekeeping. Whether it was part of the investigation of Williams or a simple inventory of material in the office, this action was within the outer perimeter of defendants’ line of duty. It is by no means certain that Williams had a reasonable expectation of privacy in his government-furnished desk, in relation to the possibility of his supervisors entering the desk as part of an investigation of Williams’ job performance or as part of an office inventory. See United States v. Bunkers,?521 F.2d 1217?(9th Cir.), cert. denied, 423 U.S. 989 (1975); United States v. Nasser,?476 F.2d 1111?(7th Cir. 1973); United States v. Hagarty,?388 F.2d 713?(7th Cir. 1968); United States v. Blok,?188 F.2d 1019?(D.C.Cir. 1951).Finally, Williams alleges that defendants maliciously interfered with his employment contract. As Barr made clear, allegations of malice have no effect on an absolute immunity claim. Defendants’ duty was to investigate Williams’ behavior and to seek his removal if proper. Since we must look at defendants’ actions as if they had been carried out without malice, we must conclude that defendants’ efforts to terminate Williams’ employment were also within the outer perimeter of their line of duty. Finding that there is no genuine issue of material fact as to defendants’ entitlement to absolute immunity, the order of the District Court is REVERSED. The action is REMANDED to the District Court for entry of an order granting the motion for summary judgment in favor of defendants.Footnotes:6. “... An act under color of office is an act of an officer who claims authority to do the act by reason of his office when the office does not confer on him any such authority.” Black’s Law Dictionary 241 (5th ed. 1979). “For an act of a government officer to be under color of office, the act must have some rational connection with his official duties.” Arthur v. Fry, 300 F.Supp. 620 (E.D.Tenn. 1969). This phrase would cover any act by an officer which was made possible by the officer’s official position, even if there is no arguable legal justification (“color of law”). 7. “The appearance or semblance without the substance, of legal right....” Black’s. This test is most often used in connection with civil rights suits under 42 U.S.C. §1983. Adickes v. Kress & Co.,?398 U.S. 144 (1970).1.The defendants are Williams’ three successive superiors in the agency (Woods, Harrison, and Hite), the military commander (Collins) of the agency district in which Williams was employed and his two aides (Shockey and Witherspoon), the military commander (Read) of the division in which the employment district was situated, who had ordered the investigation into Williams’ conduct, and a military officer (Cooke) and civilian lawyer (Hale) who conducted the investigation resulting in Williams’ separation from federal government.7.We caution that, despite the rule we announce today, many denials of claimed immunity in pretrial proceedings will not be in a posture for appellate review, in that entitlement to immunity will turn on disputed questions of fact or will otherwise be inextricably bound up with the merits of the claims. While Harlow made easier the pretrial resolution of immunity claims by its elimination of the subjective prong of good faith, there remain many cases where such early decisions cannot be made. Whether efforts to appeal such orders will be dispatched for lack of jurisdiction as lacking the requisite collateral character or whether they will be summarily returned on their “merits,” we do not decide. We decide only that we will entertain appeals from denials of absolute immunity when entitlement to immunity is sufficiently free of fact questions as to present a question of law. Finally, we caution that the right of appeal recognized today only extends to an immunity that accords protection from trial as distinguished from possible defense to liability.CURRIE v. GUTHRIE, 749 F.2d 185 (1984)PER CURIAM.Granting immunity from common-law tort liability to federal employees is designed to improved quality and efficiency of government services.Patricia M. Currie brought this action for malicious prosecution against Sue Guthrie in the circuit court of Hancock County, Mississippi. Because Ms. Guthrie was a federal employee when the cause of action arose, the case was removed to the United States District Court for the Southern District of Mississippi under 28 U.S.C. §1442 (1982). After trial, the jury returned a verdict for the plaintiff for $75,000. The District Court granted the defendant’s post-trial motion for judgment notwithstanding the verdict, holding that the defendant’s status as a federal employee entitled her to absolute immunity from common law tort liability. We affirm the judgment of the District Court.When Ms. Guthrie arrived home, she called the Sheriff’s Department, which advised her to call the Justice of the Peace. Ms. Guthrie met with the Justice of the Peace as soon as possible and signed an affidavit charging Ms. Currie with disturbance of the peace in a public place. Ms. Currie was arrested, tried, and acquitted of this charge. Ms. Currie then brought this action for malicious prosecution that resulted, as previously stated, in the District Court’s entering a judgment notwithstanding the verdict in favor of Ms. Guthrie.Ms. Currie contends on appeal that the District Court erred in holding that Ms. Guthrie was entitled to absolute immunity from common law tort liability because of her status as a federal employee. She argues that Ms. Guthrie’s signing the affidavit against her was a purely personal act, not connected with the performance of Ms. Guthrie’s duties as a federal employee. Ms. Currie argues that because Captain Bassett testified that he did not order Ms. Guthrie to file charges, Ms. Guthrie acted beyond the “outer perimeter” of her duties. Therefore, Ms. Currie contends, Ms. Guthrie is not entitled to absolute immunity.An additional requirement for absolute immunity that the courts have imposed is that the action of the public official must be connected with a “discretionary function.” Norton, 332 F.2d at 859. A public official’s action will be considered “discretionary” if it is “the result of a judgment or decision which it is necessary that the Government official be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability.” (Quoting Ove Gustavsson Contracting Co. v. Floete,?299 F.2d 655 (2d Cir. 1962), cert. denied, 374 U.S. 827 (1963)). This Court recently recognized and applied both the “outer perimeter” and the “discretionary function” aspects of the absolute immunity test in Williams v. Collins,?728 F.2d 721 (5th Cir. 1984).Footnotes:3. In Norton, we expressed the following interpretation of Barr:The requirements [sic] that the act be within the outer perimeter of the line of duty is no doubt another way of stating that the act must have more or less connection with the general matters committed by law to the officer’s control or supervision, and not be manifestly or palpably beyond his authority. 332 F.2d at 858.UNITED STATES v. SAPERSTEIN, 723 F.2d 1221 (1983)NATHANIEL R. JONES, Circuit Judge.Accordingly, to the extent that the denial of the suppression motion was based on the District Court’s conclusion that no seizure of the appellant’s person had occurred, that order is clearly wrong and any subsequent conviction must be vacated. We still must address, however, the District Court’s alternative holding, and the government’s additional argument, that if a seizure did occur, it was reasonable. A resolution of this issue would generally require a two-step analysis: (1) whether the elements of the drug courier profile exhibited by Saperstein were sufficient to justify any form of initial stop; and, if so, (2) whether the boundaries of a justifiable stop were overstepped. See Terry v. Ohio, 392 U.S. at 19; Florida v. Royer, 460?U.S.?491.In Royer, the plurality opinion of the Court indicated that, on the facts before it, there existed sufficient reasonable suspicion to justify a temporary detention within the bounds of Terry v. Ohio. The Court based this conclusion on the fact that Royer exhibited several factors which DEA officers claim to be characteristic of drug traffickers. They were: (1) Royer was traveling under an assumed name; (2) he paid cash, in large denominations, for a one-way ticket; (3) rather than complete the airline identification tag in full, which included space for an address and telephone number, he wrote only a name and destination; (4) he was young, between 25 and 35, and casually dressed; (5) he was pale, nervous and continually looked around at others; and (6) he carried American Tourister luggage which appeared heavy. The Court reasoned that when taking these factors in combination, they constituted “adequate grounds for suspecting Royer of carrying drugs and for temporarily detaining him and his luggage while attempting to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention.”Significantly, however, the Supreme Court still did not condone, or even specifically address, the use of the drug courier profile to justify investigative stops in all cases. Rather, the Court simply acknowledged that the confluence of the various characteristics exhibited by Royer could create a sufficient degree of suspicion in that case. It is also significant that the Supreme Court did not overrule its earlier decision in Reid v. Georgia, when it handed down Royer. There, the Court held, in a per curiam opinion, that the following factors were insufficient to support any seizure: (1) the defendant had arrived from Fort Lauderdale, a “source city;” (2) the defendant arrived early in the morning, when law enforcement activity was diminished; (3) the defendant and his companion appeared to be trying to conceal the fact that they were traveling together; (4) the defendant’s trip was short; he stayed in Fort Lauderdale only one day; and (5) the defendant and his companion had no luggage other than identical shoulder bags. Moreover, the opinion of the Court in Royer was also only a plurality. The concurring opinion of Justice Brennan, thus constituting a majority for purposes of the ultimate result reached, specifically found that under Terry v. Ohio the initial stop was itself illegal. Clearly, the DEA drug courier profile has simply not received a blanket stamp of approval by the Supreme Court. Rather, we are still left to answer the question of whether in each particular case the combination of facts present and the manner in which they are exhibited justifies a stop. While a review of the case-by-case analysis found in the various airport search cases narrows the inquiry somewhat, a resort to the elemental principles of Terry v. Ohio finally dictates the resolution of the Fourth Amendment issue presented here.There are a large variety of traits which have characteristically been attributed to drug couriers, traits which may then combine or interact in any number of ways. Recognizing that it is the overall effect of a person’s behavior which gives rise to reasonable suspicion, this Court has still deemed certain behavior characteristics inherently unsuspicious and, thus, entitled to no weight in the calculation. See United States v. Andrews,?600 F.2d 563 (6th Cir. 1979) (nervousness deemed entirely consistent with behavior among innocent airport travelers and is entitled to no weight). See also United States v. McCaleb, 552 F.2d 717, 720 (6th Cir. 1977). Travel to and from a source city, relied upon in the instant case, is one such innocent behavior trait:Similarly, travel from Los Angeles cannot be regarded as in any way suspicious. Los Angeles may indeed be a major narcotics distribution center, but the probability that any given airplane passenger from that city is a drug courier is infinitesimally small. Such a flimsy factor should not be allowed to justify - or help justify -the stopping of travelers from the nation’s third largest city. Moreover, our experience with DEA agent testimony in other cases makes us wonder whether there exists any city in the country which a DEA agent will not characterize as either a major narcotics distribution center or a city through which drug couriers pass on their way to a major narcotics distribution center.The Supreme Court’s key decision in Terry v. Ohio, clearly supports the conclusion that the amalgam of traits elicited by Saperstein were insufficient to justify the DEA agents actions.?Before Terry no seizures of the person were deemed permissible under the Fourth Amendment absent probable cause. Terry created a limited exception to this general rule - allowing investigative stops on something less than probable cause where the governmental interest is important and the law enforcement officer is “able to point to specific and articulable facts, which taken together with rational inferences from those facts reasonably warrant that intrusion.” See also Florida v. Royer, 460 U.S. at 491….Footnotes:6. In Terry v. Ohio,?392 U.S. 1 (1968) the court considered the circumstances under which there will be sufficient restraint to constitute a seizure: a seizure has occurred when “the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”ILLINOIS v. GATES, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)Justice REHNQUIST delivered the opinion of the Court.Likewise, “due regard for the appropriate relationship of this Court to state courts,”?McGoldrick v. Compagnie Generale,?309 U.S. 430 (1940), demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials, and, equally important, proposed changes in existing remedies for unconstitutional actions. Finally, by requiring that the State first argue to the state courts that the federal exclusionary rule should be modified, we permit a state court, even if it agrees with the State as a matter of federal law, to rest its decision on an adequate and independent state ground. See?Cardinale,?394 U.S., at 439. Illinois, for example, adopted an exclusionary rule as early as 1923, see People v. Brocamp,?307 Ill. 448, 138 N.E. 728 (1923), and might adhere to its view even if it thought we would conclude that the federal rule should be modified. In short, the reasons supporting our refusal to hear federal claims not raised in state court apply with equal force to the State’s failure to challenge the availability of a well-settled federal remedy. Whether the “not pressed or passed upon below” rule is jurisdictional, as our earlier decisions indicate,?or prudential, as several of our later decisions assume, nor whether its character might be different in cases like this from its character elsewhere, we need not decide. Whatever the character of the rule may be, consideration of the question presented in our order of November 29, 1982, would be contrary to the sound justifications for the “not pressed or passed upon below” rule, and we thus decide not to pass on the issue.Likewise, we do not believe that the State’s repeated opposition to respondent’s substantive Fourth Amendment claims suffices to have raised the question whether the exclusionary rule should be modified. The exclusionary rule is “a judicially created remedy designed to safeguard Fourth Amendment rights generally” and not “a personal constitutional right of the party aggrieved.”?United States v. Calandra, 414 U.S. 338 (1974). The question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct. See United States v. Havens,?446 U.S. 620 (1980);?United States v. Ceccolini,?435 U.S. 268 (1978); United States v. Calandra; Stone v. Powell,?428 U.S. 465 (1976). Because of this distinction, we cannot say that modification or abolition of the exclusionary rule is “so connected with [the substantive Fourth Amendment right at issue] as to form but another ground or reason for alleging the invalidity” of the judgment.?Dewey v. Des Moines,?173 U.S., at 197. Rather, the rule’s modification was, for purposes of the “not pressed or passed upon below” rule, a separate claim that had to be specifically presented to the State courts. Finally, weighty prudential considerations militate against our considering the question presented in our order of November 29, 1982. The extent of the continued validity of the rules that have developed from our decisions in?Weeks v. United States,?232 U.S. 383 (1961), and?Mapp v. Ohio,?367 U.S. 643 (1961), is an issue of unusual significance. Sufficient evidence of this lies just in the comments on the issue that members of this Court recently have made,?e.g., Bivens v. Six Unknown Named Agents,?403 U.S. 388 (1971);?Coolidge v. New Hampshire,?403 U.S. 443 (1971);?Stone v. Powell,?428 U.S. 465 (1976);?Brewer v. Williams,?430 U.S. 387 (1977);?Robbins v. California,?453 U.S. 420 (1981). Where difficult issues of great public importance are involved, there are strong reasons to adhere scrupulously to the customary limitations on our discretion. By doing so we “promote respect...for the Court’s adjudicatory process [and] the stability of [our] decisions.”?Mapp v. Ohio,?367 U.S., at 677. Moreover, fidelity to the rule guarantees that a factual record will be available to us, thereby discouraging the framing of broad rules, seemingly sensible on one set of facts, which may prove ill-considered in other circumstances. In Justice Harlan’s words, adherence to the rule lessens the threat of “untoward practical ramifications,” not foreseen at the time of decision. The public importance of our decisions in?Weeks?and?Mapp?and the emotions engendered by the debate surrounding these decisions counsel that we meticulously observe our customary procedural rules. By following this course, we promote respect for the procedures by which our decisions are rendered, as well as confidence in the stability of prior decisions. A wise exercise of the powers confided in this Court dictates that we reserve for another day the question whether the exclusionary rule should be modified.“This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.They brag about the fact they never have to work, and make their entire living on pushers.I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.Lance & Susan GatesGreenway in Condominiums”The letter was referred by the Chief of Police of the Bloomingdale Police Department to Detective Mader, who decided to pursue the tip. Mader learned, from the office of the Illinois Secretary of State, that an Illinois driver’s license had been issued to one Lance Gates, residing at a stated address in Bloomingdale. He contacted a confidential informant, whose examination of certain financial records revealed a more recent address for the Gates, and he also learned from a police officer assigned to O’Hare Airport that “L. Gates” had made a reservation on Eastern Airlines flight 245 to West Palm Beach, Fla., scheduled to depart from Chicago on May 5 at 4:15 p.m.We agree with the Illinois Supreme Court that an informant’s “veracity,” “reliability” and “basis of knowledge” are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case,?which the opinion of the Supreme Court of Illinois would imply. Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place.This totality of the circumstances approach is far more consistent with our prior treatment of probable cause?than is any rigid demand that specific “tests” be satisfied by every informant’s tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a “practical, nontechnical conception.”?Brinegar v. United States,?338 U.S. 160 (1949). “In dealing with probable cause,...as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”?Our observation in?United States v. Cortez,?449 U.S. 411 (1981), regarding “particularized suspicion,” is also applicable to the probable cause standard:The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same - and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.As these comments illustrate, probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons. As we said in?Adams v. Williams,?407 U.S. 143 (1972), “Informants’ tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability.” Rigid legal rules are ill-suited to an area of such diversity. “One simple rule will not cover every situation.”Moreover, the “two-pronged test” directs analysis into two largely independent channels - the informant’s “veracity” or “reliability” and his “basis of knowledge.”?There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See Adams v. Williams,?407 U.S., at 146;?Harris v. United States,?403 U.S. 573 (1971).If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. See?United States v. Sellers,?483 F.2d 37 (CA5 1973).?Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity - which if fabricated would subject him to criminal liability - we have found rigorous scrutiny of the basis of his knowledge unnecessary.?Adams v. Williams. Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality of circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip, the “two-pronged test” has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.As early as?Locke v. United States,?7 Cranch. 339, 3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a closely related context, that “the term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation.... It imports a seizure made under circumstances which warrant suspicion.” More recently, we said that “the?quanta...of proof” appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.?Brinegar,?338 U.S., at 173. Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”?Spinelli,?393 U.S., at 419. See Model Code of Pre-Arraignment Procedure §210.1(7) (Proposed Off. Draft 1972); W. LaFave, Search and Seizure, §3.2(3) (1978).We also have recognized that affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area.”?Ventresca,?380 U.S., at 108. Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of “probable cause.” See?Shadwick v. City of Tampa,?407 U.S. 345 (1972). The rigorous inquiry into the?Spinelli?prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli?decision, cannot be reconciled with the fact that many warrants are - quite properly - issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the “built-in subtleties,”?Stanley v. State,?19 Md.App. 507, 313 A.2d 847 (Md.App. 1974), of the ‘two-pronged test” are particularly unlikely to assist magistrates in determining probable cause.Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of?de novo?review. A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.”?Spinelli,?393 U.S., at 419. “A grudging or negative attitude by reviewing courts toward warrants,”?Ventresca,?380 U.S., at 108, is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant “courts should not invalidate...warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.”If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the warrant clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring “the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”?United States v. Chadwick,?433 U.S. 1 (1977). Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a “substantial basis for...conclud[ing]” that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.?Jones v. United States,?362 U.S. 257 (1960). See United States v. Harris, 403 U.S. 573 (1971).?We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable cause determinations of magistrates than is the “two-pronged test.”Finally, the direction taken by decisions following?Spinelli?poorly serves “the most basic function of any government”: “to provide for the security of the individual and of his property.”?Miranda v. Arizona,?384 U.S. 436 (1966). The strictures that inevitably accompany the “two-pronged test” cannot avoid seriously impeding the task of law enforcement.?If, as the Illinois Supreme Court apparently thought, that test must be rigorously applied in every case, anonymous tips seldom would be of greatly diminished value in police work. Ordinary citizens, like ordinary witnesses, see Federal Rules of Evidence 701, Advisory Committee Note (1976), generally do not provide extensive recitations of the basis of their everyday observations. Likewise, as the Illinois Supreme Court observed in this case, the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable. As a result, anonymous tips seldom could survive a rigorous application of either of the?Spinelli?prongs. Yet, such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise “perfect crimes.” While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in?Aguilar?and?Spinelli.?In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. See?Jones v. United States; United States v. Ventresca; Brinegar v. United States.?The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for...conclud[ing]” that probable cause existed.?Jones v. United States,?362 U.S., at 271. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from?Aguilar?and?Spinelli.Finally, the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letter writer’s accurate information as to the travel plans of each of the Gates was of a character likely obtained only from the Gates themselves, or from someone familiar with their not entirely ordinary travel plans. If the informant had access to accurate information of this type a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gates’ alleged illegal activities.?Of course, the Gates’ travel plans might have been learned from a talkative neighbor or travel agent; under the “two-pronged test” developed from?Spinelli,?the character of the details in the anonymous letter might well not permit a sufficiently clear inference regarding the letter writer’s “basis of knowledge.” But, as discussed previously, probable cause does not demand the certainty we associate with formal trials. It is enough that there was a fair probability that the writer of the anonymous letter had obtained his entire story either from the Gates or someone they trusted. And corroboration of major portions of the letter’s predictions provides just this probability. It is apparent, therefore, that the judge issuing the warrant had a “substantial basis for...conclud[ing]” that probable cause to search the Gates’ home and car existed. The judgment of the Supreme Court of Illinois therefore must beReversed.Justice WHITE, concurring in the judgment.The Court’s straining to avoid coming to grips with the exclusionary rule issue today may be hard for the country to understand - particularly given earlier statements by some members of the Court.?The question has been fully briefed and argued by the parties and?amici curiae, including the United States.?The issue is central to the enforcement of law and the administration of justice throughout the nation. The Court of Appeals for the second largest federal circuit has already adopted such an exception,?United States v. Williams,?622 F.2d 830 (CA5 1980), cert. denied, 449 U.S. 1127 (1981), and the new Eleventh Circuit is presumably bound by its decision. Several members of this Court have for some time expressed the need to consider modifying the exclusionary rule, and Congress as well has been active in exploring the question. See The Exclusionary Rule Bills, Hearings before the Subcommittee on Criminal Law of the Senate Judiciary Committee, 97th Cong.; 1st and 2d Sess. At least one state has already enacted a good faith exception. Colo.Rev.Stat.Tit. 16, Art. 3, §308. Of course, if there is a jurisdictional barrier to deciding the issue, none of these considerations are relevant. But if no such procedural obstacle exists, I see it as our responsibility to end the uncertainty and decide whether the rule will be modified. The question of whether probable cause existed for the issuance of a warrant and whether the evidence seized must be excluded in this case should follow our reconsideration of the framework by which such issues, as they arise from the Fourth Amendment, are to be handled.The exclusionary rule is a remedy adopted by this Court to effectuate the Fourth Amendment right of citizens “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...” Although early opinions suggested that the Constitution required exclusion of all illegally obtained evidence, the exclusionary rule “has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.”?Stone v. Powell,?428 U.S. 465 (1976). Because of the inherent trustworthiness of seized tangible evidence and the resulting social costs from its loss through suppression, application of the exclusionary rule has been carefully “restricted to those areas where its remedial objectives are thought most efficaciously observed.”?United States v. Calandra,?414 U.S. 338 (1974). Even at criminal trials the exclusionary rule has not been applied indiscriminately to ban all illegally obtained evidence without regard to the costs and benefits of doing so. These developments, borne of years of experience with the exclusionary rule in operation, forcefully suggest that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.Third, even at a criminal trial, the same analysis has led us to conclude that the costs of excluding probative evidence outweighed the deterrence benefits in several circumstances. We have refused to prohibit the use of illegally seized evidence for the purpose of impeaching a defendant who testifies in his own behalf.?United States v. Havens,?446 U.S. 620 (1980);?Walder v. United States,?347 U.S. 62 (1954). We have also declined to adopt a “per se or ‘but for’ rule” that would make inadmissible any evidence which comes to light through a chain of causation that began with an illegal arrest.?Brown v. Illinois,?422 U.S. 590 (1975). And we have held that testimony of a live witness may be admitted, notwithstanding that the testimony was derived from a concededly unconstitutional search.?United States v. Ceccolini,?435 U.S. 268 (1978). Nor is exclusion required when law enforcement agents act in good-faith reliance upon a statute or ordinance that is subsequently held to be unconstitutional.?United States v. Peltier,?422 U.S. 531 (1977),?Michigan v. DeFillippo,?443 U.S. 31 (1979).?Cf. United States v. Caceres,?440 U.S. 741 (1979) (exclusion not required of evidence tainted by violation of an executive department’s rules concerning electronic eavesdropping).These cases reflect that the exclusion of evidence is not a personal constitutional right but a remedy, which, like all remedies, must be sensitive to the costs and benefits of its imposition. The trend and direction of our exclusionary rule decisions indicate not a lesser concern with safeguarding the Fourth Amendment but a fuller appreciation of the high costs incurred when probative, reliable evidence is barred because of investigative error. The primary cost, of course, is that the exclusionary rule interferes with the truthseeking function of a criminal trial by barring relevant and trustworthy evidence.?We will never know how many guilty defendants go free as a result of the rule’s operation. But any rule of evidence that denies the jury access to clearly probative and reliable evidence must bear a heavy burden of justification, and must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness. I do not presume that modification of the exclusionary rule will, by itself, significantly reduce the crime rate - but that is no excuse for indiscriminate application of the rule.For these reasons, “application of the [exclusionary] rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U.S., at 348.?The reasoning of our recent cases strongly suggests that there is insufficient justification to suppress evidence at a criminal trial which was seized in the reasonable belief that the Fourth Amendment was not violated. The deterrent effect of the exclusionary rule has never been established by empirical evidence, despite repeated attempts.?United States v. Janis,?428 U.S., at 449;?Irvine v. California,?347 U.S. 128 (1954). But accepting that the rule deters some police misconduct, it is apparent as a matter of logic that there is little if any deterrence when the rule is invoked to suppress evidence obtained by a police officer acting in the reasonable belief that his conduct did not violate the Fourth Amendment. As we initially observed in?Michigan v. Tucker,?417 U.S., at 447, and reiterated in?United States v. Peltier,?422 U.S., at 539:“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.”The Court in?Peltier?continued, 422 U.S., at 542:“If the purpose of the exclusionary rule is to deter unlawful police conduct then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”This Court has never set forth a rationale for applying the exclusionary rule to suppress evidence obtained pursuant to a search warrant; it has simply done so without considering whether Fourth Amendment interests will be advanced. It is my view that they generally will not be. When officers have dutifully obtained a search warrant from a judge or magistrate, and execute the warrant as directed by its terms, exclusion of the evidence thus obtained cannot be expected to deter future reliance on such warrants. The warrant is prima-facie proof that the officers acted reasonably in conducting the search or seizure; “once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.”?Stone v. Powell,?428 U.S., at 498.?As Justice STEVENS put it in writing for the Court in?United States v. Ross,?456 U.S. 798 (1982): “A warrant issued by a magistrate normally suffices to establish,” that a law enforcement officer has “acted in good faith in conducting the search.” Nevertheless, the warrant may be invalidated because of a technical defect or because, as in this case, the judge issued a warrant on information later determined to fall short of probable cause. Excluding evidence for these reasons can have no possible deterrent effect on future police conduct, unless it is to make officers less willing to do their duty. Indeed, applying the exclusionary rule to warrant searches may well reduce incentives for police to utilize the preferred warrant procedure when a warrantless search may be permissible under one of the established exceptions to the warrant requirement.?Brown v. Illinois,?422 U.S., at 611; P. Johnson, New Approaches to Enforcing the Fourth Amendment 11 (Working Paper, 1978). See also?United States v. United States District Court,?407 U.S. 297 (1972);?United States v. Ventresca,?380 U.S. 102 (1965).Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.“[Fourth Amendment rights]... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government....“But the right to be secure against searches and seizures is one of the most difficult to protect since the officers are themselves the chief invaders, there is no enforcement outside of court.”“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.... When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”In order to emphasize the magistrate’s role as an independent arbiter of probable cause and to insure that searches or seizures are not effected on less than probable cause, the Court has insisted that police officers provide magistrates with the underlying facts and circumstances that support the officers’ conclusions. In?Nathanson v. United States,?290 U.S. 41 (1933), the Court held invalid a search warrant that was based on a customs agent’s “mere affirmation of suspicion and belief without any statement of adequate supporting facts.” The Court stated that “[u]nder the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.”The Court held that the?Aguilar?test should be applied to the tip, and approved two additional ways of satisfying that test. First, the Court suggested that if the tip contained sufficient detail describing the accused’s criminal activity it might satisfy?Aguilar’s basis of knowledge prong.?Such detail might assure the magistrate that he is “relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.”?Although the tip in the case before it did not meet this standard, “[t]he detail provided by the informant in Draper v. United States,?358 U.S. 307 (1959), provide[d] a suitable benchmark,”?because “[a] magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.”At the heart of the Court’s decision to abandon?Aguilar?and?Spinelli appears to be its belief that “the direction taken by decisions following Spinelli?poorly serves ‘the most basic function of any government: to provide for the security of the individual and of his property.’” This conclusion rests on the judgment that?Aguilar?and?Spinelli “seriously imped[e] the task of law enforcement,”?and render anonymous tips valueless in police work.?Surely, the Court overstates its case. But of particular concern to all Americans must be that the Court gives virtually no consideration to the value of insuring that findings of probable cause are based on information that a magistrate can reasonably say has been obtained in a reliable way by an honest or credible person. I share Justice WHITE’s fear that the Court’s rejection of?Aguilar?and?Spinelli?and its adoption of a new totality of the circumstances test, “may foretell an evisceration of the probable cause standard....”The Court’s complete failure to provide any persuasive reason for rejecting Aguilar and Spinelli doubtlessly reflects impatience with what it perceives to be “overly technical” rules governing searches and seizures under the Fourth Amendment. Words such as “practical,” “nontechnical,” and “commonsense,” as used in the Court’s opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment. Everyone shares the Court’s concern over the horrors of drug trafficking, but under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure this evil. We must be ever mindful of Justice Stewart’s admonition in?Coolidge v. New Hampshire, 403 U.S. 443 (1971), that “[i]n times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts.”?In the same vein,?Glasser v. United States, 315 U.S. 60 (1942), warned that “[s]teps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties.”Rights secured by the Fourth Amendment are particularly difficult to protect because their “advocates are usually criminals.”?Draper v. United States,?358 U.S. 307 (1959). But the rules “we fashion [are] for the innocent and guilty alike.”?See also?Kolender v. Lawson,?461?U.S.?352 (1983); Brinegar v. United States,?338 U.S. 160 (1949). By replacing?Aguilar?and Spinelli?with a test that provides no assurance that magistrates, rather than the police, or informants, will make determinations of probable cause; imposes no structure on magistrates’ probable cause inquiries; and invites the possibility that intrusions may be justified on less than reliable information from an honest or credible person, today’s decision threatens to “obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”?Johnson v. United States,?333 U.S. 10 (1948).Justice STEVENS, with whom Justice BRENNAN joins, dissenting.Although the foregoing analysis is determinative as to the house search, the car search raises additional issues because “there is a constitutional difference between houses and cars.”?Chambers v. Maroney,?399 U.S. 42 (1970). Cf.?Payton v. New York,?445 U.S. 573 (1980). An officer who has probable cause to suspect that a highly movable automobile contains contraband does not need a valid warrant in order to search it. This point was developed in our opinion in?United States v. Ross,?456 U.S. 798 (1982), which was not decided until after the Illinois Supreme Court rendered its decision in this case. Under?Ross,?the car search may have been valid if the officers had probable cause?after?the Gates arrived.Footnotes:7. The diversity of informants’ tips, as well as the usefulness of the totality of the circumstances approach to probable cause, is reflected in our prior decisions on the subject. In?Jones v. United States,?362 U.S. 257 (1960), we held that probable cause to search petitioners’ apartment was established by an affidavit based principally on an informant’s tip. The unnamed informant claimed to have purchased narcotics from petitioners at their apartment; the affiant stated that he had been given correct information from the informant on a prior occasion. This, and the fact that petitioners had admitted to police officers on another occasion that they were narcotics users, sufficed to support the magistrate’s determination of probable cause.Likewise, in?Rugendorf v. United States,?376 U.S. 528 (1964), the Court upheld a magistrate’s determination that there was probable cause to believe that certain stolen property would be found in petitioner’s apartment. The affidavit submitted to the magistrate stated that certain furs had been stolen, and that a confidential informant, who previously had furnished confidential information, said that he saw the furs in petitioner’s home. Moreover, another confidential informant, also claimed to be reliable, stated that one Schweihs had stolen the furs. Police reports indicated that petitioner had been seen in Schweihs’ company and a third informant stated that petitioner was a fence for Schweihs.Finally, in?Ker v. California,?374 U.S. 23 (1963), we held that information within the knowledge of officers who searched the Ker’s apartment provided them with probable cause to believe drugs would be found there. The officers were aware that one Murphy had previously sold marijuana to a police officer; the transaction had occurred in an isolated area, to which Murphy had led the police. The night after this transaction, police observed Ker and Murphy meet in the same location. Murphy approached Ker’s car, and, although police could see nothing change hands, Murphy’s modus operandi?was identical to what it had been the night before. Moreover, when police followed Ker from the scene of the meeting with Murphy he managed to lose them after performing an abrupt U-turn. Finally, the police had a statement from an informant who had provided reliable information previously, that Ker was engaged in selling marijuana, and that his source was Murphy. We concluded that “To say that this coincidence of information was sufficient to support a reasonable belief of the officers that Ker was illegally in possession of marijuana is to indulge in understatement.”8. Compare?Stanley v. State,?19 Md.App. 507, 313 A.2d 847 (Md.App.1974), reasoning that “Even assuming ‘credibility’ amounting to sainthood, the judge still may not accept the bare conclusion of a sworn and known and trusted police-affiant.”9. Some lower court decisions, brought to our attention by the State, reflect a rigid application of such rules. In?Bridger v. State,?503 S.W.2d 801 (Tex.Cr.App.1974), the affiant had received a confession of armed robbery from one of two suspects in the robbery; in addition, the suspect had given the officer $800 in cash stolen during the robbery. The suspect also told the officer that the gun used in the robbery was hidden in the other suspect’s apartment. A warrant issued on the basis of this was invalidated on the ground that the affidavit did not satisfactorily describe how the accomplice had obtained his information regarding the gun.Likewise, in?People v. Palanza,?55 Ill.App.3d 1028, 13 Ill.Dec. 752, 371 N.E.2d 687 (Ill.App. 1978), the affidavit submitted in support of an application for a search warrant stated that an informant of proven and uncontested reliability had seen, in specifically described premises, “a quantity of a white crystalline substance which was represented to the informant by a white male occupant of the premises to be cocaine. Informant has observed cocaine on numerous occasions in the past and is thoroughly familiar with its appearance. The informant states that the white crystalline powder he observed in the above described premises appeared to him to be cocaine.” The warrant issued on the basis of the affidavit was invalidated because “There is no indication as to how the informant or for that matter any other person could tell whether a white substance was cocaine and not some other substance such as sugar or salt.”?13 Ill.Dec., at 754, 371 N.E.2d, at 689.Finally, in?People v. Brethauer,?174 Colo. 29, 482 P.2d 369 (Colo. 1971), an informant, stated to have supplied reliable information in the past, claimed that L.S.D. and marijuana were located on certain premises. The affiant supplied police with drugs, which were tested by police and confirmed to be illegal substances. The affidavit setting forth these, and other, facts was found defective under both prongs of?Spinelli.13. The Illinois Supreme Court thought that the verification of details contained in the anonymous letter in this case amounted only to “the corroboration of innocent activity,” J.A. 12a, and that this was insufficient to support a finding of probable cause. We are inclined to agree, however, with the observation of Justice Moran in his dissenting opinion that “In this case, just as in?Draper,?seemingly innocent activity became suspicious in the light of the initial tip.” J.A. 18a. And it bears noting that?all?of the corroborating detail established in?Draper,?was of entirely innocent activity - a fact later pointed out by the Court in both?Jones v. United States,?362 U.S. 257 (1960), and?Ker v. California,?374 U.S. 23 (1963).This is perfectly reasonable. As discussed previously, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to?sub silentio?impose a drastically more rigorous definition of probable cause than the security of our citizens demands. We think the Illinois court attempted a too rigid classification of the types of conduct that may be relied upon in seeking to demonstrate probable cause. See?Brown v. Texas,?443 U.S. 47 (1979). In making a determination of probable cause the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of non-criminal acts.4. The Court relies on these cases for the surprising assertion that the Fourth Amendment and exclusionary rule questions are “distinct.” I had understood the very essence of?Rakas v. Illinois,?439 U.S. 128 (1978) to be that standing to seek exclusion of evidence could not be divorced from substantive Fourth Amendment rights. Past decisions finding that the remedy of exclusion is not always appropriate upon the finding of a Fourth Amendment violation acknowledge the close relationship of the issues. For example, in?United States v. Ceccolini?it was said: “The constitutional question under the Fourth Amendment was phrased in Wong Sun v. United States,?371 U.S. 471 (1963), as whether ‘the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.’“ 435 U.S., at 275. It is also surprising to learn that the issues in?Stone v. Powell?are “distinct” from the Fourth Amendment.14. Our decisions applying the exclusionary rule have referred to the “imperative of judicial integrity,”?Elkins v. United States,?364 U.S. 206 (1960), although recent opinions of the Court make clear that the primary function of the exclusionary rule is to deter violations of the Fourth Amendment, Stone v. Powell,?428 U.S., at 486;?United States v. Janis,?428 U.S. 433(1976);?United States v. Calandra,?414 U.S. 338 (1974). I do not dismiss the idea that the integrity of the courts may be compromised when illegally seized evidence is admitted, but I am convinced that the force of the argument depends entirely on the type of search or seizure involved. At one extreme, there are lawless invasions of personal privacy that shock the conscience and the admission of evidence so obtained must be suppressed as a matter of Due Process, entirely aside from the Fourth Amendment. See Rochin v. California,?342 U.S. 165 (1952). Also deserving of exclusionary treatment are searches and seizures perpetrated in intentional and flagrant disregard of Fourth Amendment principles. But the question of exclusion must be viewed through a different lens when a Fourth Amendment violation occurs because the police have reasonably erred in assessing the facts, mistakenly conducted a search authorized under a presumably valid statute, or relied in good-faith upon a warrant not supported by probable cause. In these circumstances, the integrity of the courts is not implicated. The violation of the Fourth Amendment is complete before the evidence is admitted. Thus, “[t]he primary meaning of ‘judicial integrity’ in the context of evidentiary rules is that the courts must not commit or encourage violations of the Constitution.”?United States v. Janis,?428 U.S., at 458. Cf.?United States v. Peltier,?422 U.S., at 537 (“The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of judicial integrity’ is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner.”) I am content that the interests in judicial integrity run along with rather than counter to the deterrence concept, and that to focus upon the latter is to promote, not denigrate, the former.15.It has been suggested that the deterrence function of the exclusionary rule has been understated by viewing the rule as aimed at special deterrence, when, in fact, the exclusionary rule is directed at “affecting the wider audience of law enforcement officials and society at large.” W. LaFave, 1 Search and Seizure 6 (1983 Supp.). See also W. Mertens and S. Wasserstrom, “The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law,” 70 Georgetown L.J. 365, 399-401 (1981). I agree that the exclusionary rule’s purpose is not only, or even primarily, to deter the individual police officer involved in the instant case. It appears that this objection assumes that the proposed modification of the exclusionary rule will turn only the subjective “good-faith” of the officer. Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.?Dunaway v. New York,?442 U.S. 200 (1979).Indeed, the present indiscriminate application of the exclusionary rule may hinder the educative and deterrent function of the suppression remedy. “Instead of disciplining their employees, police departments generally have adopted the attitude that the courts cannot be satisfied, that the rules are hopelessly complicated and subject to change, and that the suppression of evidence is the court’s problem and not the departments.’” J. Kaplan, The Limits of the Exclusionary Rule, 26 Stan.L.Rev. 1027, 1050 (1974). If evidence is suppressed only when a law enforcement officer should have known that he was violating the Fourth Amendment, police departments may look more seriously at the officer’s misconduct when suppression is invoked. Moreover, by providing that evidence gathered in good-faith reliance on a reasonable rule will not be excluded, a good-faith exception creates an incentive for police departments to formulate rules governing activities of officers in the search and seizure area. Many commentators, including proponents of the exclusionary sanction, recognize that the formulation of such rules by police departments, and the training necessary to implement these guidelines in practice, is perhaps the most effective means of protecting Fourth Amendment rights. See K. Davis, Discretionary Justice (1971); McGowan, Rule-Making and the Police, 70 Mich.L.Rev. 659 (1972); A. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 416-431 (1974).19. For example, a pattern or practice of official conduct that is alleged to violate Fourth Amendment rights may be challenged by an aggrieved individual in a suit for declaratory or injunctive relief. See Zurcher v. Stanford Daily,?436 U.S. 547 (1978). (Of course, there are limits on the circumstances in which such actions will lie.?Rizzo v. Goode,?423 U.S. 362 (1976);?Los Angeles v. Lyons,?461 U.S. 95 (1983)). Although a municipality is not liable under 42 U.S.C. §1983 on a theory of?respondeat superior,?local governing bodies are subject to suit for constitutional torts resulting from implementation of local ordinances, regulations, policies, or even customary practices.?Monell v. Department of Social Services, 436 U.S. 658 (1978). Such entities enjoy no immunity defense that might impede resolution of the substantive constitutional issue.?Owen v. City of Independence,?445 U.S. 622 (1980). In addition, certain state courts may continue to suppress, as a matter of state law, evidence in state trials for any Fourth Amendment violation. These cases would likely provide a sufficient supply of state criminal cases in which to resolve unsettled questions of Fourth Amendment law. As a final alternative, I would entertain the possibility of according the benefits of a new Fourth Amendment rule to the party in whose case the rule is first announced. See?Stovall v. Denno,?388 U.S. 293 (1967).20. The “veracity” prong is satisfied by a recitation in the affidavit that the informant previously supplied accurate information to the police, see McCray v. Illinois,?386 U.S. 300 (1967), or by proof that the informant gave his information against his penal interest, see?United States v. Harris, 403 U.S. 573 (1971). The “basis of knowledge” prong is satisfied by a statement from the informant that he personally observed the criminal activity, or, if he came by the information indirectly, by a satisfactory explanation of why his sources were reliable, or, in the absence of a statement detailing the manner in which the information was gathered, by a description of the accused’s criminal activity in sufficient detail that the magistrate may infer that the informant is relying on something more substantial than casual rumor or an individual’s general reputation.?Spinelli v. United States,?393 U.S. 410 (1969).2. The Court noted that approval of the affidavit before it “would open the door to easy circumvention of the rule announced in?Nathanson and?Giordenello.”?Aguilar v. Texas,?at 114. The Court stated:“A police officer who arrived at the ‘suspicion,’ ‘belief’ or ‘mere conclusion’ that narcotics were in someone’s possession could not obtain a warrant. But he could convey this conclusion to another police officer, who could then secure the warrant by swearing that he had ‘received reliable information from a credible person’ that the narcotics were in someone’s possession.”9. The Court also argues that “[i]f the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the warrant clause that might develop at the time of the search.” If the Court is suggesting, as it appears to be, that the police will intentionally disregard the law, it need only be noted in response that the courts are not helpless to deal with such conduct. Moreover, as was noted in?Coolidge v. New Hampshire,?403 U.S. 443 (1971):“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are?per se?unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption...that the exigencies of the situation made that course imperative.’ ‘[T]he burden is on those seeking the exemption to show the need for it.’”It therefore would appear to be not only inadvisable, but also unavailing, for the police to conduct warrantless searches in “the hope of relying on consent or some other exception to the warrant clause that might develop at the time of the search.”ENGLE v. ISAAC, 456 U.S. 107 (1982)JUSTICE O’CONNOR delivered the opinion of the Court.These cases present the question whether respondents, who were convicted after separate trials on unrelated charges in Ohio state courts, and who failed to comply with Ohio Rule of Criminal Procedure 30 mandating contemporaneous objections to jury instructions, may challenge the constitutionality of those instructions in federal habeas corpus proceedings under 28 U.S.C. §2254. A provision of Ohio’s Criminal Code (§2901.05(A)), effective January 1, 1974, placed the burden of proving guilt beyond a reasonable doubt upon the prosecution and provided that “[t]he burden of going forward with the evidence of an affirmative defense is upon the accused.” Until 1976, most Ohio courts assumed that the statute did not change Ohio’s traditional rule requiring defendants to carry the burden of proving the affirmative defense of self-defense by a preponderance of the evidence. In 1976, however, the Ohio Supreme Court, in?State v. Robinson,?47 Ohio St.2d 103, 351 N.E.2d 88, held that the statute placed only the burden of production, not persuasion, on the defendant, and that, once the defendant produced some evidence of self-defense, the prosecutor had to disprove self-defense beyond a reasonable doubt. Respondents’ trials occurred after §2901.05(A)’s effective date, but before the decision in?Robinson,?and none of the respondents objected to the trial court’s jury instruction that the respondent bore the burden of proving self-defense by a preponderance of the evidence. The appropriate Ohio Courts of Appeal affirmed the homicide convictions of respondents Hughes and Bell before the decision in?Robinson,?and the Ohio Supreme Court declined to review their convictions. Neither of these respondents challenged the self-defense instruction in their appeals. On respondent Isaac’s appeal of his assault conviction to the intermediate appellate court, he relied upon the intervening decision in?Robinson?to challenge the self-defense instruction given at his trial. The court rejected the challenge as having been waived by Isaac’s failure to comply with Ohio Rule of Criminal Procedure 30, and the Ohio Supreme Court dismissed his appeal. Each respondent unsuccessfully sought a writ of habeas corpus from a Federal District Court, but the Court of Appeals reversed all three District Court orders.Held:1. Insofar as respondents simply challenged the correctness of the self-defense instructions under Ohio law, they alleged no deprivation of federal rights, and were entitled to no federal habeas relief under 28 U.S.C. §2254. Respondents’ habeas petitions raised only one colorable constitutional claim.(a) There is no merit to respondents’ claim that §2901.05(A) implicitly designated absence of self-defense an element of the crimes charged against them, and thus due process required the prosecution to prove such element beyond a reasonable doubt. Merely because a State requires the prosecution to prove a particular circumstance beyond a reasonable doubt does not mean that it has defined that circumstance as an element of the crime. A State may want to assume the burden of disproving an affirmative defense without also designating absence of the defense an element of the crime. The Due Process Clause does not mandate that, when a State treats absence of an affirmative defense as an “element” of the crime for one purpose, it must do so for all purposes.(b) A colorable constitutional claim is stated by respondents’ argument that, since self-defense negates the elements of the crimes charged against them of voluntary, unlawful, and purposeful or knowing behavior, once the defendant raises the possibility of self-defense, the Due Process Clause requires that the State disprove that defense as part of its task of establishing voluntariness, unlawfulness, and guilty?mens rea.?The controversy among lower courts as to the viability of this type of claim suggests that respondents’ argument states at least a plausible constitutional claim.2. Respondents are barred from asserting, in federal habeas corpus proceedings, their constitutional claim, which was forfeited before the state courts because of respondents’ failure to comply with Ohio Rule of Criminal Procedure 30.(a) While the writ of habeas corpus is a bulwark against convictions that violate “fundamental fairness,” it undermines the usual principles of finality of litigation. Liberal allowance of the writ also degrades the prominence of the trial, and costs society the right to punish admitted offenders. Moreover, the writ imposes special costs on the federal system, frustrating both the States’ sovereign power to punish offenders and their good faith attempts to honor constitutional rights. These costs are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts, and thus, as held in?Wainwright v. Sykes,?433 U.S. 72, a state prisoner, barred by procedural default from raising a constitutional claim on direct appeal, may not litigate that claim in a §2254 habeas corpus proceeding without showing cause for and actual prejudice from the default. The principles of?Sykes?are not limited to cases in which the constitutional error did not affect the truth finding function of the trial.(b) Cause for respondents’ defaults cannot be based on the asserted ground that any objection to Ohio’s self-defense instruction would have been futile, since Ohio had long required criminal defendants to bear the burden of proving such affirmative defense. If a defendant perceives a viable constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Nor can cause for respondents’ defaults be based on the asserted ground that they could not have known at the time of their trials that the Due Process Clause addresses the burden of proving affirmative defenses.?In re Winship,?397 U.S. 358, decided four and one-half years before the first of respondents’ trials, laid the basis for their constitutional claim. During the five years following that decision, numerous defendants relied upon?Winship?to argue that the Due Process Clause requires the prosecution to bear the burden of disproving certain affirmative defenses, and several lower courts sustained this claim. In light of this activity, it cannot be said that respondents lacked the tools to construct their constitutional claim.(c) There is no merit to respondents’ contention that the cause-and-prejudice standard of?Sykes?should be replaced by a plain error inquiry. While federal courts apply a plain error rule for direct review of federal convictions, federal habeas challenges to state convictions entail greater finality problems and special comity concerns. Moreover, a plain error standard is unnecessary to correct miscarriages of justice. Victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard.In?Wainwright v. Sykes,?433 U.S. 72?(1977), we held that a state prisoner, barred by procedural default from raising a constitutional claim on direct appeal, could not litigate that claim in a §2254 habeas corpus proceeding without showing cause for, and actual prejudice from, the default. Applying the principle of?Sykes?to these cases, we conclude that respondents, who failed to comply with an Ohio rule mandating contemporaneous objections to jury instructions, may not challenge the constitutionality of those instructions in a federal habeas proceeding.Respondents’ claims rest in part on recent changes in Ohio criminal law. For over a century, the Ohio courts required criminal defendants to carry the burden of proving self-defense by a preponderance of the evidence.?See State v. Seliskar,?35 Ohio St.2d 95, 298 N.E.2d 582 (1973);?Szalkai v. State,?96 Ohio St. 36, 117 N.E. 12 (1917);?Silvus v. State,?22 Ohio St. 90 (1872). A new criminal code, effective January 1, 1974, subjected all affirmative defenses to the following rule:“Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.”Ohio Rev. Code Ann. §2901.05(A) (1975). For more than two years after its enactment, most Ohio courts assumed that this section worked no change in Ohio’s traditional burden of proof rules. In 1976, however, the Ohio Supreme Court construed the statute to place only the burden of production, not the burden of persuasion, on the defendant. Once the defendant produces some evidence of self-defense, the state court ruled, the prosecutor must disprove self-defense beyond a reasonable doubt.?State v. Robinson,?47 Ohio St.2d 103, 351 N.E.2d 88. The present actions arose because Ohio tried and convicted respondents after the effective date of §2901.05(A), but before the Ohio Supreme Court’s interpretation of that statute in Robinson.First, respondents argue that §2901.05, which governs the burden of proof in all criminal trials, implicitly designated absence of self-defense an element of the crimes charged against them. Since Ohio defined its crimes in this manner, respondents contend, our opinions in?In re Winship,?397 U.S. 358?(1970);?Mullaney v. Wilbur,?421 U.S. 684?(1975); and?Patterson v. New York,?432 U.S. 197?(1977), required the prosecution to prove absence of self-defense beyond a reasonable doubt. A plurality of the en banc Sixth Circuit seemed to accept this argument in Isaac’s appeal, finding that due process required the State “to meet the burden that it chose to assume.” 646 F.2d at 1135.Respondents also allege that, even without considering §2901.05, Ohio could not constitutionally shift the burden of proving self-defense to them. All of the crimes charged against them require a showing of purposeful or knowing behavior. These terms, according to respondents, imply a degree of culpability that is absent when a person acts in self-defense.?See?Committee Comment to Ohio Rev. Code Ann. §2901.21 (1975) (“generally, an offense is not committed unless a person...has a certain guilty state of mind at the time of his act or failure [to act]”);?State v. Clifton,?32 Ohio App.2d 284, 290 N.E.2d 921 (1972) (“one who kills in self-defense does so without the?mens rea?that otherwise would render him culpable of the homicide”). In addition, Ohio punishes only actions that are voluntary, Ohio Rev. Code Ann. §2901.21(A)(1) (1975), and unlawful,?State v. Simon,?No. 6262, p. 13 (Ct.App. Montgomery County, Ohio, Jan. 16, 1980),?modified on reconsideration?(Jan. 22, 1980). Self-defense, respondents urge, negates these elements of criminal behavior. Therefore, once the defendant raises the possibility of self-defense, respondents contend that the State must disprove that defense as part of its task of establishing guilty?mens rea, voluntariness, and unlawfulness. The Due Process Clause, according to respondents’ interpretation of?Winship, Mullaney,?and?Patterson,?forbids the States to disavow any portion of this burden.This argument states a colorable constitutional claim. Several courts have applied our Mullaney?and?Patterson?opinions to charge the prosecution with the constitutional duty of proving absence of self-defense. Most of these decisions adopt respondents’ reasoning that due process commands the prosecution to prove absence of self-defense if that defense negates an element, such as purposeful conduct, of the charged crime. While other courts have rejected this type of claim, the controversy suggests that respondents’ second argument states at least a plausible constitutional claim. We proceed, therefore, to determine whether respondents preserved this claim before the state courts and, if not, to inquire whether the principles articulated in?Wainwright v. Sykes,?433 U.S. 72?(1977), bar consideration of the claim in a federal habeas proceeding.None of the respondents challenged the constitutionality of the self-defense instruction at trial. They thus violated Ohio Rule of Criminal Procedure 30, which requires contemporaneous objections to jury instructions. Failure to comply with Rule 30 is adequate, under Ohio law, to bar appellate consideration of an objection.?See State v. Humphries,?51 Ohio St.2d 95, 364 N.E.2d 1354 (1977);?State v. Gordon,?28 Ohio St.2d 45, 276 N.E.2d 243 (1971). The Ohio Supreme Court has enforced this bar against the very due process argument raised here.?State v. Williams,?51 Ohio St.2d 112, 364 N.E.2d 1364 (1977),?vacated in part and remanded,?438 U.S. 911 (1978). We must determine, therefore, whether respondents may litigate, in a federal habeas proceeding, a constitutional claim that they forfeited before the state courts.The writ of habeas corpus indisputably holds an honored position in our jurisprudence. Tracing its roots deep into English common law, it claims a place in Art. I of our Constitution. Today, as in prior centuries, the writ is a bulwark against convictions that violate “fundamental fairness.”?Wainwright v. Sykes,?433 U.S. at?97.We have always recognized, however, that the Great Writ entails significant costs. Collateral review of a conviction extends the ordeal of trial for both society and the accused. As Justice Harlan once observed, “[b]oth the individual criminal defendant and society have an interest in insuring that there will, at some point, be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error, but rather on whether the prisoner can be restored to a useful place in the community.” Sanders v. United States,?373 U.S. 1 (1963).?See also Hankerson v. North Carolina,?432 U.S. at?247. By frustrating these interests, the writ undermines the usual principles of finality of litigation.Liberal allowance of the writ, moreover, degrades the prominence of the trial itself. A criminal trial concentrates society’s resources at one “time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence.”?Wainwright v. Sykes,?at?433 U.S. 90. Our Constitution and laws surround the trial with a multitude of protections for the accused. Rather than enhancing these safeguards, ready availability of habeas corpus may diminish their sanctity by suggesting to the trial participants that there may be no need to adhere to those safeguards during the trial itself.We must also acknowledge that writs of habeas corpus frequently cost society the right to punish admitted offenders. Passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible. While a habeas writ may, in theory, entitle the defendant only to retrial, in practice, it may reward the accused with complete freedom from prosecution.Finally, the Great Writ imposes special costs on our federal system. The States possess primary authority for defining and enforcing the criminal law. In criminal trials, they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good faith attempts to honor constitutional rights.?See Schneckloth v. Bustamonte,?412 U.S. 218 (1973).Respondents’ claim, however, is not simply one of futility. They further allege that, at the time they were tried, they could not know that Ohio’s self-defense instructions raised constitutional questions. A criminal defendant, they urge, may not waive constitutional objections unknown at the time of trial.Respondents, finally, urge that we should replace or supplement the cause-and-prejudice standard with a plain error inquiry. We rejected this argument when pressed by a federal prisoner,?see United States v. Frady, 456 U.S. 152, and find it no more compelling here. The federal courts apply a plain error rule for direct review of federal convictions. Fed. Rule Crim.Proc. 52(b). Federal habeas challenges to state convictions, however, entail greater finality problems and special comity concerns. We remain convinced that the burden of justifying federal habeas relief for state prisoners is “greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe,?431 U.S. 145 (1977);?United States v. Frady, 456 U.S. 166.JUSTICE BRENNAN, moreover, clearly errs when he suggests that Isaac’s habeas petition “presented exactly one claim,” that the “selective retroactive application of the Robinson?rule denied him due process of law.” Isaac’s memorandum in support of his habeas petition did not adopt such a miserly view. Instead, Isaac relied heavily upon?Mullaney v. Wilbur,?421 U.S. 684?(1975); Patterson v. New York,?432 U.S. 197?(1977); and?Hankerson v. North Carolina,?432 U.S. 233?(1977), cases explaining that, at least in certain circumstances, the Due Process Clause requires the prosecution to disprove affirmative defenses. Nor did the District Judge construe Isaac’s petition in the manner suggested by JUSTICE BRENNAN. Rather, he believed that Isaac raised “the federal constitutional question of whether, under Ohio law, placing the burden of proving the affirmative defense of self-defense upon the defendant violates the defendant’s due process right to have the State prove each essential element of the crime beyond a reasonable doubt.”Similarly, all but one of the Sixth Circuit Judges who considered Isaac’s case en banc thought that Isaac raised more claims than the one isolated by JUSTICE BRENNAN. Even the panel opinion invoked by JUSTICE BRENNAN, rejected the notion that Isaac presented only one claim. 646 F.2d at 1127. Isaac’s own brief to this Court, finally, recites a long list of claims. Although he alludes to the argument featured by JUSTICE BRENNAN, he also maintains that his jury was misinstructed “[a]s a matter of federal constitutional law,” and that?Mullaney v. Wilbur?and?Hankerson v. North Carolina control his claims. Under these circumstances, it is incomprehensible that JUSTICE BRENNAN construes Isaac’s habeas petition to raise but a single claim.It appears to us, moreover, that the claim touted by JUSTICE BRENNAN formed no part of Isaac’s original habeas petition. While Isaac’s petition and supporting memorandum referred to the Ohio Supreme Court’s decision in?State v. Humphries,?51 Ohio St.2d 95, 364 N.E.2d 1354 (1977), Isaac did not discuss that decision’s distinction between bench and jury trials, the distinction that JUSTICE BRENNAN finds so interesting. Instead, the focus of his argument was that,“[i]f a state declares disproving an affirmative defense (once raised) is an element of the state’s case, then to require a defendant to prove that affirmative defense violates due process, and full retroactive effect must be accorded to defendants tried under the erroneous former law.”Thus, Isaac reasoned that, once?Robinson interpreted absence of self-defense as an “element of the state’s case,”?Mullaney imposed a constitutional obligation upon the State to carry that burden. If Ohio did not apply?Robinson?retroactively to all defendants “tried under the erroneous former law,” Isaac concluded, it would violate?Mullaney.?Ohio’s failure to apply?Robinson?retroactively to him violated due process not because Ohio had applied that decision retroactively to other defendants, but because “[t]he instruction at his trial denied him due process under?Mullaney.” This argument parallels the ones we discuss in text.It is, of course, possible to construe Isaac’s confused petition and supporting memorandum to raise the claim described by JUSTICE BRENNAN. Many prisoners allege general deprivations of their constitutional rights and raise vague objections to various state rulings. A creative appellate judge could almost always distill from these allegations an unexhausted due process claim. If such a claim were present,?Rose v. Lundy,?455 U.S. 509?(1982), would mandate dismissal of the entire petition. In this case, however, the District Judge did not identify the claim that JUSTICE BRENNAN proffers. Under these circumstances, we are reluctant to interpolate an unexhausted claim not directly presented by the petition.?Rose v. Lundy?does not compel such harsh treatment of habeas petitions.JUSTICE POWELL, elucidating a position that ultimately commanded a majority of the Court, similarly suggested:“No effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial, and that every incarceration is unfounded. At some point, the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation, but rather should look forward to rehabilitation and to becoming a constructive citizen.” Schneckloth v. Bustamonte,?412 U.S. 218?(1973).?See also Stone v. Powell,?428 U.S. 465?(1976).JUSTICE STEVENS, concurring in part and dissenting in part.A petition for a writ of habeas corpus should be dismissed if it merely attaches a constitutional label to factual allegations that do not describe a violation of any constitutional right. In Part II-A of its opinion, the Court seems to agree with this proposition. The Court nevertheless embarks on an exposition of the procedural hurdles that must be surmounted before confronting the merits of an allegation that “states at least a plausible constitutional claim.”?Those rules, the Court states, “do not depend upon the type of claim raised by the prisoner.” Yet, the Court concludes, they will not bar relief for “victims of a fundamental miscarriage of justice.”JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.Today’s decision is a conspicuous exercise in judicial activism - particularly so since it takes the form of disregard of precedent scarcely a month old. In its eagerness to expatiate upon the “significant costs” of the Great Writ, and to apply “the principles articulated in?Wainwright v. Sykes,”?to the cases before us, the Court demonstrably misreads and reshapes the habeas claim of at least one of the state prisoners involved in this action. Respondent Isaac presented exactly one claim in his habeas petition. That claim?did not even exist?until after Isaac was denied relief on his last direct appeal. As a result, Isaac could not have “preserved” his claim in the state courts: he simply committed no “procedural default,” and the Court is thus clearly wrong to apply?Sykes?to his claim in order to relegate it to the dustbin. Moreover, the Court does so by ignoring the holding only last month in?Rose v. Lundy,?455 U.S. 509?(1982): namely, that a habeas petition that contains any unexhausted claims must be dismissed by the habeas court. The Court then compounds its error when it attempts to articulate the “principles” of?Sykes:?in purporting to give content to the “cause” standard announced in that case, the Court defines “cause” in a way supported neither by?Sykes?nor by common sense. I dissent from both of these errors, which are discussed in turn below.Ohio Rev. Code Ann. §2953.21(A) (1975) provides for postconviction relief under certain circumstances:“Any person convicted of a criminal offense...claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.”In the present case, petitioner Engle responded to Isaac’s petition by raising the issue of Isaac’s failure to exhaust. Therefore, the Court of Appeals clearly erred, under?Picard?and our whole line of exhaustion precedents, in granting habeas relief to Isaac instead of requiring exhaustion. The proper disposition of Isaac’s case is thus to reverse and remand with instructions to dismiss on exhaustion grounds. The Court’s failure to order such a disposition is incomprehensible: Barely a month ago, this Court emphatically reaffirmed the exhaustion doctrine, and indeed extended it, announcing a requirement of “total exhaustion” for habeas petitions.?Rose v. Lundy,?455 U.S. 509?(March 3, 1982). But today the Court finds the nostrum of “cause and prejudice” more attractive, and so?Rose v. Lundy?is not applied.?Sic transit gloria Lundy!?In scarcely a month, the bloom is off the?Rose.My last conclusion is that the Court is so intent upon applying?Sykes?to Isaac’s case that it plays Procrustes with his claim. In order to bring Isaac’s claim within the ambit of Sykes,?the Court first characterizes his petition as “complex,”?and “confused.” Then, without ever quoting the claim as it actually appeared in Isaac’s petition, the Court delineates a “colorable constitutional claim” nowhere to be found in the petition. As the Court recasts it, Isaac’s claim is as follows:“[T]he crim[e] charged against [Isaac] require[s] a showing of purposeful or knowing behavior. These terms, according to [Isaac], imply a degree of culpability that is absent when a person acts in self-defense.... Self-defense, [Isaac] urge[s], negates [essential] elements of criminal behavior. Therefore, once the defendant raises the possibility of self-defense, [Isaac] contend[s] that the State must disprove that defense as part of its task of establishing guilty?mens rea,?voluntariness, and unlawfulness. The Due Process Clause, according to [Isaac’s] interpretation of?Winship, Mullaney,?and Patterson,?forbids the States to disavow any portion of this burden.”This new-modeled claim bears no resemblance to the claim actually made by Isaac in his habeas petition.?But by virtue of this exercise in juristic revisionism, the Court puts itself in position to find that “Isaac’s” claim was “forfeited before the state courts,”?- no difficult task, since the claim is wholly imagined by the Court itself - thus enabling the Court to reach its clearly sought goal of deciding “whether the principles articulated in?Wainwright v. Sykes,?433 U.S. 72?(1977), bar consideration of the claim in a federal habeas proceeding.”Unsurprisingly, the Court’s bottom line is that Isaac’s fictive claim is indeed barred by?Sykes.?In short, the Court reshapes respondent Isaac’s actual claim into a form that enables it to foreclose all federal review, when, as plainly pleaded, the claim was unexhausted, thus calling for the dismissal of Isaac’s petition for habeas relief. The Court’s analysis is completely result-oriented, and represents a noteworthy exercise in the very judicial activism that the Court so deprecates in other contexts.For the reasons stated above, I conclude that in its unseemly rush to reach the merits of Isaac’s case, the Court has ignored settled law respecting the exhaustion of state remedies. But lest it be thought that my disagreement with today’s decision is confined to that point alone, I turn to the Court’s treatment of the merits of the cases before us. I continue to believe that the “deliberate bypass” standard announced in?Fay v. Noia,?372 U.S. 391?(1963), is the only sensible rule to apply in habeas cases such as respondents.’ I adhere to my dissent in?Wainwright v. Sykes,?in which I termed the “cause-and-prejudice” standard adopted in that case “a mere house of cards whose foundation has escaped any systematic inspection.” The Court has now begun to furnish its house of cards - and the furniture is as jerry-built as the house itself.Sykes?did not give the terms “cause” and “prejudice” any “precise content,” but promised that “later cases” would provide such content. Today the nature of that content becomes distressingly apparent. The Court still refuses to say what “cause” is: and I predict that, on the Court’s present view, it will prove easier for a camel to go through the eye of a needle than for a state prisoner to show “cause.” But on the other hand, the Court is more than eager to say what “cause” is not: and in doing so, the Court is supported neither by common sense nor by the very reasons offered in?Sykes?for adoption of the “cause-and-prejudice” standard in the first place.According to the Court, “cause” is not demonstrated when the Court “cannot say that [habeas petitioners] lacked the tools to construct their constitutional claim,” however primitive those tools were and thus however inchoate the claim was when petitioners were in the state courts. The Court concludes, after several pages of tortuous reasoning, that respondents in the present cases did indeed have “the tools” to make their constitutional claims. This conclusion is reached by the sheerest inference: it is based on citations to other cases in other jurisdictions, where other defendants raised other claims assertedly similar to those that respondents “could” have raised. To hold the present respondents to such a high standard of foresight is tantamount to a complete rejection of the notion that there is a point before which a claim is so inchoate that there is adequate “cause” for the failure to raise it. In thus rejecting inchoateness as “cause,” the Court overlooks the fact that none of the rationales used in?Sykes?to justify adoption of the cause-and-prejudice standard can justify today’s definition of “cause.”Sykes?adopted the cause-and-prejudice standard in order to accord “greater respect” to state contemporaneous objection rules than was assertedly given by?Fay v. Noia, 433 U.S. at 88. The Court then offered a number of reasons why contemporaneous objection rules should be given such greater respect:“(1) ‘A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding.’”“(2) A contemporaneous objection ‘enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question.’”“(3) ‘A contemporaneous objection rule may lead to the exclusion of evidence objected to, thereby making a major contribution to finality in criminal litigation.’”“(4) The?Fay v. Noia?rule “may encourage?‘sandbagging’ on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off.” 433 U.S. at?89.”“(5) A contemporaneous objection rule ‘encourages the result that [criminal trials] be as free of error as possible.’”None of these rationales has any force in the present case. The first three reasons are valid, if at all, only in the particular context of objections to the admission of evidence, such as were at issue in?Sykes.?As for the “sandbagging” rationale, dutifully repeated by today’s Court, that was fully answered in my?Sykes dissent: That argument still “offends common sense,” and does not become less offensive by sententious repetition. And the final reason - relied on again today - is plainly irrelevant to a case involving inchoate constitutional claims. Such claims are,?ex hypothesis,?so embryonic that only the extraordinarily foresighted criminal defendant will raise them. It is completely implausible to expect that the raising of such claims will predictably - or even occasionally - make trials more “free of error.”The Court justifies its result today with several additional reasons - or, rather, sentiments in reasons’ clothing. We are told, that “the Great Writ entails significant costs. Collateral review of a conviction extends the ordeal of trial for both society and the accused.”But we are not told why the accused would consider it an “ordeal” to go to federal court in order to attempt to vindicate his constitutional rights. Nor are we told why society should be eager to ensure the finality of a conviction arguably tainted by unreviewed constitutional error directly affecting the truthfinding function of the trial. I simply fail to understand how allowance of a habeas hearing “entails significant costs” to?anyone under the circumstances of the cases before us.In a similar vein, we are told, that “[w]e must also acknowledge that writs of habeas corpus frequently cost society the right to punish admitted offenders.” I, for one, will acknowledge nothing of the sort. Respondents were all convicted after trials in which they allege that the burden of proof respecting their affirmative defenses was imposed upon them in an unconstitutional manner. Thus, they are not “admitted” offenders at all: if they had been tried with the assertedly proper allocation of the burden of proof, then they might very well have been acquitted. Further, it is sheer demagoguery to blame the “offender” for the logistical and temporal difficulties arising from retrial: if the writ of habeas corpus has been granted, then it is at least as reasonable to blame the State for having prosecuted the first trial “in violation of the Constitution or laws...of the United States,” 28 U.S.C. §2254(a).Finally, we are told that “‘the Great Writ imposes special costs on our federal system’ that ‘[f]ederal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good faith attempts to honor constitutional rights,’?and that ‘[s]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a §2254 proceeding, new constitutional commands.’”Once again, the Court drags a red herring across its path. I hope that the Court forgets only momentarily that “the States’ sovereign power” is limited by the Constitution of the United States: that the “intrusion” complained of is that of the supreme law of the land. But it must be reason for deep concern when this Court forgets, as it certainly does today, that “it is a?constitution?we are expounding...a constitution intended to endure for ages to come, and, consequently, to be adapted to the various?crises?of human affairs.”It is inimical to the principle of federal constitutional supremacy to defer to state courts’ “frustration” at the requirements of federal constitutional law as it is interpreted in an evolving society.?Sykes?promised that its cause-and-prejudice standard would “not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who, in the absence of such an adjudication, will be the victim of a miscarriage of justice.” Today’s decision, with its unvarnished hostility to the assertion of federal constitutional claims, starkly reveals the emptiness of that promise.Finally, there is the issue of the Court’s extension of the?Sykes?standard “to cases in which the constitutional error...affect[s] the truthfinding function of the trial.” The Court concedes,?that?Sykes?itself involved the violation of the habeas petitioner’s?Miranda?rights, and that, although “this defect was serious, it did not affect the determination of guilt at trial.” But despite the fact that the present cases admittedly do involve a defect affecting the determination of guilt, the Court refuses to limit?Sykes,?and thus bars federal review: “We do not believe...that the principles of?Sykes?lend themselves to this limitation.” In so holding, the Court ignores the manifest differences between claims that affect the truthfinding function of the trial and claims that do not.The Court proclaimed in?Stone v. Powell,?428 U.S. 465?(1976), that “the ultimate question of guilt or innocence...should be the central concern in a criminal proceeding.”A defendant’s Fourth Amendment rights,?see Stone,?or his Miranda?rights,?see Sykes,?may arguably be characterized as “crucially different from many other constitutional rights,”?Kaufman v. United States,?394 U.S. 217 (1969), in that evidence procured in violation of those rights has not ordinarily been rendered untrustworthy by the means of its procurement. But a defendant’s right to a trial at which the burden of proof has been constitutionally allocated can?never?be violated without rendering the?entire?trial result untrustworthy. “In all kinds of litigation, it is plain that where the burden of proof lies may be decisive of the outcome,”?Speiser v. Randall,?357 U.S. 513 (1958), and petitioners in the present cases concede as much. As Justice Harlan noted in?In re Winship,?397 U.S. 358?(1970):“If, for example, the standard of proof for a criminal trial were a preponderance of the evidence, rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent.”Where, as here, the burden was placed on respondents, rather than on the prosecution, to prove their affirmative defenses by a preponderance of the evidence, the risk of convicting the innocent is even greater than in Justice Harlan’s example. And if this allocation of the burden of proof was erroneous, then that error constitutes a denial of due process of intolerable proportions. We have recognized the truth of this proposition in numerous precedents. In?Ivan V. v. City of New York,?407 U.S. 203?(1972), we held our earlier decision in?Winship?to be fully retroactive, stating:“‘Where the major purpose of a new constitutional doctrine is to overcome an aspect of a criminal trial?that substantially impairs its truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials,?the new rule has been given complete retroactive effect.?Neither good faith reliance by state or federal authorities on prior constitutional law or accepted practice nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.’?Williams v. United States,?401 U.S. 646?(1971).?See Adams v. Illinois,?405 U.S. 278?(1972);?Roberts v. Russell,?392 U.S. 293?(1968).”Footnotes:1. Title 28 U.S.C. §2254(a) empowers “[t]he Supreme Court, a Justice thereof, a circuit judge, or a District Court” to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”This statutory remedy may not be identical in all respects to the common law writ of habeas corpus.?See Wainwright v. Sykes,?433 U.S. at?78.13. Ohio Rev. Code Ann. §2903.12 (1975) describes aggravated assault:“(A) No person, while under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force shall knowingly:”“(1) Cause serious physical harm to another;”“(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code.”“(B) Whoever violates this section is guilty of aggravated assault, a felony of the fourth degree.”The judge sentenced Isaac to a term of six months’ to five years’ imprisonment. According to the State’s petition for certiorari, Isaac has been released from jail. This controversy is not moot, however.21. We have long recognized that a “mere error of state law” is not a denial of due process. Gryger v. Burke,?334 U.S. 728?(1948). If the contrary were true, then “every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question.”?See also Beck v. Washington,?369 U.S. 541 (1962);?Bishop v. Mazurkiewicz,?634 F.2d 724 (CA3 1980);?United States ex rel. Burnett v. Illinois,?619 F.2d 668 (CA7 1980).25. JUSTICE BRENNAN accuses the Court of misreading Isaac’s habeas petition in order to create a procedural default and “expatiate upon” the principles of?Sykes. It is immediately apparent that these charges of “judicial activism” and “revisionism” carry more rhetorical force than substance. Our decision addresses the claims of three respondents, and JUSTICE BRENNAN does not dispute our characterization of the petitions filed by respondents Bell and Hughes. If the Court were motivated by a desire to expound the law, rather than to adjudicate the individual claims before it, the cases of Bell and Hughes would provide ample opportunity for that task. Instead, we have attempted to decide each of the controversies presented to us.31. Judge Henry J. Friendly put the matter well when he wrote that “[t]he proverbial man from Mars would surely think we must consider our system of criminal justice terribly bad if we are willing to tolerate such efforts at undoing judgments of conviction.” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 145 (1970).32. Judge Friendly and Professor Bator suggest that this absence of finality also frustrates deterrence and rehabilitation. Deterrence depends upon the expectation that “one violating the law will swiftly and certainly become subject to punishment, just punishment.” Rehabilitation demands that the convicted defendant realize that “he is justly subject to sanction, that he stands in need of rehabilitation.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 452 (1963).34. Counsel’s default may stem from simple ignorance or the pressures of trial. We noted in Sykes,?however, that a defendant’s counsel may deliberately choose to withhold a claim in order to “sandbag” - to gamble on acquittal while saving a dispositive claim in case the gamble does not pay off.?See?433 U.S. at?89-90.13. 433 U.S. at?103-104: “Under the regime of collateral review recognized since the days of?Brown v. Allen?[344 U.S. 443 (1953)], and enforced by the?Fay?bypass test, no rational lawyer would risk the ‘sandbagging’ feared by the Court.”“5. In brief, the defense lawyer would face two options: (1) he could elect to present his constitutional claims to the state courts in a proper fashion. If the state trial court is persuaded that a constitutional breach has occurred, the remedies dictated by the Constitution would be imposed, the defense would be bolstered, and the prosecution accordingly weakened, perhaps precluded altogether. If the state court rejects the properly tendered claims, the defense has lost nothing: appellate review before the state courts and federal habeas consideration are preserved. (2) He could elect to ‘sandbag.’ This presumably means, first, that he would hold back the presentation of his constitutional claim to the trial court, thereby increasing the likelihood of a conviction, since the prosecution would be able to present evidence that, while arguably constitutionally deficient, may be highly prejudicial to the defense. Second, he would thereby have forfeited all state review and remedies with respect to these claims (subject to whatever ‘plain error’ rule is available). Third, to carry out his scheme, he would now be compelled to deceive the federal habeas court and to convince the judge that he did not ‘deliberately bypass’ the state procedures. If he loses on this gamble, all federal review, would be barred, and his ‘sandbagging’ would have resulted in nothing but the forfeiture of all judicial review of his client’s claims. The Court, without substantiation, apparently believes that a meaningful number of lawyers are induced into option 2 by?Fay.?I do not. That belief simply offends common sense.”HARLOW v. FITZGERALD, 457 U.S. 800, 102 S.Ct. 2727 (1982)Justice POWELL delivered the opinion of the ernment officials who special functions or constitutional status requires complete protection from suits for damages, including certain officials of the Executive Branch, such as prosecutors, similar officials and the President are entitled to defense of absolute immunity; however, executive officials in general are usually entitled to only qualified or good-faith immunity.Federal officers seeking absolute immunity from personal liability for unconstitutional conduct must bear burden of showing that public policy requires exemption of that scope.Presidential aides generally are entitled only to qualified immunity.Under “functional” approach to immunity law, immunity of government officials extends no further than its justification warrants.In order to establish entitlement to absolute immunity, Presidential aide must first show that responsibilities of his office embraced functions so sensitive as to require total shield from liability; he then must demonstrate that he was discharging protected function when performing act for which liability is asserted.In action based on alleged unlawful discharge from employment in Department of Air Force, Presidential aides, claimed to have participated in alleged conspiracy to violate plaintiff’s constitutional and statutory rights, failed to show that public policy required absolute immunity, and even assuming that they had function for which absolute immunity would be warranted, it could not be concluded that acts charged, if taken at all, would lie within protected area.Presidential aides are entitled to application of qualified immunity standard that permits defeat of insubstantial claims without resort to trial.Qualified or “good faith” immunity is affirmative defense that must be pleaded by defendant ernment officials performing discretionary functions generally are shielded from liability for civil damages in so far as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known.In determining whether government officials performing discretionary functions are shielded from liability, judge, on summary judgment, appropriately may determine, not only currently applicable law, but whether that law was clearly established at time action occurred; if this threshold immunity question is resolved, discovery should not be allowed, and if law was clearly established, immunity defense ordinarily should fail; nevertheless, if official pleading defense claims extraordinary circumstances and can prove that he neither new nor should have known of relevant legal standard, defense should be sustained.Held:1. Government officials who special functions or constitutional status requires complete protection from suits for damages - including certain officials of the Executive Branch, such as prosecutors and similar officials, see Butz v. Economou, 438 U.S. 478, and the President, Nixon v. Fitzgerald, 457 U.S. 731, are entitled to the defense of absolute immunity. However, executive officials in general are usually entitled to only qualified or good - faith immunity. The recognition of a qualified immunity defense for high executives reflects an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority. Scheuer v. Rhodes, 416 U.S. 232. Federal officials seeking absolute immunity from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.2. Public policy does not require a blanket recognition of absolute immunity for Presidential aides.(a) The rationale of Gravel v. United States, 408 U.S. 606 - which held the Speech and Debate Clause derivately applicable to the “legislative acts” of a Senator’s aide that would have been privileged if performed by the Senator himself - does not mandate “derivative” absolute immunity for the President’s chief aides. Under the “functional” approach to immunity law, immunity protection extends no further than its justification warrants.(b) While absolute immunity might be justified for aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, a “special functions” rationale does not warrant a blanket recognition of absolute immunity for all Presidential aides in the performance of all their duties. To establish entitlement to absolute immunity, a Presidential aide first must show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He then must demonstrate that he was discharging the protected function when performing the act for which liability is asserted. Under the record in this case, neither petitioner has made the requisite showing for absolute immunity. However, the possibility that petitioners, on remand, can satisfy the proper standards is not foreclosed.3. Petitioners are entitled to application of the qualified immunity standard that permits the defeat of insubstantial claims without resort to trial.(a) The previously recognized “subjective” aspect of qualified or “good faith” immunity - whereby such immunity is not available if the official asserting the defense “took the action with the malicious intention to cause a deprivation of constitutional rights or other injury,” Wood v. Strickland, 420 U.S. 308 - frequently has proved incompatible with the principle that insubstantial claims should not proceed to trial. Henceforth, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate “clearly established” statutory or constitutional rights of which a reasonable person would have known.…The court found that genuine issues of disputed fact remains for resolution at trial. It also ruled that petitioners were not entitled to absolute immunity.As we reiterated today in Nixon v. Fitzgerald, 457 U.S. 731, our decisions consistently have held that government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.Our decisions have recognized immunity defenses of two kinds. For officials who special functions or constitutional status requires complete protection from suit, we have recognized the defense of “absolute immunity.” The absolute immunity of legislators, and their legislative functions, see Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), and of judges, in their judicial functions, see Stump v. Sparkman, 435 U.S. 349 (1978), now is well settled. Our decisions also have extended absolute immunity to certain officials of the Executive Branch. These include prosecutors and similar officials, see Butz v. Economou, 438 U.S. 478 (1978), executive officers engaged in adjudicative functions, and the President of the United States, see Nixon v. Fitzgerald, 457 U.S. 731.For executive officials in general, however, our cases make plain that qualified immunity represents the norm. In Scheuer v. Rhodes, 416 U.S. 232 (1974), we acknowledged that high officials require greater protection than those with less complex discretionary responsibilities. Nonetheless, we held that a Governor and his aides could receive the requisite protection from qualified or good-faith immunity. In Butz v. Economou, we extended the approach of Scheuer to high federal officials of the Executive Branch. Discussing in detail the considerations that also had underlain our decision in Scheuer, we explained that the recognition of a qualified immunity defense for high executives reflected an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, 438 U.S., at 504, but also “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Without discounting the adverse consequences of denying high officials an absolute immunity from private lawsuits alleging constitutional violations - consequences found sufficient in Spalding v. Vilas, 161 U.S. 483 (1896), and Barr v. Matteo, 360 U.S. 564 (1959), to warrant extension to such officials of absolute immunity from suits at common law - we emphasized our expectation that insubstantial suits need not proceed to trial:“Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief..., it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity…. In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.” 438 U.S., at 507.Butz continued to acknowledge that the special functions of some officials might require absolute immunity. But the Court held that “federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” This we reaffirmed today in Nixon v. Fitzgerald, 457 U.S., at 747.…“[T]he greater power of [high] officials,” we reasoned, “affords a greater potential for a regime of lawless conduct.” 438 U.S., at 506. Damages actions against high officials were therefore “an important means of vindicating constitutional guarantees.” Moreover, we concluded that it would be “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under [42 U.S.C.] §1983 and suits brought directly under the Constitution against federal officials.”In disputing the controlling authority of Butz, petitioners rely on the principles developed in Gravel v. United States, 408 U.S. 606 (1972). In Gravel we endorsed the view that “it is literally impossible…for Members of Congress to perform their legislative tasks without the help of aides and assistants” and that “the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos….” Having done so, we held the Speech and Debate Clause derivatively applicable to the “legislative acts” of a Senator’s aide that would have been privileged if performed by the Senator himself.Petitioners’ argument is not without force. Ultimately, however, it sweeps too far. If the President’s aides are derivatively immune because they are essential to the functioning of the Presidency, so should the Members of the Cabinet - Presidential subordinates some of whose essential roles are acknowledged by the Constitution itself - be absolutely immune. Yet we implicitly rejected such derivative immunity in Butz. Moreover, in general our cases have followed a “functional” approach to immunity law. We have recognized that the judicial, prosecutorial, and legislative functions require absolute immunity. But this protection has extended no further than its justification would warrant. In Gravel, for example, we emphasized that Senators and their aides were absolutely immune only when performing “acts legislative in nature,” and not when taking other acts even “in their official capacity.” See Hutchinson v. Proxmire, 443 U.S. 111 (1979). Our cases involving judges and prosecutors have followed a similar line. The undifferentiated extension of absolute “derivative” immunity to the President’s aides therefore could not be reconciled with the “functional” approach to rise to the immunity decisions of this Court, indeed including Gravel itself.Even if they cannot establish that their official functions require absolute immunity, petitioners assert that public policy at least mandates an application of the qualified immunity standard that would permit the defeat of insubstantial claims without resort to trial. We agree.The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative. In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees. Butz v. Economou, at 506; see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S., at 410 (“For people in Bivens’ shoes, it is damages or nothing”). It is this recognition that has required the denial of absolute immunity to most public officers. At the same time, however, it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty - at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], and the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579 (CA2 1949), cert. denied., 339 U.S. 949 (1950).Qualified or “good faith” immunity is an affirmative defense that must be pleaded by a defendant official. Gomez v. Toledo, 446 U.S. 635 (1980). Decisions of this Court have established that the “good faith” defense has both an “objective” and a “subjective” aspect. The objective element involves a presumptive knowledge of and respect for “basic, unquestioned constitutional rights.” Wood v. Strickland, 420 U.S. 308 (1975). The subjective component refers to “permissible intentions.” Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury….”The subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz that insubstantial claims should not proceed to trial. Rule 56 of the Federal Rules of Civil Procedure provides that disputed questions of fact ordinarily may not be decided on motions for summary judgment. And an official’s subject to good faith has been considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jury.In the context of Butz’ attempted balancing of competing values, it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial - distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. There are special costs to “subjective” inquiries of this kind. Immunity generally is available only to officials performing discretionary functions. In contrast with the thought processes accompanying “ministerial” tasks, the judgments surrounding discretionary action almost inevitably are influenced by the decision maker’s experiences, values, and emotions. These variables explain in part why questions of subjective intent so rarely can be decided by summary judgment. Yet they also frame a background in which there often is no clear and to the relevant evidence. Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.29. As Judge Gesell observed in his concurring opinion in Halperin v. Kissinger, 196 U.S.App.D.C. 285, 606 F.2d 1192 (1979), aff’d in pertinent part by an equally divided Court, 452 U.S. 713 (1981):“We should not close our eyes to the fact that with increasing frequency in this jurisdiction and throughout the country plaintiffs are filing suits seeking damage awards against high government officials in their personal capacities based on alleged constitutional torts. Each such suits almost invariably results in these officials and their colleagues being subjected to extensive discovery into traditionally protected areas, such as their deliberations preparatory to the formulation of government policy and their intimate thought processes and communications at the Presidential and Cabinet levels. Such discover [sic] is wide-ranging, time-consuming, and not without considerable cost to the officials involved. It is not difficult for ingenious plaintiff’s counsel to create a material issue of fact on some element of the immunity defense where subtle questions of constitutional law and a decision-maker’s mental processes are involved. A sentence from a casual document or a difference in recollection with regard to a particular policy conversation held long ago would usually, under the normal summary judgment standards, be sufficient [to force a trial]…. The fact of this development upon the willingness of individuals to serve their country is obvious.”Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages in so far as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. Strickland, 420 U.S., at 322.By defining the limits of qualified immunity essentially in objective terms, we provide no license for lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken “with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547 (1967).The judgment of the Court of Appeals is vacated, and the case is remanded for further action consistent with this opinion.So ordered.Justice BRENNAN, with whom Justice all MARSHALL, and Justice BLACKMUN join, concurring.I agree with the substantial standard announced by the Court today, imposing liability when a public-official defendant “knew or should of known” of the constitutionally violative effect of his actions. The standard would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not “reasonably have been expected” to know what he actually did know. Thus the clever and unusually well-informed violator of constitutional rights will not evade just punishment for his crimes. I also agree that this standard applies “across the board,” to all “government officials performing discretionary functions.” I write separately only to note that given this standard, it seems inescapable to me that some measure of discovery may sometimes be required to determine exactly what a public-official defendant did “know” at the time of his actions….Chief Justice BURGER, dissenting.In this Court we witnessed the new filing of as many as 100 cases a week, many utterly frivolous and even bizarre. Yet the defending party in many of these cases may have spent or become liable for thousands of dollars in litigation expense. Hundreds of thousands of other cases are disposed of without reaching this Court. We see the myriad irresponsible and frivolous cases regularly filed in American courts, the magnitude of the potential risks attending acceptance of public office emerges. Those potential risks inevitably will be a factor in discouraging able men and women from entering public service.We - judges collectively - have held that the common law provides us with absolute immunity for ourselves with respect to judicial acts, however erroneous or ill-advised. See Stump v. Sparkman, 435 U.S. 349 (1978). Are the lowest ranking of 27,000 or more judges, thousands of prosecutors, and thousands of congressional aides - an aggregate of not less than 75,000 in all - entitled to greater protection than to senior aides of a President?Footnotes:11. As in Nixon v. Fitzgerald, 457 U.S. 731, our jurisdiction has been challenged on the basis that the District Court’s order denying petitioners’ claim of absolute immunity was not an appealable final order and that the Court of Appeals’ dismissal of petitioners’ appeal establishes that this case was never “in” the Court of Appeals within the meaning of 28 U.S.C. §1254. As the discussion in Nixon establishes our jurisdiction in this case as well, we need not consider those challenges in this opinion.26. Rule 56(c) states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In determining whether summary judgment is proper, a court ordinarily must look at the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party. E.g., Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962).28. In suits against a President’s closest aides, discovery of this kind frequently could implicate separation-of-powers concerns. As the Court recognized in United States v. Nixon, 418 U.S., at 708:“A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”33. Cf. Procunier v. Navarette, 434 U.S., at 565, quoting Wood v. Strickland, 420 U.S., at 322 (“Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct ‘cannot reasonably be characterized as being in good faith’”).34. We emphasize that our decision applies only to suits for civil damages arising from actions within the scope of an official’s duties and in “objective” good faith. We express no view as to the conditions in which injunctive or declaratory relief might be available.4. In the early years of the Republic, Members of Congress and Presidents performed their duties without staffs of aides and assistants. Washington and Jefferson spent much of their time on their plantations. Congress did not even appropriate funds for a Presidential clerk until 1857. Lincoln opened his own mail, Cleveland answered the phone at the White House, and Wilson regularly typed his own speeches. S. Wayne, The Legislative Presidency 30 (1978). Whatever may have been the situation beginning under Washington, Adams, and Jefferson, we know today that the Presidency functions with a staff that exercises a wide spectrum of authority and discretion and directly assists the President in carrying out constitutional duties.MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. v. CURRAN, 456 U.S. 353, 102 S.Ct. 1825 (1982)Justice STEVENS delivered the opinion of the Court.In determining whether a private cause of action is implicit in a federal statutory scheme when the statute by its terms is silent on that issue, initial focus must be on the state of the law at the time that the legislation was enacted; when Congress enacts new legislation, the question is whether Congress intended to create a private remedy as a supplement to the express enforcement provisions of the statute; when Congress acts in a statutory context in which an implied private remedy has already been recognized by the courts, the question is whether Congress intended to preserve the existing remedy.Purchasers and sellers of futures contracts have standing to assert claim that broker violated the Commodity Exchange Act prohibition against fraudulent and deceptive conduct and to assert claims based on violation of the provisions of the Act designed to prevent price manipulation. Commodity Exchange Act, §§4a, 4b, 5(d), 5a(8) as amended 7 U.S.C.A. §§6a, 6b, 7(d), 7a(8).Persons who are participants in a conspiracy to manipulate commodity futures market in violation of the next change’s rules are subject to suit by futures traders who can prove injury from those violations. Commodity Exchange Act, §5a(8) as amended 7 U.S.C.A. §7a(8).The Commodity Exchange Act (CEA), 7 U.S.C. §1?et seq.?(1976 ed. and Supp. IV),?has been aptly characterized as “a comprehensive regulatory structure to oversee the volatile and esoteric futures trading complex.”?The central question presented by these cases is whether a private party may maintain an action for damages caused by a violation of the CEA. The United States Court of Appeals for the Sixth Circuit answered that question affirmatively, holding that an investor may maintain an action against his broker for violation of an antifraud provision of the CEA.?The Court of Appeals for the Second Circuit gave the same answer to the question in actions brought by investors claiming damages resulting from unlawful price manipulation that allegedly could have been prevented by the New York Mercantile Exchange’s enforcement of its own rules.Prior to the advent of futures trading, agricultural products generally were sold at central markets. When an entire crop was harvested and marketed within a short time-span, dramatic price fluctuations sometimes created severe hardship for farmers or for processors. Some of these risks were alleviated by the adoption of quality standards, improvements in storage and transportation facilities, and the practice of “forward contracting” - the use of executory contracts fixing the terms of sale in advance of the time of delivery.When buyers and sellers entered into contracts for the future delivery of an agricultural product, they arrived at an agreed price on the basis of their judgment about expected market conditions at the time of delivery. Because the weather and other imponderables affected supply and demand, normally the market price would fluctuate before the contract was performed. A declining market meant that the executory agreement was more valuable to the seller than the commodity covered by the contract; conversely, in a rising market the executory contract had a special value for the buyer, who not only was assured of delivery of the commodity but also could derive a profit from the price increase.The opportunity to make a profit as a result of fluctuations in the market price of commodities covered by contracts for future delivery motivated speculators to engage in the practice of buying and selling “futures contracts.” A speculator who owned no present interest in a commodity but anticipated a price decline might agree to a future sale at the current market price, intending to purchase the commodity at a reduced price on or before the delivery date. A “short” sale of that kind would result in a loss if the price went up instead of down. On the other hand, a price increase would produce a gain for a “long” speculator who had acquired a contract to purchase the same commodity with no intent to take delivery but merely for the purpose of reselling the futures contract at an enhanced price.In the 19th century the practice of trading in futures contracts led to the development of recognized exchanges or boards of trade. At such exchanges standardized agreements covering specific quantities of graded agricultural commodities to be delivered during specified months in the future were bought and sold pursuant to rules developed by the traders themselves. Necessarily the commodities subject to such contracts were fungible. For an active market in the contracts to develop, it also was essential that the contracts themselves be fungible. The exchanges therefore developed standard terms describing the quantity and quality of the commodity, the time and place of delivery, and the method of payment; the only variable was price. The purchase or sale of a futures contract on an exchange is therefore motivated by a single factor - the opportunity to make a profit (or to minimize the risk of loss) from a change in the market price.The advent of speculation in futures markets produced well-recognized benefits for producers and processors of agricultural commodities. A farmer who takes a “short” position in the futures market is protected against a price decline; a processor who takes a “long” position is protected against a price increase. Such “hedging” is facilitated by the availability of speculators willing to assume the market risk that the hedging farmer or processor wants to avoid. The speculators’ participation in the market substantially enlarges the number of potential buyers and sellers of executory contracts and therefore makes it easier for farmers and processors to make firm commitments for future delivery at a fixed price. The liquidity of a futures contract, upon which hedging depends, is directly related to the amount of speculation that takes place.Persons who actually produce or use the commodities that are covered by futures contracts are not the only beneficiaries of futures trading. The speculators, of course, have opportunities to profit from this trading. Moreover, futures trading must be regulated by an organized exchange. In addition to its regulatory responsibilities, the exchange must maintain detailed records and perform a clearing function to discharge the offsetting contracts that the short or long speculators have no desire to perform.?The operation of the exchange creates employment opportunities for futures commission merchants, who solicit orders from individual traders, and for floor brokers, who make the actual trades on the floor of the exchange on behalf of futures commission merchants and their customers. The earnings of the persons who operate the futures market - the exchange itself, the clearinghouse, the floor brokers, and the futures commission merchants - are financed by commissions on the purchase and sale of futures contracts made over the exchange.Thus, in a broad sense, futures trading has a direct financial impact on three classes of persons. Those who actually are interested in selling or buying the commodity are described as “hedgers”;?their primary financial interest is in the profit to be earned from the production or processing of the commodity. Those who seek financial gain by taking positions in the futures market generally are called “speculators” or “investors”; without their participation, futures markets “simply would not exist.”?Finally, there are the futures commission merchants, the floor brokers, and the persons who manage the market; they also are essential participants, and they have an interest in maximizing the activity on the exchange. The petitioners in these cases are members of this third class whereas their adversaries, the respondents, are speculators or investors.The latest amendments to the CEA, the Futures Trading Act of 1978, 92 Stat. 865, again increased the penalties for violations of the statute.?The enactment also authorized the States to bring?parens patriae?actions, seeking injunctive or monetary relief for certain violations of the CEA, implementing regulations, or Commission orders.In the four cases before us, the allegations in the complaints filed by respondents are assumed to be true. The first involves a complaint by customers against their broker. The other three arise out of a malfunction of the contract market for futures contracts covering the delivery of Maine potatoes in May 1976, “when the sellers of almost 1,000 contracts failed to deliver approximately 50,000,000 pounds of potatoes, resulting in the largest default in the history of commodities futures trading in this country.”One of the futures contracts traded on the New York Mercantile Exchange provided for the delivery of a railroad car lot of 50,000 pounds of Maine potatoes at a designated place on the Bangor and Aroostook Railroad during the period between May 7, 1976, and May 25, 1976. Trading in this contract commenced early in 1975 and terminated on May 7, 1976. On two occasions during this trading period the Department of Agriculture issued reports containing estimates that total potato stocks, and particularly Maine potato stocks, were substantially down from the previous year. This information had the understandable consequences of inducing investors to purchase May Maine potato futures contracts (on the expectation that they would profit from a shortage of potatoes in May) and farmers to demand a higher price for their potatoes on the cash market.To counteract the anticipated price increases, a group of entrepreneurs described in the complaints as the “short sellers” formed a conspiracy to depress the price of the May Maine potato futures contract. The principal participants in this “short conspiracy” were large processors of potatoes who then were negotiating with a large potato growers association on the cash market. The conspirators agreed to accumulate an abnormally large short position in the May contract, to make no offsetting purchases of long contracts at a price in excess of a fixed maximum, and to default, if necessary, on their short commitments. They also agreed to flood the Maine cash markets with unsold potatoes. This multifaceted strategy was designed to give the growers association the impression that the supply of Maine potatoes would be plentiful. On the final trading day the short sellers had accumulated a net short position of almost 1,900 contracts, notwithstanding a Commission regulation?limiting their lawful net position to 150 contracts. They did, in fact, default.The trading limit also was violated by a separate group described as the “long conspirators.” Aware of the short conspiracy, they determined that they not only could counteract its effects but also could enhance the price the short conspirators would have to pay to liquidate their short positions by accumulating an abnormally large long position - at the close of trading they controlled 911 long contracts - and by creating an artificial shortage of railroad cars during the contract delivery period. Because the long conspirators were successful in tying up railroad cars, they prevented the owners of warehoused potatoes from making deliveries to persons desiring to perform short contracts.Respondents are speculators who invested long in Maine futures contracts.?Allegedly, if there had been no price manipulation, they would have earned a significant profit by reason of the price increase that free market forces would have produced.Petitioners in No. 80-757 are the New York Mercantile Exchange and its officials. Respondents’ complaints alleged that the Exchange knew, or should have known, of both the short and the long conspiracies but failed to perform its statutory duties to report these violations to the Commission and to prevent manipulation of the contract market. The Exchange allegedly had the authority under its rules to declare an emergency, to require the shorts and the longs to participate in an orderly liquidation, and to authorize truck deliveries and other measures that would have prevented or mitigated the consequences of the massive defaults.We granted certiorari. 450 U.S. 910 (1981). For the purpose of considering the question whether respondents may assert an implied cause of action for damages, it is assumed that each of the petitioners has violated the statute and thereby caused respondents’ alleged injuries.“When Congress intends private litigants to have a cause of action to support their statutory rights, the far better course is for it to specify as much when it creates those rights. But the Court has long recognized that under certain limited circumstances the failure of Congress to do so is not inconsistent with an intent on its part to have such a remedy available to the persons benefited by its legislation.”?Cannon v. University of Chicago, 441 U.S. 677 (1979).Our approach to the task of determining whether Congress intended to authorize a private cause of action has changed significantly, much as the quality and quantity of federal legislation has undergone significant change. When federal statutes were less comprehensive, the Court applied a relatively simple test to determine the availability of an implied private remedy. If a statute was enacted for the benefit of a special class, the Judiciary normally recognized a remedy for members of that class.?Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 (1916).?Under this approach, federal courts, following a common-law tradition, regarded the denial of a remedy as the exception rather than the rule.In?Cannon v. University of Chicago, we observed that “[i]t is always appropriate to assume that our elected Representatives, like other citizens, know the law.” 441 U.S. at 696. In considering whether Title IX of the Education Amendments of 1972 included an implied private cause of action for damages, we assumed that the legislators were familiar with the judicial decisions construing comparable language in Title VI of the Civil Rights Act of 1964 as implicitly authorizing a judicial remedy, notwithstanding the fact that the statute expressly included a quite different remedy. We held that even under the “strict approach” dictated by?Cort v. Ash, “our evaluation of congressional action in 1972 must take into account its contemporary legal context.” 441 U.S., at 698. See California v. Sierra Club, 451 U.S. 287 (1981).“Despite the contrast between the provisions of Rule 10b-5 and the numerous carefully drawn express civil remedies provided in the Acts of both 1933 and 1934, it was held in 1946 by the United States District Court for the Eastern District of Pennsylvania that there was an implied private right of action under the Rule.?Kardon v. National Gypsum Co., 69 F.Supp. 512. This Court had no occasion to deal with the subject until 25 years later, and at that time we confirmed with virtually no discussion the overwhelming consensus of the District Courts and Courts of Appeals that such a cause of action did exist.?Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6 (1971);?Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972). Such a conclusion was, of course, entirely consistent with the Court’s recognition in?J.I. Case Co. v. Borak, 377 U.S. 426 (1964), that private enforcement of Commission rules may ‘[provide] a necessary supplement to Commission action.’”Congress could have removed this impediment to exchange rulemaking by eliminating the implied private remedy,?but it did not follow that course. Rather, it solved the problem by authorizing the new Commodity Futures Trading Commission to supplement exchange rules.?Congress thereby corrected the legal mechanism of self-regulation while preserving a significant incentive for the exchanges to obey the law. Only this course was consistent with the expressed purpose of the 1974 legislation, which was to “amend the Commodity Exchange Act to?strengthen?the regulation of futures trading.”The cause of action asserted in No. 80-203 is a claim that respondents’ broker violated the prohibitions against fraudulent and deceptive conduct in §4b. In the other three cases the respondents allege violations of several other sections of the CEA that are designed to prevent price manipulation. We are satisfied that purchasers and sellers of futures contracts have standing to assert both types of claims.The legislative history quite clearly indicates that Congress intended to protect all futures traders from price manipulation and other fraudulent conduct violative of the statute. It is assumed, of course, that federal regulation of futures trading benefits the entire economy; a sound futures market tends to reduce retail prices of the underlying commodities. The immediate beneficiaries of a healthy futures market are the producers and processors of commodities who can minimize the risk of loss from volatile price changes on the cash market by hedging on the futures market.?As the House Report on the 1974 amendments explained at length,?their ability to engage in hedging depends on the availability of investors willing to assume or to share the hedger’s risk in the hope of making a profit. The statutory proscriptions against price manipulation and other fraudulent practices were intended to ensure that hedgers would sell or purchase the underlying commodities at a fair price and that legitimate investors would view the assumption of the hedger’s risk as a fair investment opportunity. Although the speculator has never been the favorite of Congress, Congress recognized his crucial role in an effective and orderly futures market and intended him to be protected by the statute as much as the hedger. Judge Friendly’s discussion of the legislative history, see 638 F.2d at 304-307, amply supports his observation that “[i]t is almost self-evident that legislation regulating future trading was for the ‘especial benefit’ of futures traders.”?Although §4b compels our holding that an investor defrauded by his broker may maintain a private cause of action for fraud, petitioners in the three manipulation cases correctly point out that the other sections of the CEA that they are accused of violating are framed in general terms and do not purport to confer special rights on any identifiable class of persons. Under Cort v. Ash, the statutory language would be insufficient to imply a private cause of action under these sections.?But we are not faced with the?Cort v. Ash?inquiry.?We have held that Congress intended to preserve the pre-existing remedy; to determine whether the pre-existing remedy encompasses respondents’ actions, we must turn once again to the law as it existed in 1974.The judgments of the Courts of Appeals are affirmed.It is so ordered.Justice POWELL, with whom The Chief Justice, Justice REHNQUIST, and Justice O’CONNOR join, dissenting.…This theory is incompatible with our constitutional separation of powers, and in my view it is without support in logic or in law….The Court today asserts its fidelity to these principles but shrinks from their application. It does so in the first instance by invoking a novel legal theory - one that relies on congressional inaction and on erroneous decisions by the lower federal courts. In 1967 a Federal District Court in the Northern District of Illinois upheld the existence of a private right of action under one section of the CEA.?Goodman v. H. Hentz & Co., 265 F.Supp. 440 (1967). Relying on state common-law principles set forth in §286 of the Restatement of Torts (1938),?Goodman?ruled that the “complete absence of provision for private civil actions in the Commodity Exchange Act,” 265 F.Supp., at 447, was not decisive:“‘Implied rights of action are not contingent upon statutory language which affirmatively indicates that they are intended.?On the contrary, they are implied unless the legislation evidences a contrary intention. Brown v. Bullock, D.C., 194 F.Supp. 207, aff’d on other grounds, 2 Cir., 294 F.2d 415; cited in?Wheeldin v. Wheeler, 373 U.S. 647.’”“There is no indication in the Commodity Exchange Act that Congress intended?not?to allow private persons injured by violations access to the federal courts.”The Court does not dispute that the?Goodman?court erred. The?Goodman court placed primary emphasis on inquiring whether Congress had created a regulatory system for the?benefit?of the plaintiffs’ class. As the court’s citation of the Restatement of Torts made apparent, this inquiry has been thought appropriate for common-law courts of general jurisdiction. But our cases establish that it is?not?appropriate for federal courts possessed only of limited jurisdiction. On the contrary, we have established that an “argument in favor of implication of a private right of action based on tort principles...is entirely misplaced.”?Touche Ross & Co. v. Redington, 442 U.S. 560 (1979). “The dispositive question [is] whether?Congress?intended to create any such [private damages] remedy.” TAMA, 444 U.S., at 24. The?Goodman court did not even ask this question.By its terms the saving clause simply is irrelevant to the issue at hand: whether a cause of action should be implied under particular provisions of the CEA. Where judicially cognizable claims do exist, the saving clause makes clear that federal courts retain their jurisdiction. But it neither creates nor preserves any?substantive?right to sue for damages. And it is settled by our cases that “[t]he source of plaintiffs’ rights must be found, if at all, in the substantive provisions of the...Act which they seek to enforce, not in the jurisdictional provision.”?Touche Ross & Co. v. Redington, 442 U.S., at 577. Cf.?Sea Clammers, at 15-17 (refusing to imply right of action even from a?substantive?“saving clause”).Footnotes:11. Broadly speaking, futures traders fall into two general classifications, i.e. ‘trade’ hedging customers, and speculators. All orders which reach the trading floor originate with one or the other group of traders. The ‘trade’ customer is the hedger who seeks, at low cost, to protect himself or his company against possible loss due to adverse price fluctuations in the market place. Speculators, on the other hand, embrace all representatives of the general public, including some institutions, plus floor scalpers and position traders, who seek financial gain by taking positions in volatile markets. The principal role of the speculator in the markets is to take the risks that the hedger is unwilling to accept. The opportunity for profit makes the speculator willing to take those risks. The activity of speculators is essential to the operation of a futures market in that the composite bids and offers of large numbers of individuals tend to broaden a market, thus making possible the execution with minimum price disturbance of the larger trade hedging orders. By increasing the number of bids and offers available at any given price level, the speculator usually helps to minimize price fluctuations rather than to intensify them. Without the trading activity of the speculative fraternity, the liquidity, so badly needed in futures markets, simply would not exist. Trading volume would be restricted materially since, without a host of speculative orders in the trading ring, many larger trade orders at limit prices would simply go unfilled due to the floor broker’s inability to find an equally large but opposing hedge order at the same price to complete the match.” House Report, at 138.16. Section 5(d) of the CEA, 42 Stat. 1000. Section 5(d), codified as amended, 7 U.S.C. §7(d), requires as a condition of designation that the governing board of the board of trade “provid[e] for the prevention of manipulation of prices and the cornering of any commodity by the dealers or operators upon such board.”The Secretary of Agriculture also was authorized to proceed directly against a violator of these and other provisions of the CEA by suspending a violator’s trading privileges. §6(b) of the CEA, 42 Stat. 1002, codified as amended, 7 U.S.C. §9. Moreover, misdemeanor penalties were authorized for violations of certain provisions of the CEA. §9 of the CEA, 42 Stat. 1003, codified as amended, 7 U.S.C. §13 (1976 ed., Supp. IV). The penalties subsequently have been increased. Today, §9(b) of the CEA, 7 U.S.C. §13(b) (1976 ed., Supp. IV), provides in pertinent part:“It shall be a felony punishable by a fine of not more than $500,000 or imprisonment for not more than five years, or both, together with the costs of prosecution, for any person to manipulate or attempt to manipulate the price of any commodity in interstate commerce, or for future delivery on or subject to the rules of any contract market, or to corner or attempt to corner any such commodity....Notwithstanding the foregoing, in the case of any violation described in the foregoing sentence by a person who is an individual, the fine shall not be more than $100,000, together with the costs of prosecution.”53. T. Cooley, Law of Torts 790 (2d ed. 1888) described the common-law remedy for breach of a statutory duty in this way:“[W]hen the duty imposed by statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by a breach of the duty, will supply a remedy, if the statute gives none.”A few years earlier an opinion by Judge Cooley was quoted with approval by this Court in support of its holding that a railroad’s breach of a statutory duty to fence its right-of-way gave an injured party an implied damages remedy. See?Hayes v. Michigan Central R. Co., 111 U.S. 228, 4 S.Ct. 369 (1884).54. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803) (“[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded”) (quoting 3 W. Blackstone, Commentaries 23);?Kendall v. United States, 12 Pet. 524, 9 L.Ed. 1181 (1838) (“It cannot be denied but that congress had the power to command that act to be done; and the power to enforce the performance of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well-organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist”); Pollard v. Bailey, 20 Wall. 520, 22 L.Ed. 376 (1874) (“A general liability created by statute without a remedy may be enforced by an appropriate common-law action”);?Hayes v. Michigan Central R. Co., at 240, 4 S.Ct., at 374 (“[E]ach person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery”);?De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743 (1901) (“If there be an admitted wrong, the courts will look far to supply an adequate remedy”).60. “There is no allegation that the antitrust laws expressly establish a right of action for contribution. Nothing in these statutes refers to contribution, and if such a right exists it must be by implication. Our focus, as it is in any case involving the implication of a right of action, is on the intent of Congress.?E.g., California v. Sierra Club, [451 U.S.] 287; Universities Research Assn. v. Coutu, 450 U.S. 754 (1981);?Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979);?Touche Ross & Co. v. Redington, 442 U.S. 560 (1979). Congressional intent may be discerned by looking to the legislative history and other factors: the identity of the class for whose benefit the statute was enacted, the overall legislative scheme, and the traditional role of the states in providing relief. See?California v. Sierra Club; Cort v. Ash, 422 U.S. 66 (1975).”61. “The legislative history thus leaves little doubt that Congress was persuaded that federal employees who were treated discriminatorily had no effective judicial remedy. And the caselaw suggests that that conclusion was entirely reasonable. Whether that understanding of Congress was in some ultimate sense incorrect is not what is important in determining the legislative intent in amending the 1964 Civil Rights Act to cover federal employees. For the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was.”?Brown v. GSA, 425 U.S. 820 (1976).5. The Court correctly observes that the effect of?Cort v. Ash?was to “modify [this Court’s] approach to the question whether a federal statute includes a private right of action.” As exemplifying a previous approach the Court quotes?Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 (1916): “A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied....” The Court does not appear to argue, however, that?Rigsby?mandated the Goodman?decision. Nor does?Rigsby?somehow validate?Goodman?as a correct statement of the law as it was in 1967. As is clear from a reading of the opinion,?Rigsby?stated not so much a rule of substantive law as a maxim of statutory construction.?Rigsby?did not question that the creation?of rights of action was a congressional function. On the contrary, in?Rigsby?the Court devoted most of its opinion, not to the question whether a remedy could be “implied” under the statute, but to the question whether it was within the constitutional power of Congress to impose tort liability of the kind asserted. (Asserting that plaintiff will be entitled to recover “unless it be beyond the power of?Congress?under the commerce clause of the Constitution?to create?such a liability”).Moreover, although the?Rigsby?approach made the denial of a damages action “the exception rather than the rule,” the Court even during the?Rigsby?period refused to recognize implied remedies where the evidence - even with the aid of the maxim failed to indicate that Congress had intended to create them. See TIME, Inc. v. United States, 359 U.S. 464 (1959) (“The question is, of course, one of statutory intent”);?National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453 (1974) (“It goes without saying...that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent...”).17. There can be little doubt that failure to adhere to this standard will encourage the discovery of private causes of action of which Congress never dreamed. The escalating recourse to damages suits has placed a severe and growing burden on the lower federal courts. My research - accomplished mostly through a computer search of cases in the federal reporters - indicates that in the past decade there have been at least 243 reported Court of Appeals court opinions and 515 District Court opinions dealing with the existence of implied causes of action under various federal statutes. It is time federal courts discontinued the speculative creation of damages liability where the Legislative Branch has chosen to remain silent.NIXON v. FITZGERALD, 457 U.S. 731, 102 S.Ct. 2690 (1982)JUSTICE POWELL delivered the opinion of the Court.Limited agreement, under which former President of United States paid discharged air force employee $142,000 in exchange for former employee’s agreement to accept liquidated damages of $28,000 in event of ruling by the Supreme Court that former President was not entitled to absolute immunity, and under which, in case of decision upholding immunity claim, no further payments would be made, left both former President and employee with considerable financial stake in resolution of question presented, and thus case remained definite and concrete and was not moot.Rule of absolute immunity for President of United States does not leave United States without sufficient protection against misconduct on part of chief executive since there remains constitutional remedy of impeachment, since President is subjected to constant scrutiny by press, and since vigilant oversight by Congress may serve to deter Presidential abuse of office.During the waning months of the Presidency of Lyndon B. Johnson in 1968, respondent, a management analyst with the Department of the Air Force, testified before a congressional Subcommittee about cost overruns and unexpected technical difficulties concerning the development of a particular airplane. In January, 1970, during the Presidency of petitioner Richard M. Nixon, respondent was dismissed from his job during a departmental reorganization and reduction in force, in which his job was eliminated. Respondent complained to the Civil Service Commission, alleging that his separation represented unlawful retaliation for his congressional testimony. The Commission rejected this claim, but concluded that respondent’s dismissal offended applicable regulations because it was motivated by “reasons purely personal to” respondent. Respondent thereafter filed suit for damages in Federal District Court against various Defense Department officials and White House aides allegedly responsible for his dismissal. An amended complaint later named petitioner as a defendant. After earlier judicial rulings and extensive pretrial discovery, only three defendants were involved: petitioner and two White House aides (petitioners in Harlow v. Fitzgerald,?457 U.S. 800). Denying the defendants’ motion for summary judgment, the court held that respondent had stated triable causes of action under two federal statutes and the First Amendment, and that petitioner was not entitled to claim absolute Presidential immunity. Petitioner took a collateral appeal of the immunity decision to the Court of Appeals, which dismissed summarily.Held:1. This Court has jurisdiction to determine the immunity question.(a) The case was “in” the Court of Appeals for purposes of 28 U.S.C. §1254, which authorizes this Court’s review of “[c]ases in” the courts of appeals. The Court of Appeals here dismissed the appeal for lack of jurisdiction. However, petitioner’s appeal to the Court of Appeals falls within the “collateral order” doctrine of?Cohen v. Beneficial Industrial Loan Corp.,?337 U.S. 541, as raising a “serious and unsettled question” of law. Although the Court of Appeals had previously ruled in another case that the President was not entitled to absolute immunity, this Court had never so held.(b) Nor was the controversy mooted by an agreement to liquidate damages entered into between the parties after the petition for certiorari was filed and respondent had entered his opposition. Under the terms of the agreement, petitioner paid respondent $142,000; respondent agreed to accept liquidated damages of $28,000 if this Court ruled that petitioner was not entitled to absolute immunity; and no further payments would be made if the decision upheld petitioner’s immunity claim. The limited agreement left both parties with a considerable financial stake in the resolution of the question presented in this Court.?Cf. Havens Realty Corp. v. Coleman,?455 U.S. 363.2. Petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.(a) Although there is no blanket recognition of absolute immunity for all federal executive officials from liability for civil damages resulting from constitutional violations, certain officials - such as judges and prosecutors - because of the special nature of their responsibilities, require absolute exemption from liability.?Cf. Butz v. Economou, 438 U.S. 478. Determination of the immunity of particular officials is guided by the Constitution, federal statutes, history, and public policy.(b) The President’s absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation’s history. Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. While the separation of powers doctrine does not bar every exercise of jurisdiction over the President, a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. The exercise of jurisdiction is not warranted in the case of merely private suits for damages based on a President’s official acts.(c) The President’s absolute immunity extends to all acts within the “outer perimeter” of his duties of office.(d) A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.Reversed and remanded.Fitzgerald’s proposed reassignment encountered resistance within the administration. In an internal memorandum of January 20, 1970, White House aide Alexander Butterfield reported to Haldeman that “Fitzgerald is no doubt a top-notch cost expert, but he must be given very low marks in loyalty; and after all, loyalty is the name of the game.” Butterfield therefore recommended that “[w]e should let him bleed, for a while at least.” There is no evidence of White House efforts to reemploy Fitzgerald subsequent to the Butterfield memorandum.“In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the Executive Branch of the government, if he were subjected to any such restraint.”Decisions subsequent to?Spalding?have extended the defense of immunity to actions besides those at common law. In?Tenney v. Brandhove,?341 U.S. 367?(1951), the Court considered whether the passage of 42 U.S.C. §1983, which made no express provision for immunity for any official, had abrogated the privilege accorded to state legislators at common law.?Tenney?held that it had not. Examining §1983 in light of the “presuppositions of our political history” and our heritage of legislative freedom, the Court found it incredible “that Congress...would impinge on a tradition so well grounded in history and reason” without some indication of intent more explicit than the general language of the statute. Similarly, the decision in Pierson v. Ray,?386 U.S. 547?(1967), involving a §1983 suit against a state judge, recognized the continued validity of the absolute immunity of judges for acts within the judicial role. This was a doctrine “‘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.’” Quoting?Scott v. Stansfield,?L.R. 3 Ex. 220 (1868).?See Bradley v. Fisher,?13 Wall. 335 (1872). The Court in?Pierson?also held that police officers are entitled to a qualified immunity protecting them from suit when their official acts are performed in “good faith.” 386 U.S. at?557.In?Scheuer v. Rhodes,?416 U.S. 232?(1974), the Court considered the immunity available to state executive officials in a §1983 suit alleging the violation of constitutional rights. In that case, we rejected the officials’ claim to absolute immunity under the doctrine of?Spalding v. Vilas,?finding instead that state executive officials possessed a “good faith” immunity from §1983 suits alleging constitutional violations. Balancing the purposes of §1983 against the imperatives of public policy, the Court held that, “in varying scope, a qualified immunity is available to officers of the Executive Branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.”Our decisions concerning the immunity of government officials from civil damages liability have been guided by the Constitution, federal statutes, and history. Additionally, at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law.?See Butz v. Economou?at 438 U.S. 508;?Imbler v. Pachtman?at?424 U.S. 421. This Court necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government.?See Butz v. Economou,?at?438 U.S. 508;?Imbler v. Pachtman?at?424 U.S. 421;?Spalding v. Vilas,?161 U.S. at?498.Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. Justice Story’s analysis remains persuasive:“There are...incidental powers belonging to the executive department which are necessarily implied from the nature of the functions which are confided to it. Among these must necessarily be included the power to perform them.... The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability.” 3 J. Story, Commentaries on the Constitution of the United States §1563, pp. 418-419 (1st ed. 1833).In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and Cabinet officers.?E.g., Butz v. Economou,?438 U.S. 478?(1978);?Scheuer v. Rhodes,?416 U.S. 232?(1974). We find these cases to be inapposite. The President’s unique status under the Constitution distinguishes him from other executive officials.Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges - for whom absolute immunity now is established - a President must concern himself with matters likely to “arouse the most intense feelings.”?Pierson v. Ray,?386 U.S. at 554. Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official “the maximum ability to deal fearlessly and impartially with” the duties of his office.?Ferri v. Ackerman,?444 U.S. 193 (1979). This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. Nor can the sheer prominence of the President’s office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.In defining the scope of an official’s absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity’s justifying purposes. Frequently our decisions have held that an official’s absolute immunity should extend only to acts in performance of particular functions of his office.?See Butz v. Economou,?438 U.S. at?508;?cf. Imbler v. Pachtman,?424 U.S. at?430. But the Court also has refused to draw functional lines finer than history and reason would support.?See Spalding v. Vilas,?161 U.S. at?498?(privilege extends to all matters “committed by law to [an official’s] control or supervision”);?Barr v. Matteo,?360 U.S. 564 (1959) (fact “that the action here taken was within the outer perimeter of petitioner’s line of duty is enough to render the privilege applicable...”); Stump v. Sparkman,?435 U.S. at?363, and n. 12 (judicial privilege applies even to acts occurring outside “the normal attributes of a judicial proceeding”). In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the “outer perimeter” of his official responsibility.A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature. The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President “above the law.” For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.CHIEF JUSTICE BURGER, concurring.I join the Court’s opinion, but I write separately to underscore that the Presidential immunity derives from and is mandated by the constitutional doctrine of separation of powers. Indeed, it has been taken for granted for nearly two centuries. In reaching this conclusion, we do well to bear in mind that the focus must not be simply on the does matter of judging individual conduct in a fact-bound setting; rather, in those familiar terms of John Marshall, it is a?Constitution?we are expounding. Constitutional adjudication often bears unpalatable fruit. But the needs of a system of government sometimes must outweigh the right of individuals to collect damages.It strains the meaning of the words used to say this places a President “above the law.” United States v. Nixon,?418 U.S. 683?(1974). The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides - all having absolute immunity - are not immune for acts outside official duties. Even the broad immunity of the Speech and Debate Clause has its limits.In his dissenting opinion, JUSTICE WHITE confuses “judicial process” in the subpoena sense with a civil damages suit.?He quotes language from United States v. Nixon,?at?418 U.S. 706, as though that language has some relevance to the matter of immunity from civil damages:“[N]either the doctrine of separation of powers, nor the need for confidentiality..., without more, can sustain an absolute, unqualified Presidential privilege of immunity from?judicial process?under all circumstances.”First, it is important to remember that the context of that language is a criminal prosecution. Second, the “judicial process” referred to was, as in?United States v. Burr, 25 F.Cas. 30 (No. 14,692d) (CC Va. 1807), a?subpoena?to the President to produce relevant evidence in a criminal prosecution. No issue of damages immunity was involved either in?Burr?or?United States v. Nixon.?In short, the quoted language has no bearing whatever on a civil action for damages. It is one thing to say that a President must produce evidence relevant to a criminal case, as in?Burr?and?United States v. Nixon,?and quite another to say a President can be held for civil damages for dismissing a federal employee. If the dismissal is wrongful the employee can be reinstated with backpay, as was done here.The immunity of a President from civil suits is not simply a doctrine derived from this Court’s interpretation of common law or public policy. Absolute immunity for a President for acts within the official duties of the Chief Executive is either to be found in the constitutional separation of powers or it does not exist. The Court today holds that the Constitution mandates such immunity, and I agree.The essential purpose of the separation of powers is to allow for independent functioning of each coequal branch of government within its assigned sphere of responsibility, free from risk of control, interference, or intimidation by other branches.?United States v. Nixon; Gravel v. United States,?408 U.S. 606 (1972). Even prior to the adoption of our Constitution, as well as after, judicial review of legislative action was recognized in some instances as necessary to maintain the proper checks and balances.?Den on the Dem. of Bayard & Wife v. Singleton,?3 N.C. 42 (1787);?Cases of the Judges of the Court of Appeals,?8 Va. 135 (1788).?Cf.?5 U.S.?Madison,?1 Cranch 137 (1803). However, the Judiciary always must be hesitant to probe into the elements of Presidential decisionmaking, just as other branches should be hesitant to probe into judicial decisionmaking. Such judicial intervention is not to be tolerated absent imperative constitutional necessity.?United States v. Nixon,?at?418 U.S. 709. The Court’s opinion correctly observes that judicial intrusion through private damages actions improperly impinges on, and hence interferes with, the independence that is imperative to the functioning of the office of a President.Exposing a President to civil damages actions for official acts within the scope of the Executive authority would inevitably subject Presidential actions to undue judicial scrutiny, as well as subject the President to harassment. The enormous range and impact of Presidential decisions - far beyond that of any one Member of Congress - inescapably means that many persons will consider themselves aggrieved by such acts. Absent absolute immunity, every person who feels aggrieved would be free to bring a suit for damages, and each suit - especially those that proceed on the merits - would involve some judicial questioning of Presidential acts, including the reasons for the decision, how it was arrived at, the information on which it was based, and who supplied the information. Such scrutiny of day-to-day decisions of the Executive Branch would be bound to occur if civil damages actions were made available to private individuals. Although the individual who claims wrongful conduct may indeed have sustained some injury, the need to prevent large-scale invasion of the Executive function by the Judiciary far outweighs the need to vindicate the private claims. We have decided that, in a similar sense, Members of both Houses of Congress - and their aides - must be totally free from judicial scrutiny for legislative acts; the public interest, in other words, outweighs the need for private redress of one claiming injury from legislative acts of a Member or aide of a Member. The Court’s concern over “unremedied wrongs” to citizens by a President seem odd when one compares the potential for “wrongs” which thousands of congressional aides, prosecutors, and judges can theoretically inflict - with absolute immunity- on the same citizens for whom this concern is expressed.JUSTICE WHITE, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting.The four dissenting Members of the Court in?Butz v. Economou,?438 U.S. 478?(1978), argued that all federal officials are entitled to absolute immunity from suit for any action they take in connection with their official duties. That immunity would extend even to actions taken with express knowledge that the conduct was clearly contrary to the controlling statute or clearly violative of the Constitution. Fortunately, the majority of the Court rejected that approach: we held that, although public officials perform certain functions that entitle them to absolute immunity, the immunity attaches to particular functions - not to particular offices. Officials performing functions for which immunity is not absolute enjoy qualified immunity; they are liable in damages only if their conduct violated well-established law and if they should have realized that their conduct was illegal.The Court now applies the dissenting view in?Butz?to the Office of the President: a President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured. Even if the President in this case ordered Fitzgerald fired by means of a trumped-up reduction in force, knowing that such a discharge was contrary to the civil service laws, he would be absolutely immune from suit. By the same token, if a President, without following the statutory procedures which he knows apply to himself as well as to other federal officials, orders his subordinates to wiretap or break into a home for the purpose of installing a listening device, and the officers comply with his request, the President would be absolutely immune from suit. He would be immune regardless of the damage he inflicts, regardless of how violative of the statute and of the Constitution he knew his conduct to be, and regardless of his purpose.The Court intimates that its decision is grounded in the Constitution. If that is the case, Congress cannot provide a remedy against Presidential misconduct, and the criminal laws of the United States are wholly inapplicable to the President. I find this approach completely unacceptable. I do not agree that, if the Office of President is to operate effectively, the holder of that Office must be permitted, without fear of liability and regardless of the function he is performing, deliberately to inflict injury on others by conduct that he knows violates the law.We have not taken such a scatter-gun approach in other cases. Butz held that absolute immunity did not attach to the office held by a member of the President’s Cabinet, but only to those specific functions performed by that officer for which absolute immunity is clearly essential. Members of Congress are absolutely immune under the Speech or Debate Clause of the Constitution, but the immunity extends only to their legislative acts. We have never held that, in order for legislative work to be done, it is necessary to immunize all of the tasks that legislators must perform. Constitutional immunity does not extend to those many things that Senators and Representatives regularly and necessarily do that are not legislative acts. Members of Congress, for example, repeatedly importune the Executive Branch and administrative agencies outside hearing rooms and legislative halls, but they are not immune if, in connection with such activity, they deliberately violate the law.?United States v. Brewster,?408 U.S. 501?(1972), for example, makes this clear. Neither is a Member of Congress or his aide immune from damages suits if, in order to secure information deemed relevant to a legislative investigation, he breaks into a house and carries away records.?Gravel v. United States,?408 U.S. 606?(1972). Judges are absolutely immune from liability for damages, but only when performing a judicial function, and even then they are subject to criminal liability.?See Dennis v. Sparks,?449 U.S. 24 (1980);?O’Shea v. Littleton,?414 U.S. 488 (1974). The absolute immunity of prosecutors is likewise limited to the prosecutorial function. A prosecutor who directs that an investigation be carried out in a way that is patently illegal is not immune.In?Marbury v. Madison,?1 Cranch 137,?5 U.S. 165?(1803), the Court, speaking through The Chief Justice, observed that, while there were “important political powers” committed to the President for the performance of which neither he nor his appointees were accountable in court, “the question, whether the legality of an act of the head of a department be examinable in a court of justice or not must always depend on the nature of that act.” The Court nevertheless refuses to follow this course with respect to the President. It makes no effort to distinguish categories of Presidential conduct that should be absolutely immune from other categories of conduct that should not qualify for that level of immunity. The Court instead concludes that, whatever the President does and however contrary to law he knows his conduct to be, he may, without fear of liability, injure federal employees or any other person within or without the Government.Attaching absolute immunity to the Office of the President, rather than to particular activities that the President might perform, places the President above the law. It is a reversion to the old notion that the King can do no wrong. Until now, this concept had survived in this country only in the form of sovereign immunity. That doctrine forecloses suit against the Government itself and against Government officials, but only when the suit against the latter actually seeks relief against the sovereign. Larson v. Domestic & Foreign Commerce Corp.,?337 U.S. 682 (1949). Suit against an officer, however, may be maintained where it seeks specific relief against him for conduct contrary to his statutory authority or to the Constitution. Now, however, the Court clothes the Office of the President with sovereign immunity, placing it beyond the law.In?Marbury v. Madison,?at?5 U.S. 163, The Chief Justice, speaking for the Court, observed: “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” Until now, the Court has consistently adhered to this proposition. In?Scheuer v. Rhodes,?416 U.S. 232?(1974), a unanimous Court held that the Governor of a State was entitled only to a qualified immunity. We reached this position, even though we recognized that,“[i]n the case of higher officers of the Executive Branch..., the inquiry is far more complex, since the range of decisions and choices - whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions - is virtually infinite.... In short, since the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.”As JUSTICE BRENNAN observed in?McGautha v. California,?402 U.S. 183 (1971): “The principle that our Government shall be of laws, and not of men, is so strongly woven into our constitutional fabric that it has found recognition in not just one but several provisions of the Constitution.”And as THE CHIEF JUSTICE said in?Complete Auto Transit, Inc. v. Reis,?451 U.S. 401 (1981): “Accountability of each individual for individual conduct lies at the core of all law - indeed, of all organized societies. The trend to eliminate or modify sovereign immunity is not an unrelated development; we have moved away from ‘The King can do no wrong.’ This principle of individual accountability is fundamental if the structure of an organized society is not to be eroded to anarchy and impotence, and it remains essential in civil as well as criminal justice.”Unfortunately, the Court now abandons basic principles that have been powerful guides to decision. It is particularly unfortunate, since the judgment in this case has few, if any, indicia of a judicial decision; it is almost wholly a policy choice, a choice that is without substantial support and that, in all events, is ambiguous in its reach and import.We have previously stated that “‘the law of privilege as a defense to damages actions against officers of Government has?in large part been of judicial making.’”?Butz v. Economou,?438 U.S. at?501-502, quoting?Barr v. Matteo,?360 U.S. 564 (1959). But this does not mean that the Court has simply “enacted” its own view of the best public policy. No doubt judicial convictions about public policy - whether and what kind of immunity is necessary or wise - have played a part, but the courts have been guided and constrained by common law tradition, the relevant statutory background, and our constitutional structure and history. Our cases dealing with the immunity of Members of Congress are constructions of the Speech or Debate Clause and are guided by the history of such privileges at common law. The decisions dealing with the immunity of state officers involve the question of whether and to what extent Congress intended to abolish the common law privileges by providing a remedy in the predecessor of 42 U.S.C. §1983 for constitutional violations by state officials. Our decisions respecting immunity for federal officials - including absolute immunity for judges, prosecutors, and those officials doing similar work - also in large part reflect common law views, as well as judicial conclusions as to what privileges are necessary if particular functions are to be performed in the public interest.Unfortunately, there is little of this approach in the Court’s decision today. The Court casually, but candidly, abandons the functional approach to immunity that has run through all of our decisions. Indeed, the majority turns this rule on its head by declaring that, because the functions of the President’s office are so varied and diverse and some of them so profoundly important, the office is unique and must be clothed with office-wide, absolute immunity. This is policy, not law, and, in my view, very poor policy.In declaring the President to be absolutely immune from suit for any deliberate and knowing violation of the Constitution or of a federal statute, the Court asserts that the immunity is “rooted in the constitutional tradition of the separation of powers and supported by our history.” The decision thus has all the earmarks of a constitutional pronouncement - absolute immunity for the President’s office is mandated by the Constitution. Although the Court appears to disclaim this, it is difficult to read the opinion coherently as standing for any narrower proposition: attempts to subject the President to liability either by Congress through a statutory action or by the courts through a Bivens (Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388?(1971)) proceeding would violate the separation of powers. Such a generalized absolute immunity cannot be sustained when examined in the traditional manner and in light of the traditional judicial sources.The petitioner and the United States, as?amicus, rely principally on two arguments to support the claim of absolute immunity for the President from civil liability: absolute immunity is an “incidental power” of the Presidency, historically recognized as implicit in the Constitution, and absolute immunity is required by the separation of powers doctrine. I will address each of these contentions.The Speech or Debate Clause, Art. I, §6, guarantees absolute immunity to Members of Congress; nowhere, however, does the Constitution directly address the issue of Presidential immunity. Petitioner nevertheless argues that the debates at the Constitutional Convention and the early history of constitutional interpretation demonstrate an implicit assumption of absolute Presidential immunity. In support of this position, petitioner relies primarily on three separate items: first, preratification remarks made during the discussion of Presidential impeachment at the Convention and in The Federalist; second, remarks made during the meeting of the first Senate; and third, the views of Justice Story.The debate at the Convention on whether or not the President should be impeachable did touch on the potential dangers of subjecting the President to the control of another branch, the Legislature. Gouverneur Morris, for example, complained of the potential for dependency and argued that “[the President] can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be sufficient proof of his innocence.” Colonel Mason responded to this by asking if “any man [shall] be above Justice,” and argued that this was least appropriate for the man “who can commit the most extensive injustice.” Madison agreed that “it [is] indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate.” Pinckney responded on the other side, believing that, if granted the power, the Legislature would hold impeachment “as a rod over the Executive, and by that means effectually destroy his independence.”Petitioner concludes from this that the delegates meant impeachment to be the exclusive means of holding the President personally responsible for his misdeeds, outside of electoral politics. This conclusion, however, is hardly supported by the debate. Although some of the delegates expressed concern over limiting Presidential independence, the delegates voted 8 to 2 in favor of impeachment. Whatever the fear of subjecting the President to the power of another branch, it was not sufficient, or at least not sufficiently shared, to insulate the President from political liability in the impeachment process.Moreover, the Convention debate did not focus on wrongs the President might commit against individuals, but rather on whether there should be a method of holding him accountable for what might be termed wrongs against the state. Thus, examples of the abuses that concerned delegates were betrayal, oppression, and bribery; the delegates feared that the alternative to an impeachment mechanism would be “tumults & insurrections” by the people in response to such abuses. 2 Farrand 67. The only conclusions that can be drawn from this debate are that the independence of the Executive was not understood to require a total lack of accountability to the other branches, and that there was no general desire to insulate the President from the consequences of his improper acts.Much the same can be said in response to petitioner’s reliance on The Federalist No. 77. In that essay, Hamilton asked whether the Presidency combines “the requisites to safety in the republican sense - a due dependence on the people - a due responsibility.” The Federalist No. 77, p. 520 (J. Cooke ed.1961). He answered that the constitutional plan met this test because it subjected the President to both the electoral process and the possibility of impeachment, including subsequent criminal prosecution. Petitioner concludes from this that these were intended to be the exclusive means of restraining Presidential abuses. This, by no means follows. Hamilton was concerned in The Federalist No. 77, as were the delegates at the Convention, with the larger political abuses - “wrongs against the state” - that a President might commit. He did not consider what legal means might be available for redress of individualized grievances.That omission should not be taken to imply exclusion in these circumstances is well illustrated by comparing some of the remarks made in the state ratifying conventions with Hamilton’s discussion in No. 77. In the North Carolina ratifying convention, for example, there was a discussion of the adequacy of the impeachment mechanism for holding executive officers accountable for their misdeeds. Governor Johnson defended the constitutional plan by distinguishing three legal mechanisms of accountability:“If an officer commits an offence against an individual, he is amenable to the courts of law. If he commits crimes against the state, he may be indicted and punished. Impeachment only extends to high crimes and misdemeanors in a?public office.?It is a mode of trial pointed out for great misdemeanors against the public.”Governor Johnson surely did not contemplate that the availability of an impeachment mechanism necessarily implied the exclusion of other forms of legal accountability; rather, the method of accountability was to be a function of the character of the wrong. Mr. Maclaine, another delegate to the North Carolina Convention, clearly believed that the courts would remain open to individual citizens seeking redress from injuries caused by Presidential acts:“The President is the superior officer, who is to see the laws put in execution. He is amenable for any maladministration in his office. Were it possible to suppose that the President should give wrong instructions to his deputies, whereby the citizens would be distressed, they would have redress in the ordinary courts of common law.”A similar distinction between different possible forms of Presidential accountability was drawn by Mr. Wilson at the Pennsylvania ratifying convention:“[The President] is placed high, and is possessed of power far from being contemptible; yet not a?single privilege?is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”There is no more reason to respect the views of Hamilton than those of Wilson: both were members of the Constitutional Convention; both were instrumental in securing the ratification of the Constitution. But more importantly, there is simply no express contradiction in their statements. Petitioner relies on an inference drawn from silence to create this contradiction. The surrounding history simply does not support this inference.The second piece of historical evidence cited by petitioner is an exchange at the first meeting of the Senate, involving Vice President Adams and Senators Ellsworth and Maclay. The debate started over whether or not the words “the President” should be included at the beginning of federal writs, similar to the manner in which English writs ran in the King’s name. Senator Maclay thought that this would improperly combine the Executive and Judicial Branches. This, in turn, led to a discussion of the proper relation between the two. Senator Ellsworth and Vice President Adams defended the proposition that“the President, personally, was not subject to any process whatever; could have no action, whatever, brought against him; was above the power of all judges, justices, & courts. For [that] would...put it in the power of a common justice to exercise any authority over him, and stop the whole machine of government.In previous immunity cases, the Court has emphasized the importance of the immunity afforded the particular government official at common law.?See Imbler v. Pachtman, 424 U.S. 409 (1976). Clearly this sort of analysis is not possible when dealing with an office, the Presidency, that did not exist at common law. To the extent that historical inquiry is appropriate in this context, it is constitutional history, not common law, that is relevant. From the history discussed above, however, all that can be concluded is that absolute immunity from civil liability for the President finds no support in constitutional text or history, or in the explanations of the earliest commentators. This is too weak a ground to support a declaration by this Court that the President is absolutely immune from civil liability, regardless of the source of liability or the injury for which redress is sought. This much the majority implicitly concedes, since history and text, traditional sources of judicial argument, merit only a footnote in the Court’s opinion.No bright line can be drawn between arguments for absolute immunity based on the constitutional principle of separation of powers and arguments based on what the Court refers to as “public policy.” This necessarily follows from the Court’s functional interpretation of the separation of powers doctrine:“[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.” Nixon v. Administrator of General Services,?433 U.S. 425 (1977).Taken at face value, the Court’s position that, as a matter of constitutional law, the President is absolutely immune should mean that he is immune not only from damages actions but also from suits for injunctive relief, criminal prosecutions and, indeed, from any kind of judicial process. But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress, or by the States, for that matter. Nor would such a claim be credible. The Constitution itself provides that impeachment shall not bar “Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, §3, cl. 7. Similarly, our cases indicate that immunity from damages actions carries no protection from criminal prosecution.Neither can there be a serious claim that the separation of powers doctrine insulates Presidential action from judicial review or insulates the President from judicial process. No argument is made here that the President, whatever his liability for money damages, is not subject to the courts’ injunctive powers.?See Youngstown Sheet & Tube Co.;?Korematsu v. United States,?323 U.S. 214?(1944);?Panama Refining Co. v. Ryan,?293 U.S. 388?(1935). Petitioner’s attempt to draw an analogy to the Speech or Debate Clause, one purpose of which is “to prevent...accountability before a possibly hostile Judiciary,”?Gravel v. United States,?408 U.S. at 617, breaks down at just this point. While the Speech or Debate Clause guarantees that, “for any Speech or Debate,” Congressmen “shall not be questioned in any other Place,” and, thus, assures that Congressmen, in their official capacity, shall not be the subject of the courts’ injunctive powers, no such protection is afforded the Executive. Indeed, as the cases cited above indicate, it is the rule, not the exception, that executive actions - including those taken at the immediate direction of the President - are subject to judicial review. Regardless of the possibility of money damages against the President, then, the constitutionality of the President’s actions or their legality under the applicable statutes can and will be subject to review. Indeed, in this very case, respondent Fitzgerald’s dismissal was set aside by the Civil Service Commission as contrary to the applicable regulations issued pursuant to authority granted by Congress.Nor can private damages actions be distinguished on the ground that such claims would involve the President personally in the litigation in a way not necessitated by suits seeking declaratory or injunctive relief against certain Presidential actions. The President has been held to be subject to judicial process at least since 1807.?United States v. Burr,?25 F.Cas. 30 (No. 14,692d) (CC Va. 1807).?Burr?“squarely ruled that a subpoena may be directed to the President.”?Nixon v. Sirica,?159 U.S.App.D.C. 58, 67, 487 F.2d 700, 709 (1973). Chief Justice Marshall flatly rejected any suggestion that all judicial process, in and of itself, constitutes an unwarranted interference in the Presidency:“The guard, furnished to this high officer to protect him from being harassed by vexatious?and?unnecessary?subpoenas, is to be looked for in the conduct of a court after those subpoenas have issued, not in any circumstance which is to precede their being issued.” 25 F.Cas. at 34.This position was recently rearticulated by the Court in?United States v. Nixon,?418 U.S. at?706:“[N]either the doctrine of separation of powers nor the need for confidentiality..., without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”These two lines of cases establish, then, that neither subjecting Presidential actions to a judicial determination of their constitutionality nor subjecting the President to judicial process violates the separation of powers doctrine. Similarly, neither has been held to be sufficiently intrusive to justify a judicially declared rule of immunity. With respect to intrusion by the judicial process itself on executive functions, subjecting the President to private claims for money damages involves no more than this. If there is a separation of powers problem here, it must be found in the nature of the?remedy,?and not in the process?involved.We said in?Butz v. Economou,?438 U.S. 478?(1978), that “it is not unfair to hold liable the official who knows or should know he is acting outside the law, and...insisting on an awareness of clearly established constitutional limits will not unduly interfere with the exercise of official judgment.” Today’s decision in?Harlow v. Fitzgerald,?457 U.S. 800, makes clear that the President, were he subject to civil liability, could be held liable only for an action that he knew, or as an objective matter should have known, was illegal and a clear abuse of his authority and power. In such circumstances, the question that must be answered is who should bear the cost of the resulting injury - the wrongdoer or the victim.The principle that should guide the Court in deciding this question was stated long ago by Chief Justice Marshall: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison,?1 Cranch at?5 U.S. 163. Much more recently, the Court considered the role of a damages remedy in the performance of the courts’ traditional function of enforcing federally guaranteed rights: “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.”?Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. at?395. To the extent that the Court denies an otherwise appropriate remedy, it denies the victim the right to be made whole and, therefore, denies him “the protection of the laws.”That the President should have the same remedial obligations toward those whom he injures as any other federal officer is not a surprising proposition. The fairness of the remedial principle the Court has so far followed - that the wrongdoer, not the victim, should ordinarily bear the costs of the injury - has been found to be outweighed only in instances where potential liability is “thought to injure the governmental decisionmaking process.”?Imbler v. Pachtman,?424 U.S. at?437. The argument for immunity is that the possibility of a damages action will, or at least should, have an effect on the performance of official responsibilities. That effect should be to deter unconstitutional, or otherwise illegal, behavior. This may, however, lead officers to be more careful and “less vigorous” in the performance of their duties. Caution, of course, is not always a virtue, and undue caution is to be avoided.The possibility of liability may, in some circumstances, distract officials from the performance of their duties and influence the performance of those duties in ways adverse to the public interest. But when this “public policy” argument in favor of absolute immunity is cast in these broad terms, it applies to all officers, both state and federal: all officers should perform their responsibilities without regard to those personal interests threatened by the possibility of a lawsuit.?See Imbler?at?424 U.S. 436. Inevitably, this reduces the public policy argument to nothing more than an expression of judicial inclination as to which officers should be encouraged to perform their functions with “vigor,” although with less care.The Court’s response, until today, to this problem has been to apply the argument to individual functions, not offices, and to evaluate the effect of liability on governmental decisionmaking within that function in light of the substantive ends that are to be encouraged or discouraged. In this case, therefore, the Court should examine the functions implicated by the causes of action at issue here and the effect of potential liability on the performance of those functions.The functional approach to the separation of powers doctrine and the Court’s more recent immunity decisions converge on the following principle: the scope of immunity is determined by function, not office. The wholesale claim that the President is entitled to absolute immunity in all of his actions stands on no firmer ground than did the claim that all Presidential communications are entitled to an absolute privilege, which was rejected in favor of a functional analysis, by a unanimous Court in?United States v. Nixon,?418 U.S. 683?(1974). Therefore, whatever may be true of the necessity of such a broad immunity in certain areas of executive responsibility, the only question that must be answered here is whether the dismissal of employees falls within a constitutionally assigned executive function, the performance of which would be substantially impaired by the possibility of a private action for damages. I believe it does not.Respondent has so far proceeded in this action on the basis of three separate causes of action: two federal statutes - 5 U.S.C. §7211 (1976 ed., Supp. IV) and 18 U.S.C. §1505 - and the First Amendment. At this point in the litigation, the availability of these causes of action is not before us. Assuming the correctness of the lower court’s determination that the two federal statutes create a private right of action, I find the suggestion that the President is immune from those causes of action to be unconvincing. The attempt to found such immunity upon a separation of powers argument is particularly unconvincing.The first of these statutes, 5 U.S.C. §7211 (1976 ed., Supp. IV), states that “[t]he right of employees...to...furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.” The second, 18 U.S.C. §1505, makes it a crime to obstruct congressional testimony. It does not take much insight to see that at least one purpose of these statutes is to assure congressional access to information in the possession of the Executive Branch, which Congress believes it requires in order to carry out its responsibilities. Insofar as these statutes implicate a separation of powers argument, I would think it to be just the opposite of that suggested by petitioner and accepted by the majority. In enacting these statutes, Congress sought to preserve its own constitutionally mandated functions in the face of a recalcitrant Executive. Thus, the separation of powers problem addressed by these statutes was first of all Presidential behavior that intruded upon, or burdened, Congress’ performance of its own constitutional responsibilities. It is no response to this to say that such a cause of action would disrupt the President in the furtherance of his responsibilities. That approach ignores the separation of powers problem that lies behind the congressional action; it assumes that Presidential functions are to be valued over congressional functions.If respondent could, in fact, have proceeded on his two statutory claims, the?Bivens action would be superfluous. Respondent may not collect damages twice, and the same injuries are put forward by respondent as the basis for both the statutory and constitutional claims. As we have said before, “were Congress to create equally effective alternative remedies, the need for damages relief [directly under the Constitution] might be obviated.”?Davis v. Passman,?442 U.S. 228 (1979). Nevertheless, because the majority decides that the President is absolutely immune from a?Bivens action as well, I shall express my disagreement with that conclusion.In?Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388?(1971), we held that individuals who have suffered a compensable injury through a violation of the rights guaranteed them by the Fourth Amendment may invoke the general federal question jurisdiction of the federal courts in a suit for damages. That conclusion rested on two principles: first, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,” quoting Marbury v. Madison,?1 Cranch at?5 U.S. 163; second, “[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” 403 U.S. 395. In?Butz v. Economou,?438 U.S. 478?(1978), we rejected the argument of the Federal Government that federal officers, including Cabinet officers, are absolutely immune from civil liability for such constitutional violations - a position that we recognized would substantially undercut our conclusion in?Bivens.?We held there that, although the performance of certain limited functions will be protected by the shield of absolute immunity, the general rule is that federal officers, like state officers, have only a qualified immunity. Finally, in?Davis v. Passman, we held that a Congressman could be held liable for damages in a?Bivens-type suit brought in federal court alleging a violation of individual rights guaranteed the plaintiff by the Due Process Clause. In my view, these cases have largely settled the issues raised by the?Bivens?problem here.These cases established the following principles. First, it is not the exclusive prerogative of the Legislative Branch to create a federal cause of action for a constitutional violation. In the absence of adequate legislatively prescribed remedies, the general federal question jurisdiction of the federal courts permits the courts to create remedies, both legal and equitable, appropriate to the character of the injury. Second, exercise of this “judicial” function does not create a separation of powers problem: we have held both executive and legislative officers subject to this judicially created cause of action, and, in each instance, we have rejected separation of powers arguments. Holding federal officers liable for damages for constitutional injuries no more violates separation of powers principles than does imposing equitable remedies under the traditional function of judicial review. Third, federal officials will generally have a “qualified immunity” from such suits; absolute immunity will be extended to certain functions only on the basis of a showing that exposure to liability is inconsistent with the proper performance of the official’s duties and responsibilities. Finally, Congress retains the power to restrict exposure to liability, and the policy judgments implicit in this decision should properly be made by Congress.The suggestion that enforcement of the rule of law -?i.e.,?subjecting the President to rules of general applicability - does not further the separation of powers, but rather is in derogation of this purpose, is bizarre. At stake in a suit of this sort, to the extent that it is based upon a statutorily created cause of action, is the ability of Congress to assert legal restraints upon the Executive and of the courts to perform their function of providing redress for legal harm. Regardless of what the Court might think of the merits of Mr. Fitzgerald’s claim, the idea that pursuit of legal redress offends the doctrine of separation of powers is a frivolous contention passing as legal argument.First, the majority informs us that the President occupies a “unique position in the constitutional scheme,” including responsibilities for the administration of justice, foreign affairs, and management of the Executive Branch. True as this may be, it says nothing about why a “unique” rule of immunity should apply to the President. The President’s unique role may indeed encompass functions for which he is entitled to a claim of absolute immunity. It does not follow from that, however, that he is entitled to absolute immunity either in general or in this case in particular.Second, the majority contends that, because the President’s “visibility” makes him particularly vulnerable to suits for civil damages, a rule of absolute immunity is required. The force of this argument is surely undercut by the majority’s admission that “there is no historical record of numerous suits against the President.” Even granting that a?Bivens?cause of action did not become available until 1971, in the 11 years since then, there have been only a handful of suits. Many of these are frivolous and dealt with in a routine manner by the courts and the Justice Department. There is no reason to think that, in the future, the protection afforded by summary judgment procedures would not be adequate to protect the President, as they currently protect other executive officers from unfounded litigation. Indeed, given the decision today in?Harlow v. Fitzgerald,?457 U.S. 800, there is even more reason to believe that frivolous claims will not intrude upon the President’s time. Even if judicial procedures were found not to be sufficient, Congress remains free to address this problem if and when it develops.Finally, the Court suggests that potential liability “frequently could distract a President from his public duties.” Unless one assumes that the President himself makes the countless high-level executive decisions required in the administration of government, this rule will not do much to insulate such decisions from the threat of liability. The logic of the proposition cannot be limited to the President; its extension, however, has been uniformly rejected by this Court.?See Butz v. Economou,?438 U.S. 478?(1978);?Harlow v. Fitzgerald,?457 U.S. 800. Furthermore, in no instance have we previously held legal accountability in itself to be an unjustifiable cost. The availability of the courts to vindicate constitutional and statutory wrongs has been perceived and protected as one of the virtues of our system of delegated and limited powers. As I argued in?our concern in fashioning absolute immunity rules has been that liability may pervert the decisionmaking process in a particular function by undercutting the values we expect to guide those decisions. Except for the empty generality that the President should have “the maximum ability to deal fearlessly and impartially with’ the duties of his office,” the majority nowhere suggests a particular, disadvantageous effect on a specific Presidential function. The caution that comes from requiring reasonable choices in areas that may intrude on individuals’ legally protected rights has never before been counted as a cost.The majority may be correct in its conclusion that “[a] rule of absolute immunity...will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive.” Such a rule will, however, leave Mr. Fitzgerald without an adequate remedy for the harms that he may have suffered. More importantly, it will leave future plaintiffs without a remedy, regardless of the substantiality of their claims. The remedies in which the Court finds comfort were never designed to afford relief for individual harms. Rather, they were designed as political safety valves. Politics and history, however, are not the domain of the courts; the courts exist to assure each individual that he, as an individual, has enforceable rights that he may pursue to achieve a peaceful redress of his legitimate grievances.I find it ironic, as well as tragic, that the Court would so casually discard its own role of assuring “the right of every individual to claim the protection of the laws,”?Marbury v. Madison,?1 Cranch at?5 U.S. 163, in the name of protecting the principle of separation of powers. Accordingly, I dissent.JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.I join JUSTICE WHITE’s dissent. For me, the Court leaves unanswered his unanswerable argument that no man, not even the President of the United States, is absolutely and fully above the law.?See United States v. Lee,?106 U.S. 196 (1882), and?Marbury v. Madison,?1 Cranch 137,?5 U.S. 163 (1803). Until today, I had thought this principle was the foundation of our national jurisprudence. It now appears that it is not.Footnotes:24. Respondent filed a copy of this agreement with the Clerk of this Court on August 24, 1981, as an appendix to his brief in opposition to a motion of Morton, Ina, David, Mark, and Gary Halperin to intervene and for other relief. On June 10, 1980, prior to the Court’s action on the petition for certiorari, counsel to the parties had advised the Court that their clients had reached an agreement to liquidate damages, but that there remained a live controversy. Counsel did not include a copy of the agreement in their initial submission.27. In the present case, we therefore are presented only with “implied” causes of action, and we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States. This approach accords with this Court’s settled policy of avoiding unnecessary decision of constitutional issues. Reviewing this case under the “collateral order” doctrine, we assume for purposes of this opinion that private causes of action may be inferred both under the First Amendment and the two statutes on which respondent relies. But it does not follow that we must - in considering a?Bivens (Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388?(1971)) remedy or interpreting a statute?in light of the immunity doctrine?- assume that the cause of action runs against the President of the United States.?Cf. Tenney v. Brandhove,?341 U.S. 367 (1951) (construing §1983 in light of the immunity doctrine, the Court could not accept “that Congress...would impinge on a tradition [of legislative immunity] so well grounded in history and reason by covert inclusion in the general language before us,” and therefore would not address issues that would arise if Congress had undertaken to deprive state legislators of absolute immunity). Consequently, our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress. We decide only this constitutional issue, which is necessary to disposition of the case before us.31. Noting that the Speech and Debate Clause provides a textual basis for congressional immunity, respondent argues that the Framers must be assumed to have rejected any similar grant of executive immunity. This argument is unpersuasive. First, a specific textual basis has not been considered a prerequisite to the recognition of immunity. No provision expressly confers judicial immunity. Yet the immunity of judges is well settled. See?Bradley v.?Fisher80 U.S.?13 Wall. 335 (1872);?Stump v. Sparkman,?435 U.S. 349 (1978). Second, this Court already has established that absolute immunity may be extended to certain officials of the Executive Branch.?Butz v. Economou,?438 U.S. at 511-512;?see Imbler v. Pachtman,?424 U.S. 409?(1976) (extending immunity to prosecutorial officials within the Executive Branch). Third, there is historical evidence from which it may be inferred that the Framers assumed the President’s immunity from damages liability. At the Constitutional Convention several delegates expressed concern that subjecting the President even to impeachment would impair his capacity to perform his duties of office.?See?2 M. Farrand, Records of the Federal Convention of 1787, p. 64 (1911);?id.?at 66 (remarks of Charles Pinckney). The delegates, of course, did agree to an Impeachment Clause. But nothing in their debates suggests an expectation that the President would be subjected to the distraction of suits by disappointed private citizens. And Senator Maclay has recorded the views of Senator Ellsworth and Vice President John Adams - both delegates to the Convention - that “the President, personally, was not the subject to any process whatever.... For [that] would...put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.”Journal of William Maclay 167 (E. Maclay ed. 1890). Justice Story, writing in 1833, held it implicit in the separation of powers that the President must be permitted to discharge his duties undistracted by private lawsuits. 3 J. Story, Commentaries on the Constitution of the United States §1563, pp. 418-419 (1st ed. 1833). Thomas Jefferson also argued that the President was not intended to be subject to judicial process. When Chief Justice Marshall held in?United States v. Burr,25 F.Cas. 30 (No. 14,692d) (CC Va. 1807), that a subpoena?duces tecum?can be issued to a President, Jefferson protested strongly, and stated his broader view of the proper relationship between the Judiciary and the President:“The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other, and none are more jealous of this than the Judiciary. But would the executive be independent of the Judiciary if he were subject to the?commands?of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties? The intention of the Constitution, that each branch should be independent of the others, is further manifested by the means it has furnished to each to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the executive.”10. The Works of Thomas Jefferson 404 n. (P. Ford ed.1905) (quoting a letter from President Jefferson to a prosecutor at the Burr trial).?See also 5 D. Malone, Jefferson and His Time: Jefferson the President 320-325 (1974).In light of the fragmentary character of the most important materials reflecting the Framers’ intent, we do think that the most compelling arguments arise from the Constitution’s separation of powers and the Judiciary’s historic understanding of that doctrine.?But our primary reliance on constitutional structure and judicial precedent should not be misunderstood. The best historical evidence clearly supports the Presidential immunity we have upheld. JUSTICE WHITE’s dissent cites some other materials, including ambiguous comments made at state ratifying conventions and the remarks of a single publicist. But historical evidence must be weighed, as well as cited. When the weight of evidence is considered, we think we must place our reliance on the contemporary understanding of John Adams, Thomas Jefferson, and Oliver Ellsworth. Other powerful support derives from the actual history of private lawsuits against the President. Prior to the litigation explosion commencing with this Court’s 1971?Bivens?decision, fewer than a handful of damages actions ever were filed against the President. None appears to have proceeded to judgment on the merits.37. The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.?See United States v. Gillock,?445 U.S. 360 (1980);?cf. United State v. Nixon,?418 U.S. at?711 (basing holding on special importance of evidence in a criminal trial and distinguishing civil actions as raising different questions not presented for decision). It never has been denied that absolute immunity may impose a regrettable cost on individuals whose rights have been violated. But, contrary to the suggestion of JUSTICE WHITE’s dissent, it is not true that our jurisprudence ordinarily supplies a remedy in civil damages for every legal wrong. The dissent’s objections on this ground would weigh equally against absolute immunity for any official. Yet the dissent makes no attack on the absolute immunity recognized for judges and prosecutors.Our implied rights of action cases identify another area of the law in which there is not a damages remedy for every legal wrong. These cases establish that victims of statutory crimes ordinarily may not sue in federal court in the absence of expressed congressional intent to provide a damages remedy.?See Merrill Lynch, Pierce, Fenner Smith, Inc. v. Curran,?456 U.S. 353?(1982);?Middlesex County Sewerage Auth. v. National Sea Clammers Assn.,?453 U.S. 1?(1981);?California v. Sierra Club,?451 U.S. 287(1981). JUSTICE WHITE does not refer to the jurisprudence of implied rights of action. Moreover, the dissent undertakes no discussion of cases in the?Bivens?line in which this Court has suggested that there would be no damages relief in circumstances “counseling hesitation” by the Judiciary.?See Bivens v. Six Unknown Fed. Narcotics Agents,?at?403 U.S. 396;?Carlson v. Green,?446 U.S. 14 (1980) (in direct constitutional actions against officials with “independent status in our constitutional scheme...judicially created remedies...might be inappropriate”).Even the case on which JUSTICE WHITE places principal reliance,?Marbury v. Madison,?1 Cranch 137 (1803), provides dubious support, at best. The dissent cites?Marbury?for the proposition that“[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”Yet?Marbury?does not establish that the individual’s protection must come in the form of a particular remedy. Marbury, it should be remembered, lost his case in the Supreme Court. The Court turned him away with the suggestion that he should have gone elsewhere with his claim. In this case, it was clear at least that Fitzgerald was entitled to seek a remedy before the Civil Service Commission - a remedy of which he availed himself.39. The same remedy plays a central role with respect to the misconduct of federal judges, who also possess absolute immunity.?See?Kaufman, Chilling Judicial Independence, 88 Yale L.J. 681, 690-706 (1979). Congressmen may be removed from office by a vote of their colleagues. U.S.Const., Art. I, §5, cl. 2.41. The dissenting opinions argue that our decision places the President “above the law.” This contention is rhetorically chilling, but wholly unjustified. The remedy of impeachment demonstrates that the President remains accountable under law for his misdeeds in office. This case involves only a damages remedy. Although the President is not liable in civil damages for official misbehavior, that does not lift him “above” the law. The dissents do not suggest that a judge is “above” the law when he enters a judgment for which he cannot be held answerable in civil damages; or a prosecutor is above the law when he files an indictment; or a Congressman is above the law when he engages in legislative speech or debate. It is simply error to characterize an official as “above the law” because a particular remedy is not available against him.2. In their “parade of horribles” and lamentations, the dissents also wholly fail to acknowledge why the same perils they fear are not present in the absolute immunity the law has long recognized for numerous other officials. At least 76,000 public officers have absolute immunity from civil damages suits for acts within the scope of their official functions. The dissenting opinions manifest an astonishing blind side in pointing to that old reliable that “no man is above the law.” The Court has had no difficulty expanding the absolute immunity of Members of Congress, and in granting derivative absolute immunity to numerous aides of Members.?Gravel v. United States,?408 U.S. 606 (1972).We have since recognized absolute immunity for judges,?Stump v. Sparkman,?435 U.S. 349?(1978), and for prosecutors,?Imbler v. Pachtman,?424 U.S. 409?(1976), yet the Constitution provides no hint that either judges, prosecutors, or congressional aides should be so protected. Absolute immunity for judges and prosecutors is seen to derive from the common law and public policy, which recognize the need to protect judges and prosecutors from harassment. The potential danger to the citizenry from the malice of thousands of prosecutors and judges is at once more pervasive and less open to constant, public scrutiny than the actions of a President.4. JUSTICE WHITE suggests that prior to today, Presidents, prosecutors, judges, congressional aides, and other officials “could have been?held liable?for the kind of claim put forward by Fitzgerald - a personnel decision allegedly made for unlawful reasons.” But the law does not permit a plaintiff to recite “magic” words in pleadings and have the incantation operate to make these immunities vanish. JUSTICE WHITE errs fundamentally in treating all of the above officials as if the scope of their authority were identical. The authority of a President as head of the Executive Branch of our Government - a wholly unique office - is far broader than that of any other official. As the Court notes, a President has authority in the course of personnel changes in an executive department to make personnel decisions. If the decision is wrong, statutory remedies are provided.?This is not to say that, in a given case, it would not be appropriate to raise the question whether an official - even a President - had acted within the scope of the official’s constitutional and statutory duties. The doctrine of absolute immunity does not extend beyond such actions.6. Judge Learned Hand described his feelings:“After now some dozen years of experience, I must say that, as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death.” 3 Lectures on Legal Topics, Association of the Bar of the City of New York 106 (1926).2. It is ironic that this decision should come out at the time of the tenth anniversary of the Watergate affair. Even the popular press has drawn from that affair an insight into the character of the American constitutional system that is bound to be profoundly shaken by today’s decision: “The important lesson that Watergate established is that no President is above the law. It is a banality, a cliche, but it is a point on which many Americans...seem confused.” 119 Time, No. 24, p. 28 (June 14, 1982). A majority of the Court shares this confusion.The majority vigorously protests this characterization of its position, arguing that the President remains subject to law in the form of impeachment proceedings. But the abandonment of the rule of law here is not in the result reached, but in the manner of reaching it. The majority fails to apply to the President those principles which we have consistently used to determine the scope and credibility of an absolute immunity defense. It does this because of some preconceived notion of the inapplicability of general rules of law to the President.Similarly, THE CHIEF JUSTICE, like the majority, misses the point in his wholly unconvincing contentions that the Court today does no more than extend to the President the same sort of immunity that we have recognized with respect to Members of Congress, judges, prosecutors, and legislative aides. In none of our previous cases have we extended absolute immunity to all actions “within the scope of the official’s constitutional and statutory duties.” Concurring opinion of THE CHIEF JUSTICE. Indeed, under the immunity doctrine as it existed prior to today’s decision, each of these officials could have been held liable for the kind of claim put forward by Fitzgerald - a personnel decision allegedly made for unlawful reasons. Although such a decision falls within the scope of an official’s duties, it does not fall within the judicial, legislative, or prosecutorial functions to which absolute immunity attaches. THE CHIEF JUSTICE’s failure to grasp the difference between the functional approach to absolute immunity that we have previously adopted and the nature of today’s decision accounts for his misunderstanding of this dissent.6. In fact, insofar as the Constitution addresses the issue of Presidential liability, its approach is very different from that taken in the Speech or Debate Clause. The possibility of impeachment assures that the President can be held accountable to the other branches of Government for his actions; the Constitution further states that impeachment does not bar criminal prosecution.21. It is not possible to determine whether this is the same Pinckney that Madison recorded as Pinkney, who objected at the Convention to granting a power of impeachment to the Legislature. Two Charles Pinckneys attended the Convention. Both were from South Carolina.?See?3 Farrand 559.22. Senator Pinckney’s comments are recorded at 10 Annals of Cong. 693 (1800). Petitioner contends that these remarks are not relevant, because they concerned only the authority of Congress to inquire into the origin of an allegedly libelous newspaper article. Although this was the occasion for the remarks, Pinckney did discuss the immunity of Members of Congress as a privilege embodied in the Speech or Debate Clause: “[O]ur Constitution supposes no man...to be infallible, but considers them all as mere men, and subject to all the passions, and frailties, and crimes, that men generally are, and accordingly provides for the trial of such as ought to be tried, and leaves the members of the Legislature, for their proceedings, to be amenable to their constituents and to public opinion....” 10 Annals of Cong. 71 (1800). This then, was one of the privileges of Congress that he was contrasting with those extended (or not extended) to the President.28. Surely the fact that officers of the court have been the primary beneficiaries of this Court’s pronouncements of absolute immunity gives support to this appearance of favoritism.32. Indeed, the impetus for passage of what is now 5 U.S.C. §7211 (1976 ed., Supp. IV) was the imposition of “gag rules” upon testimony of civil servants before congressional committees.?See?Exec. Order No. 402 (Jan. 25, 1906); Exec. Order No. 1142 (Nov. 26, 1909).34. The majority also seems to believe that, by “function,” the Court has in the past referred to “subjective purpose.” (“an inquiry into the President’s motives could not be avoided under the...functional’ theory....”) I do not read our cases that way. In?Stump v. Sparkman,?435 U.S. 349 (1978), we held that the factors determining whether a judge’s act was a “judicial action” entitled to absolute immunity “relate to the nature of the act itself,?i.e., whether it is a function normally performed by a judge, and to the expectations of the parties.” Neither of these factors required any analysis of the purpose the judge may have had in carrying out the particular action. Similarly in?Butz v. Economou,?438 U.S. at?512-516, when we determined that certain executive functions were entitled to absolute immunity because they shared “enough of the characteristics of the judicial process,” we looked to objective qualities, and not subjective purpose.38. Contrary to the suggestion of the majority,?Mississippi v. Johnson,?4 Wall. 475 (1866), carefully reserved the question of whether a court may compel the President himself to perform ministerial executive functions:“We shall limit our inquiry to the question presented by the objection, without expressing any opinion on the broader issues...whether, in any case, the President...may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime.”Similarly,?Kendall v. United States,?12 Pet. 524 (1838), also cited by the majority, did not indicate that the President could never be subject to judicial process. In fact, it implied just the contrary in rejecting the argument that the mandamus sought involved an unconstitutional judicial infringement upon the Executive Branch:“The mandamus does not seek to direct or control the postmaster general in the discharge of any official duty, partaking in any respect of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control.”1. “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.”2. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.”UNITED STATES v. ROSS, 456 U.S. 798 (1982)JUSTICE STEVENS delivered the opinion of the Court.“Because the police officers had probable cause to believe that respondent’s green suitcase contained marihuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under?United States v. Chadwick, 433 U.S. 1?(1977)....”“...Here, as in?Chadwick,?it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in?Chadwick.?The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an ‘automobile’ exception case. The Court need say no more.”In?Carroll?itself, the whiskey that the prohibition agents seized was not in plain view. It was discovered only after an officer opened the rumble seat and tore open the upholstery of the lazyback. The Court did not find the scope of the search unreasonable. Having stopped Carroll and Kiro on a public road and subjected them to the indignity of a vehicle search - which the Court found to be a reasonable intrusion on their privacy because it was based on probable cause that their vehicle was transporting contraband - prohibition agents were entitled to tear open a portion of the roadster itself. The scope of the search was no greater than a magistrate could have authorized by issuing a warrant based on the probable cause that justified the search. Since such a warrant could have authorized the agents to open the rear portion of the roadster and to rip the upholstery in their search for concealed whiskey, the search was constitutionally permissible.This rule applies equally to all containers, as indeed we believe it must. One point on which the Court was in virtually unanimous agreement in?Robbins?was that a constitutional distinction between “worthy” and “unworthy” containers would be improper. Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case.The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.We reaffirm the basic rule of Fourth Amendment jurisprudence stated by Justice Stewart for a unanimous Court in?Mincey v. Arizona,?437 U.S. 385: “The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that” “searches conducted outside the judicial process, without prior approval by judge or magistrate, are?per se?unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.” “Katz v. United States,?389 U.S. 347.”Footnotes:9. Subsequent cases make clear that the decision in?Carroll?was not based on the fact that the only course available to the police was an immediate search. As Justice Harlan later recognized, although a failure to seize a moving automobile believed to contain contraband might deprive officers of the illicit goods, once a vehicle itself has been stopped, the exigency does not necessarily justify a warrantless search.?Chambers v. Maroney,?399 U.S. 42. The Court in?Chambers, however-with only Justice Harlan dissenting-refused to adopt a rule that would permit a warrantless seizure but prohibit a warrantless search. The Court held that, if police officers have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct an immediate search of the contents of that vehicle.“For constitutional purposes, we see no difference between, on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate, and, on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”The Court also has held that, if an immediate search on the street is permissible without a warrant, a search soon thereafter at the police station is permissible if the vehicle is impounded.?Chambers; Texas v. White,?423 U.S. 67. These decisions are based on the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests. Given the scope of the initial intrusion caused by a seizure of an automobile-which often could leave the occupants stranded on the highway - the Court rejected an inflexible rule that would force police officers in every case either to post guard at the vehicle while a warrant is obtained or to tow the vehicle itself to the station. Similarly, if an immediate search on the scene could be conducted, but not one at the station if the vehicle is impounded, police often simply would search the vehicle on the street-at no advantage to the occupants, yet possibly at certain cost to the police. The rules as applied in particular cases may appear unsatisfactory. They reflect, however, a reasoned application of the more general rule that, if an individual gives the police probable cause to believe a vehicle is transporting contraband, he loses the right to proceed on his way without official interference.AMERICAN UNIVERSAL INSURANCE CO., et al., v. FALZONE, 644 F.2d 65 (1981)PER CURIAM.The District Court’s refusal to strike Ricker’s testimony was fully justified by Federal Rule of Evidence 703. Even more illuminating, in the light of the facts of this case, are the accompanying advisory notes, which read in part:“Facts or data upon which expert opinions are based may, under the rule, be derived from...presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records and x rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.”BULLINGTON v. MISSOURI, 451 U.S. 430 (1981)BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and WHITE and REHNQUIST, JJ., joined,?post,?p.?451 U.S. 447.Missouri law provides only two possible sentences for a defendant convicted of capital murder: (a) death, or (b) life imprisonment without eligibility for probation or parole for 50 years. Under state statutes, a separate presentence hearing, at which additional evidence in mitigation and aggravation of punishment is heard, must be held before the same jury that found the defendant guilty; the prosecution must prove the existence of aggravating circumstances beyond a reasonable doubt before the death penalty may be imposed; and a jury that imposes the death penalty must designate in writing the aggravating circumstance or circumstances that it finds beyond a reasonable doubt. The guilt or innocence phase of petitioner’s state court trial resulted in a verdict of guilty of capital murder, and his presentence hearing resulted in the jury’s additional verdict fixing petitioner’s punishment at life imprisonment without eligibility for probation or parole for 50 years. After granting petitioner’s post-trial motion for a new trial because of the intervening decision in?Duren v. Missouri,?439 U.S. 357, which held that Missouri’s allowing automatic exemption of women from jury service was unconstitutional, the trial court announced that it would grant petitioner’s motion, based on double jeopardy grounds, to strike the prosecution’s notice that it intended again to seek the death penalty on the basis of the same aggravating circumstances it had sought to prove at the first trial. The Missouri Court of Appeals denied the State’s request for a writ of prohibition or mandamus, but the Missouri Supreme Court ultimately granted a writ of prohibition.Held:?Because, under Missouri law, the sentencing proceeding at petitioner’s first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury is available to him, with respect to the death penalty, at his retrial. The reasoning of?Stroud v. United States,?251 U.S. 15, is not controlling.(a) This Court generally has concluded that, because the imposition of a particular sentence usually is not regarded as an “acquittal” of any more severe sentence that could have been imposed, the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside.?See?North Carolina v. Pearce, 395 U.S. 711;?Chaffin v. Stynchcombe,?412 U.S. 17;?Stroud v. United States; United States v. DiFrancesco,?449 U.S. 117. However, in those cases, unlike the present case, the sentencing procedures did not have the hallmarks of a trial on guilt or innocence. In the first three cases, there was no separate sentencing proceeding at which the prosecution was required to prove additional facts in order to justify the particular sentence, and the sentencer’s discretion in determining punishment was essentially unfettered. Although?United States v. DiFrancesco, involved a separate sentencing procedure, the prosecution was required to prove an additional fact warranting a harsher penalty only by a preponderance of the evidence, and the sentencer’s choice of punishment was far broader than the two choices available to petitioner’s jury under Missouri law.(b) The rationale of?Burks v. United States,?437 U.S. 1, which held that a defendant may not be retried if he obtains a reversal of his conviction on the ground that the evidence was insufficient to convict, is relevant here. In the usual sentencing proceeding, it is impossible, because of the absence of sentencing standards, to conclude that a sentence less than the statutory maximum constitutes a decision to the effect that the prosecution has failed to prove its case. But by enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, Missouri explicitly requires the jury to determine whether the prosecution has “proved its case.” Petitioner’s sentence of life imprisonment at his first trial meant that the jury has already acquitted him of whatever was necessary to impose the death sentence.Petitioner then moved, on various grounds, for judgment of acquittal or in the alternative for a new trial. While that motion was pending, Duren v. Missouri,?439 U.S. 357?(1979), was decided. In that case this Court held that Missouri’s constitutional and statutory provisions allowing women to claim automatic exemption from jury service deprived a defendant of his Sixth and Fourteenth Amendments right to a jury drawn from a fair cross-section of the community. The trial court overruled petitioner’s motion for acquittal but, relying upon Duren, granted his motion for a new trial.These procedural differences become important when the underlying rationale of the cases is considered. The State here relies principally upon North Carolina v. Pearce. The?[451 U.S. 430]Court’s starting point in that case,?395 U.S., at 719, was the established rule that there is no double jeopardy bar to retrying a defendant who has succeeded in overturning his conviction. See United States v. Tateo,?377 U.S. 463?(1964); United States v. Ball,?163 U.S. 662?(1896). The Court stated that this rule rests on the premise that the original conviction has been nullified and “the slate wiped clean.”?395 U.S., at 721. Therefore, if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served.There is an important exception, however, to the rule recognized in Pearce. A defendant may not be retried if he obtains a reversal of his conviction on the ground that the evidence was insufficient to convict. Burks v. United States,?437 U.S. 1?(1978). The reasons for this exception are relevant here:“[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its cases. As such, it implies nothing with respect to the guilt or innocence of the defendant….”“The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it can assemble.... Since we necessarily accord absolute finality to a jury’s verdict of acquittal-no matter how erroneous its decision-it is difficult to conceive how society has any greater interest?[451 U.S. 430]?in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.”The decision in Burks was foreshadowed by Green v. United States,?355 U.S. 184?(1957). In that case, the defendant had been indicted for first-degree murder, and the trial court instructed the jury that it could convict him either of that crime or of the lesser included offense of second-degree murder. The jury convicted him of second-degree murder, but the conviction was reversed on appeal. The Court held that a retrial on the first-degree murder charge was barred by the Double Jeopardy Clause, because the defendant “was forced to run the gauntlet once on that charge and the jury refused to convict him.” See also Price v. Georgia,?398 U.S. 323?(1970).Thus, the “clean slate” rationale recognized in Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case.A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final. The values that underlie this principle, stated for the Court by Justice Black, are equally applicable when a jury has rejected the State’s claim that the defendant deserves to die:“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S., at 187.JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE REHNQUIST join, dissenting.Underlying the question of guilt or innocence is an objective truth: the defendant, in fact, did or did not commit the acts constituting the crime charged. From the time an accused is first suspected to the time the decision on guilt or innocence is made, our criminal justice system is designed to enable the trier of fact to discover that truth according to law. But triers of fact can err, and an innocent person can be pronounced guilty. In contrast, the law provides only limited standards for assessing the validity of a sentencing decision. The sentencer’s function is not to discover a fact, but to mete out just deserts as he sees them. Absent a mandatory sentence, there is no objective measure by which the sentencer’s decision can be deemed correct or erroneous if it is duly made within the authority conferred by the Legislature.?Footnotes:3. Of course, a sentence imposed upon one who did not commit the crime is “erroneous,” but the error inheres in the decision on guilt or innocence, not in the sentencing decision. Also, a sentence may be called “erroneous” if it is grossly disproportionate to the severity of the crime committed. But in that event, the sentence is “cruel and unusual” in violation of the Eighth Amendment. Weems v. United States,?217 U.S. 349?(1910).MAINE, et al. v. THIBOUTOT, et vir., etc. 448 U.S. 1, 100 S.Ct. 2502 (1980)Mr. Justice BRENNAN delivered the opinion of the Court.Right of action created by statute relating to deprivation, under color of state law, of a right secured by the Constitution and laws of the United States encompasses claims which are based solely on statutory violations of federal law and apply to claim that claimants had been deprived of welfare benefits to which they were entitled. Social Security Act, §402(a)(7), 42 U.S.C.A. §602(a)(7); 42 U.S.C.A. §1983.Where plain language of statute, supported by consistent judicial interpretation, is strong, it is not necessary to look beyond words of statute.Civil Rights Attorney’s Fees Award Act of 1976 allowing award of attorney fees in actions to enforce provision of statute creating a cause of action on behalf of a person who is deprived, under color of state law, of a right secured by the Constitution and laws of the United States applies to suit in state court by parties who claimed they were wrongfully deprived of welfare benefits. Social Security Act, §402(a)(7), 42 U.S.C.A. §602(a)(7); 42 U.S.C.A. §§1983, 1988.Respondents, Lionel and Joline Thiboutot, are married and have eight children, three of whom are Lionel’s by a previous marriage. The Maine Department of Human Services notified Lionel that, in computing the Aid to Families with Dependent Children (AFDC) benefits to which he was entitled for the three children exclusively his, it would no longer make allowance for the money spent to support the other five children, even though Lionel is legally obligated to support them. Respondents, challenging the State’s interpretation of?42 U.S.C. §602(a)(7), exhausted their state administrative remedies and then sought judicial review of the administrative action in the State Superior Court. By amended complaint, respondents also claimed relief under §1983 for themselves and others similarly situated. The Superior Court’s judgment enjoined petitioners from enforcing the challenged rule and ordered them to adopt new regulations, to notify class members of the new regulations, and to pay the correct amounts retroactively to respondents and prospectively to eligible class members. The court, however, denied respondents’ motion for attorney’s fees. The Supreme Judicial Court of Maine, 405 A.2d 230 (1979), concluded that respondents had no entitlement to attorney’s fees under state law, but were eligible for attorney’s fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641,?42 U.S.C. §1988. We granted certiorari.?444 U.S. 1042 (1980). We affirm.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 that petitioners violated the Social Security Act.In the face of the plain language of §1983 and our consistent treatment of that provision, petitioners nevertheless persist in suggesting that the phrase “and laws” should be read as limited to civil rights or equal protection laws. Petitioners suggest that when §1 of the Civil Rights Act of 1871, 17 Stat. 13, which accorded jurisdiction and a remedy for deprivations of rights secured by “the Constitution of the United States,” was divided by the 1874 statutory revision into a remedial section, Rev.Stat. §1979, and jurisdictional sections, Rev.Stat. §§563(12) and 629(16), Congress intended that the same change made in §629(16) be made as to each of the new sections as well. Section 629(16), the jurisdictional provision for the circuit courts and the model for the current jurisdictional provision,?28 U.S.C. §1343(3), applied to deprivations of rights secured by “the Constitution of the United States or of any right secured by any law providing for equal rights.” On the other hand, the remedial provision, the predecessor of §1983, was expanded to apply to deprivations of rights secured by “the Constitution and laws,” and §563(12), the provision granting jurisdiction to the District Courts, to deprivations of rights secured by “the Constitution of the United States, or of any right secured by any law of the United States.”Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.If we were forbidden to look behind the language in legislative enactments, there might be some force to the suggestion that “and laws” must be read to include all federal statutes. But the “plain meaning” rule is not as inflexible as the Court imagines. Although plain meaning is always the starting point, Blue Chip Stamps v. Manor Drug Stores,?421 U.S. 723 (1975), this Court rarely ignores available aids to statutory construction. See Cass v. United States,?417 U.S. 72 (1974); Harrison v. Northern Trust Co.,?317 U.S. 476 (1943), quoting United States v. American Trucking Ass’ns, Inc.,?310 U.S. 534 (1940). We have recognized consistently that statutes are to be interpreted “‘not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed.’” District of Columbia v. Carter,?409 U.S. 418 (1973), quoting Puerto Rico v. Shell Co.,?302 U.S. 253 (1937); see generally TVA v. Hill,?437 U.S. 153 (1978).The rule is no different when the statute in question is derived from the civil rights legislation of the Reconstruction Era. Those statutes “must be given the meaning and sweep” dictated by “their origins and their language” - not their language alone. Lynch v. Household Finance Corp.,?405 U.S. 538 (1972). When the language does not reflect what history reveals to have been the true legislative intent, we have readily construed the Civil Rights Acts to include words that Congress inadvertently omitted. See Examining Board v. Flores de Otero,?426 U.S. 572 (1976)?(interpreting?28 U.S.C. §1343(3)?to confer jurisdiction upon territorial courts). Thus, “plain meaning” is too simplistic a guide to the construction of §1983.Section 1983 derives from §1 of the Civil Rights Act of 1871, which provided a cause of action for deprivations of constitutional rights only. “Laws” were not mentioned. Act of Apr. 20, 1871, 17 Stat. 13. The phrase “and laws” was added in 1874, when Congress consolidated the laws of the United States into a single volume under a new subject-matter arrangement. See 2 Cong. Rec. 827 (Jan. 21, 1874) (remarks of Rep. Lawrence). Consequently, the intent of Congress in 1874 is central to this case.In addition to creating a cause of action, §1 of the 1871 Act conferred concurrent jurisdiction upon “the district or circuit courts of the United States....” 17 Stat. 13. In the 1874 revision, the remedial portion of §1 was codified as §1979 of the Revised Statutes, which provided for a cause of action in terms identical to the present §1983. The jurisdictional portion of §1 was divided into §563(12), conferring District Court jurisdiction, and §629(16), conferring circuit court jurisdiction. Although §§1979, 563(12), and 629(16) came from the same source, each was worded differently. Section 1979 referred to deprivations of rights “secured by the Constitution and laws”; §563(12) described rights secured “by the Constitution of the United States, or...by any law of the United States”; and §629(16) encompassed rights secured “by the Constitution of the United States, or...by any law providing for equal rights of citizens of the United States.” When Congress merged the jurisdiction of circuit and District Courts in 1911, the narrower language of §629(16) was adopted and ultimately became the present?28 U.S.C. §1343(3). Act of Mar. 3, 1911, §24(14), 36 Stat. 1092.We have stated, for example, that a major purpose of the Civil Rights Acts was to “involve the Federal Judiciary” in the effort to exert federal control over state officials who refused to enforce the law. District of Columbia v. Carter,?409 U.S., at 427. Congress did so in part because it thought the state courts at the time would not provide an impartial forum. See generally Monroe v. Pape,?365 U.S. 167 (1961); Developments in the Law-Section 1983, and Federalism, 90 Harv.L.Rev. 1133, 1150-1153 (1977). Thus, Congress elected to afford a “uniquely federal remedy,” Mitchum v. Foster,?407 U.S. 225 (1972), that is, a “‘federal right in federal courts,’” District of Columbia v. Carter,?409 U.S., at 428, quoting Monroe v. Pape,?365 U.S., at 180. Four Terms ago, we considered the origins of §1343(3) and §1983 and concluded that “the two provisions were meant to be, and are, complementary.” Examining Board v. Flores de Otero,?426 U.S., at 583; see Lynch v. Household Finance Corp.,?405 U.S., at 543.Moreover, state and local governments will bear the entire burden of liability for violations of statutory “civil rights” even when federal officials are involved equally in the administration of the affected program. Section 1983 grants no right of action against the United States, and few of the foregoing cooperative programs provide expressly for private actions to enforce their terms. Thus, private litigants may sue responsible federal officials only in the relatively rare case in which a cause of action may be implied from the governing substantive statute. Cf. Transamerica Mortgage Advisors, Inc. v. Lewis,?444 U.S. 11 (1979); Touche Ross & Co. v. Redington,?442 U.S. 560 (1979). It defines reason to believe that Congress intended - without discussion - to impose such a burden only upon state defendants.This is a tempting way to avoid confronting the serious issues presented by this case. But the attempt does not withstand analysis. Far from being a long-accepted fact, purely statutory §1983 actions are an invention of the last 20 years. And the Court’s seesaw approach to §1983 over the last century leaves little room for certainty on any question that has not been discussed fully and resolved explicitly by this Court. Compare Monell v. New York City Dept. of Social Services,?436 U.S. 658 (1978), with Monroe v. Pape,?365 U.S. 167 (1961). Yet, until last Term, neither this Court nor any Justice ever had undertaken directly and thoroughly - a consideration of the question presented in this mentators have chronicled the tortuous path of judicial interpretation of the Civil Rights Acts enacted after the Civil War. See Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323 (1952); Note, Developments in the Law - Section 1983 and Federalism, 90 Harv.L.Rev. 1133 (1977); Note, The Proper Scope of the Civil Rights Acts, 66 Harv.L.Rev. 1285 (1953). One writer found only 21 cases decided under §1983 in the first 50 years of its history. Comment, The Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?, 26 Ind.L.J. 361, 363 (1951). Another lamented, as late as 1952, that the statute could not be given its intended broad effect without a “judicial and constitutional upheaval of the first magnitude.” Gressman, at 1357. That upheaval ultimately did take place, and §1983 actions now constitute a substantial share of the federal caseload. Nevertheless, cases dealing with purely statutory civil rights claims remain nearly as rare as in the early years.Holt v. Indiana Manufacturing Co.,?176 U.S. 68 (1900), appears to be the first reported decision to deal with a statutory claim under §1983. In that case, the Court dismissed for want of jurisdiction a claim based upon the Constitution and the federal patent laws. The Court stated that §§1979, 563(12), and 629(16) of the Revised Statutes “refer to civil rights only and are inapplicable here.” Since Holt involved both constitutional and statutory claims, its “civil rights” limitation later was viewed as a general restriction on the application of §1983.Rosado is not the only case to have assumed sub silentio that welfare claimants have a cause of action to challenge the adequacy of state programs under the Social Security Act. As the Court observes, many of our recent decisions construing the Act made the same unspoken assumption. It does not necessarily follow that the Court in those cases assumed that the cause of action was provided by §1983 rather than the Social Security Act itself. But even if it did, these cases provide no support for the Court’s ruling today. “When questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.” Hagans v. Lavine, 415 U.S. 528 (1974); see Monell v. New York City Dept. of Social Services, 436 U.S.; United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397 (1805). This rule applies with even greater force to questions involving the availability of a cause of action, because the question whether a cause of action exists - unlike the existence of federal jurisdiction - may be assumed without being decided. Burks v. Lasker, 441 U.S. 471 (1979). Thus, the Court’s ruling finds no support in past cases in which the issue was not squarely raised. Here, as in Hagans v. Lavine,?415 U.S., at 535, we must approach the question “as an open one calling for a canvass of the relevant...considerations.”In my view, the Court’s decision today significantly expands the concept of “civil rights” and creates a major new intrusion into state sovereignty under our federal system. There is no probative evidence that Congress intended to authorize the pervasive judicial oversight of state officials that will flow from the Court’s construction of §1983. Although today’s decision makes new law with far-reaching consequences, the Court brushes aside the critical issues of congressional intent, national policy, and the force of past decisions as precedent. I would reverse the judgment of the Supreme Judicial Court of Maine.Footnotes:4. Where the plain language, supported by consistent judicial interpretation, is as strong as it is here, ordinarily “it is not necessary to look beyond the words of the statute.” TVA v. Hill, 437 U.S. 153 (1978).6. There is no inherent illogic in construing §1983 more broadly than §1343(3) was construed in Chapman v. Houston Welfare Rights Organization. It would only mean that there are statutory rights which Congress has decided cannot be enforced in the federal courts unless?28 U.S.C. §1331(a)’s $10,000 jurisdictional amount is satisfied.12. If fees were not available in state courts, federalism concerns would be raised because most plaintiffs would have no choice but to bring their complaints concerning state actions to federal courts. Moreover, given that there is a class of cases stating causes of action under §1983 but not cognizable in federal court absent the $10,000 jurisdictional amount of §1331(a), some plaintiffs would be forced to go to state courts, but contrary to congressional intent, would still face financial disincentives to asserting their claimed deprivations of federal rights.5. These assurances were repeated again and again. Representative Butler told his colleagues that the Committee had “not attempted to change the law [in force on December 1, 1873], in a single word or letter, so as to make a different reading or different sense.” 2 Cong. Rec. 129 (Dec. 10, 1873). A month later, Representative Poland stated that the bill was meant to be “an exact transcript, an exact reflex, of the existing statute law of the United States - that there shall be nothing omitted and nothing changed.” Id., at 646 (Jan. 14, 1874). Senator Conkling said that “the aim throughout has been to preserve absolute identity of meaning....” Id., at 4220 (May 25, 1874). See Chapman v. Houston Welfare Rights Org.,?441 U.S. 600 (1979).7. Section 1343(3) supplies jurisdiction for claims involving rights secured by the Constitution “or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” Neither §1983 itself nor the Social Security Act provides for equal rights within the meaning of this section. Chapman v. Houston Welfare Rights Org.10. Section 1983 actions may be brought against States, municipalities and other subdivisions, officers, and employees. Although I will refer to all such potential defendants as “state defendants” for purposes of this opinion, there may be a notable difference among them. States are protected against retroactive damages awards by the Eleventh Amendment, and individual defendants generally can claim immunity when they act in good faith. Municipalities, however, will be strictly liable for errors in the administration of complex federal statutes. See Owen v. City of Independence,?445 U.S. 622 (1980).15. Section 1983 was passed for the express purpose of “enforc[ing] the Provisions of the Fourteenth Amendment.” Act of Apr. 20, 1871, 17 Stat. 13; see Lynch v. Household Finance Corp., 405 U.S., 538 (1972); Monroe v. Pape,?365 U.S. 167 (1961). The Civil Rights Attorney’s Fees Awards Act of 1976 also was passed under the Enforcement Clauses of the Thirteenth and Fourteenth Amendments. 122 Cong. Rec. 33315 (1976) (remarks of Sen. Abourezk); id., at 35123 (remarks of Rep. Drinan). I do not imply that either statute must be limited strictly to claims arising under the post-Civil War Amendments. That Congress elected to proceed under the enforcement powers suggests, however, an intention to protect enduring civil rights rather than the virtually limitless entitlements created by federal statutes.CHURCH OF SCIENTOLOGY OF CALIFORNIA v. UNITED STATES DEPARTMENT OF JUSTICE, 612 F.2d 417 (1980)BARNES, Senior Circuit Judge.There may be instances where language of statute is so lucid on particular issue that resorting to legislative history would be inappropriate, but such rule is normally not applicable where court must construe meaning of undefined term which is used in the statute and which does not consist of words of art; even in latter situation, however, rule that Congress ordinarily means what it says and that statutory language is normally best evidence of congressional intent cannot be ignored. 5 U.S.C.A. §552(b)(7)(D).There is no more persuasive evidence of the purpose of a statute than the words used by the Legislature, and plain meaning of such words may be followed when they are sufficient in and of themselves to determine the purpose, but court may look beyond such words to the purpose when the plain meaning leads to absurd or futile results, or an unreasonable result plainly at variance with policy of the Legislature as a whole. 5 U.S.C.A. §552(b)(7)(D).The plainer the language of statute, the more convincing contrary legislative history must be to warrant interpretation not controlled by language of the statute. 5 U.S.C.A. §552(b)(7)(D).Word “person” in legal terminology, such as statutes, is perceived as general word which normally includes in its scope variety of entities other than human beings. 1 U.S.C.A. §1.In enactment of Freedom of Information Act exemption, Congress intended term “confidential source” to be given its plain meaning, and paramount concern was loss of sources of confidential information rather than possibility of physical harm to individuals, and thus foreign, state and local law enforcement agencies are included within quoted phrase. 5 U.S.C.A. §552(b)(7)(D).Statute should not be so interpreted as to produce absurd results. 5 U.S.C.A. §552(b)(7)(D).Church of Scientology of California (“CSC”) appeals the District Court’s upholding of the Drug Enforcement Administration’s (“DEA”) decision not to disclose certain documents sought by CSC under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552. The main issue on appeal is the scope of the term “confidential source” as used in the 7(D) exemption of the FOIA, 5 U.S.C. §552(b)(7)(D).After exhausting its administrative remedies, CSC brought this FOIA suit in the Federal District Court on December 4, 1974. In the meantime, the DEA had canvassed all of its 161 field offices, both foreign and domestic, and had located 126 other documents which were subject to CSC’s requests. The majority of those materials were released to CSC. However, the DEA refused to produce fifteen documents in their entirety invoking the 7(C) and 7(D) exemptions as to each of the documents plus other FOIA exemptions with respect to particular items. In addition, portions of nine other documents were not released on the grounds of the 7(C) and 7(D) exemptions. Of these twenty-four documents, eleven contained information from non-federal domestic law enforcement authorities, seven had data from foreign law enforcement sources, and the other six contained information supplied by individuals cooperating with the DEA.However, the sufficiency of a court’s reliance solely upon the “plain meaning” of the language of a statute in interpreting its terms has come into question. See generally Murphy, Old Maxims Never Die: The “Plain Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Col.L.Rev. 1299 (1975) (“Murphy”). Recent pronouncements by the Supreme Court and this court have been somewhat inconsistent on this point. On the one hand, the Court in Train v. Colorado Pub. Interest Research Group,?426 U.S. 1 (1976), held that it was error for the Court of Appeals to exclude reference to the legislative history of the statute in question when the appellate court’s reliance on the plain meaning of the words in the statute produced a result which “would have marked a significant alteration of the pervasive regulatory scheme embodied in...(another statute)” and when that reliance contributed little to resolving the issue before the Court of Appeals. In so deciding the Court held that there was no “rule of law” which forbids the use of extrinsic aids in construing the meaning of statutory language however clear the words may appear on “superficial examination.” (Quoting from United States v. American Trucking Assns.,?310 U.S. 534 (1940).) Following the holding of the Train case, this circuit has permitted, on occasion, an expansive approach to the utilization of extrinsic aids such as legislative history in statutory interpretation. As stated in Pettis ex rel. United States v. Morrison-Knudsen Co.,?577 F.2d 668 (9th Cir. 1978):We begin by noting that the language of 31 U.S.C. §232(C) affords no crevice of ambiguity within which to nestle the exception Pettis seeks. It presents a face, smooth, sharp, and unyielding. Nonetheless, we must heed the Supreme Court’s recent admonition in Train v. Colorado Public Interest Research Group, 426 U.S. 1 (1976), to examine relevant legislative history in the search for the intent of Congress even when the statute is clear and unambiguous on its face. It is always possible that Congress did not quite mean what it said and did not quite say what it meant.On the other hand, the Supreme Court recently articulated the opposite position and seemingly reaffirmed the former “plain meaning rule.” In Tennessee Valley Authority v. Hill,?437 U.S. 153 (1978), it was stated that: “When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning.” Likewise, this circuit has also recently breathed new life into the rule. See United States v. Rone,?598 F.2d 564 (1979) (“When no ambiguity is apparent on the face of a statute, an examination of legislative history is inappropriate.”); Cf., Adams v. Morton,?581 F.2d 1314 (9th Cir. 1978), Cert. denied, Gros Ventre Tribes of Fort Belknap Indian Reservation, Montana v. United States,?440 U.S. 958 (1979).The plain meaning rule can be viewed as consisting of two propositions. Initially, the rule stands for the notion that if the language of a statute is clear and there is no ambiguity, then there is no need to “interpret” the language by resorting to the legislative history or other extrinsic aids. See Packard Motor Car Co. v. NLRB,?330 U.S. 485 (1947); Caminetti v. United States,?242 U.S. 470 (1917). Secondly, and more importantly, the rule stands for the proposition that in the vast majority of its legislation Congress does mean what it says and thus the statutory language is normally the best evidence of congressional intent. As observed by the Court in United States v. Missouri Pac. R.R.,?278 U.S. 269 (1929): “...where the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” It is the former component of the plain meaning rule which has been called into question by cases such as Train and Pettis, not the latter proposition.While there may be instances where the language of a statute is so lucid on a particular issue that resorting to legislative history would be inappropriate (the first component of the plain meaning rule), such a rule is normally not applicable where, as here, the court must construe the meaning of an undefined term in a statute when the term used does not consist of words of art. However, even in the latter situation, the second component of the plain meaning rule cannot be ignored. We agree with the Court’s language in American Trucking Assns.,?310 U.S. at 543-44:There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the Legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.”Prior to the 1974 amendments to the FOIA, 5 U.S.C. §552(b)(7) exempted from disclosure “investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency....” The initial versions of the 1974 House of Representatives and Senate bills to amend the FOIA did not contain any language altering the 7th exemption. Freedom of Information Act and Amendments of 1974 (P.L. 93-502), Source Book: Legislative History, Texts and Other Documents at 133-34 and 192 (Joint Comm. Print 1975) (hereinafter referred to as “Source Book”). On May 30, 1974, Senator Phillip Hart offered Amendment No. 1361 which proposed to change the 7th exemption to read as follows:Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication or constitute a clearly unwarranted invasion of personal privacy, (C) disclose the identity of an informer, or (D) disclose investigative techniques and procedures.WALLACE, Circuit Judge, dissenting.My brethren disregard the clear language of this explanatory report by contending that the Conference Committee used “person” as a collective noun and that the expansive nature of their message precludes any restrictive reading of “confidential source.” Not only is it unlikely that the Committee was using the law dictionary definition of person, as my brethren contend, but even if they were, that definition of the term would not include foreign, state, and local law enforcement agencies. See 1 U.S.C. §1. The Committee’s use of “person” in explaining the change from “informer” plainly reveals that their intent to protect only human sources had not changed. Moreover, the majority’s reliance on the expansive intent of the Committee report is misplaced. General intent should not be used to controvert specific language; indeed, the Committee itself chose to express its intent by the term “person.”While floor debates are accorded less weight than committee reports, United States v. International Union UAW,?352 U.S. 567 (1957); Accord, International Tel. & Tel. Corp. v. General Tel. & Elec. Corp.,?518 F.2d 913 (9th Cir. 1975), the floor discussion in the Senate with respect to this passage supports this view of “source.” Statements made both before passage of the amendment in the Senate and following the Conference Committee Report and Presidential veto indicate that Senators Hart and Kennedy, both members of the Conference Committee, and Senator Byrd assumed the exemption referred to persons or individuals. The government argues and the majority agrees that Congress intended to protect law enforcement efforts. I do find throughout the legislative debates broad statements by Senators Hart and Kennedy to the effect that law enforcement would in no way be hampered by the amendment of subsection (b)(7). We should not, however, allow broad statements of assurance made in floor debate to control the clear language of the Committee report, language supported by statements of both Senators indicating that they understood that “source” referred to persons or individuals. I think it is clear that “source” was not meant to include foreign, state, and local law enforcement agencies. Although there was considerable testimony pertaining to law enforcement difficulties that could result from this interpretation, this does not allow us to ignore congressional intent. We are not judging what should have been done but what was done. The law enforcement problem resulting from interpreting “source” as individuals, which undoubtedly is real, should be addressed to the Congress rather than to the courts.Footnotes:2. The 7(D) exemption of the FOIA, 5 U.S.C. §552(b)(7)(D), exempts from disclosure:(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would...(D) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source....OWEN v. CITY OF INDEPENDENCE, MISSOURI, et al., 445 U.S. 622, 100 S.Ct. 1398 (1980)MR. JUSTICE BRENNAN delivered the opinion of the Court.Civil Rights Act, by its terms, creates a species of tort liability that on its face admits of no immunities; its language is absolute and unqualified, and no mention is made of any privileges, immunities, or defenses that may be asserted; rather, it imposes liability upon “every person,” including municipal corporations, who, under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” U.S.C.A. Const. Amend. 14.Principle of sovereign immunity from which a municipality’s immunity for “governmental” functions derives cannot serve as the basis for the qualified privilege respondent city claimed under the Civil Rights Act, since sovereign immunity insulates a municipality from unconsented suits altogether, the presence or absence of good faith being irrelevant, and since the municipality’s “governmental” immunity is abrogated by the sovereign’s enactment of a statute such as the Civil Rights Act making it amenable to suit. 42 U.S.C.A. §1983.A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed.In view of qualified immunity enjoyed by most government officials, many victims of municipal malfeasance would be left remediless if a city were allowed to assert a good-faith defense to an action brought under the Civil Rights Act. 42 U.S.C.A. §1983.The Civil Rights Act was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations as well. 42 U.S.C.A. §1983.Knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights. 42 U.S.C.A. §1983.It hardly seems unjust to require a municipal defendant which has violated a citizen’s constitutional rights to compensate him for the injuries suffered thereby; indeed, Congress enacted the Civil Rights Act precisely to provide a remedy for such abuses of official power. 42 U.S.C.A. §1983.When it is the local government itself that is responsible for a constitutional deprivation, it is perfectly reasonable to distribute the loss to the public as a cost of the administration of government, rather than to let the entire burden fall on the injured individual. 42 U.S.C.A. §1983.After the City Council of respondent city moved that reports of an investigation of the city police department be released to the news media and turned over to the prosecutor for presentation to the grand jury and that the City Manager take appropriate action against the persons involved in the wrongful activities brought out in the investigative reports, the City Manager discharged petitioner from his position as Chief of Police. No reason was given for the dismissal, and petitioner received only a written notice stating that the dismissal was made pursuant to a specified provision of the city charter. Subsequently, petitioner brought suit in Federal District Court under 42 U.S.C. §1983 against the city, the respondent City Manager, and the respondent members of the City Council in their official capacities, alleging that he was discharged without notice of reasons and without a hearing in violation of his constitutional rights to procedural and substantive due process, and seeking declaratory and injunctive relief. The District Court, after a bench trial, entered judgment for respondents. The Court of Appeals ultimately affirmed, holding that, although the city had violated petitioner’s rights under the Fourteenth Amendment, nevertheless all the respondents, including the city, were entitled to qualified immunity from liability based on the good faith of the city officials involved.Held:?A municipality has no immunity from liability under §1983 flowing from its constitutional violations, and may not assert the good faith of its officers as a defense to such liability.(a) By its terms, §1983 “creates a species of tort liability that, on its face, admits of no immunities.”?Imbler v. Pachtman,?424 U.S. 409. Its language is absolute and unqualified, and no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the statute imposes liability upon “every person” (held in?Monell v. New York City Dept. of Social Services,?436 U.S. 658, to encompass municipal corporations) who, under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” And this expansive sweep of §1983’s language is confirmed by its legislative history.(b) Where an immunity was well established at common law and where its rationale was compatible with the purposes of §1983, the statute has been construed to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of §1983 that would justify the qualified immunity accorded respondent city by the Court of Appeals.(c) The application and rationale underlying both the doctrine whereby a municipality was held immune from tort liability with respect to its “governmental” functions but not for its “proprietary” functions, and the doctrine whereby a municipality was immunized for its “discretionary” or “legislative” activities but not for those which were “ministerial” in nature, demonstrate that neither of these common law doctrines could have been intended to limit a municipality’s liability under §1983. The principle of sovereign immunity from which a municipality’s immunity for “governmental” functions derives cannot serve as the basis for the qualified privilege respondent city claims under §1983, since sovereign immunity insulates a municipality from unconsented suits altogether, the presence or absence of good faith being irrelevant, and since the municipality’s “governmental” immunity is abrogated by the sovereign’s enactment of a statute such as §1983 making it amenable to suit. And the doctrine granting a municipality immunity for “discretionary” functions, which doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality, cannot serve as the foundation for a good faith immunity under §1983, since a municipality has no “discretion” to violate the Federal Constitution.(d) Rejection of a construction of §1983 that would accord municipalities a qualified immunity for their good faith constitutional violations is compelled both by the purpose of §1983 to provide protection to those persons wronged by the abuse of governmental authority and to deter future constitutional violations, and by considerations of public policy. In view of the qualified immunity enjoyed by most government officials, many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good faith defense. The concerns that justified decisions conferring qualified immunities on various government officials-the injustice, particularly in the absence of bad faith, of subjecting the official to liability, and the danger that the threat of such liability would deter the official’s willingness to execute his office effectively-are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.Monell v. New York City Dept. of Social Services,?436 U.S. 658?(1978), overruled Monroe v. Pape,?365 U.S. 167?(1961), insofar as?Monroe?held that local governments were not among the “persons” to whom 42 U.S.C. §1983 applies, and were therefore wholly immune from suit under the statute. Monell?reserved decision, however, on the question whether local governments, although not entitled to an absolute immunity, should be afforded some form of official immunity in §1983 suits. In this action brought by petitioner in the District Court for the Western District of Missouri, the Court of Appeals for the Eighth Circuit held that respondent city of Independence, Mo., “is entitled to qualified immunity from liability” based on the good faith of its officials:“We extend the limited immunity the District Court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice.” 589 F.2d 335 (1978). We granted certiorari. We reverse.Monell?held that “a local government may not be sued under §1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under §1983.” 436 U.S. at?694. The Court of Appeals held in the instant case that the municipality’s official policy was responsible for the deprivation of petitioner’s constitutional rights:“[T]he stigma attached to [petitioner] in connection with his discharge was caused by the official conduct of the City’s lawmakers, or by those whose acts may fairly be said to represent official policy. Such conduct amounted to official policy causing the infringement of [petitioner’s] constitutional rights, in violation of §1983.” 589 F.2d at 337.Because the question of the scope of a municipality’s immunity from liability under §1983 is essentially one of statutory construction,?see Wood v. Strickland,?420 U.S. 308 (1975);?Tenney v. Brandhove,?341 U.S. 367 (1951), the starting point in our analysis must be the language of the statute itself. Andrus v. Allard,?444 U.S. 51?(1979);?Blue Chip Stamps v. Manor Drug Stores,?421 U.S. 723?(1975). By its terms, §1983 “creates a species of tort liability that, on its face, admits of no immunities.” Imbler v. Pachtman,?424 U.S. 409?(1976). Its language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the Act imposes liability upon “every person” who, under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” And?Monell?held that these words were intended to encompass municipal corporations as well as natural “persons.”However, notwithstanding §1983’s expansive language and the absence of any express incorporation of common law immunities, we have, on several occasions, found that a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that “Congress would have specifically so provided had it wished to abolish the doctrine.”?Pierson v. Ray,?386 U.S. 547?(1967). Thus in?Tenney v. Brandhove,?after tracing the development of an absolute legislative privilege from its source in 16th-century England to its inclusion in the Federal and State Constitutions, we concluded that Congress “would [not] impinge on a tradition so well grounded in history and reason by covert inclusion in the general language” of §1983. 341 U.S. at?376.Subsequent cases have required that we consider the personal liability of various other types of government officials. Noting that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction,” Pierson v. Ray, at?386 U.S. 553-554, held that the absolute immunity traditionally accorded judges was preserved under §1983. In that same case, local police officers were held to enjoy a “good faith and probable cause” defense to §1983 suits similar to that which existed in false arrest actions at common law. Several more recent decisions have found immunities of varying scope appropriate for different state and local officials sued under §1983.?See Procunier v. Navarette,?434 U.S. 555?(1978) (qualified immunity for prison officials and officers);?Imbler v. Pachtman,?424 U.S. 409?(1976) (absolute immunity for prosecutors in initiating and presenting the State’s case);?O’Connor v. Donaldson,?422 U.S. 563?(1975) (qualified immunity for superintendent of state hospital);?Wood v. Strickland,?420 U.S. 308?(1975) (qualified immunity for local school board members);?Scheuer v. Rhodes,?416 U.S. 232?(1974) (qualified “good faith” immunity for state Governor and other executive officers for discretionary acts performed in the course of official conduct). In each of these cases, our finding of §1983 immunity “was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.”?Imbler v. Pachtman,?at 424 U.S. 421. Where the immunity claimed by the defendant was well established at common law at the time §1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of §1983 that would justify the qualified immunity accorded the city of Independence by the Court of Appeals. We hold, therefore, that the municipality may not assert the good faith of its officers or agents as a defense to liability under §1983.Since colonial times, a distinct feature of our Nation’s system of governance has been the conferral of political power upon public and municipal corporations for the management of matters of local concern. As?Monell?recounted, by 1871, municipalities-like private corporations-were treated as natural persons for virtually all purposes of constitutional and statutory analysis. In particular, they were routinely sued in both federal and state courts.?See?436 U.S. at 687-688.?Cf. Mercer County,?7 Wall. 118 (1869). Local governmental units were regularly held to answer in damages for a wide range of statutory and constitutional violations, as well as for common law actions for breach of contract. And although, as we discuss below, a municipality was not subject to suit for all manner of tortious conduct, it is clear that, at the time §1983 was enacted, local governmental bodies did not enjoy the sort of “good faith” qualified immunity extended to them by the Court of Appeals.As a general rule, it was understood that a municipality’s tort liability in damages was identical to that of private corporations and individuals: “There is nothing in the character of a municipal corporation which entitles it to an immunity from liability for such malfeasances as private corporations or individuals would be liable for in a civil action. A municipal corporation is liable to the same extent as an individual for any act done by the express authority of the corporation, or of a branch of its government, empowered to act for it upon the subject to which the particular act relates, and for any act which, after it has been done, has been lawfully ratified by the corporation.” T. Shearman & A. Redfield, A Treatise on the Law of Negligence §120, p. 139 (1869) (hereinafter Shearman & Redfield).Yet in the hundreds of cases from that era awarding damages against municipal governments for wrongs committed by them, one searches in vain for much mention of a qualified immunity based on the good faith of municipal officers. Indeed, where the issue was discussed at all, the courts had rejected the proposition that a municipality should be privileged where it reasonably believed its actions to be lawful. In the leading case of?Thayer v. Boston,?36 Mass. 511 (1837), for example, Chief Justice Shaw explained:“There is a large class of cases, in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done whether it is lawful or not. The event of a legal inquiry, in a court of justice, may show that it was unlawful. Still, if it was not known and understood to be unlawful at the time, if it was an act done by the officers having competent authority, either by express vote of the city government, or by the nature of the duties and functions with which they are charged, by their offices, to act upon the general subject matter, and especially if the act was done with an honest view to obtain for the public some lawful benefit or advantage, reason and justice obviously require that the city, in its corporate capacity, should be liable to make good the damage sustained by an individual, in consequence of the acts thus done.”That municipal corporations were commonly held liable for damages in tort was also recognized by the 42d Congress.?See Monell v. New York City Dept. of Social Services, 436 U.S. at?688. For example, Senator Stevenson, in opposing the Sherman amendment’s creation of a municipal liability for the riotous acts of its inhabitants, stated the prevailing law: “Numberless cases are to be found where a statutory liability has been created against municipal corporations for injuries resulting from a neglect of corporate duty.” Cong. Globe, 42d Cong., 1st Sess., 762 (hereinafter Globe). Nowhere in the debates, however, is there a suggestion that the common law excused a city from liability on account of the good faith of its authorized agents, much less an indication of a congressional intent to incorporate such an immunity into the Civil Rights Act. The absence of any allusion to a municipal immunity assumes added significance in light of the objections raised by the opponents of §1 of the Act that its unqualified language could be interpreted to abolish the traditional good faith immunities enjoyed by legislators, judges, governors, sheriffs, and other public officers. Had there been a similar common law immunity for municipalities, the bill’s opponents doubtless would have raised the specter of its destruction, as well.The governmental-proprietary distinction owed its existence to the dual nature of the municipal corporation. On the one hand, the municipality was a corporate body, capable of performing the same “proprietary” functions as any private corporation, and liable for its torts in the same manner and to the same extent, as well. On the other hand, the municipality was an arm of the State, and when acting in that “governmental” or “public” capacity, it shared the immunity traditionally accorded the sovereign. But the principle of sovereign immunity-itself a somewhat arid fountainhead for municipal immunity-is necessarily nullified when the State expressly or impliedly allows itself, or its creation, to be sued. Municipalities were therefore liable not only for their “proprietary” acts, but also for those “governmental” functions as to which the State had withdrawn their immunity. And, by the end of the 19th century, courts regularly held that in imposing a specific duty on the municipality either in its charter or by statute, the State had impliedly withdrawn the city’s immunity from liability for the nonperformance or misperformance of its obligation.?See?The Corporation of Washington,?1 Black 39,?66 U.S. 50-52 (1862);?Providence v. Clapp,?17 How. 161,?58 U.S. 167-169 (1855).?See generally?Shearman & Redfield §§122-126; Note, Liability of Cities for the Negligence and Other Misconduct of their Officers and Agents, 30 Am.St.Rep. 376, 385 (1893). Thus, despite the nominal existence of an immunity for “governmental” functions, municipalities were found liable in damages in a multitude of cases involving such activities.That the municipality’s common law immunity for “governmental” functions derives from the principle of sovereign immunity also explains why that doctrine could not have served as the basis for the qualified privilege respondent city claims under §1983. First, because sovereign immunity insulates the municipality from unconsented suits altogether, the presence or absence of good faith is simply irrelevant. The critical issue is whether injury occurred while the city was exercising governmental, as opposed to proprietary, powers or obligations - not whether its agents reasonably believed they were acting lawfully in so conducting themselves. More fundamentally, however, the municipality’s “governmental” immunity is obviously abrogated by the sovereign’s enactment of a statute making it amenable to suit. Section 1983 was just such a statute. By including municipalities within the class of “persons” subject to liability for violations of the Federal Constitution and laws, Congress - the supreme sovereign on matters of federal law - abolished whatever vestige of the State’s sovereign immunity the municipality possessed.Although many, if not all, of a municipality’s activities would seem to involve at least some measure of discretion, the influence of this doctrine on the city’s liability was not as significant as might be expected. For just as the courts implied an exception to the municipality’s immunity for its “governmental” functions, here, too, a distinction was made that had the effect of subjecting the city to liability for much of its tortious conduct. While the city retained its immunity for decisions as to whether the public interest required acting in one manner or another, once any particular decision was made, the city was fully liable for any injuries incurred in the execution of its judgment.?See Hill v. Boston,?122 Mass. 344 (1877) (municipality would be immune from liability for damages resulting from its decision where to construct sewers, since that involved a discretionary judgment as to the general public interest; but city would be liable for neglect in the construction or repair of any particular sewer, as such activity is ministerial in nature).?See generally?C. Rhyne, Municipal Law §30.4, pp. 736-737 (1957); Williams §7. Thus municipalities remained liable in damages for a broad range of conduct implementing their discretionary decisions.Once again, an understanding of the rationale underlying the common law immunity for “discretionary” functions explains why that doctrine cannot serve as the foundation for a good faith immunity under §1983. That common law doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no “discretion” to violate the Federal Constitution; its dictates are absolute and imperative. And when a court passes judgment on the municipality’s conduct in a §1983 action, it does not seek to second-guess the “reasonableness” of the city’s decision nor to interfere with the local government’s resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes. As was stated in?Sterling v. Constantin,?287 U.S. 378 (1932): “When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.” In sum, we can discern no “tradition so well grounded in history and reason” that would warrant the conclusion that, in enacting §1 of the Civil Rights Act, the 42d Congress sub silentio?extended to municipalities a qualified immunity based on the good faith of their officers. Absent any clearer indication that Congress intended so to limit the reach of a statute expressly designed to provide a “broad remedy for violations of federally protected civil rights,”?Monell v. New York City Dept. of Social Services,?436 U.S. at 685, we are unwilling to suppose that injuries occasioned by a municipality’s unconstitutional conduct were not also meant to be fully redressable through its sweep.?Our rejection of a construction of §1983 that would accord municipalities a qualified immunity for their good faith constitutional violations is compelled both by the legislative purpose in enacting the statute and by considerations of public policy. The central aim of the Civil Rights Act was to provide protection to those persons wronged by the “‘[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’”?Monroe v. Pape,?365 U.S. at 184?(quoting?United States v. Classic,?313 U.S. 299 (1941)). By creating an express federal remedy, Congress sought to “enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Monroe v. Pape,?at?365 U.S. 172.How “uniquely amiss” it would be, therefore, if the government itself - “the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct”-were permitted to disavow liability for the injury it has begotten.?See Adickes v. Kress & Co.,?398 U.S. 144 (1970). A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed. Yet owing to the qualified immunity enjoyed by most government officials,?see Scheuer v. Rhodes,?416 U.S. 232?(1974), many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good faith defense. Unless countervailing considerations counsel otherwise, the injustice of such a result should not be tolerated.Moreover, §1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. See Robertson v. Wegmann,?436 U.S. 584 (1978);?Carey v. Piphus,?435 U.S. 247 (1978). The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights. Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights. Such procedures are particularly beneficial in preventing those “systemic” injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith.?Cf.?Note, Developments in the Law: Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1218-1219 (1977).In?Scheuer v. Rhodes, at?416 U.S. 240, THE CHIEF JUSTICE identified the two “mutually dependent rationales” on which the doctrine of official immunity rested:“(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.”The first consideration is simply not implicated when the damages award comes not from the official’s pocket, but from the public treasury. It hardly seems unjust to require a municipal defendant which has violated a citizen’s constitutional rights to compensate him for the injury suffered thereby. Indeed, Congress enacted §1983 precisely to provide a remedy for such abuses of official power.?See Monroe v. Pape, 365 U.S. at?171. Elemental notions of fairness dictate that one who causes a loss should bear the loss.It has been argued, however, that revenue raised by taxation for public use should not be diverted to the benefit of a single or discrete group of taxpayers, particularly where the municipality has at all times acted in good faith. On the contrary, the accepted view is that stated in?Thayer v. Boston?- “that the city, in its corporate capacity, should be liable to make good the damage sustained by an [unlucky] individual, in consequence of the acts thus done.” 36 Mass. at 15. After all, it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration. Thus, even where some constitutional development could not have been foreseen by municipal officials, it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers than to allow its impact to be felt solely by those whose rights, albeit newly recognized, have been violated.?See generally?3 K. Davis, Administrative Law Treatise §25.17 (1958 and Supp. 1970); Prosser §131, at 978; Michelman, Property Utility, and Fairness: Some Thoughts on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165 (1967).?The second rationale mentioned in?Scheuer?also loses its force when it is the municipality, in contrast to the official, whose liability is at issue. At the heart of this justification for a qualified immunity for the individual official is the concern that the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decisionmaking process, thus paralyzing the governing official’s decisiveness and distorting his judgment on matters of public policy. The inhibiting effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed. First, as an empirical matter, it is questionable whether the hazard of municipal loss will deter a public officer from the conscientious exercise of his duties; city officials routinely make decisions that either require a large expenditure of municipal funds or involve a substantial risk of depleting the public fisc.?See Kostka v. Hogg,?560 F.2d 37 (CA1 1977). More important, though, is the realization that consideration of the municipality’s liability for constitutional violations is quite properly the concern of its elected or appointed officials. Indeed, a decision maker would be derelict in his duties if, at some point, he did not consider whether his decision comports with constitutional mandates, and did not weigh the risk that a violation might result in an award of damages from the public treasury. As one commentator aptly put it: “Whatever other concerns should shape a particular official’s actions, certainly one of them should be the constitutional rights of individuals who will be affected by his actions. To criticize §1983 liability because it leads decision makers to avoid the infringement of constitutional rights is to criticize one of the statute’s?raisons d’etre.We believe that today’s decision, together with prior precedents in this area, properly allocates these costs among the three principals in the scenario of the §1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. New York City Dept. of Social Services,?436 U.S. at?694.Reversed.MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, dissenting.The Court does not question the District Court’s statement of the facts surrounding Owen’s dismissal. It nevertheless rejects the District Court’s conclusion that no due process hearing was necessary because “the circumstances of [Owen’s] discharge did not impose a stigma of illegal or immoral conduct on his professional reputation.” 421 F.Supp. 1110 (WD Mo. 1976). Careful analysis of the record supports the District Court’s view that Owen suffered no constitutional deprivation.Having constructed a constitutional deprivation from the valid exercise of governmental authority, the Court holds that municipalities are strictly liable for their constitutional torts. Until two years ago, municipal corporations enjoyed absolute immunity from §1983 claims.?Monroe v. Pape,?365 U.S. 167 (1961). But?Monell v. New York City Dept. of Social Services,?held that local governments are “persons” within the meaning of the statute, and thus are liable in damages for constitutional violations inflicted by municipal policies.?Monell?did not address the question whether municipalities might enjoy a qualified immunity or good faith defense against §1983 actions. 436 U.S. at?695.The Court’s decision also impinges seriously on the prerogatives of municipal entities created and regulated primarily by the States. At the very least, this Court should not initiate a federal intrusion of this magnitude in the absence of explicit congressional action. Yet today’s decision is supported by nothing in the text of §1983. Indeed, it conflicts with the apparent intent of the drafters of the statute, with the common law of municipal tort liability, and with the current state law of municipal immunities.Section 1983 provides a private right of action against “[e]very person” acting under color of state law who imposes or causes to be imposed a deprivation of constitutional rights. Although the statute does not refer to immunities, this Court has held that the law “is to be read in harmony with general principles of tort immunities and defenses, rather than in derogation of them.”?Imbler v. Pachtman,?424 U.S. 409 (1976);?see Tenney v. Brandhove,?341 U.S. 367 (1951)This approach reflects several concerns. First, the common law traditions of immunity for public officials could not have been repealed by the “general language” of §1983. Tenney v. Brandhove,?at?341 U.S. 376;?see Imbler v. Pachtman,?at?424 U.S. 421-424;?Pierson v. Ray,?386 U.S. 547 (1967). In addition, “the public interest requires decisions and action to enforce laws for the protection of the public.”?Scheuer v. Rhodes,?416 U.S. 232?(1974). Because public officials will err at times, “[t]he concept of immunity assumes...that it is better to risk some error and possibly injury from such error than not to decide or act at all.”?See Wood v. Strickland,?420 U.S. 308 (1975). By granting some immunity to governmental actors, the Court has attempted to ensure that public decisions will not be dominated by fears of liability for actions that may turn out to be unconstitutional. Public officials “cannot be expected to predict the future course of constitutional law....”?Procunier v. Navarette,?434 U.S. 555 (1978).In response to these considerations, the Court has found absolute immunity from §1983 suits for state legislators,?Tenney v. Brandhove,?judges,?Pierson v. Ray,?at?386 U.S. 553, and prosecutors in their role as advocates for the State, Imbler v. Pachtman.?Other officials have been granted a qualified immunity that protects them when in good faith they have implemented policies that reasonably were thought to be constitutional. This limited immunity extends to police officers,?Pierson v. Ray,?at?386 U.S. 555, state executive officers,?Scheuer v. Rhodes, local school board members,?Wood v. Strickland,?the superintendent of a state hospital,?O’Connor v. Donaldson,?422 U.S. 563 (1975), and prison officials,?Procunier v. Navarette.This reasoning flies in the face of our prior decisions under this statute. We have held repeatedly that “immunities?well grounded in history and reason’ [were not] abrogated ‘by covert inclusion in the general language’ of §1983.”?Imbler v. Pachtman,?at 424 U.S. 418, quoting?Tenney v. Brandhove,?at?341 U.S. 376.?See Scheuer v. Rhodes,?at?416 U.S. 243;?Pierson v. Ray,?at?386 U.S. 554. The peculiar nature of the Court’s position emerges when the status of executive officers under §1983 is compared with that of local governments. State and local executives are personally liable for bad faith or unreasonable constitutional torts. Although Congress had the power to make those individuals liable for all such torts, this Court has refused to find an abrogation of traditional immunity in a statute that does not mention immunities. Yet the Court now views the enactment of §1983 as a direct abolition of traditional municipal immunities. Unless the Court is overruling its previous immunity decisions, the silence in §1983 must mean that the 42d Congress mutely accepted the immunity of executive officers, but silently rejected common law municipal immunity. I find this interpretation of the statute singularly implausible.Important public policies support the extension of qualified immunity to local governments. First, as recognized by the doctrine of separation of powers, some governmental decisions should be at least presumptively insulated from judicial review. Mr. Chief Justice Marshall wrote in?Marbury v. Madison,?1 Cranch 137,?5 U.S. 170 (1803), that “[t]he province of the court is...not to inquire how the executive, or executive officers, perform duties in which they have a discretion.” Marshall stressed the caution with which courts must approach “[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive.” The allocation of public resources and the operational policies of the government itself are activities that lie peculiarly within the competence of executive and legislative bodies. When charting those policies, a local official should not have to gauge his employer’s possible liability under §1983 if he incorrectly-though reasonably and in good faith-forecasts the course of constitutional law. Excessive judicial intrusion into such decisions can only distort municipal decisionmaking and discredit the courts. Qualified immunity would provide presumptive protection for discretionary acts, while still leaving the municipality liable for bad faith or unreasonable constitutional deprivations.In addition, basic fairness requires a qualified immunity for municipalities. The good faith defense recognized under §1983 authorizes liability only when officials acted with malicious intent or when they “knew or should have known that their conduct violated the constitutional norm.”?Procunier v. Navarette,?434 U.S. at?562. The standard incorporates the idea that liability should not attach unless there was notice that a constitutional right was at risk. This idea applies to governmental entities and individual officials alike. Constitutional law is what the courts say it is, and-as demonstrated by today’s decision and its precursor,?Monell-even the most prescient lawyer would hesitate to give a firm opinion on matters not plainly settled. Municipalities, often acting in the utmost good faith, may not know or anticipate when their action or inaction will be deemed a constitutional violation.The Court nevertheless suggests that, as a matter of social justice, municipal corporations should be strictly liable even if they could not have known that a particular action would violate the Constitution. After all, the Court urges, local governments can “spread” the costs of any judgment across the local population. The Court neglects, however, the fact that many local governments lack the resources to withstand substantial unanticipated liability under §1983. Even enthusiastic proponents of municipal liability have conceded that ruinous judgments under the statute could imperil local governments.?E.g.,?Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 958 (1976). By simplistically applying the theorems of welfare economics and ignoring the reality of municipal finance, the Court imposes strict liability on the level of government least able to bear it. For some municipalities, the result could be a severe limitation on their ability to serve the public.These concerns were echoed in the House of Representatives. Representative Kerr complained that “it is not required, before liability shall attach, that it shall be known that there was any intention to commit these crimes, so as to fasten liability justly upon the municipality.” He denounced the “total and absolute absence of notice, constructive or implied, within any decent limits of law or reason,” adding that the proposal “takes the property of one and gives it to another by mere force, without right, in the absence of guilt or knowledge, or the possibility of either.” Similarly, Representative Willard argued that liability “is only warranted when the community...has proved faithless to its duties....”?He criticized the absence of a requirement that it be “prov[ed] in court that there has been any default, any denial, any neglect on the part of the county, city, town, or parish to give citizens the full protection of the laws.”Partly in response to these objections, the amendment as finally enacted conditioned liability on a demonstration that the defendant knew that constitutional rights were about to be denied. Representative Poland introduced the new measure, noting that “any person?who has knowledge?of any of the offenses named...shall [have a] duty to use all reasonable diligence within his power to prevent it.” The same point was made by Representative Shellabarger, the sponsor of the entire Act and, with Representative Poland, a member of the Conference Committee that produced the final draft.?Id.?at 804-805;?see id.?at 807 (Rep. Garfield).Senator Sherman disliked the revised provision. He complained that, “before you can make [a person] responsible, you have got to show that they had knowledge that the specific wrongs upon the particular person were about to be wrought.”The Court’s decision also runs counter to the common law in the 19th century, which recognized substantial tort immunity for municipal actions.?E.g.,?2 J. Dillon, Law of Municipal Corporations §§753, 764, pp. 862-863, 875-876 (2d ed. 1873); W. Williams, Liability of Municipal Corporations for Tort 9, 16 (1901). Nineteenth-century courts generally held that municipal corporations were not liable for acts undertaken in their “governmental,” as opposed to their “proprietary,” capacity. Most States now use other criteria for determining when a local government should be liable for damages. Still, the governmental/proprietary distinction retains significance because it was so widely accepted when §1983 was enacted. It is inconceivable that a Congress thoroughly versed in current legal doctrines,?see Monell v. New York City Dept. of Social Services,?436 U.S. 669, would have intended through silence to create the strict liability regime now imagined by this Court.Today’s decision also conflicts with the current law in 44 States and the District of Columbia. All of those jurisdictions provide municipal immunity at least analogous to a “good faith” defense against liability for constitutional torts. Thus, for municipalities in almost 900 of our jurisdictions, the Court creates broader liability for constitutional deprivations than for state law torts.Footnotes:1. Title 42 U.S.C. §1983 provides:“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”12. As compensation for the denial of his constitutional rights, the Court of Appeals awarded petitioner damages in lieu of backpay. The court explained that petitioner’s termination without a hearing must be considered a nullity, and that, ordinarily, he ought to remain on the payroll and receive wages until a hearing is held and a proper determination on his retention is made. But, because petitioner had reached the mandatory retirement age during the course of the litigation, he could not be reinstated to his former position. Thus, the compensatory award was to be measured by the amount of money petitioner would likely have earned to retirement had he not been deprived of his good name by the city’s actions, subject to mitigation by the amounts actually earned, as well as by the recovery from Councilman Roberts in the state defamation suit.The Court of Appeals rejected the municipality’s assertion of a good faith defense, relying upon a footnote in?Wood v. Strickland,?420 U.S. 308 (1975) (“immunity from damages does not ordinarily bar equitable relief as well”), and two of its own precedents awarding backpay in §1983 actions against school boards. See Wellner v. Minnesota State Jr. College Bd.,?487 F.2d 153 (CA8 1973);?Cooley v. Board of Educ. of Forrest City School Dist.,?453 F.2d 282 (CA8 1972). The court concluded that the primary justification for a qualified immunity-the fear that public officials might hesitate to discharge their duties if faced with the prospect of personal monetary liability-simply did not exist where the relief would be borne by a governmental unit, rather than the individual officeholder. In addition, the Court of Appeals seemed to take issue with the District Court’s finding of good faith on the part of the City Council:“The city officials may have acted in good faith in refusing the hearing, but lack of good faith is evidenced by the nature of the unfair attack made upon the appellant by Roberts in the official conduct of the City’s business. The District Court did not address the good faith defense in light of Roberts’ defamatory remarks.”13. Although respondents did not cross-petition on this issue, they have raised a belated challenge to the Court of Appeals’ ruling that petitioner was deprived of a protected “liberty” interest.?We find no merit in their contention, however, and decline to disturb the determination of the court below.Wisconsin v. Constantineau,?400 U.S. 433?(1971), held that, “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.”In?Board of Regents v. Roth,?408 U.S. 564 (1972), we explained that the dismissal of a government employee accompanied by a “charge against him that might seriously damage his standing and associations in his community” would qualify as something “the government is doing to him,” so as to trigger the due process right to a hearing at which the employee could refute the charges and publicly clear his name. In the present case, the city-through the unanimous resolution of the City Council-released to the public an allegedly false statement impugning petitioner’s honesty and integrity. Petitioner was discharged the next day. The Council’s accusations received extensive coverage in the press, and even if they did not in point of fact “cause” petitioner’s discharge, the defamatory and stigmatizing charges certainly “occur[red] in the course of the termination of employment.”?Cf. Paul v. Davis,?424 U.S. 693 (1976). Yet the city twice refused petitioner’s request that he be given written specification of the charges against him and an opportunity to clear his name. Under the circumstances, we have no doubt that the Court of Appeals correctly concluded that the city’s actions deprived petitioner of liberty without due process of law.14. Cf. Wood v. Strickland,?420 U.S. 308?(1975) (“Therefore, in the specific context of school discipline, we hold that a school board member is not immune from liability for damages under §1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student”).17. As we noted in?Monell v. New York City Dept. of Social Services, see?436 U.S. at?685, even the opponents of §1 acknowledged that its language conferred upon the federal courts the entire power that Congress possessed to remedy constitutional violations. The remarks of Senator Thurman are illustrative:“[This section’s] whole effect is to give to the Federal Judiciary that which now does not belong to it - a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrongdoer in the Federal courts, and that without any limit whatsoever as to the amount in controversy....” “...That is the language of this bill. Whether it is the intent or not, I know not, but it is the language of the bill; for there is no limitation whatsoever upon the terms that are employed, and they are as comprehensive as can be used.” Globe App. 216-217.18. The governmental immunity at issue in the present case differs significantly from the official immunities involved in our previous decisions. In those cases, various government officers had been sued in their individual capacities, and the immunity served to insulate them from personal liability for damages. Here, in contrast, only the liability of the municipality itself is at issue, not that of its officers, and in the absence of an immunity, any recovery would come from public funds.22. Accord, Bunker v. City of Hudson,?122 Wis. 43, 54, 99 N.W. 448, 452 (1904);Oklahoma City v. Hill Bros.,?6 Okla. 114, 137-139, 50 P. 242, 249-250 (1897); Schussler v. Board of Comm’rs of Hennepin County,?67 Minn. 412, 417, 70 N.W. 6, 7 (1897);?McGraw v. Town of Marion,?98 Ky. 673, 680-683, 34 S.W. 18, 20-21 (1896).See generally?Note, Liability of Cities for the Negligence and Other Misconduct of their Officers and Agents, 30 Am.St.Rep. 376, 405-411 (1893).Even in England, where the doctrine of official immunity followed by the American courts was first established, no immunity was granted where the damages award was to come from the public treasury. As Baron Bramwell stated in?Ruck v. Williams,?3 H. & N. 308, 320, 157 Eng.Rep. 488, 493 (Exch. 1858):“I can well understand if a person undertakes the office or duty of a Commissioner, and there are no means of indemnifying him against the consequences of a slip, it is reasonable to hold that he should not be responsible for it. I can also understand that, if one of several Commissioners does something not within the scope of his authority, the Commissioners as a body are not liable. But where Commissioners, who are a quasi corporate body, are not affected [i.e.,?personally] by the result of an action, inasmuch as they are authorized by act of parliament to raise a fund for payment of the damages, on what principle is it that, if an individual member of the public suffers from an act bona fide but erroneously done, he is not to be compensated? It seems to me inconsistent with actual justice, and not warranted by any principle of law.” See generally?Shearman & Redfield §§133, 178.23. Senator Stevenson proceeded to read from the decision in?Prather v. Lexington,?52 Ky. 559, 56562 (1852):“Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual. But, as a general rule, a corporation is not responsible for the unauthorized and unlawful acts of its officers, although done under the color of their office; to render it liable it must appear that it expressly authorized the acts to be done by them, or that they were done in pursuance of a general authority to act for the corporation, on the subject to which they relate. (Thayer v. Boston,?19 Pick., 511.) It has also been held that cities are responsible to the same extent, and in the same manner, as natural persons for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for their benefit.” Globe 762.25. See?Globe 365 (remarks of Rep. Arthur) (“But if the Legislature enacts a law, if the Governor enforces it, if the judge upon the bench renders a judgment, if the sheriff levy an execution, execute a writ, serve a summons, or make an arrest, all acting under a solemn, official oath, though as pure in duty as a saint and as immaculate as a seraph, for a mere error in judgment, they are liable...”);?id.?at 385 (remarks of Rep. Lewis); Globe App. 217 (remarks of Sen. Thurman).27. “While acting in their governmental capacity, municipal corporations proper are given the benefit of that same rule which is applied to the sovereign power itself, and are afforded complete immunity from civil responsibility for acts done or omitted, unless such responsibility is expressly created by statute. When, however, they are not acting in the exercise of their purely governmental functions, but are performing duties that pertain to the exercise of those private franchises, powers, and privileges which belong to them for their own corporate benefit, or are dealing with property held by them for their own corporate gain or emolument, then a different rule of liability is applied, and they are generally held responsible for injuries arising from their negligent acts or their omissions to the same extent as a private corporation under like circumstances.” Williams §4, at 9.?See generally?18 McQuillin §§53.02, 53.04, 53.24; Prosser §131, at 977-983; James, Tort Liability of Governmental Units and Their Officers, 22 U.Chi.L.Rev. 610, 611-612, 622-629 (1955).28. Although it has never been understood how the doctrine of sovereign immunity came to be adopted in the American democracy, it apparently stems from the personal immunity of the English Monarch as expressed in the maxim, “The King can do no wrong.” It has been suggested, however, that the meaning traditionally ascribed to this phrase is an ironic perversion of its original intent:“The maxim merely meant that the King was not privileged to do wrong. If his acts were against the law, they were?injuriae?(wrongs). Bracton, while ambiguous in his several statements as to the relation between the King and the law, did not intend to convey the idea that he was incapable of committing a legal wrong.” Borchard, Government Liability in Tort, 34 Yale L.J. 1, 2, n. 2 (1924).?See also?Kates & Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights Act, 45 S.Cal.L.Rev. 131, 142 (1972).In this country, “[t]he sovereign or governmental immunity doctrine, holding that the state, its subdivisions and municipal entities, may not be held liable for tortious acts, was never completely accepted by the courts, its underlying principle being deemed contrary to the basic concept of the law of torts that liability follows negligence, as well as foreign to the spirit of the constitutional guarantee that every person is entitled to a legal remedy for injuries he may receive in his person or property. As a result, the trend of judicial decisions was always to restrict, rather than to expand, the doctrine of municipal immunity.” 18 McQuillin §53.02, at 104.?See also?Prosser §131, at 984 (“For well over a century, the immunity of both the state and the local governments for their torts has been subjected to vigorous criticism, which, at length, has begun to have its effect”). The seminal opinion of the Florida Supreme Court in?Hargrove v. Town of Cocoa Beach,?96 So.2d 130 (1957), has spawned “a minor avalanche of decisions repudiating municipal immunity,” Prosser §131, at 985, which, in conjunction with legislative abrogation of sovereign immunity, has resulted in the consequence that only a handful of States still cling to the old common law rule of immunity for governmental functions.?See?K. Davis, Administrative Law of the Seventies §25.00 (1976 and Supp. 1977) (only two States adhere to the traditional common law immunity from torts in the exercise of governmental functions); Harley & Wasinger, Government Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn L.J. 12, 34-53 (1976).29. The common law immunity for governmental functions is thus more comparable to an absolute immunity from liability for conduct of a certain character, which defeats a suit at the outset, than to a qualified immunity, which “depends upon the circumstances and motivations of [the official’s] actions, as established by the evidence at trial.”?Imbler v. Pachtman,?424 U.S. 409 (1976).30. Municipal defenses-including an assertion of sovereign immunity-to a federal right of action are, of course, controlled by federal law.?See Fitzpatrick v. Bitzer,?427 U.S. 445 (1976);?Hampton v. Chicago,?484 F.2d 602 (CA7 1973) (“Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. §1983 or §1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced”).32. Cf.?P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 336 (2d ed.1973) (“[W]here constitutional rights are at stake the courts are properly astute, in construing statutes, to avoid the conclusion that Congress intended to use the privilege of immunity...in order to defeat them”).33. The absence of any damages remedy for violations of all but the most “clearly established” constitutional rights,?see Wood v. Strickland,?420 U.S. at 322, could also have the deleterious effect of freezing constitutional law in its current state of development, for without a meaningful remedy, aggrieved individuals will have little incentive to seek vindication of those constitutional deprivations that have not previously been clearly defined.37. On at least two previous occasions, this Court has expressly recognized that different considerations come into play when governmental, rather than personal, liability is threatened.?Hutto v. Finney,?437 U.S. 678?(1978), affirmed an award of attorney’s fees out of state funds for a deprivation of constitutional rights, holding that such an assessment would not contravene the Eleventh Amendment. In response to the suggestion, adopted by the dissent, that any award should be borne by the government officials personally, the Court noted that such an allocation would not only be “manifestly unfair,” but would “def[y] this Court’s insistence in a related context that imposing personal liability in the absence of bad faith may cause state officers to ‘exercise their discretion with undue timidity.’?Wood v. Strickland,?420 U.S. 308.”The Court thus acknowledged that imposing personal liability on public officials could have an undue chilling effect on the exercise of their decisionmaking responsibilities, but that no such pernicious consequences were likely to flow from the possibility of a recovery from public funds. Our decision in?Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,?440 U.S. 391?(1979), also recognized that the justifications for immunizing officials from personal liability have little force when suit is brought against the governmental entity itself. Petitioners in that case had sought damages under §1983 from a regional planning agency and the individual members of its governing agency. Relying on?Tenney v. Brandhove,?341 U.S. 367?(1951), the Court concluded that, “to the extent the evidence discloses that these individuals were acting in a capacity comparable to that of members of a state Legislature, they are entitled to absolute immunity from federal damages liability.” 440 U.S. at 406. At the same time, however, we cautioned:“If the respondents have enacted unconstitutional legislation, there is no reason why relief against TRPA itself should not adequately vindicate petitioners’ interests.?See Monell v. New York City Dept. of Social Services,?436 U.S. 658.”38. Wood v. Strickland,?420 U.S. 308?(1975), mentioned a third justification for extending a qualified immunity to public officials: the fear that the threat of personal liability might deter citizens from holding public office.?(“The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure”). Such fears are totally unwarranted, of course, once the threat of personal liability is eliminated.12. Ironically, the State and Federal Governments cannot be held liable for constitutional deprivations. The Federal Government has not waived its sovereign immunity against such claims, and the States are protected by the Eleventh Amendment.13. Cong. Globe, 42d Cong., 1st Sess., 663 (1871). The proposal applied to any property damage or personal injury caused “by any persons riotously and tumultuously assembled together; and if such offense was committed to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude....” As revised by the first Conference Committee on the Civil Rights Act, the provision still required no showing of notice.14. The final Conference amendment stated: “That any person or persons having knowledge that any of the wrongs...mentioned in the second section of this act, are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse to do so, and such wrongful act shall be committed, such person or persons shall be liable to the person injured or his legal representatives for all damages caused by any such wrongful act....”15. Under 42 U.S.C. §1986, the current version of the language approved in place of the Sherman amendment, liability “is dependent on proof of actual knowledge by a defendant of the wrongful conduct....”?Hampton v. Chicago,?484 F.2d 602 (CA7 1973),?cert. denied,?415 U.S. 917 (1974).16. In the leading case of?Bailey v. Mayor etc. of the City of New York,?3 Hill 531, 539 (N.Y. 1842), the court distinguished between municipal powers “conferred for the benefit of the public” and those “made as well for the private emolument and advantage of the city....” Because the injury in?Bailey?was caused by a water utility maintained for the exclusive benefit of the residents of New York City, the court found the municipality liable “as a private company.”?This distinction was construed to provide local governments with immunity in actions alleging inadequate police protection,?Western College of Homeopathic Medicine v. Cleveland,?12 Ohio St. 375 (1861), improper sewer construction,?Child v. Boston,?86 Mass. 41 (1862), negligent highway maintenance,?Hewison v. New Haven,?37 Conn.475 (1871), and unsafe school buildings, Hill v. Boston,?122 Mass. 344 (1877).18. The Court cannot wish away these extensive municipal immunities. It quotes two 19th-century treatises as referring to municipal liability for some torts. Both passages, however, refer to exceptions to the existing immunity rules. The first treatise cited by the Court concedes, though deplores, the fact that many jurisdictions embraced the governmental/proprietary distinction. T. Shearman & A. Redfield, A Treatise on the Law of Negligence §120, pp. 140-141 (1869). The same volume notes that local governments could not be sued for injury caused by discretionary acts,?id.?§127, at 154, or for officers’ acts beyond the powers of the municipal corporation,?id.?§140, at 169. The Court’s quotation from Dillon on Municipal Corporations stops just before that writer acknowledges that local governments are liable only for injury caused by nondiscretionary acts involving “corporate duties.” 2 J. Dillon, Law of Municipal Corporations §764, p. 875 (2d ed. 1873). That writer’s full statement of municipal tort liability recognizes immunity for both governmental and discretionary acts. Dillon observes that municipal corporations may be held liable only “where a duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a public agency,?and is absolute and perfect,?and not discretionary or judicial in its nature....”The Court takes some solace in the absence in the 19th century of a qualified immunity for local governments. That absence, of course, was due to the availability of absolute immunity for governmental and discretionary acts. There is no justification for discovering strict municipal liability in §1983 when that statute was enacted against a background of extensive municipal immunity.The Court also points out that municipalities were subject to suit for some statutory violations and neglect of contractual obligations imposed by State or Federal Constitutions. That amenability to suit is simply irrelevant to the immunity available in tort actions, which controls the immunity available under §1983.19. The Court cites eight cases decided before 1871 as “reiterat[ing]” the principle announced in?Thayer?while awarding damages against municipalities for good faith torts. Three of those cases involved the “special and peculiar” statutory liability of New England towns for highway maintenance, and are wholly irrelevant to the Court’s argument.?Billings v. Worcester,?102 Mass. 329 (1869);?Horton v. Inhabitants of Ipswich,?66 Mass. 488 (1853) (trial court “rend to the jury the provisions of the statutes prescribing the duties of towns to keep roads safe...and giving a remedy for injuries received from defects in highways”);?Elliot v. Concord,?27 N.H. 204 (1853) (citing similar statute);?see?2 J. Dillon, Law of Municipal Corporations §1000, pp. 1013-1015, and n. 2 (3d ed. 1881). A fourth case,?Town Council of Akron v. McComb,?18 Ohio 229 (1849), concerned damages caused by street grading, and was later expressly restricted to those facts.?Western College of Homeopathic Medicine v. Cleveland,?12 Ohio St. at 378-379. Two of the other cases cited by the Court involved the performance of ministerial acts that were widely recognized as giving rise to municipal liability.?Lee v. Village of Sandy Hill,?40 N.Y. 442, 451 (1869) (liability for damage caused by street-opening when city was under a “duty” to open that street); Hurley v. Town of Texas,?20 Wis. 634 (1866) (improper tax collection). The seventh case presented malfeasance, or bad-faith acts, by the municipality’s agents.?Hawks v. Inhabitants of Charlemont,?107 Mass. 414 (1871) (city took material from plaintiff’s land to repair bridge). Thus, despite any discussion of?Thayer?in the court opinions, seven of the eight decisions noted by the Court involved thoroughly unremarkable exceptions to municipal immunity as provided by statute or common law. They do not buttress the Court’s theory of strict liability.The Court also notes that Senator Stevenson mentioned?Thayer?during the debates on the Sherman amendment. That reference, however, came during a speech denouncing the Sherman amendment for imposing tort liability on municipal corporations. To reinforce his contention, Senator Stevenson rend from the decision in?Prather v. Lexington,?52 Ky. 559 (1852), which cited Thayer?for the general proposition that a municipal corporation is not liable on a respondeat superior?basis for the unauthorized acts of its officers. Cong. Globe, 42d Cong., 1st Sess., 762 (1871). But the point of the passage in?Prather?read by Senator Stevenson-and the holding of that case-was that “no principle of law...subjects a municipal corporation to a responsibility for the safety of the property within its territorial limits.” Cong. Globe,?quoting?Prather,?at 561. So Stevenson cited Prather?to demonstrate that municipalities should not be held vicariously liable for injuries caused within their boundaries.?Prather,?in turn, cited?Thayer?for a subsidiary point. Nowhere in this sequence is there any support for the Court’s idea that local governments should be subjected to strict liability under §1983.UNITED STATES of America v. MILLER, 600 F.2d 498 (1979)TJOFLAT, Circuit Judge.Witness is permitted to express opinion on ultimate issue to be decided by jury. Fed. Rules Evid. Rule 704, 28 U.S.C.A.Objection to admission of evidence cannot be raised for first time on appeal and absence of plain error, and any error in admitting charts showing disposition of funds obtained through sale of bonds was not plain error and prosecution for transporting or causing to be transported in interstate commerce securities knowing them to have been taken by fraud. 18 U.S.C.A. §2.In light of adequate curative jury instruction, prosecutors reference on cross examination to letter from defendant’s attorney to defendant advising defendant that his handling of funds might expose him the prosecution for felony was not of such prejudice as to warrant reversal; further, such questioning was not improper inasmuch as letter was highly relevant and prosecution for transporting or causing to be transported in interstate commerce securities knowing them to have been taken by fraud. 18 U.S.C.A. §2.Record, vol. 4, at 538-39. At this point, Miller’s counsel interposed the privilege objection. The trial judge, faced with the difficult questions whether the attorney-client privilege had survived the publication of the letter in pretrial discovery and whether, if the privilege survived, it had been waived by Miller on direct or, later, on cross when he failed to object to and promptly answered the two questions about counsel’s advice, sustained the objection and instructed the jury to disregard the question. The jury heard nothing further about the letter or its contents.Footnotes:5. Notwithstanding his lawyer’s advice, Miller continued to abuse the trust of the bondholders. He pledged AVEUA land as collateral for a personal loan on which he later defaulted and surrendered the collateral. After the AVEUA bonds went into default, he transferred all his interest and liability in the project to one of his employees, a dirt mover with less than a high school education.QUERN v. JORDAN, 440 U.S. 332, 99 S.Ct. 1139 (1979)MR. JUSTICE REHNQUIST delivered the opinion of the Court.The section of the Civil Rights Act of 1871 which creates a cause of action for deprivation of civil rights under color of law did not abrogate the Eleventh Amendment immunity of the states. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 11.Neither logic, the circumstances surrounding the adoption of the Fourteenth Amendment nor the legislative history of the Civil Rights Act of 1871 compelled or warrant a leap from the true proposition that both supporters and opponents of the Act believed that the Act ceded to the federal government many important powers previously considered within the exclusive province of the individual states to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several states. 42 U.S.C.A. §1983; U.S.C.A. Const. Amends. 11, 14.The doctrine of the law of the case comes into play only with respect to issues previously determined.On remand from the United States Supreme Court, the Court of Appeals may consider and decide any matters left open by the mandate of the Supreme Court.In?Edelman v. Jordan,?415 U.S. 651, it was held that retroactive welfare benefits awarded by a Federal District Court to the plaintiff class, by reason of wrongful denial of benefits by Illinois officials prior to the entry of the court’s order determining the wrongfulness of their actions, violated the Eleventh Amendment, and that in, an action under 42 U.S.C. §1983, “a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief..., and may not include a retroactive award which requires the payment of funds from the state treasury.” On remand, the District Court ordered the state officials to send to each member of the plaintiff class a notice informing him that he was denied public assistance to which he was entitled, together with a “Notice of Appeal” by which the recipient could request a hearing on the denial of benefits. The Court of Appeals reversed on the ground that the proposed form of notice would have been barred by the Eleventh Amendment, but stated that, on remand, the District Court could order the state officials to send a “mere explanatory notice to applicants advising them that there is a state administrative procedure available if they desire to have the state determine whether or not they may be eligible for past benefits,” and that a returnable notice of appeal could also be provided.Held:1. Neither?Monell v. New York City Dept. of Social Services,?436 U.S. 658, the legislative history cited in that decision, nor this Court’s Eleventh Amendment cases subsequent to?Edelman?cast any doubt on?Edelman’s?holding that §1983 does not abrogate the Eleventh Amendment immunity of the States. Section 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability or shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States.?Hutto v. Finney,?437 U.S. 678, distinguished. Nor does this Court’s reaffirmance of?Edelman?in this case render §1983 meaningless insofar as States are concerned.2. The modified notice contemplated by the Court of Appeals constitutes permissible prospective relief, and not a “retroactive award which requires payment of funds from the state treasury.” Such notice, in effect, simply informs plaintiff class members that there are existing administrative procedures by which they may receive a determination of eligibility for past benefits, that their federal suit is at an end, and that the federal court can provide them with no further relief. Whether a recipient of the notice decides to take advantage of the available procedures is left completely to the discretion of that particular class member, the federal court playing no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the State, its agencies, courts, and Legislature, not with the federal court.In?Edelman,?we reaffirmed the rule that had evolved in our earlier cases that a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. 415 U.S. at 663;?see Kennecott Copper Corp. v. State Tax Comm’n,?327 U.S. 573 (1946);?Ford Motor Co. v. Department of Treasury,?323 U.S. 459?(1945);?Great Northern Life Ins. Co. v. Read,?322 U.S. 47?(1944). We rejected the notion that, simply because the lower court’s grant of retroactive benefits had been styled “equitable restitution,” it was permissible under the Eleventh Amendment. But we also pointed out that, under the landmark decision in?Ex parte Young,?209 U.S. 123?(1908), a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury. 415 U.S. at?667-668;?see Milliken v. Bradley,?433 U.S. 267 (1977);?Scheuer v. Rhodes,?416 U.S. 232 (1974). The distinction between that relief permissible under the doctrine of?Ex parte Young?and that found barred in?Edelman?was the difference between prospective relief, on one hand, and retrospective relief, on the other.?Petitioner state official devotes a significant part of his brief to an attack on the proposed notice which the District Court required the state officials to send. It is, however, the decision of the Court of Appeals, and not that of the District Court, which we review at the behest of petitioner. And just as petitioner insists on tilting at windmills by attacking the District Court’s decision, respondent suggests that our decision in?Edelman?has been eviscerated by later decisions such as?Monell v. New York City Dept. of Social Services,?436 U.S. 658?(1978).?See also Aldridge v. Turlington,?No. TCA-78-830 (ND Fla., Nov. 17, 1978);?but see Skehan v. Board of Trustees of Bloomsburg State College,?590 F.2d 470 (CA3 1978). As we have noted above, we held in?Edelman?that, in “a [42 U.S.C.] §1983 action...a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief,?Ex parte Young,?and may not include a retroactive award which requires the payment of funds from the state treasury,?Ford Motor Co. v. Department of Treasury.” 415 U.S. at?677. We disagree with respondent’s suggestion. This Court’s holding in?Monell?was “limited to local government units which are not considered part of the State for Eleventh Amendment purposes,” 436 U.S. at 690, and our Eleventh Amendment decisions subsequent to?Edelman?and to?Monell?have cast no doubt on our holding in?Edelman.?See Alabama v. Pugh,?438 U.S. 781?(1978); Hutto v. Finney,?437 U.S. 678?(1978);?Milliken v. Bradley; Fitzpatrick v. Bitzer, 427 U.S. 445?(1976);?Scheuer v. Rhodes.While the separate opinions in?Hutto v. Finney, debated the continuing soundness of?Edelman?after our decision in?Monell,?any doubt on that score was largely dispelled by?Alabama v. Pugh?decided just 10 days after?Hutto.?In Pugh,?the Court held, over three dissents, that the State of Alabama could not be joined as a defendant without violating the Eleventh Amendment, even though the complaint was based on 42 U.S.C. §1983 and the claim was a violation of the Eighth and Fourteenth Amendments similar to that made in?Hutto.?The Court said:“There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit.?Edelman v. Jordan,?415 U.S. 651?(1974);?Ford Motor Co. v. Department of Treasury,?323 U.S. 459?(1945);?Worcester County Trust Co. v. Riley, 302 U.S. 292?(1937).” 438 U.S. at?782.MR. JUSTICE BRENNAN, in his opinion concurring in the judgment, argues that our holding in?Edelman?that §1983 does not abrogate the States’ Eleventh Amendment immunity is “most likely incorrect.” To reach this conclusion he relies on “assum[ptions]” drawn from the Fourteenth Amendment, on “occasional remarks” found in a legislative history that contains little debate on §1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to §1983, on the reference to “bodies politic” in the Act of Feb. 25, 1871, 16 Stat. 431, the “Dictionary Act,” and, finally on the general language of §1983 itself. But, unlike our Brother BRENNAN, we simply are unwilling to believe, on the basis of such slender “evidence,” that Congress intended by the general language of §1983 to override the traditional sovereign immunity of the States. We therefore conclude that neither the reasoning of?Monell?or of our Eleventh Amendment cases subsequent to?Edelman,?nor the additional legislative history or arguments set forth in MR. JUSTICE BRENNAN’s opinion, justify a conclusion different from that which we reached in?Edelman.There is no question that both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive province of the individual States. Many of the remarks from the legislative history of the Act quoted in MR. JUSTICE BRENNAN’s opinion amply demonstrate this point.?See also Monroe v. Pape,?365 U.S. 167 (1961). But neither logic, the circumstances surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compels, or even warrants, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States. In?Tenney v. Brandhove,?341 U.S. 367?(1951), the Court rejected a similar attempt to interpret the word “person” in §1983 as a withdrawal of the historic immunity of state legislators. The Court’s words bear repeating here:“Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here? Did it mean to subject legislators to civil liability for acts done within the sphere of legislative activity? ...The limits of §§1 and 2 of the 1871 statute - now §§43 and 47(3) of Title 8 - were not spelled out in debate. We cannot believe that Congress - itself a staunch advocate of legislative freedom - would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.” 341 U.S. at?376.?Given the importance of the States’ traditional sovereign immunity, if in fact the Members of the 42d Congress believed that §1 of the 1871 Act overrode that immunity, surely there would have been lengthy debate on this point, and it would have been paraded out by the opponents of the Act along with the other evils that they thought would result from the Act. Instead, §1 passed with only limited debate, and not one Member of Congress mentioned the Eleventh Amendment or the direct financial consequences to the States of enacting §1. We can only conclude that this silence on the matter is itself a significant indication of the legislative intent of §1.Our cases consistently have required a clearer showing of congressional purpose to abrogate Eleventh Amendment immunity than our Brother BRENNAN is able to marshal. In?Employees v. Missouri Public Health Dept.,?411 U.S. 279?(1973), the Court concluded that Congress did not lift the sovereign immunity of the States by enacting the Fair Labor Standards Act of 1938, 29 U.S.C. §§201-219, because of the absence of any indication “by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress, in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution.” 411 U.S. at 285. In?Fitzpatrick v. Bitzer,?the Court found present in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e?et seq.,?the “threshold fact of congressional authorization” to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring suit or effect a conciliation agreement. 427 U.S. at 448?n. 1, 449 n. 2,?427 U.S. 452;?see?Equal Opportunity Employment Act of 1972, 86 Stat. 105, 42 U.S.C. §2000e-5(f)(1); H.R.Rep. No. 92-238, pp. 17-19 (1971); S.Rep. No. 9415, pp. 9-11 (1971); S.Conf.Rep. No. 9681, pp. 17-18 (1972); H.R.Conf.Rep. No. 9899, pp. 17-18 (1972). Finally, in?Hutto v. Finney,?decided just last Term, the Court held that, in enacting the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988, Congress intended to override the Eleventh Amendment immunity of the States and authorize fee awards payable by the States when their officials are sued in their official capacities. 437 U.S. at?693-694. Although the statutory language in?Hutto?did not separately impose liability on States in so many words, the statute had “a history focusing directly on the question of state liability; Congress considered and firmly rejected the suggestion that States should be immune from fee award’s.” Also, the Court noted that the statute would have been rendered meaningless with respect to States if the Act did not impose liability for attorney’s fees on the States. See Employees v. Missouri Public Health Dept., at?411 U.S. 285. By contrast, §1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States. Nor does our reaffirmance of?Edelman?render §1983 meaningless insofar as States are concerned.?See Ex parte Young,?209 U.S. 123 (1908).We turn, then, to the question which has caused disagreement between the Courts of Appeals: does the modified notice contemplated by the Seventh Circuit constitute permissible prospective relief or a “retroactive award which requires the payment of funds from the state treasury”? We think this relief falls on the?Ex parte Young?side of the Eleventh Amendment line, rather than on the?Edelman?side. Petitioner makes no issue of the incidental administrative expense connected with preparing and mailing the notice. Instead, he argues that giving the proposed notice will lead inexorably to the payment of state funds for retroactive benefits, and, therefore it, in effect, amounts to a monetary award. But the chain of causation which petitioner seeks to establish is by no means unbroken; it contains numerous missing links which can be supplied, if at all, only by the State and members of the plaintiff class, and not by a federal court. The notice approved by the Court of Appeals simply apprises plaintiff class members of the existence of whatever administrative procedures may already be available under state law by which they may receive a determination of eligibility for past benefits. The notice of appeal; we are told, is virtually identical to the notice sent by the Department of Public Aid in every case of a denial or reduction of benefits. The mere sending of that notice does not trigger the state administrative machinery. Whether a recipient of notice decides to take advantage of those available state procedures is left completely to the discretion of that particular class member; the federal court plays no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the State, its agencies, courts, and Legislature, not with the federal court.The notice approved by the Court of Appeals, unlike that ordered by the District Court, is more properly viewed as ancillary to the prospective relief already ordered by the court.?See Milliken v. Bradley,?433 U.S. at?290. The notice, in effect, simply informs class members that their federal suit is at an end, that the federal court can provide them with no further relief, and that there are existing state administrative procedures which they may wish to pursue. Petitioner raises no objection to the expense of preparing or sending it. The class members are “given no more...than what they would have gathered by sitting in the courtroom.”?Jordan v. Trainor,?563 F.2d at 877. The judgment of the Court of Appeals is therefore Affirmed.MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins as to Parts I, II, and III, concurring in the judgment.It is deeply disturbing, however, that the Court should engage in today’s gratuitous departure from customary attention of the gentlemen who favor this bill.” Globe App. 208.This conclusion produced an anguished outcry from those committed to unrevised notions of judicial practice and reach out to decide an issue unnecessary to its holding. The Court today correctly rules that the explanatory notice approved by the Court of Appeals below is “properly viewed as ancillary to...prospective relief.” This is sufficient to sustain the Court’s holding that such notice is not barred by the Eleventh Amendment. But the Court goes on to conclude, in what is patently dicta, that a State is not a “person” for purposes of 42 U.S.C. §1983, Rev.Stat. §1979.This conclusion is significant because, only three Terms ago,?Fitzpatrick v. Bitzer,?427 U.S. 445?(1976), held that “Congress may, in determining what is ‘appropriate legislation’ for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.” If a State were a “person” for purposes of §1983, therefore, its immunity under the Eleventh Amendment would be abrogated by the statute. Edelman v. Jordan?had held that §1983 did not override state immunity, for the reason, as the Court later stated in?Fitzpatrick,?that “[t]he Civil Rights Act of 1871, 42 U.S.C. §1983, had been held in?Monroe v. Pape,?365 U.S. 167 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant.” The premise of this reasoning was undercut last Term, however, when?Monell v. New York City Dept. of Social Services,?436 U.S. 658?(1978), upon reexamination of the legislative history of §1983, held that a municipality was indeed a “person” for purposes of that statute. As I stated in my concurrence in?Hutto v. Finney,?437 U.S. 678?(1978), Monell?made it “surely at least an open question whether §1983, properly construed, does not make the States liable for relief of all kinds, notwithstanding the Eleventh Amendment.”The Court’s reliance on?Pugh?is particularly significant because the question whether a State is a “person” for purposes of §1983 is neither briefed nor argued by the parties in the instant case. Indeed, petitioner states flatly that “the en banc decision of the Seventh Circuit does not rest upon a conclusion that the term ‘person’ for purposes of §1983 includes sovereign states, as opposed to state officials, within its ambit. That issue is not the issue before this Court on Petitioner’s Writ for Certiorari.” Respondent concurs, stating that “it is unnecessary in this case to confront directly the far-reaching question of whether Congress intended in §1983 to provide for relief directly against States, as it did against municipalities.”Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat.This fiat is particularly disturbing because it is most likely incorrect. Section 1983 was originally enacted as §1 of the Civil Rights Act of 1871. The Act was enacted for the purpose of enforcing the provisions of the Fourteenth Amendment. That Amendment exemplifies the “vast transformation” worked on the structure of federalism in this Nation by the Civil War.?Mitchum v. Foster,?407 U.S. 225 (1972). The prohibitions of that Amendment “are directed to the States.... They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken.” Ex parte Virginia,?100 U.S. 339 (1880). The fifth section of the Amendment provides Congress with the power to enforce these prohibitions “by appropriate legislation.” “Congress, by virtue of the fifth section..., may enforce the prohibitions whenever they are disregarded by either the Legislative, the Executive, or the Judicial Department of the State. The mode of enforcement is left to its discretion.” Virginia v. Rives,?100 U.S. 313 (1880).The prohibitions of the Fourteenth Amendment and Congress’ power of enforcement are thus directed at the States themselves, not merely at state officers. It is logical to assume, therefore, that §1983, in effectuating the provisions of the Amendment by “interpos[ing] the federal courts between the States and the people, as guardians of the people’s federal rights,”?Mitchum v. Foster,?at?407 U.S. 242, is also addressed to the States themselves. Certainly Congress made this intent plain enough on the face of the statute.Section 1 of the Civil Rights Act of 1871 created a federal cause of action against “any person” who, “under color of any law, statute, ordinance, regulation, custom, or usage of any State,” deprived another of “any rights, privileges, or immunities secured by the Constitution of the United States.” On February 25, 1871, less than two months before the enactment of the Civil Rights Act, Congress provided that, “in all acts hereafter passed...the word ‘person’ may extend and be applied to bodies politic and corporate...unless the context shows that such words were intended to be used in a more limited sense.” §2, 16 Stat. 431.?Monell?held that, “[s]ince there is nothing in the ‘context’ of the Civil Rights Act calling for a restricted interpretation of the word ‘person,’ the language of that section should?prima facie?be construed to include ‘bodies politic’ among the entities that could be sued.” 436 U.S. at?689-690. Even the Court’s opinion today does not dispute the fact that, in 1871, the phrase “bodies politic and corporate” would certainly have referred to the States. See Heim v. McCall,?239 U.S. 175 (1915);?McPherson v. Blacker,?146 U.S. 1 (1892);?Poindexter v. Greenhow,?114 U.S. 270?(1885);?Cotton v. United States,?11 How. 229,?52 U.S. 231?(1851);?Chisholm v. Georgia,?2 Dall. 419,?2 U.S. 447 (1793);?Utah State Building Comm’n v. Great American Indemnity Co.,?105 Utah 11, 16, 140 P.2d 763, 766 (1943);?Board of Comm’rs of Hamilton County v. Noyes,?3 Am.L.Rec. 745, 748 (Super.Ct.Cincinnati 1874); 1 J. Wilson, Works 305 (1804);?cf. Keith v. Clark,?97 U.S. 454 (1878); Munn v. Illinois,?94 U.S. 113 (1877);?Georgia v. Stanton,?6 Wall. 50,?73 U.S. 76-77 (1868);?Butler v. Pennsylvania,?10 How. 402,?51 U.S. 416-417 (1851); Penhallow v. Doane’s Administrators,?3 Dall. 54,?3 U.S. 92-93 (1795); Mass.Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate.?See Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) (“What is a State? Is it not a body politic and corporate?”);?cf. id.?at 696 (Sen. Edmunds). Thus, the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term “person” in §1 of that Act.The legislative history of the Civil Rights Act of 1871 reinforces this conclusion. The Act was originally reported to the House as H.R. 320 by Representative Shellabarger. At that time Representative Shellabarger stated that the bill was meant to be remedial “in aid of the preservation of human liberty and human rights,” and thus to be “liberally and beneficently construed.” Globe App. 68. The bill was meant to give “[f]ull force and effect...to section five” of the Fourteenth Amendment, Globe 322 (Rep. Stoughton), see id.?at 800 (Rep. Perry); Monell, 436 U.S. at?685, and therefore, like the prohibitions of that Amendment, to be addressed against the States themselves. See Globe 481-482 (Rep. Wilson); 696 (Sen. Edmunds). It was, as Representative Kerr, who opposed the bill, instantly recognized, “against the rights of the States of his Union.” Globe App. 46. Representative Shellabarger, in introducing the bill, made this explicit, stressing the need for “necessary affirmative legislation to enforce the personal rights which the Constitution guaranties, as between persons in the State and the State itself.” Id.?at 70.?See id.?at 80 (Rep. Perry); Globe 375 (Rep. Lowe); 481-482 (Rep. Wilson); 568 (Sen. Edmunds). Representative Bingham elaborated the point:“The powers of the States have been limited and the powers of Congress extended by the last three amendments of the Constitution. These last amendments - Thirteen, Fourteen, and Fifteen - do, in my judgment, vest in Congress a power to?protect the rights of citizens against States,?and individuals in States, never before granted.”“The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws; because all State officials are, by the Constitution, required to be bound by oath or affirmation to support the Constitution. As I have already said, the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy.... They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy. They bought and sold men who had no remedy. Who dare say, now that the Constitution has been amended, that the nation cannot, by law, provide against all such abuses and denials of right as these in States?and by States,?or combination of persons?” Globe App. 83, 85.H.R. 320 was necessary, as Senator Edmunds stated, to protect citizens “in the rights that the Constitution gave them...against any assault by any State or under any State or through the neglect of any State...,” Globe 697, and, by a “State,” Edmunds meant “a corporation...an organized thing...manifested, represented entirely, and fully in respect to every one of its functions by that department of its government on which the execution of those functions is respectively devolved.” Id.?at 696.?See id.?at 607-608 (Sen. Pool).It was common ground, therefore, that, as Representative Wilson argued, the prohibitions of the Fourteenth Amendment were directed against the State, meaning “the government of the State...the legislative, the judicial, and the executive”; that the fifth section of the Amendment had given Congress the power to enforce it by “appropriate legislation,” meaning “legislation adequate to meet the difficulties to be encountered, to suppress the wrongs existing, to furnish remedies and inflict penalties adequate to the suppression of all infractions of the rights of the citizens;” and that H.R. 320 was such legislation. Globe 481-483. Those who opposed the bill were fully aware of the major implications of such a statute. Representative Blair, for example, rested his opposition on the fact that the bill, including §1, was aimed at the States in their “corporate and legislative capacity”:“The inhibitions in the [Thirteenth, Fourteenth, and Fifteenth] amendments against the United States and the States are against them in their corporate and legislative capacities, for the thing or acts prohibited can alone be performed by them in their corporate or legislative capacities.”“As the States have the power to violate them and not individuals, we must presume that the legislation provided for is against the States in their corporate and legislative capacity or character and those acting under their laws, and not against the individuals, as such, of the States. I am sustained in this view of the case by the tenth section of the first article of the Constitution of the United States. In it are a number of inhibitions against the States, which it is evident are against them in their corporate and legislative capacity, and to which I respectfully call the state sovereignty. Representative Arthur, for example, complained that §1 “reaches out and draws within the despotic circle of central power all the domestic, internal, and local institutions and offices of the States, and then asserts over them an arbitrary and paramount control as of the rights, privileges, and immunities secured and protected, in a peculiar sense, by the United States in the citizens thereof. Having done this, having swallowed up the States and their institutions, tribunals, and functions, it leaves them the shadow of what they once were.” Globe 365.The answer to such arguments was, of course, that the Civil War had irrevocably and profoundly altered the balance of power between Federal and State Governments:“If anyone thinks it is going too far to give the United States this national supervisory power to protect the fundamental rights of citizens of the United States, I do not agree with him. It is not wise to permit our devotion to the reserved rights of the States to be carried so far as to deprive the citizen of his privileges and immunities.”“We must remember that it was State rights, perverted I admit from their true significance, that arrayed themselves against the nation and threatened its existence. We must remember that it was for the very purpose of placing in the General Government a check upon this arrogance of some of the States that the Fourteenth Amendment was adopted by the people. We must remember that, if the legislation we propose does trench upon what have been, before the Fourteenth Amendment, considered the rights of the States, it is in behalf and for the protection of immunities and privileges clearly given by the Constitution; and that Federal laws and Federal rights must be protected whether domestic laws or their administration are interfered with or not, because the Constitution and the laws made in pursuance thereof are the supreme law of the land. We are not making a constitution, we are enacting a law, and its virtue can be tested without peril by the experiment.” Id.?at 502 (Sen. Frelinghuysen).In the reconstructed union, national rights would be guaranteed federal protection even from the States themselves.The plain words of §1983, its legislative history and historical context, all evidence that Congress intended States to be embraced within its remedial cause of action. The Court today pronounces its conclusion in dicta by avoiding such evidence. It chooses to hear, in the eloquent and pointed legislative history of §1983, only “silence.” Such silence is, in fact, deafening to those who have ears to listen. But without reason to reach the question, without briefs, without argument, relying on a precedent that was equally ill-informed and, in any event, not controlling, the Court resolutely opines that a State is not a “person” for purposes of §1983. The 42d Congress, of course, can no longer pronounce its meaning with unavoidable clarity.?Fitzpatrick, however,?cedes to the present Congress the power to rectify this erroneous misinterpretation. It need only make its intention plain.MR. JUSTICE MARSHALL, concurring in the judgment.I concur in the judgment of the Court for the reasons expressed in my dissenting opinion in?Edelman v. Jordan,?415 U.S. 651?(1974), and my concurring opinion in?Employees v. Missouri Public Health Dept.,?411 U.S. 279 (1973). Moreover, I agree that an affirmance here follows logically from the Court’s decision in?Edelman,?because the explanatory notice approved by the Court of Appeals clearly is ancillary to prospective relief. But given that basis for deciding the present case, it is entirely unnecessary for the Court to address the question whether a State is a “person” within the meaning of §1983. Accordingly, I join Parts I, II, and III of my Brother BRENNAN’s opinion.Footnotes:10. There was only limited debate on §1 of the Civil Rights Act of 1871, and it passed without amendment.?Monell v. New York City Dept. of Social Services,?436 U.S. at 665. The sections that drew most of the debate were those that created certain federal crimes, permitted the President to send the militia to any State with widespread Ku Klux Klan violence, and authorized suspension of the writ of habeas corpus in certain circumstances.11. The Dictionary Act was intended to provide a “few general rules for the construction of statutes.” Cong. Globe, 41st Cong., 3d Sess., 1474 (1871) (remarks of Rep. Poland). While it was enacted two months before the enactment of the 1871 Civil Rights Act, it came more than five years after passage of §2 of the Civil Rights Act of 1866, 14 Stat. 27, which served as the model for the language of §1 of the 1871 Act. Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (remarks of Rep. Shellabarger);?see Monroe v. Pape,?365 U.S. 167 (1961); 440 U.S. 362.12. MR. JUSTICE BRENNAN’s opinion characterizes this conclusion as “gratuitous” and “paten[t] dicta.”?But we cannot think of a more “gratuitous” or useless exercise of this Court’s discretionary jurisdiction than to decide which of two conflicting interpretations of?Edelman v. Jordan?is correct, if in truth we believed that Edelman?itself no longer were valid. The question does not arise out of the blue; it was extensively discussed in our Brother BRENNAN’s concurrence in?Hutto v. Finney?last Term. We therefore fail to see how our reaffirmance of?Edelman?can be characterized as “dicta.”17. The arguments in MR. JUSTICE BRENNAN’s opinion regarding?Osborn v. Bank of the United States,?9 Wheat. 738 (1824), are similarly unpersuasive. Mr. Chief Justice Marshall’s opinion in?Osborn?makes it clear that, in determining whether a court can grant relief, the key inquiry is whether the state officer was, in fact, the real party in interest, or whether he was only a nominal party. 9 Wheat. at?22 U.S. 858.?See also?Bank of United States v. Planters’ Bank of Georgia,?9 Wheat. 904,?22 U.S. 907?(1824). Mr. Chief Justice Marshall emphasized this precise point just four years later in his opinion for the Court in?Governor of Georgia v. Madrazo,?1 Pet. 110 (1828). In?Madrazo,?a vessel carrying slaves was seized, and the slaves were delivered into the possession of the Governor of Georgia. The slaves were sold, and the proceeds were placed in the state treasury. Madrazo filed a libel in the Federal District Court, naming the Governor of Georgia, among others, as a defendant. Restitution was ordered by the lower courts, but this Court reversed because, although the demand for relief nominally was against the Governor of the State, it was clear that the action in fact sought relief directly from the state treasury, relief that was forbidden by the Eleventh Amendment.“The claim upon the governor is as a governor; he is sued not by his name, but by his title. The demand made upon him is not made personally, but officially.”“The decree is pronounced not against the person, but the officer, and appeared to have been pronounced against the successor of the original defendant, as the appeal bond was executed by a different governor from him who filed the information. In such a case,?where the chief magistrate of a state is sued not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not party, there is no party against whom a decree can be made.?No person in his natural capacity is brought before the Court as defendant. This not being a proceeding against the thing, but against the person, a person capable of appearing as a defendant, against whom a decree can be pronounced, must be a party to the cause before a decree can be regularly pronounced.”To similar effect?see Kentucky v. Dennison, 24 How. at?65 U.S. 97, which reaffirmed these principles of?Madrazo?and which, as the Court in?Monell?emphasized, was “well known to Members of Congress” at the time of the passage of the 1871 Act. 436 U.S. at?679. To the extent that?Davis v. Gray,?16 Wall. 203 (1873), which did no more than affirm an injunctive decree against a state official, is inconsistent with the rule applied in?Edelman,?it suffices to say that it was repudiated long before the latter decision. In?Ford Motor Co. v. Department of Treasury,?323 U.S. 459?(1945), the Court stated:“[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest, and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.”18. In addition to petitioner’s Eleventh Amendment arguments, he contends that the Court of Appeals’ notice violates the law of the case as established in?Edelman v. Jordan,?415 U.S. 651?(1974). We disagree. The doctrine of law of the case comes into play only with respect to issues previously determined.?In re Sanford Fork & Tool Co.,?160 U.S. 247?(1895). On remand, the “Circuit Court may consider and decide any matters left open by the mandate of this court.”?Accord, Wells Fargo & Co. v. Taylor,?254 U.S. 175?(1920). The Court in?Edelman?considered the constitutionality only of the relief before it. It was not presented with the question of the propriety of notice relief. Petitioner also claims that the District Court lacked power to order notice under the terms of this Court’s remand. The simple answer to this contention is that we remanded the matter in?Edelman?“for further proceedings consistent with this opinion,” and we hold today that the award of notice relief, as fashioned by the Court of Appeals, is not inconsistent with either the spirit or express terms of our decision in?Edelman.?“While a mandate is controlling as to matters within its compass, on the remand, a lower court is free as to other issues.”?Sprague v. Ticonic National Bank,?307 U.S. 161 (1939), citing?In re Sanford Fork & Tool Co.19. It appears from respondent’s answers to a District Court request that any expense associated with the preparation and mailing of the notice would be?de minimis.1. In?Edelman v. Jordan,?415 U.S. 687-688, I stated:“This suit is brought by Illinois citizens against Illinois officials. In that circumstance, Illinois may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States. Rather, the question is whether Illinois may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to respondent’s claim for retroactive AABD payments. In my view, Illinois may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept.,?411 U.S. 279?(1973): the States surrendered that immunity in Hamilton’s words, ‘in the plan of the Convention,’ that formed the Union, at least insofar as the States granted Congress specifically enumerated powers;?Parden v. Terminal R. Co.,?377 U.S. 184?(1964). Congressional authority to enact the Social Security Act, of which AABD is a part, former 42 U.S.C. §§1381-1385 (now replaced by similar provisions in 42 U.S.C. §§801-804 (1970 ed., Supp. II)), is to be found in Art. I, §8, cl. 1, one of the enumerated powers granted Congress by the States in the Constitution. I remain of the opinion that, ‘because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver,’ 411 U.S. at?300, and thus have no occasion to inquire whether or not Congress authorized an action for AABD retroactive benefits, or whether or not Illinois voluntarily waived the immunity by its continued participation in the program against the background of precedents which sustained judgments ordering retroactive payments.”8. The discussion of the issue by the respondents in?Pugh?was unilluminating:“Supreme Court Rule 19(1) states that certiorari will only be ‘granted where there are special and important reasons therefor.’ The second issue raised by the Petitioners challenges the injunction against the State of Alabama and the Alabama Board of Corrections alleging: (1) each is immune from suit under the Eleventh Amendment; (2) neither is a ‘person’ subject to 42 U.S.C. §1983 jurisdiction; and (3)?Edelman v. Jordan, 415 U.S. 651?(1974) and?Ex Parte Young,?209 U.S. 123?(1908), bar judgments against the State for prospective costs of compliance with an order. Under the facts of these cases, the questions presented are not only unimportant but are essentially irrelevant.”“First, additional defendants enjoined include all members of the Alabama Board of Corrections and numerous other prison officials who would clearly remain bound by the injunction issued,?Scheuer v. Rhodes,?416 U.S. 232?(1974);?Edelman v. Jordan,?415 U.S. 651?(1974), and have the authority in their official capacity to carry out the court’s orders. Second, the State of Alabama and the Board of Corrections were only named defendants in the?Pugh?case, and not the?James?case. Therefore, any action taken on this issue in?Pugh?would not affect the same relief granted in?James.?Third, this issue was never thought important enough by counsel for the petitioners to raise, brief or argue in the trial court. Fourth, the Court of Appeals did not see fit to speak to this issue at all. Fifth, whether the State of Alabama and/or the Board of Corrections are enjoined in addition to the members of the Board of Corrections has absolutely no practical effect on what has happened or will happen under the court’s order.” Brief in Opposition in?Alabama v. Pugh,?O.T. 1977, No. 77-1107, pp. 9-10.10. “We have said the prohibitions of the Fourteenth Amendment are addressed to the States. They are,” “No?State?shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States,...nor deny to any person within its jurisdiction the equal protection of the laws.” 100 U.S. at?346. “It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. Such enforcement is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact.”12. The phrase would also have referred to the United States. As Mr. Chief Justice Marshall stated: “The United States is a government, and, consequently, a body politic and corporate....”?United States v. Maurice,?2 Brock. 96, 109 (CC Va. 1823).?See Van Brocklin v. Tennessee,?117 U.S. 151?(1886);?Dugan v. United States,?3 Wheat. 172, 178 (1818).In construing the meaning of the term “person” in a Texas law creating a statute of limitations for suits to recover real estate “as against any person in peaceable and adverse possession thereof,” this Court stated:“Of course, the United States were not bound by the laws of the State, yet the word ‘person’ in the statute would include them as a body politic and corporate. Sayles, Art. 3140;?Martin v. State,?24 Texas, 61, 68.” Stanley v. Schwalby,?147 U.S. 508 (1893).?See United States v. Shirey,?359 U.S. 255 (1959);?Ohio v. Helvering,?292 U.S. 360 (1934);?cf. Pfizer Inc. v. India,?434 U.S. 308 (1978).15. It was common ground, at least after the Fourteenth Amendment, that Congress could “dea[l] with States and with citizens.” Globe 777 (Sen. Frelinghuysen).?See id.?at 793 (Rep. Poland). Representative Willard of Vermont, for example, who voted for H.R. 320, opposed the Sherman amendment, which would have held a municipal corporation liable for damages to its inhabitants by private persons “riotously and tumultuously assembled,’”?Monell,?at?436 U.S. 664, on the grounds that the Fourteenth Amendment imposed liability directly on the States, and not on such municipal corporations:“I hold that this duty of protection, if it rests anywhere, rests on the State, and that, if there is to be any liability visited upon anybody for a failure to perform that duty, such liability should be brought home to the State. Hence, in my judgment, this section would be liable to very much less objection, both in regard to its justice and its constitutionality, if it provided that, if in any State the offenses named in this section were committed, suit might be brought against the State, judgment obtained, and payment of the judgment might be enforced upon the treasury of the State.” Globe 791.?See id.?at 756-757 (Sen. Edmunds).There was general agreement, however, that just as Congress could not impose affirmative obligations on municipalities,?Monell,?at?436 U.S. 681?n. 40, so it could not “command a State officer to do any duty whatever, as such.” Globe 795 (Rep. Blair).?See id.?at 799 (Rep. Farnsworth);?Collector v. Day,?11 Wall. 113 (1871); Kentucky v. Dennison,?24 How. 66 (1861);?Prigg v. Pennsylvania,?16 Pet. 539 (1842). Contrary to the suggestion of the Court, however, the Prigg-Dennison-Day?line of cases, which stands for the principle that “the Federal Government...has no power to impose on a State officer, as such, any duty whatever,” 24 How. at?65 U.S. 107, no more “militate[s] against” the conclusion that States are “persons” for purposes of §1983, than it militates against the conclusion that municipalities are such persons. Everyone agreed, after all, that state officers, as such, would be subject to liability for violations of §1983. The doctrine of coordinate sovereignty, relied on in the?Prigg-Dennison-Day?line of cases, would not have distinguished between such liability and the liability of the State itself.?See Monell,?436 U.S. at?682.16. A view of the reach of §1 suggested by occasional remarks in the legislative history of H.R. 320 to the effect that “[t]he Government can act only upon individuals,” Globe App. 251 (Sen. Morton), was rejected last Term when?Monell?held that municipalities were “persons” for purposes of §1983. It was a view colored by the belief that, since a “State always acts through instrumentalities,” Globe 334 (Rep. Hoar), State violations of the Fourteenth Amendment could most effectively be reached through imposing liability on the state officials through whom States acted. As Representative Burchard stated:“In the enforcement of the observance of duties imposed directly upon the people by the Constitution, the General Government applies the law directly to persons and individual acts. It may punish individuals for interference with its prerogatives and infractions of the rights it is authorized to protect. For the neglect or refusal of a State to perform a constitutional duty, the remedies and power of enforcement given to the General Government are few and restricted. It cannot perform the duty the Constitution enjoins upon the State. If a State fails to appoint Presidential electors, or its Legislature to choose Senators, or its people to elect Representatives, Congress cannot act for them. Nor do prohibitions upon States authorize Congress to exercise the forbidden power. It may doubtless require State officers to discharge duties imposed upon them as such officers by the Constitution of the United States. A State office must be assumed with such limitations and burdens, such duties and obligations, as the Constitution of the United States attaches to it. The General Government cannot punish the State, but the officer who violates his official constitutional duty can be punished under Federal law. What more appropriate legislation for enforcing a constitutional prohibition upon a State than to compel State officers to observe it? Its violation by the State can only be consummated through the officers by whom it acts.”Globe App. 314. It is noteworthy that, even under this view, §1983 would abrogate the Eleventh Amendment immunity of States to the extent necessary to provide full relief for any plaintiff suing a state officer.?Cf.?Globe 365-366 (Rep. Arthur); 385 (Rep. Lewis); Globe App. 217 (Sen. Thurman). Thus, even if this limited approach had emerged out of concern for the Eleventh Amendment immunity of States, the distinction “between prospective relief, on one hand and retrospective relief, on the other,”?at?440 U.S. 337, which was drawn by?Edelman v. Jordan,?415 U.S. 651(1974), would be eliminated by the congressional enactment of §1983. This is not anomalous, however, since the 42d Congress would have had no way to anticipate Edelman’s?distinction, and would much more probably have had in mind the decision of Mr. Chief Justice Marshall in?Osborn v. Bank of United States,?9 Wheat. 738 (1824), which held:“It may, we think, be laid down as a rule which admits of no exception that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the Eleventh Amendment, which restrains the jurisdiction granted by the constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record. The amendment has its full effect if the Constitution be construed as it would have been construed had the jurisdiction of the Court never been extended to suits brought against a State by the citizens of another State, or by aliens.”“The State not being a party on the record, and the Court having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the Court ought to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties.” Id.?at?22 U.S. 857. Four years later, the Court, again per Mr. Chief Justice Marshall, stated that a suit against the office, as opposed to the person, of the Governor of a State had the effect of making the State a party of record,?Governor of Georgia v. Madrazo,?1 Pet. 110 (1828), but the essential principle remained unaltered, as evidenced by?Davis v. Gray,?16 Wall. 203 (1873), a case decided two years after the Civil Rights Act of 1871:“In deciding who are parties to the suit, the court will not look beyond the record. Making a State officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as the real party in interest. A State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case.” Id.?at?83 U.S. 220.For the legislators of the 42d Congress, therefore, an action under §1983 directed at state officers, regardless of the effect of the suit on the State itself, would preserve the Eleventh Amendment immunity of States, so long as States themselves were not named parties. To the extent subsequent decisions of this Court have introduced an Eleventh Amendment bar to such suits when “the action is in essence one for the recovery of money from the state,”?Ford Motor Co. v. Department of Treasury,?323 U.S. 459,?323 U.S. 464?(1945), this bar would be eliminated by the congressional enactment of §1983. Since, in the instant case, neither the State of Illinois nor the office of the Governor of Illinois are parties “on the record,” even a limited reading of the reach of §1983 should therefore hold the Eleventh Amendment inapplicable.17. Section 1 of H.R. 320 was modeled after §2 of the Civil Rights Act of 1866, 14 Stat. 27, which imposed criminal penalties on “any person” who, “under color of any law, statute, ordinance, regulation, or custom,” deprived “any inhabitant of any State or Territory” of “any right secured...by this act.” As Representative Shellabarger stated: “That section [§2] provides a criminal proceeding in identically the same case as this one [§1] provides a civil remedy....” Globe App. 68. Representative Bingham noted the limited application of the remedy provided by §2:“It is clear that, if Congress do so provide by penal laws for the protection of these rights [guaranteed by the Fourteenth Amendment], those violating them must answer for the crime, and not the States. The United States punishes men, not States, for a violation of its law.”Globe App. 85-86. Representative Bingham was thus able to distinguish, as apparently the Court is not,?at?440 U.S. 341, between the reach of the word “person” in §2 of the Civil Rights Act of 1866 and its reach in §1 of the Civil Rights Act of 1871.BELL, et al. v. WOLFISH et al., 441 U.S. 520, 99 S.Ct. 1861 (1979)MR. JUSTICE REHNQUIST delivered the opinion of the Court.Presumption of innocence is doctrine that allocates burden of proof in criminal trials and may also serve as an admonishment to jury to judge accused’s guilt or innocence solely on basis of evidence adduced at trial and not on basis of suspicions that may arise from fact of arrest, indictment, or custody or for matters introduced as proof at trial; however, presumption has no application to determination of rights of pretrial detainees during confinement before trial has even begun. U.S.C.A. Const. Amend. 5.In evaluating constitutionality of conditions or restrictions of pretrial detention that implicate protection against deprivation of liberty without due process, proper inquiry is whether those conditions or restrictions amount to punishment of detainee. U.S.C.A. Const. Amend. 5.Absent showing of express intent to punish, if particular condition or restriction imposed on pretrial detainee is reasonably related to legitimate nonpunitive government objective, it does not, without more, amount to punishment, but, conversely, if condition a restriction is arbitrary or purposeless, court may permissibly inferred the purpose of governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. U.S.C.A. Const. Amend. 5.Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of retained constitutional rights of both convicted prisoners and pretrial detainees and prisoners officials must be free to take appropriate action to ensure safety of inmates and corrections personnel and to prevent escape or unauthorized entry. U.S.C.A. Const. Amend. 5.Enforcement of rule prohibiting pretrial detainees from receiving hardcover books that were not mailed directly from publishers, book clubs, or bookstores did not violate First or Fifth Amendments, but was rational response for prison officials to obvious security problem of preventing smuggling of contraband; moreover, rule operated in neutral fashion, without regard to content of expression, there were alternative means of obtaining reading material, and rule’s impact on pretrial detainees was limited to a maximum period of approximately 60 days. U.S.C.A. Const. Amends. 1, 5.Respondent inmates brought this class action in Federal District Court challenging the constitutionality of numerous conditions of confinement and practices in the Metropolitan Correctional Center (MCC), a federally operated short-term custodial facility in New York City designed primarily to house pretrial detainees. The District Court, on various constitutional grounds, enjoined, inter alia, the practice of housing, primarily for sleeping purposes, two inmates in individual rooms originally intended for single occupancy (“double-bunking”); enforcement of the so-called “publisher-only” rule prohibiting inmates from receiving hard-cover books that are not mailed directly from publishers, book clubs, or bookstores; the prohibition against inmates’ receipt of packages of food and personal items from outside the institution; the practice of body-cavity searches of inmates following contact visits with persons from outside the institution; and the requirement that pretrial detainees remain outside their rooms during routine inspections by MCC officials. The Court of Appeals affirmed these rulings, holding with respect to the “double-bunking” practice that the MCC had failed to make a showing of “compelling necessity” sufficient to justify such practice.Held:1. The “double-bunking” practice does not deprive pretrial detainees of their liberty without due process of law in contravention of the Fifth Amendment.(a) There is no source in the Constitution for the Court of Appeals’ compelling-necessity standard. Neither the presumption of innocence, the Due Process Clause of the Fifth Amendment, nor a pretrial detainee’s right to be free from punishment provides any basis for such standard.(b) In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, the proper inquiry is whether those conditions or restrictions amount to punishment of the detainee. Absent a showing of an expressed intent to punish, if a particular condition or restriction is reasonably related to a legitimate nonpunitive governmental objective, it does not, without more, amount to “punishment,” but, conversely, if a condition or restriction is arbitrary or purposeless,?a court may permissibly infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. In addition to ensuring the detainees’ presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such conditions and restrictions are intended as punishment.(c) Judged by the above analysis and on the record, “double-bunking” as practiced at the MCC did not, as a matter of law, amount to punishment and hence did not violate respondents’ rights under the Due Process Clause of the Fifth Amendment. While “double-bunking” may have taxed some of the equipment or particular facilities in certain of the common areas in the MCC, this does not mean that the conditions at the MCC failed to meet the standards required by the Constitution, particularly where it appears that nearly all pretrial detainees are released within 60 days.2. Nor do the “publisher-only” rule, body-cavity searches, the prohibition against the receipt of packages, or the room-search rule violate any constitutional guarantees.(a) Simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. There must be a “mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application,” Wolff v. McDonnell,?418 U.S. 539, and this principle applies equally to pretrial detainees and convicted prisoners. Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.(b) The “publisher-only” rule does not violate the First Amendment rights of MCC inmates but is a rational response by prison officials to the obvious security problem of preventing the smuggling of contraband in books sent from outside. Moreover, such rule operates in a neutral fashion, without regard to the content of the expression, there are alternative means of obtaining reading material, and the rule’s impact on pretrial detainees is limited to a maximum period of approximately 60 days.(c) The restriction against the receipt of packages from outside the facility does not deprive pretrial detainees of their property without due process of law in contravention of the Fifth Amendment, especially in view of the obvious fact that such packages are handy devices for the smuggling of contraband.(d) Assuming that a pretrial detainee retains a diminished expectation of privacy after commitment to a custodial facility, the room-search rule does not violate the Fourth Amendment but simply facilitates the safe and effective performance of the searches and thus does not render the searches “unreasonable” within the meaning of that Amendment.(e) Similarly, assuming that pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility, the body-cavity searches do not violate that Amendment. Balancing the significant and legitimate security interests of the institution against the inmates’ privacy interests, such searches can be conducted on less than probable cause and are not unreasonable.(f) None of the security restrictions and practices described above constitute “punishment” in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment. These restrictions and practices were reasonable responses by MCC officials to legitimate security concerns, and, in any event, were of only limited duration so far as the pretrial detainees were concerned.Over the past five Terms, this Court has in several decisions considered constitutional challenges to prison conditions or practices by convicted prisoners. This case requires us to examine the constitutional rights of pretrial detainees-those persons who have been charged with a crime but who have not yet been tried on the charge. The parties concede that to ensure their presence at trial, these persons legitimately may be incarcerated by the Government prior to a determination of their guilt or innocence; see 18 U.S.C. §§3146, 3148, and it is the scope of their rights during this period of confinement prior to trial that is the primary focus of this case.The MCC was constructed in 1975 to replace the converted waterfront garage on West Street that had served as New York City’s federal jail since 1928. It is located adjacent to the Foley Square federal courthouse and has as its primary objective the housing of persons who are being detained in custody prior to trial for federal criminal offenses in the United States District Courts for the Southern and Eastern Districts of New York and for the District of New Jersey. Under the Bail Reform Act, 18 U.S.C. §3146, a person in the federal system is committed to a detention facility only because no other less drastic means can reasonably ensure his presence at trial. In addition to pretrial detainees, the MCC also houses some convicted inmates who are awaiting sentencing or transportation to federal prison or who are serving generally relatively short sentences in a service capacity at the MCC, convicted prisoners who have been lodged at the facility under writs of habeas corpus ad prosequendum or ad testificandum issued to ensure their presence at upcoming trials, witnesses in protective custody, and persons incarcerated for contempt.Our fundamental disagreement with the Court of Appeals is that we fail to find a source in the Constitution for its compelling-necessity standard. Both the Court of Appeals and the District Court seem to have relied on the “presumption of innocence” as the source of the detainee’s substantive right to be free from conditions of confinement that are not justified by compelling necessity. 573 F.2d, at 124; 439 F. Supp., at 124; accord, Campbell v. McGruder, 188 U.S.App.D.C. 258, 266, 580 F.2d 521, 529 (1978); Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (CA2 1975); Rhem v. Malcolm, at 336. But see Feeley v. Sampson, 570 F.2d 364, 369 n. 4 (CA1 1978); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1080 n. 1 (CA3 1976). But the presumption of innocence provides no support for such a rule.The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused’s guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial. Taylor v. Kentucky,?436 U.S. 478?(1978); see Estelle v. Williams,?425 U.S. 501?(1976); In re Winship,?397 U.S. 358?(1970); 9 J. Wigmore, Evidence 2511 (3d ed. 1940). It is “an inaccurate, shorthand description of the right of the accused to ‘remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; ...’ an ‘assumption’ that is indulged in the absence of contrary evidence.” Taylor v. Kentucky, at 484 n. 12. Without question, the presumption of innocence plays an important role in our criminal justice system. “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432?(1895). But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.It is important to focus on what is at issue here. We are not concerned with the initial decision to detain an accused and the curtailment of liberty that such a decision necessarily?entails. See Gerstein v. Pugh,?420 U.S. 103?(1975); United States v. Marion,?404 U.S. 307?(1971). Neither respondents nor the courts below question that the Government may permissibly detain a person suspected of committing a crime prior to a formal adjudication of guilt. Nor do they doubt that the Government has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, or that confinement of such persons pending trial is a legitimate means of furthering that interest. Tr. of Oral Arg. 27; see Stack v. Boyle,?342 U.S. 1?(1951). Instead, what is at issue when an aspect of pretrial detention that is not alleged to violate any express guarantee of the Constitution is challenged, is the detainee’s right to be free from punishment, and his understandable desire to be as comfortable as possible during his confinement, both of which may conceivably coalesce at some point. It seems clear that the Court of Appeals did not rely on the detainee’s right to be free from punishment, but even if it had that right does not warrant adoption of that court’s compelling-necessity test. And to the extent the court relied on the detainee’s desire simply does from discomfort, it suffices to say that this desire simply does not rise to the level of those fundamental liberty interests delineated in cases such as Roe v. Wade,?410 U.S. 113?(1973); Eisenstadt v. Baird,?405 U.S. 438?(1972); Stanley v. Illinois,?405 U.S. 645?(1972); Griswold v. Connecticut,?381 U.S. 479?(1965); Meyer v. Nebraska,?262 U.S. 390?(1923).In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.?See Ingraham v. Wright,?430 U.S. 651 (1977); Kennedy v. Mendoza-Martinez,?372 U.S. 144 (1963); Wong Wing v. United States,?163 U.S. 228?(1896). A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a “judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.” Gerstein v. Pugh, at 114; see Virginia v. Paul,?148 U.S. 107?(1893). And, if he is detained for a suspected violation of a federal law, he also has had a bail hearing. See 18 U.S.C. §§3146, 3148. Under such circumstances, the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions?do not amount to punishment, or otherwise violate the Constitution.Not every disability imposed during pretrial detention amounts to “punishment” in the constitutional sense, however. Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Traditionally, this has meant confinement in a facility which, no matter how modern or how antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. Whether it be called a jail, a prison, or a custodial center, the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee’s understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into “punishment.”This Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may. See Kennedy v. Mendoza-Martinez, at 168; Flemming v. Nestor,?363 U.S. 603 (1960); cf. DeVeau v. Braisted,?363 U.S. 144?(1960). In Kennedy v. Mendoza-Martinez, the Court examined the automatic forfeiture-of-citizenship provisions of the immigration laws to determine whether that sanction amounted to punishment or a mere regulatory restraint. While it is all but impossible to compress the distinction into a sentence or a paragraph, the Court there described the tests traditionally applied to determine whether a governmental act is punitive in nature:“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding?of scienter, whether its operation will promote the traditional aims of punishment - retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.”?372 U.S., at 168-169.The factors identified in Mendoza-Martinez provide useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word. A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. See Flemming v. Nestor, at 613-617. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Kennedy v. Mendoza-Martinez, at 168-169; see Flemming v. Nestor, at 617. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal - if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility. Cf. United States v. Lovasco,?431 U.S. 783?(1977); United States v. Russell,?411 U.S. 423?(1973).One further point requires discussion. The petitioners assert, and respondents concede, that the “essential objective of pretrial confinement is to insure the detainees’ presence at trial.” While this interest undoubtedly justifies the original decision to confine an individual in some manner, we do not accept?respondents’ argument that the Government’s interest in ensuring a detainee’s presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to confine a person. “If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention.” Campbell v. McGruder, 188 U.S.App.D.C., at 266, 580 F.2d, at 529. The Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees. Restraints that are reasonably related to the institution’s interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees’ presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.Our cases have established several general principles that inform our evaluation of the constitutionality of the restrictions at issue. First, we have held that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. See Jones v. North Carolina Prisoners’ Labor Union,?433 U.S. 119?(1977); Meachum v. Fano,?427 U.S. 215 (1976); Wolff v. McDonnell,?418 U.S. 539 (1974); Pell v. Procunier,?417 U.S. 817?(1974). “There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, at 555-556. So, for example, our cases have held that sentenced prisoners enjoy freedom of speech and religion under the First and Fourteenth Amendments, see Pell v. Procunier; Cruz v. Beto,?405 U.S. 319?(1972); Cooper v. Pate,?378 U.S. 546?(1964); that they are protected against invidious discrimination on the basis of race under the Equal Protection Clause of the Fourteenth Amendment, see Lee v. Washington,?390 U.S. 333?(1968); and that they may claim the protection of the Due Process Clause to prevent additional deprivation of life, liberty, or property without due process of law, see Meachum v. Fano; Wolff v. McDonnell. A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.But our cases also have insisted on a second proposition: simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. “Lawful incarceration brings?about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston,?334 U.S. 266?(1948); see Jones v. North Carolina Prisoners’ Labor Union, at 125; Wolff v. McDonnell, at 555; Pell v. Procunier, at 822. The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights. Jones v. North Carolina Prisoners’ Labor Union, at 125; Pell v. Procunier, at 822. There must be a “mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Wolff v. McDonnell, at 556. This principle applies equally to pretrial detainees and convicted prisoners. A detainee simply does not possess the full range of freedoms of an unincarcerated individual.At the time of the lower courts’ decisions, the Bureau of Prisons’ “publisher-only” rule, which applies to all Bureau?facilities, permitted inmates to receive books and magazines from outside the institution only if the materials were mailed directly from the publisher or a book club. The warden of the MCC stated in an affidavit that “serious” security and administrative problems were caused when bound items were received by inmates from unidentified sources outside the facility. He noted that in order to make a “proper and thorough” inspection of such items, prison officials would have to remove the covers of hardback books and to leaf through every page of all books and magazines to ensure that drugs, money, weapons, or other contraband were not secreted in the material. “This search process would take a substantial and inordinate amount of available staff time.” However, “there is relatively little risk that material received directly from a publisher or book club would contain contraband, and therefore, the security problems are significantly reduced without a drastic drain on staff resources.”It is desirable at this point to place in focus the precise question that now is before this Court. Subsequent to the decision of the Court of Appeals, the Bureau of Prisons amended its “publisher-only” rule to permit the receipt of books and magazines from bookstores as well as publishers and book clubs. 43 Fed. Reg. 30576 (1978) (to be codified in 28 CFR 540.71). In addition, petitioners have informed the Court that the Bureau proposes to amend the rule further to allow receipt of paperback books, magazines, and other soft-covered materials from any source. The Bureau regards hardback books as?the “more dangerous source of risk to institutional security,” however, and intends to retain the prohibition against receipt of hardback books unless they are mailed directly from publishers, book clubs, or bookstores. Accordingly, petitioners request this Court to review the District Court’s injunction only to the extent it enjoins petitioners from prohibiting receipt of hard-cover books that are not mailed directly from publishers, book clubs, or bookstores.Our conclusion that this limited restriction on receipt of hardback books does not infringe the First Amendment rights of MCC inmates is influenced by several other factors. The rule operates in a neutral fashion, without regard to the content of the expression. And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient. “[W]e regard the available ‘alternative means of [communication as] a relevant factor’ in a case such as this where ‘we [are] called upon to balance First Amendment rights against [legitimate] governmental...interests.’” Quoting Kleindienst v. Mandel,?408 U.S. 753?(1972); see Cruz v. Beto,?405 U.S., at 321. The restriction, as it is now before us, allows soft-bound books and magazines to be received from any source and hardback books to be received from publishers, bookstores, and book clubs. In addition, the MCC has a “relatively large” library for use by inmates. United States ex rel. Wolfish v. United States, 428 F.Supp., at 340. To the limited extent the rule might possibly increase the cost of obtaining published materials, this Court has held that where “other avenues” remain available for the receipt of materials by inmates, the loss of “cost advantages does not fundamentally implicate free speech values.” See Jones v. North Carolina Prisoners’ Labor Union, at 130-131. We are also influenced in our decision by the fact that the rule’s impact on pretrial detainees is limited to a maximum period of approximately 60 days. In sum, considering all the circumstances, we view the rule, as we now find it, to be a “reasonable ‘time, place and manner’ regulatio[n that is] necessary to further significant governmental interests....” Grayned v. City of Rockford,?408 U.S. 104?(1972); see Cox v. New Hampshire,?312 U.S. 569 (1941); Cox v. Louisiana,?379 U.S. 536 (1965); Adderley v. Florida,?385 U.S. 39 (1966).Inmates at the MCC were not permitted to receive packages from outside the facility containing items of food or personal property, except for one package of food at Christmas. This rule was justified by MCC officials on three grounds. First, officials testified to “serious” security problems that arise from the introduction of such packages into the institution, the “traditional file in the cake kind of situation” as well as the concealment of drugs “in heels of shoes [and] seams of clothing.” As in the case of the “publisher-only” rule, the warden testified that if such packages were allowed, the inspection process necessary to ensure the security of the institution would require a “substantial and inordinate amount of available staff time.” Second, officials were concerned that the introduction of personal property into the facility would increase the risk of thefts, gambling, and inmate conflicts, the “age-old problem of you have it and I don’t.” Finally, they noted storage and sanitary problems that would result from inmates’ receipt of food packages. Inmates are permitted, however, to purchase certain items of food and personal property from the MCC commissary.Neither the District Court nor the Court of Appeals identified which provision of the Constitution was violated by this MCC restriction. We assume, for present purposes, that their decisions were based on the Due Process Clause of the Fifth Amendment, which provides protection for convicted prisoners and pretrial detainees alike against the deprivation of their property without due process of law. But as we have stated, these due process rights of prisoners and pretrial detainees are not absolute; they are subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution.We think that the District Court and the Court of Appeals have trenched too cavalierly into areas that are properly the concern of MCC officials. It is plain from their opinions that the lower courts simply disagreed with the judgment of MCC officials about the extent of the security interests affected and the means required to further those interests. But our decisions have time and again emphasized that this sort of unguided substitution of judicial judgment for that of the expert prison administrators on matters such as this is inappropriate. See Jones v. North Carolina Prisoners’ Labor Union; Pell v. Procunier; Procunier v. Martinez. We do not doubt that the rule devised by the District Court and modified by the Court of Appeals may be a reasonable way of coping with the problems of security, order, and sanitation. It simply is not, however, the only constitutionally permissible approach to these problems. Certainly, the Due Process Clause does not mandate a “lowest common denominator” security standard, whereby a practice permitted at one penal institution must be permitted at all institutions.?Corrections officials concluded that permitting the introduction of packages of personal property and food would increase the risks of gambling, theft, and inmate fights over that which the institution already experienced by permitting certain items to be purchased from its commissary. “It is enough to say that they have not been conclusively shown to be wrong in this view.” Jones v. North Carolina Prisoners’ Labor Union,?433 U.S., at 132. It is also all too obvious that such packages are handy devices for the smuggling of contraband. There simply is no basis in this record for concluding that MCC officials have exaggerated their response to these serious problems or that this restriction is irrational. It does not therefore deprive the convicted inmates or pretrial detainees?of the MCC of their property without due process of law in contravention of the Fifth Amendment.The District Court held that this procedure could not stand as applied to pretrial detainees because MCC officials had not shown that the restriction was justified by “compelling necessity.” The court stated that “[a]t least until or unless [petitioners] can show a pattern of violence or other disruptions taxing the powers of control - a kind of showing not remotely approached by the Warden’s expressions - the security argument for banishing inmates while their rooms are searched must be rejected.” 439 F.Supp., at 149. It also noted that in many instances inmates suspected guards of thievery. The Court of Appeals agreed with the District Court. It saw “no reason whatsoever not to permit a detainee to observe the search of his room and belongings from a reasonable distance,” although the court permitted the removal of any detainee who became “obstructive.” 573 F.2d, at 132.It is difficult to see how the detainee’s interest in privacy is infringed by the room-search rule. No one can rationally doubt that room searches represent an appropriate security measure and neither the District Court nor the Court of Appeals prohibited such searches. And even the most zealous advocate of prisoners’ rights would not suggest that a warrant is required to conduct such a search. Detainees’ drawers, beds, and personal items may be searched, even after the lower courts’ rulings. Permitting detainees to observe the searches does not lessen the invasion of their privacy; its only conceivable beneficial effect would be to prevent theft or misuse by those conducting the search. The room-search rule simply facilitates the safe and effective performance of the search which all concede may be conducted. The rule itself, then, does not render the searches “unreasonable” within the meaning of the Fourth Amendment.Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. The District Court upheld the strip-search procedure but prohibited the body-cavity searches, absent probable cause to believe that the inmate is concealing contraband. Because petitioners proved only one instance in the MCC’s short history where contraband was found during a body-cavity search, the Court of Appeals affirmed. In its view, the “gross violation of personal privacy inherent in such a search cannot be out-weighed by the government’s security interest in maintaining a practice of so little actual utility.” 573 F.2d, at 131.The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. E.g., United States v. Ramsey,?431 U.S. 606?(1977); United States v. Martinez-Fuerte,?428 U.S. 543?(1976); United States v. Brignoni-Ponce,?422 U.S. 873?(1975); Terry v. Ohio,?392 U.S. 1?(1968); Katz v. United States,?389 U.S. 347?(1967); Schmerber v. California,?384 U.S. 757?(1966). A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, and in other cases. E.g., Ferraro v. United States, 590 F.2d 335 (CA6 1978); United States v. Park, 521 F.2d 1381 (CA9 1975). That there has been only one instance where an MCC inmate was discovered attempting to smuggle contraband into the institution on his person may be more a testament to the effectiveness of this search technique as a deterrent than to any lack of interest on the part of the inmates to secrete and import such items when the opportunity arises.Nor do we think that the four MCC security restrictions and practices described in Part III constitute “punishment”?in violation of the rights of pretrial detainees under the Due Process Clause of the Fifth Amendment. Neither the District Court nor the Court of Appeals suggested that these restrictions and practices were employed by MCC officials with an intent to punish the pretrial detainees housed there. Respondents do not even make such a suggestion; they simply argue that the restrictions were greater than necessary to satisfy petitioners’ legitimate interest in maintaining security. Therefore, the determination whether these restrictions and practices constitute punishment in the constitutional sense depends on whether they are rationally related to a legitimate nonpunitive governmental purpose and whether they appear excessive in relation to that purpose. Ensuring security and order at the institution is a permissible nonpunitive objective, whether the facility houses pretrial detainees, convicted inmates, or both. For the reasons set forth in Part III we think that these particular restrictions and practices were reasonable responses by MCC officials to legitimate security concerns. Respondents simply have not met their heavy?burden of showing that these officials have exaggerated their response to the genuine security considerations that actuated these restrictions and practices. And as might be expected of restrictions applicable to pretrial detainees, these restrictions were of only limited duration so far as the MCC pretrial detainees were concerned.There was a time not too long ago when the Federal Judiciary took a completely “hands-off” approach to the problem of prison administration. In recent years, however, these courts largely have discarded this “hands-off” attitude and have waded into this complex arena. The deplorable conditions and Draconian restrictions of some of our Nation’s prisons are too well known to require recounting here, and the federal courts rightly have condemned these sordid aspects of our prison systems. But many of these same courts have, in the name of the Constitution, become increasingly enmeshed in the minutiae of prison operations. Judges, after all, are human. They, no less than others in our society, have a natural tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. But under the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however, that the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution or, in the case of a federal prison, a statute. The wide range of “judgment calls” that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government.MR. JUSTICE MARSHALL, dissenting.The Court holds that the Government may burden pretrial detainees with almost any restriction, provided detention officials do not proclaim a punitive intent or impose conditions that are “arbitrary or purposeless.” As if this standard were not sufficiently ineffectual, the Court dilutes it further by according virtually unlimited deference to detention officials’ justifications for particular impositions. Conspicuously lacking from this analysis is any meaningful consideration of the most relevant factor, the impact that restrictions may have on inmates. Such an approach is unsupportable, given that all of these detainees are presumptively innocent and many are confined solely because they cannot afford bail.To make detention officials’ intent the critical factor in assessing the constitutionality of impositions on detainees is unrealistic in the extreme. The cases on which the Court relies to justify this narrow focus all involve legislative Acts, not day-to-day administrative decisions. See Kennedy v. Mendoza-Martinez (Nationality Act of 1940 and Immigration and Nationality Act of 1952); Flemming v. Nestor,?363 U.S. 603?(1960) (Social Security Act); DeVeau v. Braisted,?363 U.S. 144?(1960) (New York Waterfront Commission Act). In discerning the intent behind a statutory enactment, courts engage in a familiar judicial function, usually with the benefit of a legislative history that preceded passage of the statute. The motivation for policies in detention facilities, however, will frequently not be a matter of public?record. Detainees challenging these policies will therefore bear the substantial burden of establishing punitive intent on the basis of circumstantial evidence or retrospective explanations by detention officials, which frequently may be self-serving. Particularly since the Court seems unwilling to look behind any justification based on security, that burden will usually prove insurmountable.In any event, it will often be the case that officials believe, erroneously but in good faith, that a specific restriction is necessary for institutional security. As the District Court noted, “zeal for security is among the most common varieties of official excess,” United States ex rel. Wolfish v. Levi, 439 F.Supp. 114 (SDNY 1977), and the litigation in this area corroborates that conclusion. A standard that focuses?on punitive intent cannot effectively eliminate this excess. Indeed, the Court does not even attempt to “detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention.” Rather, it is content merely to recognize that “the effective management of the detention facility...is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.”Moreover, even if the inquiry the Court pursues were more productive, it simply is not the one the Constitution mandates here. By its terms, the Due Process Clause focuses on the nature of deprivations, not on the persons inflicting them. If this concern is to be vindicated, it is the effect of conditions of confinement, not the intent behind them, that must be the focal point of constitutional analysis.Yet as the Court implicitly acknowledges, the rights of detainees, who have not been adjudicated guilty of a crime, are necessarily more extensive than those of prisoners “who have been found to have violated one or more of the criminal laws established by society for its orderly governance.” Jones v. North Carolina Prisoners’ Union,?433 U.S. 119?(1977). See Campbell v. McGruder, 188 U.S.App.D.C. 258, 580 F.2d 521 (1978). Judicial tolerance of substantial impositions on detainees must be concomitantly less. However, by blindly deferring to administrative judgments on the rational basis for particular restrictions, the Court effectively delegates to detention officials the decision whether pretrial detainees have been punished. This, in my view, is an abdication of an unquestionably judicial function.Even had the Court properly applied the punishment test, I could not agree to its use in this context. It simply does?not advance analysis to determine whether a given deprivation imposed on detainees constitutes “punishment.” For in terms of the nature of the imposition and the impact on detainees, pretrial incarceration, although necessary to secure defendants’ presence at trial, is essentially indistinguishable from punishment. The detainee is involuntarily confined and deprived of the freedom “to be with his family and friends and to form the other enduring attachments of normal life,” Morrissey v. Brewer,?408 U.S. 471?(1972). Indeed, this Court has previously recognized that incarceration is an “infamous punishment.” Flemming v. Nestor,?363 U.S., at 617; see also Wong Wing v. United States,?163 U.S. 228 (1896); Ingraham v. Wright,?430 U.S. 651?(1977). And if the effect of incarceration itself is inevitably punitive, so too must be the cumulative impact of those restraints incident to that restraint. A test that balances the deprivations involved against the state interests assertedly served?would be more consistent?with the import of the Due Process Clause. Such an approach would be sensitive to the tangible physical and psychological harm that a particular disability inflicts on detainees and to the nature of the less tangible, but significant, individual interests at stake. The greater the imposition on detainees, the heavier the burden of justification the Government would bear. See Bates v. Little Rock,?361 U.S. 516?(1960); Shapiro v. Thompson,?394 U.S. 618 (1969); Kusper v. Pontikes,?414 U.S. 51 (1973).Simply stated, the approach I advocate here weighs the detainees’ interests implicated by a particular restriction against the governmental interests the restriction serves. As the substantiality of the intrusion on detainees’ rights increases, so must the significance of the countervailing governmental objectives.Although the constitutionality of the MCC’s rule limiting the sources of hardback books was also decided on summary judgment, I believe a remand is unnecessary. That?individuals have a fundamental First Amendment right to receive information and ideas is beyond dispute. See Martin v. Struthers,?319 U.S. 141?(1943); Stanley v. Georgia,?394 U.S. 557 (1969); Red Lion Broadcasting Co. v. FCC,?395 U.S. 367?(1969); see also Brandenburg v. Ohio,?395 U.S. 444?(1969). Under the balancing test elaborated above, the Government must therefore demonstrate that its rule infringing on that interest serves a compelling necessity. As the courts below found, the Government failed to make such a showing.Denial of the right to possess property is surely of heightened concern when viewed with the other indignities of detainment. As the District Court observed, it is a?severe discomfort to do without personal items such as a watch or cosmetics, and things to eat, smoke, or chew. Indeed, the court noted, “[t]he strong dependence upon material things...gives rise to one of the deepest miseries of incarceration - the deprivation of familiar possessions.” 439 F.Supp., at 150. Given this impact on detainees, the appropriate inquiry is whether the package restriction is substantially necessary to prison administration.MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins, dissenting.This is not an equal protection case. An empirical judgment that most persons formally accused of criminal conduct are probably guilty would provide a rational basis for a set of rules that treat them like convicts until they establish their innocence. No matter how rational such an approach might be - no matter how acceptable in a community where equality of status is the dominant goal - it is obnoxious to the concept of individual freedom protected by the Due Process Clause. If ever accepted in this country, it would work a fundamental change in the character of our free society.Nor is this an Eighth Amendment case. That provision of the Constitution protects individuals convicted of crimes from punishment that is cruel and unusual. The pretrial detainees whose rights are at stake in this case, however, are innocent men and women who have been convicted of no crimes. Their claim is not that they have been subjected to cruel and unusual punishment in violation of the Eighth Amendment, but that to subject them to any form of punishment at all is an unconstitutional deprivation of their liberty.Prior to conviction every individual is entitled to the benefit of a presumption both that he is innocent of prior criminal conduct and that he has no present intention to commit any offense in the immediate future. That presumption does?not imply that he may not be detained or otherwise subjected to restraints on the basis of an individual showing of probable cause that he poses relevant risks to the community. For our system of justice has always and quite properly functioned on the assumption that probable cause to believe (1) that a person has committed a crime, and (2) that absent the posting of bail he poses at least some risk of flight, justifies pretrial detention to ensure his presence at trial.The fact that an individual may be unable to pay for a bail bond, however, is an insufficient reason for subjecting him to indignities that would be appropriate punishment for convicted felons. Nor can he be subject on that basis to onerous restraints that might properly be considered regulatory with respect to particularly obstreperous or dangerous arrestees. An innocent man who has no propensity toward immediate violence, escape, or subversion may not be dumped into a pool of second-class citizens and subjected to restraints designed to regulate others who have. For him, such treatment?amounts to punishment. And because the due process guarantee is individual and personal, it mandates that an innocent person be treated as an individual human being and be free of treatment which, as to him, is punishment.In addressing the constitutionality of the rules at issue in this case, the Court seems to say that as long as the correction officers are not motivated by “an expressed intent to punish” their wards, and as long as their rules are not “arbitrary or purposeless,” these rules are an acceptable form of regulation and not punishment. Lest that test be too exacting, the Court abjectly defers to the prison administrator unless his conclusions are “‘conclusively shown to be wrong.’“ Quoting Jones v. North Carolina Prisoners’ Labor Union,?433 U.S. 119.It is possible, of course, that the MCC officials have determined not to punish the convicted criminals who are confined there, but merely to regulate or detain them. It is possible, too, that as to the detainees, the rules that have been adopted and that are at issue here serve to impose only those restraints?needed to regulate the least dangerous of the group. But the Government does not even suggest that the convicted criminals are not being punished during the confinement at MCC. And common sense suggests that if one set of rules is applied indiscriminately to detainees, those rules will serve to regulate the most dangerous - not the least - of the group. Indeed, prison security might well be in jeopardy were it otherwise. If that is true, and if the restraints are as substantial and fundamental as those here, then the conclusion that at least some, if not all, of the detainees are being punished is virtually inescapable.Footnotes:8. While most of the District Court’s rulings were based on constitutional grounds, the court also held that some of the actions of the Bureau of Prisons were subject to review under the Administrative Procedure Act (APA) and were “arbitrary and capricious” within the meaning of the APA. 439 F.Supp., at 122-123.10.?The District Court also granted respondents relief on the following issues: classification of inmates and movement between units; length of confinement; law library facilities; the commissary; use of personal typewriters; social and attorney visits; telephone service; inspection of inmates’ mail; inmate uniforms; availability of exercise for inmates in administrative detention; food service; access to the bathroom in the visiting area; special diets for Muslim inmates; and women’s “lock-in.” 439 F.Supp., at 125-165. None of these rulings are before this Court.16. The Court of Appeals properly relied on the Due Process Clause rather than the Eighth Amendment in considering the claims of pretrial detainees. Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be “cruel and unusual” under the Eighth Amendment. The Court recognized this distinction in Ingraham v. Wright,?430 U.S. 651 (1977):“Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. See United States v. Lovett,?328 U.S. 303 (1946).... [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.”17. MR. JUSTICE STEVENS in dissent claims that this holding constitutes a departure from our prior due process cases, specifically Leis v. Flynt,?439 U.S. 438?(1979), and Paul v. Davis,?424 U.S. 693?(1976). But as the citations following our textual statement indicate, we leave prior decisional law as we find it and simply apply it to the case at bar. For example, in Wong Wing v. United States,?163 U.S. 228?(1896), the Court held that the subjection of persons to punishment at hard labor must be preceded by a judicial trial to establish guilt. And in Ingraham v. Wright, at 674, we stated that “at least where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated.” Thus, there is neither novelty nor inconsistency in our holding that the Fifth Amendment includes freedom from punishment within the liberty of which no person may be deprived without due process of law.18. The Bail Reform Act of 1966 establishes a liberal policy in favor of pretrial release. 18 U.S.C. §§3146, 3148. Section 3146 provides in pertinent part:“Any person charged with an offense, other than an offense punishable by death, shall, at his appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required.”21. “There is, of course, a de minimis level of imposition with which the Constitution is not concerned.” Ingraham v. Wright,?430 U.S., at 674.33. The general library consists of more than 3,000 hardback books, which include general reference texts and fiction and nonfiction works, and more than 5,000 assorted paperbacks, including fiction and nonfiction. The MCC offers for sale to inmates four daily newspapers and certain magazines. Joint App. in Nos. 77-2035, 77-2135 (CA2), pp. 102-103 (affidavit of Robert Harris, MCC Education Specialist, dated Oct. 19, 1976). Other paperback books and magazines are donated periodically and distributed among the units for inmate use. United States ex rel. Wolfish v. Levi, 439 F.Supp., at 131.40. The District Court indicated that in its view the use of metal detection equipment represented a less intrusive and equally effective alternative to cavity inspections. We noted in United States v. Martinez-Fuerte,?428 U.S. 543 (1976), that “[t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.” However, assuming that the existence of less intrusive alternatives is relevant to the determination of the reasonableness of the particular search method at issue, the alternative suggested by the District Court simply would not be as effective as the visual inspection procedure. Money, drugs, and other nonmetallic?contraband still could easily be smuggled into the institution. Another possible alternative, not mentioned by the lower courts, would be to closely observe inmate visits. See Dept. of Justice, Federal Corrections Policy Task Force, Federal Standards for Corrections (Draft, June 1978). But MCC officials have adopted the visual inspection procedure as an alternative to close and constant monitoring of contact visits to avoid the obvious disruption of the confidentiality and intimacy that these visits are intended to afford. That choice has not been shown to be irrational or unreasonable. Another alternative that might obviate the need for body-cavity inspections would be to abolish contact visits altogether. But the Court of Appeals, in a ruling that is not challenged in this Court and on which we, accordingly, express no opinion, held that pretrial detainees have a constitutional right to contact visits. 573 F.2d, at 126; see Marcera v. Chinlund, 595 F.2d 1231 (CA2 1979). See also Miller v. Carson, 563 F.2d, at 748-749.7. If a particular imposition could be termed “punishment” under the Mendoza-Martinez criteria, I would, of course, agree that it violates the Due Process Clause. My criticism is that, in this context, determining whether a given restraint constitutes punishment is an empty semantic exercise. For pretrial incarceration is in many respects no different from the sanctions society imposes on convicted criminals. To argue over a question of characterization can only obscure what is in fact the appropriate inquiry, the actual nature of the impositions balanced against the Government’s justifications.10. Blackstone observed over 200 years ago: “Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice...; there to abide till delivered by due course of law.... But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in his dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only....” 4 W. Blackstone, Commentaries 300.16. In addition, the Justice Department’s Draft Federal Standards for Corrections discourage limitations on the volume or content of inmate mail, including packages. Dept. of Justice, Federal Corrections Policy Task Force, Federal Standards for Corrections 63 (Draft, June 1978).17. While the Government presented psychiatric testimony that the procedures were not likely to create lasting emotional trauma, the District Court intimated some doubt as to the credibility of this testimony, and found that the injury was of constitutional dimension even if it did not require psychiatric treatment or leave permanent psychological scars. 439 F.Supp., at 150.11. On at least two occasions, this Court has relied upon this presumption as a justification for shielding a person awaiting trial from potentially oppressive governmental actions. McGinnis v. Royster,?410 U.S. 263?(“[I]t would hardly be appropriate for the State to undertake in the pretrial detention period programs to rehabilitate a man still clothed with a presumption of innocence”); Stack v. Boyle,?342 U.S. 1 (“Unless [the] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning”). These cases demonstrate that the presumption - or, as it was called last Term, the “assumption” - of innocence that is indulged until evidence has convinced a jury to the contrary beyond a reasonable doubt, see Taylor v. Kentucky,?436 U.S. 478, colors all of the government’s actions toward persons not yet convicted. In sum, although there may be some question as to what it means to treat a person as if he were guilty, there can be no dispute that the government may never do so at any point in advance of conviction.Relying on nothing more than the force of assertion, and without even mentioning McGinnis and Stack, the Court states that the presumption of innocence “has no application to a determination of the rights of a pretrial?detainee during confinement before his trial has even begun.” But having so recently reiterated that the presumption is “fundamental,” see Taylor v. Kentucky, at 483, I cannot believe the Court means what it seems to be saying.12. In many instances, detention will occur although the risk of flight is exceedingly low. This is because there is “a large class of persons for whom any bail at all is ‘excessive bail.’ They are the people loosely referred to as ‘indigents.’ Studies of the operation of the bail system have demonstrated that even at the very lowest levels of bail - say $500, where the bail bond premium may be only $25 or $50 - there is a very substantial percentage of persons who do not succeed in making bail and are therefore held in custody pending trial.” Packer, at 216.13. American jurisdictions have traditionally relied on a pretrial system of “bail or jail” to assure that arrestees appear at trial. As to the bail aspect of the system, the Eighth Amendment is explicit that whatever steps the Government takes must not be excessive in relation to that purpose. Stack v. Boyle. See 18 U.S.C. § 3146(a). Although not expressed in the Constitution, a like restraint on the other half of the pretrial system is a logical corollary to the “No Excess Bail” Clause.14.Indeed, this Court has recognized on previous occasions that individualization is sometimes necessary to prevent clearly punitive sanctions from being administered in a cruel and unusual manner. Woodson v. North Carolina,?428 U.S. 280; Trop v. Dulles,?356 U.S. 86, 100.22. The classic example of the coincidence of punishment and the total deprivation of rights is voting. Thus, in Richardson v. Ramirez,?418 U.S. 24, the Court, although recognizing the importance of the right to vote, see Reynolds v. Sims,?377 U.S. 533, found support in 2 of the Fourteenth Amendment for denying convicted felons the right to vote. Cf. O’Brien v. Skinner (finding certain restrictions on absentee voting by pretrial detainees unconstitutional under the Equal Protection Clause). See also Goosby v. Osser.This is certainly not to say that the fact of conviction justifies the total deprivation of all constitutionally protected rights. Having abandoned the concept of the prisoner as a slave of the state, e.g., Morrissey v. Brewer,?408 U.S. 471, the Court has also rejected any ironclad exclusion of such persons from the protection of the Constitution. E.g., Wolff v. McDonnell,?418 U.S. 539; Pell v. Procunier,?417 U.S. 817; Cruz v. Beto,?405 U.S. 319; Lee v. Washington,?390 U.S. 333. Nonetheless, it also recognizes “that a prison inmate retains [only those] rights that are not inconsistent...with the legitimate penological objectives of the corrections system.” Pell v. Procunier, at 822. Cf. Lanza v. New York,?370 U.S. 139.JACKSON v. VIRGINIA, 443 U.S. 307 (1979)MR. JUSTICE STEWART delivered the opinion of the Court.A federal habeas corpus court must consider not whether there was any evidence to support a state court conviction, but whether there was sufficient evidence to justify a rational trier of fact to find guilty beyond a reasonable doubt. In re Winship, 397 U.S. 358.In re Winship?presupposes, as an essential of the due process guaranteed by the Fourteenth Amendment, that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.Our inquiry in this case is narrow. The petitioner has not seriously questioned any aspect of Virginia law governing the allocation of the burden of production or persuasion in a murder trial.?See Mullaney v. Wilbur,?421 U.S. 684;?Patterson v. New York,?432 U.S. 197. As the record demonstrates, the judge, sitting as factfinder in the petitioner’s trial, was aware that the State bore the burden of establishing the element of premeditation, and stated that he was applying the reasonable doubt standard in his appraisal of the State’s evidence. The petitioner, moreover, does not contest the conclusion of the Court of Appeals that, under the “no evidence” rule of?Thompson v. Louisville,?his conviction of first-degree murder is sustainable. And he has not attacked the sufficiency of the evidence to support a conviction of second-degree murder. His sole constitutional claim, based squarely upon?Winship,?is that the District Court and the Court of Appeals were in error in not recognizing that the question to be decided in this case is whether any rational factfinder could have concluded beyond a reasonable doubt that the killing for which the petitioner was convicted was premeditated. The question thus raised goes to the basic nature of the constitutional right recognized in the?Winship?opinion.It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.?Cole v. Arkansas,?333 U.S. 196; Presnell v. Georgia,?439 U.S. 14. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.?E.g., Hovey v. Elliott,?167 U.S. 409.?Cf. Boddie v. Connecticut,?401 U.S. 371. A meaningful opportunity to defend, if not the right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in favor of the accused. Accordingly, we held in the?Thompson?case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm.?See also Vachon v. New Hampshire,?414 U.S. 478;?Adderley v. Florida,?385 U.S. 39;?Gregory v. Chicago,?394 U.S. 111;?Douglas v. Buder,?412 U.S. 430. The “no evidence” doctrine of?Thompson v. Louisville?thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty.The constitutional problem addressed in?Winship?was thus distinct from the stark problem of arbitrariness presented in?Thompson v. Louisville.?In?Winship,?the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. at?364. In so holding, the Court emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between criminal culpability and civil liability. See Davis v. United States,?160 U.S. 469;?Brinegar v. United States,?338 U.S. 160; Leland v. Oregon,?343 U.S. 790; 9 J. Wigmore, Evidence §2495, pp. 307-308 (3d ed.1940).?Cf. Woodby v. INS,?385 U.S. 276. The standard of proof beyond a reasonable doubt, said the Court, “plays a vital role in the American scheme of criminal procedure,” because it operates to give “concrete substance” to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. 397 U.S. at?363. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction, and thus to liberty itself.The constitutional standard recognized in the?Winship?case was expressly phrased as one that protects an accused against a conviction except on “proof beyond a reasonable doubt....” In subsequent cases discussing the reasonable doubt standard, we have never departed from this definition of the rule, or from the?Winship?understanding of the central purposes it serves.?See Ivan v. v. City of New York,?407 U.S. 203;?Lego v. Twomey,?404 U.S. 477;?Mullaney v. Wilbur,?421 U.S. 684;?Patterson v. New York,?432 U.S. 197; Cool v. United States,?409 U.S. 100. In short,?Winship?presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.The?Winship?doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. A “reasonable doubt,” at a minimum, is one based upon “reason.” Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. Glasser v. United States,?315 U.S. 60;?Bronston v. United States,?409 U.S. 352.?See also Curley v. United States,?81 U.S.App.D.C. 389, 160 F.2d 229. Under?Winship,?which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that, when such a conviction occurs in a state trial, it cannot constitutionally stand.After?Winship,?the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether?it?believes that the evidence at the trial established guilt beyond a reasonable doubt.”?Woodby v. INS,?385 U.S. at?282. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution,?any?rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.?See Johnson v. Louisiana,?406 U.S. at?362. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that, upon judicial review,?all of the evidence?is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.That the?Thompson?“no evidence” rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent. “[A] mere modicum of evidence may satisfy a?no evidence’ standard....”?Jacobellis v. Ohio,?378 U.S. 184. Any evidence that is relevant - that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence,?cf.?Fed. Rule Evid. 401, could be deemed a “mere modicum.” But it could not seriously be argued that such a “modicum” of evidence could, by itself, rationally support a conviction beyond a reasonable doubt. The?Thompson?doctrine simply fails to supply a workable or even a predictable standard for determining whether the due process command of?Winship has been honored.In addition to the argument that a?Winship?standard invites replication of state criminal trials in the guise of §2254 proceedings - an argument that simply fails to recognize that courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact - the respondents have urged that any departure from the?Thompson?test in federal habeas corpus proceedings will expand the number of meritless claims brought to the federal courts, will duplicate the work of the state appellate courts, will disserve the societal interest in the finality of state criminal proceedings, and will increase friction between the federal and state judiciaries. In sum, counsel for the State urges that this type of constitutional claim should be deemed to fall within the limit on federal habeas corpus jurisdiction identified in?Stone v. Powell,?428 U.S. 465, with respect to Fourth Amendment claims. We disagree.Second, the problems of finality and federal-state comity arise whenever a state prisoner invokes the jurisdiction of a federal court to redress an alleged constitutional violation. A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim. Although state appellate review undoubtedly will serve in the vast majority of cases to vindicate the due process protection that follows from?Winship,?the same could also be said of the vast majority of other federal constitutional rights that may be implicated in a state criminal trial. It is the occasional abuse that the federal writ of habeas corpus stands ready to correct.?Brown v. Allen,?at?344 U.S. 498-501The constitutional issue presented in this case is far different from the kind of issue that was the subject of the Court’s decision in?Stone v. Powell.?The question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence. The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless.?E.g., Mullaney v. Wilbur,?421 U.S. at?697-698 (requirement of proof beyond a reasonable doubt is not “limit[ed] to those facts which, if not proved, would wholly exonerate” the accused). Under our system of criminal justice, even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past.?Holland v. United States,?348 U.S. 121. We decline to adopt it today. Under the standard established in this opinion as necessary to preserve the due process protection recognized in?Winship,?a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold that a rational trier of fact could reasonably have found that the petitioner committed murder in the first degree under Virginia law.MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.The adoption of this novel constitutional rule is not necessary to the decision of this case. Moreover, I believe it is an unwise act of lawmaking. Despite its chimerical appeal as a new counterpart to the venerable principle recognized in?Winship,?I am persuaded that its precipitous adoption will adversely affect the quality of justice administered by federal judges. For that reason, I shall analyze this new brainchild with some care.I shall begin by explaining why neither the record in this case nor general experience with challenges to the sufficiency of the evidence supporting criminal convictions supports, much less compels, the conclusion that there is?any?need for this new constitutional precept. I shall next show that it is not logically compelled by either the holding or the analysis in?In re Winship.?Finally, I shall try to demonstrate why the Court’s new rule - if it is not just a meaningless shibboleth - threatens serious harm to the quality of our judicial system.It is, of course, part of this Court’s tradition that new rules of law emerge from the process of case-by-case adjudication of constitutional issues. Widespread concern that existing constitutional doctrine is unjust often provides the occasion, and is sometimes even relied upon as a justification, for the exercise of such lawmaking authority by the Court. Without entering the debate over the legitimacy of this justification for judicial action, it is at least certain that it should not be the basis for dramatic - indeed, for any?- constitutional lawmaking efforts unless (1) those efforts are necessary to the decision of the case at hand and (2) powerful reasons favor a change in the law.?See Ashwander v. TVA,?297 U.S. 288.Having failed to identify the evil against which the rule is directed, and having failed to demonstrate how it follows from the analysis typically used in due process cases of this character, the Court places all of its reliance on a dry, and in my view incorrect, syllogism: if?Winship?requires the factfinder to apply a reasonable doubt standard, then logic requires a reviewing judge to apply a like standard.But, taken to its ultimate conclusion, this “logic” would require the reviewing court to “ask itself whether?it?believes that the evidence at the trial established guilt beyond a reasonable doubt.”?Woodby v. INS,?385 U.S. 276. The Court, however, rejects this standard, as well as others that might be considered consistent with?Winship.?For example, it does not require the reviewing court to view just the evidence most favorable to the prosecution, and then to decide whether that evidence convinced it beyond a reasonable doubt, nor whether, based on the entire record, rational triers of fact could be convinced of guilt beyond a reasonable doubt. Instead, and without explanation, it chooses a still narrower standard that merely asks whether, “after viewing the evidence in the light most favorable to the prosecution,?any?rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” It seems to me that, if “logic” allows this choice after?Winship,?it should also allow the presumption that the Court has rejected - that trial judges and juries will act rationally and honestly in applying the reasonable doubt standard, at least so long as the trial is free of procedural error and the record contains evidence tending to prove each of the elements of the offense.Time may prove that the rule the Court has adopted today is the wisest compromise between one extreme that maximizes the protection against the risk that innocent persons will be erroneously convicted and the other extreme that places the greatest faith in the ability of fair procedures to produce just verdicts. But the Court’s opinion should not obscure the fact that its new rule is not logically compelled by the analysis or the holding in?Winship?or in any other precedent, or the fact that the rule reflects a new policy choice, rather than the application of a preexisting rule of law.The potential effect on federal judges is even more serious. Their burdens are already so heavy that they are delegating to staff assistants more and more work that we once expected judges to perform. The new standard will invite an unknown number of state prisoners to make sufficiency challenges that they would not have made under the old rule. Moreover, because the “rational trier of fact” must certainly base its decisions on all of the evidence, the Court’s broader standard may well require that the entire transcript of the state trial be read whenever the factfinders’ rationality is challenged under the Court’s rule. Because this task will confront the courts of appeals as well as District Courts, it will surely impose countless additional hours of unproductive labor on federal judges and their assistants. The increasing volume of work of this character has already led some of our most distinguished lawyers to discontinue or reject service on the federal bench. The addition of a significant volume of pointless labor can only impair the quality of justice administered by federal judges, and thereby undermine “the respect and confidence of the community in applications of the...law.”?In re Winship,?397 U.S. at?364.For these reasons, I am unable to join the Court’s gratuitous directive to our colleagues on the federal bench.Footnotes:2. Under Virginia law, voluntary intoxication - although not an affirmative defense to second-degree murder - is material to the element of premeditation, and may be found to have negated it.?Hatcher v. Commonwealth,?218 Va. 811, 241 S.E.2d 756.10. This, of course, does not mean that convictions are frequently reversed upon this ground. The practice in the federal courts of entertaining properly preserved challenges to evidentiary sufficiency,?see?Fed. Rule Crim.Proc. 29, serves only to highlight the traditional understanding in our system that the application of the “beyond a reasonable doubt” standard to the evidence is not irretrievably committed to jury discretion. To be sure, the factfinder in a criminal case has traditionally been permitted to enter an unassailable but unreasonable verdict of “not guilty.” This is the logical corollary of the rule that there can be no appeal from a judgment of acquittal, even if the evidence of guilt is overwhelming. The power of the factfinder to err upon the side of mercy, however, has never been thought to include a power to enter an unreasonable verdict of guilty.?Carpenters & Joiners v. United States,?330 U.S. 395.?Cf. Capital Traction Co. v. Hof,?174 U.S. 1. Any such premise is wholly belied by the settled practice of testing evidentiary sufficiency through a motion for judgment of acquittal and a post-verdict appeal from the denial of such a motion.?See generally?4 L. Orfield, Criminal Procedure Under the Federal Rules §§29:1-29:29 (1967 and Supp. 1978).The potential effect on federal judges is even more serious. Their burdens are already so heavy that they are delegating to staff assistants more and more work that we once expected judges to perform. The new standard will invite an unknown number of state prisoners to make sufficiency challenges that they would not have made under the old rule. Moreover, because the “rational trier of fact” must certainly base its decisions on all of the evidence, the Court’s broader standard may well require that the entire transcript of the state trial be read whenever the factfinders’ rationality is challenged under the Court’s rule. Because this task will confront the courts of appeals as well as District Courts, it will surely impose countless additional hours of unproductive labor on federal judges and their assistants. The increasing volume of work of this character has already led some of our most distinguished lawyers to discontinue or reject service on the federal bench. The addition of a significant volume of pointless labor can only impair the quality of justice administered by federal judges, and thereby undermine “the respect and confidence of the community in applications of the...law.”?In re Winship,?397 U.S. at?364.16. The respondents have suggested that this constitutional standard will invite intrusions upon the power of the States to define criminal offenses. Quite to the contrary, the standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Whether the State could constitutionally make the conduct at issue criminal at all is, of course, a distinct question.?See Papachristou v. Jacksonville,?405 U.S. 156;?Robinson v. California,?370 U.S. 660.2. In?In re Winship,?397 U.S. at?364, the Court stated: “As we said in?Speiser v. Randall,?357 U.S. 513:” “There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value - as a criminal defendant his liberty - this margin of error is reduced as to him by the process of placing on the other party the burden of...persuading the factfinder?at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of...convincing the factfinder?of his guilt.”“To this end, the reasonable doubt standard is indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ Dorsen & Rezneck,?In Re Gault?and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967).”Later on the same page, the Court added: “It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense?without convincing a proper factfinder of his guilt with utmost certainty.”397 U.S. 370 (“[A] standard of proof represents an attempt to instruct?the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions?for a particular type of adjudication”).3. The Court, relying on treatises that analyzed the law in all 50 States as well as in the federal system, determined both that the reasonable doubt standard has prevailed at the?trial?level “at least from our early years as a Nation,” and that it “is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the?trier?of all the essential elements of guilt.”397 U.S. 361 (“It is only because of the nearly complete and longstanding acceptance of the reasonable doubt standard by the States in criminal?trials?that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation”).5. It hardly bears repeating that habeas corpus is not intended as a substitute for appeal, nor as a device for reviewing the merits of guilt determinations at criminal trials.?See generally Stone v. Powell,?428 U.S. 465. Instead, it is designed to guard against extreme malfunctions in the state criminal justice systems.9. In the past, collateral review of state proceedings has been justified largely on the grounds (1) that federal judges have special expertise in the federal issues that regularly arise in habeas corpus proceeding, and (2) that they are less susceptible than state judges to political pressures against applying constitutional rules to overturn convictions.?See?Bartels, Avoiding a Comity of Errors, 29 Stan.L.Rev. 27, 30 n. 9 (1976).?Cf. Steffel v. Thompson,?415 U.S. 452;?Mitchum v. Foster,?407 U.S. 225. But neither of these justifications has any force in the present context. State judges are more familiar with the elements of state offenses than are federal judges, and should be better able to evaluate sufficiency claims. Moreover, of all decisions overturning convictions, the least likely to be unpopular, and thus to distort state decisionmaking processes, are ones based on the inadequacy of the evidence. Indeed, once federal courts were divested of authority to second-guess state courts on Fourth Amendment issues, which are far more likely to generate politically motivated state court decisions,?see Stone v. Powell,?428 U.S. 465, a like result in this case would seem to be?a fortiori.11. Additional burdens will also be imposed if the Court’s rule is extended to federal habeas proceedings reviewing federal criminal trials, as well as to ones reviewing state civil commitment proceedings in which we have recently required at least the “clear and convincing” test to be applied as a matter of federal constitutional law.?Addington v. Texas,?441 U.S. 418.This Court’s workload will also increase, of course, when its certiorari docket expands to accommodate the challenges generated by the Court’s new rule. The effect will be even greater if the Court’s opinion is read to require state appellate courts to apply the reasonable doubt test on direct review and to require this Court to apply it when reviewing the decisions of those courts on certiorari.12. Professor Bator has persuasively explained how the law of diminishing returns inevitably makes it unwise to have duplicative review processes on the “merits” in criminal cases: “[I]f?a criminal judgment is ever to be final, the notion of legality must at some point include the assignment of final competences to determine legality. But, it may be asked, why should we seek a point at which such a judgment becomes final? Conceding that no process can assure ultimate truth, will not repetition of inquiry stand a better chance of approximating it? In view of the awesomeness of the consequences of conviction, shouldn’t we allow redetermination of the merits in an attempt to make sure that no error has occurred?”“Surely the answer runs, in the first place, in terms of conservation of resources - and I mean not only simple economic resources, but all of the intellectual, moral, and political resources involved in the legal system. The presumption must be, it seems to me, that, if a job can be well done once, it should not be done twice. If one set of institutions is as capable of performing the task at hand as another, we should not ask both to do it. The challenge really runs the other way: if a proceeding is held to determine the facts and law in a case, and the processes used in that proceeding are fitted to the task in a manner not inferior to those which would be used in a second proceeding, so that one cannot demonstrate that relitigation would not merely consist of repetition and second-guessing, why should not the first proceeding ‘count’? Why should we duplicate effort? After all, it is the very purpose of the first go-around to decide the case. Neither it nor any subsequent go-around can assure ultimate truth. If, then, the previous determination is to be ignored, we must have some reasoned institutional justification why this should be so.”“Mere iteration of process can do other kinds of damage. I could imagine nothing more subversive of a judge’s sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else. Of course this does not mean that we should not have appeals. As we shall see, important functional and ethical purposes are served by allowing recourse to an appellate court in a unitary system, and to a federal supreme court in a federal system. The acute question is the effect it will have on a trial judge if we then allow still further recourse where these purposes may no longer be relevant. What seems so objectionable is second-guessing merely for the sake of second-guessing, in the service of the illusory notion that, if we only try hard enough, we will find the ‘truth.’“ Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 450-451 (1963).?See also?F. James, Civil Procedure 518 (1965).13. The testimony of Griffin Bell at his confirmation hearings for Attorney General is particularly relevant. When asked by Senator Scott of Virginia why he had earlier resigned from his seat on the Court of Appeals for the Fifth Circuit, Judge Bell responded: “I found it not to be a rewarding experience any longer. Whether it was because there was no more excitement after the 1906’s, or whether it was because the case load changed, but the work load was oppressive. I would not have minded the work load, but the character of the cases changed. It was almost like serving on a criminal court. I did not want to do that any longer.” Hearings on the Prospective Nomination of Griffin B. Bell, of Georgia, to be Attorney General, before the Senate Committee on the Judiciary, 95th Cong., 1st Sess., 27 (1977).HUTCHINSON v. PROXMIRE, 443 U.S. 111, 99 S.Ct. 2675 (1979)Mr. Chief Justice BURGER delivered the opinion of the Court.We granted certiorari, 436 U.S. 1066 (1979), to resolve three issues: (1) whether a Member of Congress is protected by the Speech or Debate Clause of the Constitution, Art. I, §6, against suits for allegedly defamatory statements made by the Member in press releases and newsletters; (2) whether petitioner Hutchinson is either a “public figure” or a “public official,” thereby making applicable the “actual malice” standard of?New York Times Co. v. Sullivan,?376 U.S. 254 (1964); and (3) whether respondents were entitled to summary judgment.On April 16, 1976, Hutchinson filed this suit in United States District Court in Wisconsin.?In Count I he alleges that as a result of the actions of Proxmire and Schwartz he has “suffered a loss of respect in his profession, has suffered injury to his feelings, has been humiliated, held up to public scorn, suffered extreme mental anguish and physical illness and pain to his person. Further, he has suffered a loss of income and ability to earn income in the future.” Count II alleges that the respondents’ conduct has interfered with Hutchinson’s contractual relationships with supporters of his research. He later amended the complaint to add an allegation that his rights of privacy and peace and tranquility have been infringed.Respondents moved for a change of venue and for summary judgment. In their motion for summary judgment they asserted that all of their acts and utterances were protected by the Speech or Debate Clause. In addition, they asserted that their criticism of the spending of public funds was privileged under the Free Speech Clause of the First Amendment. They argued that Hutchinson was both a public figure and a public official, and therefore would be obliged to prove the existence of “actual malice.” Respondents contended that the facts of this case would not support a finding of actual malice.Without ruling on venue, the District Court granted respondents’ motion for summary judgment. 431 F.Supp. 1311 (W.D.Wis.1977). In so ruling, the District Court relied on both grounds urged by respondents. It reasoned that the Speech or Debate Clause afforded absolute immunity for respondents’ activities in investigating the funding of Hutchinson’s research, for Proxmire’s speech in the Senate, and for the press release covering the speech. The court concluded that the investigations and the speech were clearly within the ambit of the Clause. The press release was said to be protected because it fell within the “informing function” of Congress. To support its conclusion, the District Court relied upon cases interpreting the franking privilege granted to Members by statute. See 39 U.S.C. §3210.Although the District Court referred to the “informing function” of Congress and to the franking privilege, it did not base its conclusion concerning the press release on those analogies. Instead, the District Court held that the “press release, in a constitutional sense, was no different than would have been a television or radio broadcast of his speech from the Senate floor.”?431 F.Supp., at 1325. That the District Court did not rely upon the “informing function” is clear from its implicit holding that the newsletters were not protected.The District Court then turned to the First Amendment to explain the grant of summary judgment on the claims arising from the newsletters and interviews. It concluded that Hutchinson was a public figure for purposes of determining respondents’ liability:“Given Dr. Hutchinson’s long involvement with publicly-funded research, his active solicitation of federal and state grants, the local press coverage of his research, and the public interest in the expenditure of public funds on the precise activities in which he voluntarily participated, the court concludes that he is a public figure for the purpose of this suit. As he acknowledged in his deposition, ‘Certainly, any expenditure of public funds is a matter of public interest.’“Having reached that conclusion, the District Court relied upon the depositions, affidavits, and pleadings before it to evaluate Hutchinson’s claim that respondents had acted with “actual malice.” The District Court found that there was no genuine issue of material fact on that issue. It held that neither a failure to investigate nor unfair editing and summarizing could establish “actual malice.” It also held that there was nothing in the affidavits or depositions of either Proxmire or Schwartz to indicate that they ever entertained any doubt about the truth of their statements. Relying upon cases from other courts, the District Court said that in determining whether a plaintiff had made an adequate showing of “actual malice,” summary judgment might well be the rule rather than the exception.The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue. The constitutional issue arose from the District Court’s view that solicitude for the First Amendment required a more hospitable judicial attitude toward granting summary judgment in a libel case. The state-law issue arose because the District Court concluded that, as a matter of local law, Hutchinson could not recover.Ordinarily, consideration of the constitutional issue would end with resolution of the Speech or Debate Clause question. We would then remand for the Court of Appeals to consider the issue of state law. Here, however, there is an indication that the Court of Appeals would not affirm the state-law holding. We surmise this because, in explaining its conclusion that the press release and the newsletters were protected by the Speech or Debate Clause, the Court of Appeals stated: “[T]he statements in the press release intimating that Dr. Hutchinson had made a personal fortune and that the research was ‘perhaps duplicative’ may be defamatory falsehoods.” 579 F.2d, at 1035. In light of that surmise, what we said in?Wolston v. Reader’s Digest, Inc., 443 U.S. 157, is also appropriate here: “We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues.... We interpret the footnote to the Court of Appeals opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that...the appeal could not be decided without reaching the constitutional question.” In light of the necessity to do so, we therefore reach the First Amendment issue as well as the Speech or Debate Clause question.In support of the Court of Appeals holding that newsletters and press releases are protected by the Speech or Debate Clause, respondents rely upon both historical precedent and present-day congressional practices. They contend that impetus for the Speech or Debate Clause privilege in our Constitution came from the history of parliamentary efforts to protect the right of members to criticize the spending of the Crown and from the prosecution of a Speaker of the House of Commons for publication of a report outside of Parliament. Respondents also contend that in the modern day very little speech or debate occurs on the floor of either House; from this they argue that press releases and newsletters are necessary for Members of Congress to communicate with other Members. For example, in his deposition Proxmire testified:“I have found in 19 years in the Senate that very often a statement on the floor of the Senate or something that appears in the Congressional Record misses the attention of most members of the Senate, and virtually all members of the House, because they don’t read the Congressional Record. If they are handed a news release, or something, that is going to call it to their attention....”Mr. Justice Story in his Commentaries, for example, explained that there was no immunity for republication of a speech first delivered in Congress:“Therefore, although a speech delivered in the House of Commons is privileged, and the member cannot be questioned respecting it elsewhere;?yet, if he publishes his speech, and it contains libelous matter, he is liable to an action and prosecution therefor, as in common cases of libel. And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour of a performance of the duties of his office. And if he does so?in the actual discharge of his duties in congress, that furnishes no reason, why he should be enabled through the medium of the press to destroy the reputation, and invade the repose of other citizens. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat.”?J. Story, Commentaries on the Constitution §863, p. 329 (1833).We reach a similar conclusion here. A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was “essential to the deliberations of the Senate” and neither was part of the deliberative process.Doe v. McMillan, 412 U.S. 306 (1973), is not to the contrary. It dealt only with reports from congressional committees, and held that Members of Congress could not be held liable for voting to publish a report. Voting and preparing committee reports are the individual and collective expressions of opinion within the legislative process. As such, they are protected by the Speech or Debate Clause. Newsletters and press releases, by contrast, are primarily means of informing those outside the legislative forum; they represent the views and will of a single Member. It does not disparage either their value or their importance to hold that they are not entitled to the protection of the Speech or Debate Clause.On this record, Hutchinson’s activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See?Wolston v. Reader’s Digest Assn., Inc., 443 U.S. 157.Footnotes:3. Proxmire is not certain that he actually delivered the speech on the Senate floor. He said that he might have merely inserted it into the Congressional Record. In light of that uncertainty, the question arises whether a nondelivered speech printed in the Congressional Record is covered by the Speech or Debate Clause. This Court has never passed on that question and neither the District Court nor the Court of Appeals seemed to think it was important. Nevertheless, we assume, without deciding, that a speech printed in the Congressional Record carries immunity under the Speech or Debate Clause as though delivered on the floor.9. Considering the nuances of the issues raised here, we are constrained to express some doubt about the so-called “rule.” The proof of “actual malice” calls a defendant’s state of mind into question,?New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and does not readily lend itself to summary disposition. See 10 C. Wright & A. Miller, Federal Practice and Procedure §2730, pp. 590-592 (1973). Cf.?Herbert v. Lando, 441 U.S. 153 (1979). In the present posture of the case, however, the propriety of dealing with such complex issues by summary judgment is not before us.14. It is worth noting that the Rules of the Senate forbid disparagement of other Members on the floor. Senate Rule XIX (Apr. 1979). See also T. Jefferson, A. Manual of Parliamentary Practice 40–41 (1854), reprinted in The Complete Jefferson 714–715 (S. Padover ed. 1943).KONCZAK v. TYRRELL, 603 F.2d 13 (1979)HARLINGTON WOOD, Jr., Circuit Judge.A motion for judgment notwithstanding the verdict “should be denied where the evidence, along with the inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions.” Clemons v. Mitsui O.S.K. Lines, Ltd.,?596 F.2d 746 (7th Cir. 1979); Hohmann v. Packard Instrument Co., 471 F.2d 815 (7th Cir. 1973). Making all reasonable inferences in the light most favorable to the jury’s verdict, we believe the evidence at trial established the following facts. The plaintiffs, Norb and Linda Konczak, are married and reside in McHenry County, Illinois, with five children from Norb’s previous marriage, two children from Norb and Linda’s marriage and Linda’s brother, Larry Gibson. On November 24, 1975, Norb Konczak called the office of Congressman Robert McClory and complained that his former wife had abused the children from his first marriage and that the McHenry County Sheriff’s Department had mistreated him and his family. After sending a letter to the Congressman’s office detailing the complaints, Norb Konczak received a telephone call on March 25, 1976, from Michael McCarry, a legislative assistant in Washington, D.C. to Congressman McClory. Immediately after that phone conversation, McCarry called the McHenry City Police Department and informed Sergeant Zujewski that he had just talked with Norb Konczak who lived in the McHenry area and that Konczak stated he was going to kill an officer with a 30.06 rifle. Sergeant Zujewski explained that Konczak, living in an unincorporated area of McHenry County, was outside the city’s jurisdiction and that he would notify the Sheriff’s Department. The Sergeant then phoned the Sheriff’s office and informed Detective Maceroux that an aide to Congressman McClory called stating that Norb Konczak was “going to shoot a policeman.” On the basis of this statement, subsequently verified by a direct telephone call to McCarry, and other unspecified information about Konczak’s “character,” Sheriff Arthur Tyrrell ordered the arrest of Norb Konczak for “threatening” or assaulting a police officer.Turning to the other issues, we consider next the defendants’ assertion that the plaintiffs are entitled to no more than nominal damages of $1.00 because the plaintiffs failed to prove actual damages. The jury had awarded Norb and Linda Konczak $10,000 and $2,500, respectively, in compensatory damages. Following Wood v. Strickland,?420 U.S. 308 (1975), this circuit held that a county official may be liable for damages under §1983 only if he “acted with an impermissible motivation or with such intentional or reckless disregard of the plaintiff’s clearly established constitutional rights that his action cannot be reasonably characterized as being in good faith.” Fulton Market Cold Storage Co. v. P. J. Cullerton,?582 F.2d 1071 (7th Cir. 1978). See also Procunier v. Navarette,?434 U.S. 555 (1978). The defendants do not launch an attack on the jury’s verdict armed with the test of Wood v. Strickland. Rather, the officers charge that under Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court requires that actual damages must be proven for every violation of a constitutional right. The defendants misread the case. In Carey v. Piphus the Supreme Court held that where a plaintiff has proven a denial of procedural due process without proving any actual injury, he may only recover nominal damages. The Court, however, distinguished procedural constitutional violations from substantive ones such as those asserted by the plaintiffs here. In any event, we believe the plaintiffs presented sufficient evidence of actual damages in this case. The jury could have properly found that the plaintiffs suffered a loss in earnings of $576 and other less quantifiable damages in the form of mental distress, humiliation, loss of reputation, and other general pain and suffering resulting from the arrest, detention, search and seizure, imprisonment, confinement to a mental institution, and prosecution of three criminal complaints. The compensatory awards were supported by the evidence.Penultimately, we consider the plaintiff’s contention that the District Court erred in granting the defendant’s motion for judgment notwithstanding the verdict on the issue of punitive damages. The jury had awarded Norb and Linda Konczak $21,000 and $2,500, respectively, in punitive damages. This circuit has stated that “(p)rovided certain aggravating circumstances are shown, punitive damages are recoverable under federal law in a §1983 action.” Spence v. Staras,?507 F.2d 554 (7th Cir. 1974). See also Morales v. Haines,?486 F.2d 880 (7th Cir. 1973). The Supreme Court recently noted in Carey v. Piphus,?435 U.S. 247 (1978), that punitive or exemplary damages may be awarded in appropriate cases under §1983 with the specific purpose of deterring or punishing violations of constitutional rights and commented that there the District Court specifically found that the defendants “did not act with a malicious intention to deprive (plaintiffs) of their rights or to do them other injury.” In assessing punitive damages, many of the courts of appeals also focus on whether the defendant acted with malicious intent. See Morrow v. Igleburger,?584 F.2d 767 (6th Cir. 1978); Silver v. Cormier,?529 F.2d 161 (10th Cir. 1976); Caperci v. Huntoon,?397 F.2d 799 (1st Cir.), cert. denied, 393 U.S. 940 (1968). See generally Stengle v. Belcher,?522 F.2d 438 (6th Cir. 1975), cert. dismissed,?429 U.S. 118 (1976); Mansell v. Saunders,?372 F.2d 573 (5th Cir. 1967); Basista v. Weir,?340 F.2d 74 (3d Cir. 1965).In the present case the District Court declared:The court finds that the evidence, viewed in the light most favorable to plaintiffs, with all reasonable inferences drawn in their favor, was such that reasonable men in the fair and impartial exercise of judgment could not have concluded that any of the defendants was guilty of wilful and wanton misconduct toward either plaintiff. Indeed, plaintiffs wholly failed to produce any evidence to support a finding of wilful and wanton misconduct.We have examined the record and, viewing the evidence and making reasonable inferences in the light most favorable to the plaintiffs, we conclude that there is simply no evidence of aggravating circumstances or of the defendants acting with malicious intent upon which the jury could award punitive damages. In fact, the defendants permitted Norb Konczak, at the time of his arrest, to cross the street, borrow a cigarette from his brother-in-law and calm his wife on the porch before he was taken to the police station. Although Linda Konczak was detained, the defendants allowed her to talk to her three children through a window and thus hold them by the window. Norb Konczak conceded that there was no abusive conduct by the police officers. The District Court properly granted the motion for judgment n.o.v. on the issue of punitive damages.Last, we turn to the assertions surrounding the District Court’s award of fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988. The plaintiffs’ attorney filed a post-trial motion as attorney for the “prevailing party” under §1988 requesting $24,150.50 in attorney’s fees and $2,333.25 in costs. After the defendants filed a lengthy brief opposing the motion, plaintiffs’ counsel submitted an extensive brief and, eliminating “questionable time,” reduced his request to $13,073.67 in attorney’s fees and $1,619.19 in costs. Noting that both sides had briefed the motion, the District Court reviewed the plaintiffs’ schedule of charges, found that many of the charges were overstated and granted counsel $6,573.29 in fees and all of the requested costs. The plaintiffs argue that the court erred in not granting plaintiffs’ counsel the attorney’s fees requested or in reducing the requested amount of fees without first conducting a hearing. The defendants do not challenge the finding that the plaintiffs were the “prevailing party,” but they do claim that either the plaintiffs should receive no attorney’s fees because the lawsuit vindicated a private, not a public, interest or that the District Court judge abused his discretion in not further reducing the award of attorney’s fees. We do not find the arguments of either side convincing.Considering the depth of the briefing, a hearing on the attorney’s fees was unnecessary. Also, the results obtained from a decision correcting violations of civil rights is merely one of factors considered by District Courts in arriving at reasonable fee awards. Waters v. Wisconsin Steel Works of International Harvester Co.,?502 F.2d 1309 (7th Cir. 1974), cert. denied, 425 U.S. 997 (1976); Johnson v. Georgia Highway Express, Inc.,?488 F.2d 714 (5th Cir. 1974). See also Perez v. University of Puerto Rico,?600 F.2d 1 (1st Cir. 1979). Disposing of the remaining arguments, we note that the Congress plainly provided in the language of §1988 and this court clearly stated in Dawson v. Pastrick,?600 F.2d 70 (7th Cir. 1979), that whether to award attorney’s fees is within the sound discretion of the District Court. We stated, however, that the trial court’s discretion is narrow because “a prevailing plaintiff should receive fees almost as a matter of course.” Davis v. Murphy,?587 F.2d 362 (7th Cir. 1978). See also Newman v. Piggie Park Enterprises, Inc.,?390 U.S. 400 (1968); S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4 Reprinted in (1976) U.S. Code Cong. & Admin.News, pp. 5908, 5912. In the present case the defendants admit Sub silentio that the plaintiffs prevailed and an award of attorney’s fees should follow. The reasonableness of the award, furthermore, rests within the sound discretion of the District Court. Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d at 1322; Johnson v. Georgia Highway Express, Inc., 488 F.2d at 717. There was no abuse of discretion here.For the above reasons the judgment of the District Court is affirmed.AFFIRMED.Footnotes:7. Section 1988 provides in pertinent part:In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.SMITH v. MARZOLF, 59 Ill.App.3d 635, 375 N.E.2d 995, 16 Ill.Dec. 888 (1978)Mr. JUSTICE STENGEL delivered the opinion of the court.Even though plaintiff’s counsel improperly asked members of jury to place themselves in plaintiff’s place in determining damages, remark was not prejudicial where court sustained defendant’s objection and plaintiff’s counsel corrected himself immediately.In addition, this case represents the classic situation where court should act to protect and intervenor’s rights. As one writer has said:“(A)fter the insurer has intervened in an action by the insured against the wrongdoer, and has shown a monetary interest in the result thereof the court will not permit a settlement between insurer and the wrongdoer to the detriment of the insured, but will protect the rights of all parties.” 44 Am.Jur.2d, Insurance §1843 (1969).After carefully reviewing the record, we can find virtually no evidence in support of defendant’s theory. Defendant’s own testimony that he was?feeling uncomfortable and tired and that he doesn’t remember the accident would not support an inference of an intervening act of God without more. This case meets the?Pedrick?test: viewing all of the evidence in the light most favorable to defendant, we believe that no verdict for defendant could ever stand. Accordingly, we hold that the trial court correctly directed a verdict in favor of plaintiff as to liability.MONELL, et al. v. DEPARTMENT OF SOCIAL SERVICES OF the CITY OF NEW YORK et al., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)Mr. Justice BRENNAN delivered the opinion of the Court.Female employees of the Department of Social Services and the Board of Education of the City of New York brought an action challenging the policies of those bodies in requiring pregnant employees to take unpaid leaves of absence before those leaves were required for medical reasons. The United States District Court for the Southern District of New York, 394 F.Supp. 853, found the practice unconstitutional but denied claims for back pay. The Court of Appeals, 532 F.2d 259, affirmed and certiorari was granted. The Supreme Court, Mr. Justice Brennan, held that:1. Local government units where “persons” for purposes of §1983, the Civil Rights Act of 1871;2. Local governments could not be held liable under a theory of respondeat superior but rather could be held liable only when the constitutional deprivation arises from a government custom;3. The Tenth Amendment did not impose any impediment to liability;4. The Eleventh Amendment did not preclude imposition of liability except with respect to local government units which are part of the state for Eleventh Amendment purposes;5. Local government officials sued in their official capacity are “persons” under §1983 in those cases in which local government is suable in its own name, and6. The deprivation complained of in the instant case arose out of official policy.Reversed.Municipalities and other local government units are included among those “persons” to whom the Civil Rights Act of 1871 applies; overruling Monroe v. Pape, 365 U.S. 167. 42 U.S.C.A. §1983.The Tenth Amendment does not impose any constitutional impediment to municipal liability for violations of a person’s civil rights and the Eleventh Amendment is no bar to liability except for those local government units which are considered part of the state for the purposes of that Amendment. 42 U.S.C.A. §1983; U.S.C.A. Const. Amends. 10, 11.Local government officials sued in their official capacities are “persons” for purposes of the Civil Rights Act of 1871 in those cases in which a local government would be suable in its own name. 42 U.S.C.A. §1983.Local governments may be sued for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body’s official decision-making channels. 42 U.S.C.A. §1983.A municipality cannot be held liable for violation of civil rights solely because employee is a tort-feasor; a municipality cannot be held liable under the Civil Rights Act of 1871 on a respondeat superior theory. 42 U.S.C.A. §1983.Municipal body sued under the Civil Rights Act of 1871 cannot be entitled to an absolute immunity. 42 U.S.C.A. §1983.Petitioners, female employees of the Department of Social Services and the Board of Education of the City of New York, brought this class action against the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor under 42 U.S.C. §1983, which provides that every “person” who, under color of any statute, ordinance, regulation, custom, or usage of any State subjects, or “causes to be subjected,” any person to the deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the injured party. In each case, the individual defendants were sued solely in their official capacities. The gravamen of the complaint was that the Board and the Department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The District Court found that petitioners’ constitutional rights had been violated, but held that petitioners’ claims for injunctive relief were mooted by a supervening change in the official maternity leave policy. That court further held that?Monroe v. Pape, 365 U.S. 167, barred recovery of back pay from the Department, the Board, and the city. In addition, to avoid circumvention of the immunity conferred by?Monroe, the District Court held that natural persons sued in their official capacities as officers of a local government also enjoy the immunity conferred on local governments by that decision. The Court of Appeals affirmed on a similar theory.?Held:1. In?Monroe v. Pape, after examining the legislative history of the Civil Rights Act of 1871, now codified as 42 U.S.C. §1983, and particularly the rejection of the so-called Sherman amendment, the Court held that Congress in 1871 doubted its constitutional authority to impose civil liability on municipalities and therefore could not have intended to include municipal bodies within the class of “persons” subject to the Act. Re-examination of this legislative history compels the conclusion that Congress in 1871 would?not?have thought §1983 constitutionally infirm if it applied to local governments. In addition, that history confirms that local governments were intended to be included among the “persons” to which §1983 applies. Accordingly,?Monroe v. Pape?is overruled insofar as it holds that local governments are wholly immune from suit under §1983.2. Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under §1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other §1983 “person,” may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such custom has not received formal approval through the government’s official decision-making channels.3. On the other hand, the language and legislative history of §1983 compel the conclusion that Congress did not intend a local government to be held liable solely because it employs a tort-feasor - in other words, a local government cannot be held liable under §1983 on a respondeat superior?theory.4. Considerations of?stare decisis?do not counsel against overruling Monroe v. Pape?insofar as it is inconsistent with this opinion.(a)?Monroe v. Pape?departed from prior practice insofar as it completely immunized municipalities from suit under §1983. Moreover, since the reasoning of?Monroe?does not allow a distinction to be drawn between municipalities and school boards, this Court’s many cases holding school boards liable in §1983 actions are inconsistent with?Monroe, especially as the principle of that case was extended to suits for injunctive relief in City of Kenosha v. Bruno, 412 U.S. 507.(b) Similarly, extending absolute immunity to school boards would be inconsistent with several instances in which Congress has refused to immunize school boards from federal jurisdiction under §1983.(c) In addition, municipalities cannot have arranged their affairs on an assumption that they can violate constitutional rights for an indefinite period; accordingly, municipalities have no reliance interest that would support an absolute immunity.(d) Finally, it appears beyond doubt from the legislative history of the Civil Rights Act of 1871 that?Monroe?misapprehended the meaning of the Act. Were §1983 unconstitutional as to local governments, it would have been equally unconstitutional as to state or local officers, yet the 1871 Congress clearly intended §1983 to apply to such officers and all agreed that such officers could constitutionally be subjected to liability under §1983. The Act also unquestionably was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights. Therefore, without a clear statement in the legislative history, which is not present, there is no justification for excluding municipalities from the “persons” covered by §1983.5. Local governments sued under §1983 cannot be entitled to an absolute immunity, lest today’s decision “be drained of meaning,” Scheuer v. Rhodes, 416 U.S. 232.On cross-motions for summary judgment, the District Court for the Southern District of New York held moot petitioners’ claims for injunctive and declaratory relief since the City of New York and the Board, after the filing of the complaint, had changed their policies relating to maternity leaves so that no pregnant employee would have to take leave unless she was medically unable to continue to perform her job. 394 F.Supp. 853 (1975). No one now challenges this conclusion. The court did conclude, however, that the acts complained of were unconstitutional under?LaFleur. Nonetheless plaintiffs’ prayers for backpay were denied because any such damages would come ultimately from the City of New York and, therefore, to hold otherwise would be to “circumven[t]” the immunity conferred on municipalities by?Monroe v. Pape,?365 U.S. 167(1961).On appeal, petitioners renewed their arguments that the Board of Education?was not a “municipality” within the meaning of?Monroe v. Pape,?and that, in any event, the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit rejected both contentions. The court first held that the Board of Education was not a “person” under §1983 because “it performs a vital governmental function..., and, significantly, while it has the right to determine how the funds appropriated to it shall be spent..., it has no final say in deciding what its appropriations shall be.” 532 F.2d 259 (1976). The individual defendants, however, were “persons” under §1983, even when sued solely in their official capacities. Yet, because a damages award would “have to be paid by a city that was held not to be amenable to such an action in?Monroe v. Pape,”?a damages action against officials sued in their official capacities could not proceed.We granted certiorari in this case, 429 U.S. 1071, to consider“Whether local governmental officials and/or local independent school boards are ‘persons’ within the meaning of 42 U.S.C. §1983 when equitable relief in the nature of back pay is sought against them in their official capacities?” Pet. for Cert. 8.Although, after plenary consideration, we have decided the merits of over a score of cases brought under §1983 in which the principal defendant was a school board - and, indeed, in some of which §1983 and its jurisdictional counterpart, 28 U.S.C. §1343, provided the only basis for jurisdiction - we indicated in?Mt. Healthy City Board of Education v. Doyle,?429 U.S. 274 (1977), last Term that the question presented here was open and would be decided “another day.” That other day has come and we now overrule?Monroe v. Pape,?insofar as it holds that local governments are wholly immune from suit under §1983.In?Monroe v. Pape,?we held that “Congress did not undertake to bring municipal corporations within the ambit of [§1983].” The sole basis for this conclusion was an inference drawn from Congress’ rejection of the “Sherman amendment” to the bill which became the Civil Rights Act of 1871, 17 Stat. 13, the precursor of §1983. The Amendment would have held a municipal corporation liable for damage done to the person or property of its inhabitants by?private persons “riotously and tumultuously assembled.”?Cong. Globe, 42d Cong., 1st Sess., 749 (1871) (hereinafter Globe). Although the Sherman amendment did not seek to amend §1 of the Act, which is now §1983, and although the nature of the obligation created by that amendment was vastly different from that created by §1, the Court nonetheless concluded in?Monroe?that Congress must have meant to exclude municipal corporations from the coverage of §1 because “the House [in voting against the Sherman amendment] had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation?upon county and town organizations, the mere instrumentality for the administration of state law.” 365 U.S., at 190, quoting Globe 804 (Rep. Poland). This statement, we thought, showed that Congress doubted its “constitutional power...to impose?civil liability?on municipalities,” and that such doubt would have extended to any type of civil liability.Shellabarger began his discussion of H.R. 320 by stating that “there is a domain of constitutional law involved in the right consideration of this measure which is wholly unexplored.” Globe App. 67. There were analogies, however. With respect to the meaning of §1 of the Fourteenth Amendment, and particularly its Privileges or Immunities Clause, Shellabarger relied on the statement of Mr. Justice Washington in Corfield v. Coryell,?3 F.Cas. 230, 4 Wash.C.C. 371 (CC ED Pa.1825), which defined the privileges protected by Art. IV:“‘What these fundamental privileges are[,] it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government;’“Mark that -“protection by the Government;?the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety....” Globe App. 69, quoting 4 Wash.C.C., at 380-381.Building on his conclusion that citizens were owed protection a conclusion not disputed by opponents of the Sherman amendment Shellabarger then considered Congress’ role in providing that protection. Here again there were precedents:“[Congress has always] assumed to enforce, as against the States, and also persons, every one of the provisions of the Constitution. Most of the provisions of the Constitution which restrain and directly relate to the States, such as those in [Art. I, §10,] relate to the divisions of the political powers of the State and General Governments.... These prohibitions upon political powers of the States are all of such nature that they can be, and even have been,... enforced by the courts of the United States declaring void all State acts of encroachment on Federal powers. Thus, and thus sufficiently, has the United States ‘enforced’ these provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or the liabilities of persons within the States, as between such persons and the States.“These three are: first, that as to fugitives from justice;?second, that as to fugitives from service, (or slaves;)?third, that declaring that the ‘citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.’Building on?Prigg, Shellabarger argued that a remedy against municipalities and counties was an appropriate - and hence constitutional - method for ensuring the protection which the Fourteenth Amendment made every citizen’s federal right.?This much was clear from the adoption of such statutes by the several States as devices for suppressing riot.?Thus, said Shellabarger, the only serious question remaining was “whether, since a county is an integer or part of a State, the United States can impose upon it, as such,?any obligations to keep the peace?in obedience to United States laws.”?This he answered affirmatively, citing?Board of Comm’rs v. Aspinwall, 24 How. 376, 16 L.Ed. 735 (1861), the first of many cases?upholding the power of federal courts to enforce the Contract Clause against municipalities.Collector v. Day, cited by Blair, was the clearest and, at the time of the debates, the most recent pronouncement of a doctrine of coordinate sovereignty that, as Blair stated, placed limits on even the enumerated powers of the National Government in favor of protecting state prerogatives. There, the Court held that the United States could not tax the income of Day, a Massachusetts state judge, because the independence of the States within their legitimate spheres would be imperiled if the instrumentalities through which States executed their powers were “subject to the control of another and distinct government.” 11 Wall., at 127. Although the Court in?Day?apparently rested this holding in part on the proposition that the taxing “power acknowledges no limits but the will of the legislative body imposing the tax,”?cf.?McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316 (1819), the Court had in other cases limited other national powers in order to avoid interference with the States.Representative Burchard agreed:“[T]here is no duty imposed by the Constitution of the United States, or usually by State laws, upon a county to protect the people of that county against the commission of the offenses herein enumerated, such as the burning of buildings or any other injury to property or injury to person. Police powers are not conferred upon counties as corporations; they are conferred upon cities that have qualified legislative power. And so far as cities are concerned, where the equal protection required to be afforded by a State is imposed upon a city by State laws, perhaps the United States courts could enforce its performance. But counties...do not have any control of the police....”Second, the doctrine of dual sovereignty apparently put no limit on the power of federal courts to enforce the Constitution against municipalities that violated it. Under the theory of dual sovereignty set out in?Prigg, this is quite understandable. So long as federal courts were vindicating the Federal Constitution, they were providing the “positive” government action required to protect federal constitutional rights and no question was raised of enlisting the States in “positive” action. The limits of the principles announced in?Dennison?and?Day?are not so well defined in logic, but are clear as a matter of history. It must be remembered that the same Court which rendered?Day?also vigorously enforced the Contract Clause against municipalities - an enforcement effort which included various forms of “positive” relief, such as ordering that taxes be levied and collected to discharge federal-court judgments, once a constitutional infraction was found.?Thus, federal judicial enforcement of the Constitution’s express limits on state power, since it was done so frequently, must, notwithstanding anything said in?Dennison or?Day, have been permissible, at least so long as the interpretation of the Constitution was left in the hands of the Judiciary. Since §1 of the Civil Rights Act simply conferred jurisdiction on the federal courts to enforce §1 of the Fourteenth Amendment - a situation precisely analogous to the grant of diversity jurisdiction under which the Contract Clause was enforced against municipalities is no reason to suppose that opponents of the Sherman amendment would have found any constitutional barrier to §1 suits against municipalities.From the foregoing discussion, it is readily apparent that nothing said in debate on the Sherman amendment would have prevented holding a municipality liable under §1 of the Civil Rights Act for its own violations of the Fourteenth Amendment. The question remains, however, whether the general language describing those to be liable under §1 - “any person” - covers more than natural persons. An examination of the debate on §1 and application of appropriate rules of construction show unequivocally that §1 was intended to cover legal as well as natural persons.Representative Shellabarger was the first to explain the function of §1:“[Section 1] not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship.” Globe App. 68.“[A] corporation created by and doing business in a particular state, is to be deemed?to all intents and purposes as a person,?although an artificial person,... capable of being treated as a citizen of that state, as much as a natural person.”?Louisville R. Co. v. Letson,?2 How. 497, 11 L.Ed. 353 (1844), discussed in Globe 752.And only two years before the debates on the Civil Rights Act, in Cowles v. Mercer County,?7 Wall. 118, 19 L.Ed. 86 (1869), the Letson?principle was automatically and without discussion extended to municipal corporations. Under this doctrine, municipal corporations were routinely sued in the federal courts?and this fact was well known to Members of Congress.That the “usual” meaning of the word “person” would extend to municipal corporations is also evidenced by an Act of Congress which had been passed only months before the Civil Rights Act was passed. This Act provided that:“in all acts hereafter passed...the word ‘person’ may extend and be applied to bodies politic and corporate...unless the context shows that such words were intended to be used in a more limited sense.” Act of Feb. 25, 1871, §2, 16 Stat. 431.Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress?did?intend municipalities and other local government units to be included among those persons to whom §1983 applies.?Local governing bodies,?therefore, can be sued directly under §1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the §1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other §1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decision making channels. As Mr. Justice Harlan, writing for the Court, said in?Adickes v. S. H. Kress & Co.,?398 U.S. 144 (1970): “Congress included customs and usages [in §1983] because of the persistent and widespread discriminatory practices of state officials.... Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”On the other hand, the language of §1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable?solely?because it employs a tort-feasor - or, in other words, a municipality cannot be held liable under §1983 on a?respondeat superior?theory.We begin with the language of §1983 as originally passed:“[A]ny person who,?under color of any law, statute, ordinance, regulation, custom, or usage of any State,?shall subject, or cause to be subjected,?any person...to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress....” 17 Stat. 13.The…language plainly imposes liability on a government that, under color of some official policy, “causes” an employee to violate another’s constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tort-feasor. Indeed, the fact that Congress did specifically provide that A’s tort became B’s liability if B “caused” A to subject another to a tort suggests that Congress did not intend §1983 liability to attach where such causation was absent.?See?Rizzo v. Goode,?423 U.S. 362 (1976).Equally important, creation of a federal law of?respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts §69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents.?2 F. Harper & F. James, Law of Torts, §26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory. See?§26.5; Prosser,?at 459.The first justification is of the same sort that was offered for statutes like the Sherman amendment: “The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation.” Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: “we do not look upon [the Sherman amendment] as a punishment.... It is a mutual insurance.”?(Rep. Butler). Again, this justification was insufficient to sustain the amendment.We conclude, therefore, that a local government may not be sued under §1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under §1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under §1983 may be. We have attempted only to sketch so much of the §1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.First,?Monroe v. Pape,?insofar as it completely immunizes municipalities from suit under §1983, was a departure from prior practice. See Northwestern Fertilizing Co. v. Hyde Park, 18 Fed.Cas. 393 (No. 10,336) (CC ND Ill.1873);?City of Manchester v. Leiby, 117 F.2d 661 (CA1 1941);?Hannan v. City of Haverhill, 120 F.2d 87 (CA1 1941);?Douglas v. City of Jeannette, 319 U.S. 157 (1943);?Holmes v. City of Atlanta, 350 U.S. 879 (1955), in each of which municipalities were defendants in §1983 suits.?Moreover, the constitutional defect that led to the rejection of the Sherman amendment would not have distinguished between municipalities and school boards, each of which is an instrumentality of state administration. For this reason, our cases - decided both before and after?Monroe? - holding school boards liable in §1983 actions are inconsistent with?Monroe, especially as?Monroe’s immunizing principle was extended to suits for injunctive relief in?City of Kenosha v. Bruno, 412 U.S. 507 (1973).?And although in many of these cases jurisdiction was not questioned, we ought not “disregard the implications of an exercise of judicial authority assumed to be proper for [100] years.”?Brown Shoe Co. v. United States, 370 U.S. 294 (1962); see?Bank of the United States v. Deveaux,?5 Cranch, at 88 (“Those decisions are not cited as authority...but they have much weight as they show that this point neither occurred to the bar or the bench”). Thus, while we have reaffirmed?Monroe?without further examination on three occasions,?it can scarcely be said that?Monroe?is so consistent with the warp and woof of civil rights law as to be beyond question.“[D]efendants in these cases are often State or local?bodies?or State or local officials. In such cases it is intended that the attorneys’ fees, like other items of costs, will be collected either directly from the official,?in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).” S.Rep. No. 94-1011, p. 5 (1976); U.S. Code Cong. & Admin. News 1976, pp. 5908, 5913.Third, municipalities can assert no reliance claim which can support an absolute immunity. As Mr. Justice Frankfurter said in?Monroe, “[t]his is not an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance on the expected stability of decision.” 365 U.S., at 221. Indeed, municipalities simply cannot “arrange their affairs” on an assumption that they can violate constitutional rights indefinitely since injunctive suits against local officials under §1983 would prohibit any such arrangement. And it scarcely need be mentioned that nothing in Monroe?encourages municipalities to violate constitutional rights or even suggests that such violations are anything other than completely wrong.Mr. Justice POWELL, concurring.In addressing a complaint alleging unconstitutional police conduct that probably was unauthorized and actionable under state law,?the Monroe?Court treated the 42d Congress’ rejection of the Sherman amendment as conclusive evidence of an intention to immunize local governments from all liability under the statute for constitutional injury. That reading, in light of today’s thorough canvass of the legislative history, clearly “misapprehended the meaning of the controlling provision,”?Monroe,?at 192. In this case, involving formal, written policies of the Department of Social Services and the Board of Education of the city of New York that are alleged to conflict with the command of the Due Process Clause, cf.?Cleveland Board of Education v. LaFleur,?414 U.S. 632 (1974), the Court decides “not to reject [wisdom] merely because it comes late,”?Henslee v. Union Planters Bank,?335 U.S. 595 (1949).The Court correctly rejects a view of the legislative history that would produce the anomalous result of immunizing local government units from monetary liability for action directly causing a constitutional deprivation, even though such actions may be fully consistent with, and thus not remediable under, state law. No conduct of government comes more clearly within the “under color of” state law language of §1983. It is most unlikely that Congress intended public officials acting under the command or the specific authorization of the government employer to be?exclusively?liable for resulting constitutional injury.As elaborated in Part II of today’s opinion, the rejection of the Sherman amendment can best be understood not as evidence of Congress’ acceptance of a rule of absolute municipal immunity but as a limitation of the statutory ambit to actual wrongdoers,?i.e.,?a rejection of respondeat superior?or any other principle of vicarious liability. Cf. Levin, The Section 1983 Municipal Immunity Doctrine, 65 Geo.L.J. 1483, 1531-1535 (1977). Thus, it has been clear that a public official may be held liable in damages when his actions are found to violate a constitutional right and there is no qualified immunity, see?Wood v. Strickland,?420 U.S. 308 (1975); Procunier v. Navarette,?434 U.S. 555 (1978). Today the Court recognizes that this principle also applies to a local government when implementation of its official policies or established customs inflicts the constitutional injury.This Court traditionally has been hesitant to overrule prior constructions of statutes or interpretations of common-law rules. “Stare decisis?is usually the wise policy,”?Burnet v. Coronado Oil & Gas Co.,?285 U.S. 393 (1932), but this cautionary principle must give way to countervailing considerations in appropriate circumstances.?I concur in the Court’s view that this is not a case where we should “place on the shoulders of Congress the burden of the Court’s own error.”?Girouard v. United States,?328 U.S. 61 (1946).In?Monroe?and its progeny, we have answered a question that was never actually briefed or argued in this Court - whether a municipality is liable in damages for injuries that are the direct result of its official policies. “The theory of the complaint [in?Monroe?was] that under the circumstances [t]here alleged the City [was] liable for the acts of its police officers, by virtue of?respondeat superior.”?Respondents answered that adoption of petitioners’ position would expose “Chicago and every other municipality in the United States... to Civil Rights Act liability through no action of its own and based on action contrary to its own ordinances and the laws of the state it is a part of.” Thus the ground of decision in?Monroe?was not advanced by either party and was broader than necessary to resolve the contentions made in that case.Similarly, in?Moor v. County of Alameda,?411 U.S. 693 (1973), petitioners asserted that “the County was vicariously liable for the acts of its deputies and sheriff.” In rejecting this vicarious-liability claim, 411 U.S., at 710, we reaffirmed?Monroe’s reading of the statute, but there was no challenge in that case to “the holding in?Monroe?concerning the status under §1983 of public entities such as the County,” 411 U.S., at 700.Only in?City of Kenosha v. Bruno,?412 U.S. 507 (1973), did the Court confront a §1983 claim based on conduct that was both authorized under state law and the direct cause of the claimed constitutional injury. In?Kenosha,?however, we raised the issue of the city’s amenability to suit under §1983 on our own initiative.This line of cases - from?Monroe?to?Kenosha - is difficult to reconcile on a principled basis with a parallel series of cases in which the Court has assumed?sub silentio?that some local government entities could be sued under §1983. If now, after full consideration of the question, we continued to adhere to?Monroe,?grave doubt would be cast upon the Court’s exercise of §1983 jurisdiction over school boards. Since “the principle of blanket immunity established in?Monroe cannot be cabined short of school boards,” the conflict is squarely presented. Although there was an independent basis of jurisdiction in many of the school board cases because of the inclusion of individual public officials as nominal parties, the opinions of this Court make explicit reference to the school board party, particularly in discussions of the relief to be awarded, see Green v. County School Board,?391 U.S. 430 (1968);?Milliken v. Bradley,?433 U.S. 267 (1977). And, as the Court points out, Congress has focused specifically on this Court’s school board decisions in several statutes. Thus the exercise of §1983 jurisdiction over school boards, while perhaps not premised on considered holdings, has been longstanding. Indeed, it predated?Monroe.Even if one attempts to explain away the school board decisions as involving suits which “may be maintained against board members in their official capacities for injunctive relief under either §1983 or?Ex parte Young,?209 U.S. 123 (1908),” some difficulty remains in rationalizing the relevant body of precedents. At least two of the school board cases involved claims for monetary relief.?Cohen v. Chesterfield County School Board,?326 F.Supp. 1159 (ED Va.1971), rev’d, 474 F.2d 395 (CA4 1973), rev’d and remanded, 414 U.S. 632 (1974);?Tinker v. Des Moines School Dist.,?393 U.S. 503 (1969). See also?Vlandis v. Kline,?412 U.S. 441 (1973). Although the point was not squarely presented in this Court, these claims for damages could not have been maintained in official-capacity suits if the government entity were not itself suable. Cf. Edelman v. Jordan,?415 U.S. 651 (1974).?Moreover the rationale of?Kenosha?would have to be disturbed to avoid closing all avenues under §1983 to injunctive relief against constitutional violations by local government. The Court of Appeals in this case suggested that we import, by analogy, the Eleventh Amendment fiction of?Ex parte Young?into §1983, 532 F.2d 259 (CA2 1976). That approach, however, would create tension with?Kenosha because it would require “a bifurcated application” of “the generic word ‘person’ in §1983” to public officials “depending on the nature of the relief sought against them.” 412 U.S., at 513. A public official sued in his official capacity for carrying out official policy would be a “person” for purposes of injunctive relief, but a non-”person” in an action for damages. The Court’s holding avoids this difficulty.…the better course is to confess error and set the record straight, as the Court does today.Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.As this Court has repeatedly recognized,?considerations of?stare decisis?are at their strongest when this Court confronts its previous constructions of legislation. In all cases, private parties shape their conduct according to this Court’s settle construction of the law, but the Congress is at liberty to correct our mistakes of statutory construction, unlike our constitutional interpretations, whenever it sees fit. The controlling principles were best stated by Mr. Justice Brandeis:“Stare decisis?is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.... This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions.”?Burnet v. Coronado Oil & Gas Co.,?285 U.S. 393 (1932).Nor is there any indication that any later Congress has ever approved suit against any municipal corporation under §1983. Of all its recent enactments, only the Civil Rights Attorney’s Fees Awards Act of 1976, §2, 90 Stat. 2641, 42 U.S.C. §1988 (1976 ed.), explicitly deals with the Civil Rights Act of 1871.?The 1976 Act provides that attorney’s fees may be awarded to the prevailing party “[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title.” There is plainly no language in the 1976 Act which would enlarge the parties suable under those substantive sections; it simply provides that parties who are already suable may be made liable for attorney’s fees. As the Court admits, the language in the Senate Report stating that liability may be imposed “whether or not the agency or government is a named party,” S.Rep. No. 94-1011, p. 5 (1976); U.S. Code Cong. & Admin. News 1976, pp. 5908, 5912, suggests that Congress did not view its purpose as being in any way inconsistent with the well-known holding of?Monroe.Any analysis of the meaning of the word “person” in §1983, which was originally enacted as §1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, must begin, not with the Sherman amendment, but with the Dictionary Act. The latter Act, which supplied rules of construction for all legislation, provided:“That in all acts hereafter passed...the word ‘person’ may extend and be applied to bodies politic and corporate...unless the context shows that such words were intended to be used in a more limited sense....” Act of Feb. 25, 1871, §2, 16 Stat. 431.There are other factors, however, which suggest that the Congress which enacted §1983 may well have intended the word “person” “to be used in a more limited sense,” as?Monroe?concluded. It is true that this Court had held that both commercial corporations,?Louisville R. Co. v. Letson,?2 How. 497, 11 L.Ed. 353 (1844), and municipal corporations,?Cowles v. Mercer County,?7 Wall. 118, 19 L.Ed. 86 (1869), were “citizens” of a State within the meaning of the jurisdictional provisions of Art. III. Congress, however, also knew that this label did not apply in all contexts, since this Court in?Pa l v. Virginia,?8 Wall. 168, 19 L.Ed. 357 (1869), had held commercial corporations not to be “citizens” within the meaning of the Privileges and Immunities Clause, U.S.Const., Art. IV, §2. Thus, the Congress surely knew that, for constitutional purposes, corporations generally enjoyed a different status in different contexts. Indeed, it may be presumed that Congress intended that a corporation should enjoy the same status under the Ku Klux Klan Act as it did under the Fourteenth Amendment, since it had been assured that §1 “was so very simple and really reenact[ed] the Constitution.” Cong. Globe, 42d Cong., 1st Sess., 569 (1871) (remarks of Sen. Edmunds). At the time §1983 was enacted the only federal case to consider the status of corporations under the Fourteenth Amendment had concluded, with impeccable logic, that a corporation was neither a “citizen” nor a “person.”?Insurance Co. v. New Orleans,?13 Fed.Cas. 67 (No. 7,052) (CC La.1870).Furthermore, the state courts did not speak with a single voice with regard to the tort liability of municipal corporations. Although many Members of Congress represented States which had retained absolute municipal tort immunity, see Irvine v. Town of Greenwood,?89 S.C. 511, 72 S.E. 228 (1911) (collecting earlier cases), other States had adopted the currently predominant distinction imposing liability for proprietary acts, see generally 2 F. Harper & F. James, Law of Torts §29.6 (1956), as early as 1842,?Bailey v. Mayor of City of New York,?3 Hill 531 (N.Y.1842). Nevertheless, no state court had ever held that municipal corporations were always liable in tort in precisely the same manner as other persons.The decision in?Monroe v. Pape?was the fountainhead of the torrent of civil rights litigation of the last 17 years. Using §1983 as a vehicle, the courts have articulated new and previously unforeseeable interpretations of the Fourteenth Amendment. At the same time, the doctrine of municipal immunity enunciated in?Monroe?has protected municipalities and their limited treasuries from the consequences of their officials’ failure to predict the course of this Court’s constitutional jurisprudence. None of the Members of this Court can foresee the practical consequences of today’s removal of that protection. Only the Congress, which has the benefit of the advice of every segment of this diverse Nation, is equipped to consider the results of such a drastic change in the law. It seems all but inevitable that it will find it necessary to do so after today’s decision.I would affirm the judgment of the Court of Appeals.Footnotes:7. However, we do uphold?Monroe v. Pape,?insofar as it holds that the doctrine of?respondeat superior?is not a basis for rendering municipalities liable under §1983 for the constitutional torts of their employees. See Part II.25. See Globe 751. See also?id., at 760 (Sen. Sherman) (“If a State may...pass a law making a county...responsible for a riot in order to deter such crime, then we may pass the same remedies...”).30. Others taking a view similar to Representative Blair’s included: Representative Willard, Representative Poland, Representative Burchard, and Representative Farnsworth. Representative Willard also took a somewhat different position. He thought that the Constitution would not allow the Federal Government to dictate the manner in which a State fulfilled its obligation of protection. That is, he thought it a matter of state discretion whether it delegated the peacekeeping power to a municipal or county corporation, to a sheriff, etc. He did not doubt, however, that the Federal Government could impose on the?States the obligation imposed by the Sherman amendment, and presumably he would have enforced the amendment against a municipal corporation to which the peacekeeping obligation had been delegated.Opponents of the Sherman amendment in the Senate agreed with Blair that Congress had no power to pass the Sherman amendment because it fell outside limits on national power implicit in the federal structure of the Constitution and recognized in Collector v. Day, 11 Wall. 113, 20 L.Ed. 122 (1871). However, the Senate opponents focused not on the amendment’s attempt to obligate municipalities to keep the peace, but on the lien created by the amendment, which ran against?all?money and property of a defendant municipality, including property held for public purposes, such as jails or courthouses. Opponents argued that such a lien once entered would have the effect of making it impossible for the municipality to function, since no one would trade with it. See Globe 762 (Sen. Stevenson);?(Sen. Casserly). Moreover, everyone knew that sound policy prevented execution against public property since this, too, was needed if local government was to survive.?See also?Meriwether v. Garrett, 102 U.S. 472 (1880) (recognizing principle that public property of a municipality was not subject to execution); 2 J. Dillon, The Law of Municipal Corporations §§445-446 (1873 ed.).Although the arguments of the Senate opponents appear to be a correct analysis of then-controlling constitutional and common-law principles, their arguments are not relevant to an analysis of the constitutionality of §1 of the Civil Rights Act since any judgment under that section, as in any civil suit in the federal courts in 1871, would have been enforced pursuant to?state?laws under the Process Acts of 1792 and 1828. See Act of May 8, 1792, ch. 36, 1 Stat. 275; Act of May 19, 1828, 4 Stat. 278.45. Representative Bingham, the author of §1 of the Fourteenth Amendment, for example, declared the bill’s purpose to be “the enforcement...of the Constitution on behalf of every individual citizen of the Republic...to the extent of the rights guaranteed to him by the Constitution.” Globe App. 81. He continued:“The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws... [And] the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy.... They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy.... Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in the States and by States, or combinations of persons?”Representative Perry, commenting on Congress’ action in passing the civil rights bill also stated:“Now, by our action on this bill we have asserted as fully as we can assert the mischief intended to be remedied. We have asserted as clearly as we can assert our belief that it is the duty of Congress to redress that mischief. We have also asserted as fully as we can assert the constitutional right of Congress to legislate.” Globe 800.See also?id.,?at 376 (Rep. Lowe);?id.,?at 428-429 (Rep. Beatty);?id.,?at 448 (Rep. Butler);?id.,?at 475-477 (Rep. Dawes);?id.,?at 578-579 (Sen. Trumbull);?id.,?at 609 (Sen. Pool); Globe App. 182 (Rep. Mercur).Other supporters were quite clear that §1 of the Act extended a remedy not only where a State had passed an unconstitutional statute, but also where officers of the State were deliberately indifferent to the rights of black citizens:“But the chief complaint is...[that] by a systematic maladministration of [state law], or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. Whenever such a state of facts is clearly made out, I believe [§5 of the Fourteenth Amendment] empowers Congress to step in and provide for doing justice to those persons who are thus denied equal protection.”?(Rep. Garfield). See also?Monroe v. Pape,?365 U.S., at 171.Importantly for our inquiry, even the opponents of §1 agreed that it was constitutional and, further, that it swept very broadly. Thus, Senator Thurman, who gave the most exhaustive critique of §1, said:“This section relates wholly to civil suits.... Its whole effect is to give to the Federal Judiciary that which now does not belong to it - a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy....“[T]here is no limitation whatsoever upon the terms that are employed [in the bill], and they are as comprehensive as can be used.”?Globe App. 216-217.50. See?Globe 777 (Sen. Sherman);?(Rep. Shellabarger) (“[C]ounties, cities, and corporations of all sorts, after years of judicial conflict, have become thoroughly established to be an individual or person or entity of the personal existence, of which, as a citizen, individual, or inhabitant, the United States Constitution does take note and endow with faculty to sue and be sued in the courts of the United States”).51. See?Northwestern Fertilizing Co. v. Hyde Park,?18 Fed.Cas. pp. 393, 94 (No. 10,336) (CC ND Ill.1873); 2 J. Kent, Commentaries on American Law 2 278-279 (12th O. W. Holmes ed. 1873). See also United States v. Maurice,?26 Fed.Cas. No. 15,747, 2 Brock. 96, 109 (CC Va.1823) (“The United States is a government, and, consequently, a body politic and corporate”); Apps. D and E to Brief for Petitioners in?Monroe v. Pape, O.T. 1960, No. 39 (collecting state statutes which, in 1871, defined municipal corporations as bodies politic and corporate).53. In considering the effect of the Act of Feb. 25, 1871, in?Monroe, however, Mr. Justice Douglas, apparently focusing on the word “may,” stated: “[T]his definition [of person] is merely an allowable, not a mandatory, one.” 365 U.S., at 191. A review of the legislative history of the Dictionary Act shows this conclusion to be incorrect.There is no express reference in the legislative history to the definition of “person,” but Senator Trumbull, the Act’s sponsor, discussed the phrase “words importing the masculine gender?may?be applied to females,” which immediately precedes the definition of “person,” and stated:“The only object [of the Act] is to get rid of a great deal of verbosity in our statutes by providing that when the word ‘he’ is used it?shall include females as well as males.” Cong. Globe, 41st Cong., 3d Sess., 775 (1871).Thus, in Trumbull’s view the word “may” meant “shall.” Such a mandatory use of the extended meanings of the words defined by the Act is also required for it to perform its intended function to be a guide to “rules of construction” of Acts of Congress. (Remarks of Sen. Trumbull). Were the defined words “allowable, [but] not mandatory” constructions, as?Monroe?suggests, there would be no “rules” at all. Instead, Congress must have intended the definitions of the Act to apply across-the-board except where the Act by its terms called for a deviation from this practice “[where] the context shows that [defined] words were to be used in a more limited sense.” Certainly this is how the?Northwestern Fertilizing?court viewed the matter. Since there is nothing in the “context” of §1 of the Civil Rights Act calling for a restricted interpretation of the word “person,” the language of that section should prima facie be construed to include “bodies politic” among the entities that could be sued.54. There is certainly no constitutional impediment to municipal liability. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.”?Milliken v. Bradley,?433 U.S. 267 (1977); see?Ex parte Virginia,?100 U.S., at 347. For this reason, National League of Cities v. Usery,?426 U.S. 833 (1976), is irrelevant to our consideration of this case. Nor is there any basis for concluding that the Eleventh Amendment is a bar to municipal liability. See Fitzpatrick v. Bitzer,?427 U.S. 445 (1976);?Lincoln County v. Luning,?133 U.S. 529 (1890). Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes.55. Since official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent - at least where Eleventh Amendment considerations do not control analysis - our holding today that local governments can be sued under §1983 necessarily decides that local government officials sued in their official capacities are “persons” under §1983 in those cases in which, as here, a local government would be suable in its own name.58.A third justification, often cited but which on examination is apparently insufficient to justify the doctrine of?respondeat superior, see?2 F. Harper & F. James, §26.3, is that liability follows the right to control the actions of a tort-feasor. By our decision in?Rizzo v. Goode,?423 U.S. 362 (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support §1983 liability. See 423 U.S., at 370-371.63. In 1972, spurred by a finding “that the process of eliminating or preventing minority group isolation and improving the quality of education for all children often involves the expenditure of additional funds to which local educational agencies do not have access,” 86 Stat. 354, 20 U.S.C. §1601(a) (1976 ed.), Congress passed the Emergency School Aid Act. Section 706(a)(1)(A)(i) of that Act, 20 U.S.C. §1605(a)(1)(A)(i) (1976 ed.), authorizes the Assistant Secretary“…to make a grant to, or a contract with,?a local educational agency [w]hich is implementing a plan...which has been undertaken pursuant to a final order issued by a court of the United States...which requires the desegregation of minority group segregated children or faculty in the elementary and secondary schools of such agency, or otherwise requires the elimination or reduction of minority group isolation in such schools.”A “local educational agency” is defined by 20 U.S.C. §1619(8) (1976 ed.) as “a public board of education or other public authority legally constituted within a State for either administrative control or direction of, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or a federally recognized Indian reservation, or such combination of school districts, or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools, or a combination of local educational agencies....” Congress thus clearly recognized that school boards were often parties to federal school desegregation suits. In §718 of the Act, 86 Stat. 369, 20 U.S.C. §1617 (1976 ed.), Congress gave its explicit approval to the institution of federal desegregation suits against school boards presumably under §1983. Section 718 provides:“Upon the entry of a final order?by a court of the United States against a local educational agency...for discrimination on the basis of race, color, or national origin in violation of...the Fourteenth Amendment to the Constitution of the United States...the court...may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”Two years later in the Equal Educational Opportunities Act of 1974, Congress found that “the implementation of desegregation plans that require extensive student transportation has, in many cases, required?local educational agencies?to expend large amounts of funds, thereby depleting their financial resources....” 20 U.S.C. §1702(a)(3) (1976 ed.). Congress did not respond by declaring that school boards were not subject to suit under §1983 or any other federal statute, “but simply [legislated] revised evidentiary standards and remedial priorities to be employed by the courts in deciding such cases.” Brief for National Education Assn., et al. as?Amici Curiae?15-16. Indeed, Congress expressly reiterated that a cause of action, cognizable in the federal courts, exists for discrimination in the public school context. 20 U.S.C. §§1703,1706, 1708, 1710, 1718 (1976 ed.). The Act assumes that school boards will usually be the defendants in such suits. For example, §211 of the Act, 88 Stat. 516, as set forth in 20 U.S.C. §1710 (1976 ed.), provides:“The Attorney General shall not institute a civil action under §1706 of this title [which allows for suit by both private parties and the Attorney General to redress discrimination in public education] before he-“(a) gives to the appropriate educational agency notice of the condition or conditions which, in his judgment, constitute a violation of part 2 [the prohibitions against discrimination in public education].” Section 219 of the Act, 20 U.S.C. §1718 (1976 ed.), provides for the termination of court-ordered busing “if the court finds the defendant educational agency has satisfied the requirements of the Fifth or Fourteenth Amendments to the Constitution, whichever is applicable, and will continue to be in compliance with the requirements thereof.”5. The District Court in?Monroe?ruled in the municipality’s favor, stating: “[S]ince the liability of the City of Chicago is based on the doctrine of?respondeat superior,?and since I have already held that the complaint fails to state a claim for relief against the agents of the city, there is no claim for relief against the city itself.” Record, O.T.1960, No. 39, p. 30. The Court of Appeals affirmed for the same reason. 272 F.2d 365-366 (CA7 1959).Petitioners in this Court also offered an alternative argument that the city of Chicago was a “person” for purposes of §1983, Brief for Petitioners, O.T.1960, No. 39, p. 25, but the underlying theory of municipal liability remained one of?respondeat superior.6. The doctrine of?stare decisis?advances two important values of a rational system of law: (i) the certainty of legal principles and (ii) the wisdom of the conservative vision that existing rules should be presumed rational and not subject to modification “at any time a new thought seems appealing,” dissenting opinion of Mr. Justice Rehnquist; cf. O. Holmes, The Common Law 36 (1881). But, at the same time, the law has recognized the necessity of change, lest rules “simply persis[t] from blind imitation of the past.” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). Any overruling of prior precedent, whether of a constitutional decision or otherwise, disserves to some extent the value of certainty. But I think we owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considerations. That is the premise of the canon of interpretation that language in a decision not necessary to the holding may be accorded less weight in subsequent cases. I also would recognize the fact that until this case the Court has not had to confront squarely the consequences of holding §1983 inapplicable to official municipal policies.Of course, the mere fact that an issue was not argued or briefed does not undermine the precedential force of a considered holding. Marbury v. Madison,?1 Cranch 137 (1803), cited by the dissent,?is a case in point. But the Court’s recognition of its power to invalidate legislation not in conformity with constitutional command was essential to its judgment in?Marbury. And on numerous subsequent occasions, the Court has been required to apply the full breadth of the?Marbury?holding. In?Monroe, on the other hand, the Court’s rationale was broader than necessary to meet the contentions of the parties and to decide the case in a principled manner. The language in?Monroe?cannot be dismissed as dicta, but we may take account of the fact that the Court simply was not confronted with the implications of holding §1983 inapplicable to official municipal policies. It is an appreciation of those implications that has prompted today’s re-examination of the legislative history of the 1871 measure.UNITED STATES v. MacDONALD, 435 U.S. 850 (1978)MR. JUSTICE BLACKMUN delivered the opinion of the Court.In?Barker v. Wingo,?407 U.S. 514?(1972), the Court listed four factors that are to be weighed in determining whether an accused has been deprived of his Sixth Amendment right to a speedy trial. They are the length of the delay, the reason for the delay, whether the defendant has asserted his right, and prejudice to the defendant from the delay.?The Court noted that prejudice to the defendant must be considered in the light of the interests the speedy trial right was designed to protect:“(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”Many defendants, of course, would be willing to tolerate the delay in a trial that is attendant upon a pretrial appeal in the hope of winning that appeal. The right to a speedy trial, however, “is generically different from any of the other rights enshrined in the Constitution for the protection of the accused,” because “there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Barker v. Wingo,?407 U.S. at 519.?See also United States v. Avalos,?541 F.2d 1100 (CA5 1976),?cert. denied,?430 U.S. 970 (1977). Among other things, delay may prejudice the prosecution’s ability to prove its case, increase the cost to society of maintaining those defendants subject to pretrial detention, and prolong the period during which defendants released on bail may commit other crimes.?Dickey v. Florida, 398 U.S. 30?(1970).BUTZ et al., v. ECONOMOU et al., 438 U.S. 478, 98 S.Ct. 2894 (1978)MR. JUSTICE WHITE delivered the opinion of the Court.In absence of congressional direction to the contrary, there is no basis for according to federal officials a higher degree of immunity from liability when sued for constitutional infringement than is accorded state officials when sued for the identical violation under civil rights statute; federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. 42 U.S.C.A. §1983.In suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to qualified immunity, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law; but there is no substantial basis for holding that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the Constitution or in a manner that they should know transgresses a clearly established constitutional rule.Although qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, there are some officials whose special functions require a full exemption from liability.Judges have absolute immunity not because of their particular location in government, but because of the special nature of their responsibilities.In light of safeguards provided in agency adjudication to assure that hearing examiner or administrative judge exercises his independent judgment on the evidence before him, free from pressure by parties or other officials within agency, risk of an unconstitutional act by one presiding at agency hearing is outweighed by importance of preserving such independent judgment, and therefore, persons subject to such restraints in performing adjudicatory functions within federal agency are entitled to absolute immunity from damages liability for their judicial acts.Because legal remedies already available to defendant in agency enforcement proceeding provide sufficient checks on agency zeal, agency officials who perform certain functions analogous to those of a prosecutor and who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision.After an unsuccessful Department of Agriculture proceeding to revoke or suspend the registration of respondent’s commodity futures commission company, respondent filed an action for damages in District Court against petitioner officials (including the Secretary and Assistant Secretary of Agriculture, the Judicial Officer, the Chief Hearing Examiner who had recommended sustaining the administrative complaint, and the Department attorney who had prosecuted the enforcement proceeding), alleging, inter alia, that by instituting unauthorized proceedings against him they had violated various of his constitutional rights. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government. Held:1. Neither Barr v. Matteo,?360 U.S. 564, nor Spalding v. Vilas,?161 U.S. 483, supports petitioners’ contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if in the course of enforcing the relevant statutes they infringed respondent’s constitutional rights and even if the violation was knowing and deliberate. Nor did either of those cases purport to abolish the liability of federal officers for actions manifestly beyond their line of duty; if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability.2. Without congressional directions to the contrary, it would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 U.S.C. §1983, Scheuer v. Rhodes,?416 U.S. 232,and suits brought directly under the Constitution against federal officials, Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388. Federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers.3. In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business. While federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law, there is no substantial basis for holding that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the Constitution or in a manner that they should know transgresses a clearly established constitutional rule.4. Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, there are some officials whose special functions require a full exemption from liability.(a) In light of the safeguards provided in agency adjudication to assure that the hearing examiner or administrative law judge exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency, the risk of an unconstitutional act by one presiding at the agency hearing is clearly outweighed by the importance of preserving such independent judgment. Therefore, persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts.(b) Agency officials who perform functions analogous to those of a prosecutor must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision.(c) There is no substantial difference between the function of an agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court, and since administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record, an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence.5. The case is remanded for application of the foregoing principles?to the claims against the particular petitioner-defendants involved.This case concerns the personal immunity of federal officials in the Executive Branch from claims for damages arising from their violations of citizens’ constitutional rights. Respondent?filed suit against a number of officials in the Department of Agriculture claiming that they had instituted an investigation and an administrative proceeding against him in retaliation for his criticism of that agency. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government. Economou v. U.S. Department of Agriculture, 535 F.2d 688 (1976). Because of?the importance of immunity doctrine to both the vindication of constitutional guarantees and the effective functioning of government, we granted certiorari.?429 U.S. 1089.The Court of Appeals for the Second Circuit reversed the District Court’s judgment of dismissal with respect to the individual defendants. Economou v. U.S. Department of Agriculture, 535 F.2d 688 (1976). The Court of Appeals reasoned that Barr v. Matteo, did not “represen[t] the last word in this evolving area,” because principles governing the immunity of officials of the Executive Branch had been elucidated in later decisions dealing with constitutional claims against state officials. E.g., Pierson v. Ray,?386 U.S. 547?(1967); Scheuer v. Rhodes,?416 U.S. 232?(1974); Wood v. Strickland,?420 U.S. 308?(1975). These opinions were understood to establish that officials of the Executive Branch exercising discretionary functions did not need the protection of an absolute immunity from suit, but only a qualified immunity based on good faith and reasonable grounds. The Court of Appeals rejected a proposed distinction between suits against state officials sued pursuant to 42 U.S.C. §1983 and suits against federal officials under the Constitution, noting that “[o]ther circuits have also concluded that the Supreme Court’s development of official immunity doctrine in §1983 suits against state officials applies with equal force to federal officers sued on a cause of action derived directly from the Constitution, since both types of suits serve the same function of protecting citizens against violations of their constitutional rights by government officials.” The Court of Appeals recognized?that under Imbler v. Pachtman,?424 U.S. 409?(1976), state prosecutors were entitled to absolute immunity from §1983 damages liability but reasoned that Agriculture Department officials performing analogous functions did not require such an immunity because their cases turned more on documentary proof than on the veracity of witnesses and because their work did not generally involve the same constraints of time and information present in criminal cases. The court concluded that all of the defendants were “adequately protected by permitting them to avail themselves of the defense of qualified ‘good faith, reasonable grounds’ immunity of the type approved by the Supreme Court in Scheuer and Wood.” After noting that summary judgment would be available to the defendants if there were no genuine factual issues for trial, the Court of Appeals remanded the case for further proceedings.The single submission by the United States on behalf of petitioners is that all of the federal officials sued in this case are absolutely immune from any liability for damages even if in the course of enforcing the relevant statutes they infringed respondent’s constitutional rights and even if the violation was knowing and deliberate. Although the position is earnestly and ably presented by the United States, we are quite sure that it is unsound and consequently reject it.In Bivens v. Six Unknown Fed. Narcotics Agents,?403 U.S. 388?(1971), the victim of an arrest and search claimed to be violative of the Fourth Amendment brought suit for damages against the responsible federal agents. Repeating the declaration in Marbury v. Madison, 1 Cranch 137 (1803), that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,” and stating that “[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty,” we rejected the claim?that the plaintiff’s remedy lay only in the state court under state law, with the Fourth Amendment operating merely to nullify a defense of federal authorization. We held that a violation of the Fourth Amendment by federal agents gives rise to a cause of action for damages consequent upon the unconstitutional conduct. Bivens established that compensable injury to a constitutionally protected interest could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts, but we reserved the question whether the agents involved were “immune from liability by virtue of their official position,” and remanded the case for that determination. On remand, the Court of Appeals for the Second Circuit, as has every other Court of Appeals that has faced the question, held that the agents were not absolutely immune and that the public interest would be sufficiently protected by according the agents and their superiors a qualified immunity.Barr did not, therefore, purport to depart from the general rule, which long prevailed, that a federal official may not with impunity ignore the limitations which the controlling law has placed on his powers. The immunity of federal executive officials began as a means of protecting them in the execution of their federal statutory duties from criminal or civil actions based on state law. See Osborn v. Bank of the United States, 9 Wheat. 738 (1824). A federal?official who acted outside of his federal statutory authority would be held strictly liable for his trespassory acts. For example, Little v. Barreme, 2 Cranch 170 (1804), held the commander of an American warship liable in damages for the seizure of a Danish cargo ship on the high seas. Congress had directed the President to intercept any vessels reasonably suspected of being en route to a French port, but the President had authorized the seizure of suspected vessels whether going to or from French ports, and the Danish vessel seized was en route from a forbidden destination. The Court, speaking through Mr. Chief Justice Marshall, held that the President’s instructions could not “change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass.” Although there was probable cause to believe that the ship was engaged in traffic with the French, the seizure at issue was not among that class of seizures that the Executive had been authorized by statute to effect. See also Wise v. Withers, 3 Cranch 331 (1806).Bates v. Clark,?95 U.S. 204?(1877), was a similar case. The relevant statute directed seizures of alcoholic beverages in Indian country, but the seizure at issue, which was made upon the orders of a superior, was not made in Indian country. The “objection fatal to all this class of defenses is that in that locality [the seizing officers] were utterly without any authority in the premises” and hence were answerable in damages.As these cases demonstrate, a federal official was protected for action tortious under state law only if his acts were authorized by controlling federal law. “To make out his defense he must show that his authority was sufficient in law to protect him.” Cunningham v. Macon & Brunswick R. Co.,?109 U.S. 446?(1883); Belknap v. Schild,?161 U.S. 10?(1896). Since an unconstitutional act, even if authorized by statute, was viewed as not authorized in contemplation of?law, there could be no immunity defense. See United States v. Lee,?106 U.S. 196 (1882); Virginia Coupon Cases,?114 U.S. 269 (1885). In both Barreme and Bates, the officers did not merely mistakenly conclude that the circumstances warranted a particular seizure, but failed to observe the limitations on their authority by making seizures not within the category or type of seizures they were authorized to make. Kendall v. Stokes, 3 How. 87 (1845), addressed a different situation. The case involved a suit against the Postmaster General for erroneously suspending payments to a creditor of the Post Office. Examining and, if necessary, suspending payments to creditors were among the Postmaster’s normal duties, and it appeared that he had simply made a mistake in the exercise of the discretion conferred upon him. He was held not liable in damages since “a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual [is not] liable in an action for an error of judgment.” Having “the right to examine into this account” and the right to suspend it in the proper circumstances, the officer was not liable in damages if he fell into error, provided, however, that he acted “from a sense of public duty and without malice.”Four years later, in a case involving military discipline, the Court issued a similar ruling, exculpating the defendant?officer because of the failure to prove that he had exceeded his jurisdiction or had exercised it in a malicious or willfully erroneous manner: “[I]t is not enough to show he committed an error of judgment, but it must have been a malicious and wilful error.” Wilkes v. Dinsman, 7 How. 89 (1849).In Spalding v. Vilas,?161 U.S. 483?(1896), on which the Government relies, the principal issue was whether the malicious motive of an officer would render him liable in damages for injury inflicted by his official act that otherwise was within the scope of his authority. The Postmaster General was sued for circulating among the postmasters a notice that assertedly injured the reputation of the plaintiff and interfered with his contractual relationships. The Court first inquired as to the Postmaster General’s authority to issue the notice. In doing so, it “recognize[d] a distinction between action taken by the head of a Department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision.” Concluding that the circular issued by the Postmaster General “was not unauthorized by law, nor beyond the scope of his official duties,” the Court then addressed the major question in the case - whether the action could be “maintained because of the allegation that what the officer did was done maliciously?” Its holding was that the head of a department could not be “held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority,” however improper his motives might have been. Because the Postmaster General in issuing the circular in question “did not exceed his authority, nor pass the line of his duty,” it was irrelevant that he might have acted maliciously.?Spalding made clear that a malicious intent will not subject a public officer to liability for performing his authorized duties as to which he would otherwise not be subject to damages liability. But Spalding did not involve conduct manifestly or otherwise beyond the authority of the official, nor did it involve a mistake of either law or fact in construing or applying the statute. It did not purport to immunize officials?who ignore limitations on their authority imposed by law. Although the “manifestly or palpably” standard for examining the reach of official power may have been suggested as a gloss on Barreme, Bates, Kendall, and Wilkes, none of those cases was overruled. It is also evident that Spalding presented no claim that the officer was liable in damages because he had acted in violation of a limitation placed upon his conduct by the United States Constitution. If any inference is to be drawn from Spalding in any of these respects, it is that the official would not be excused from liability if he failed to observe obvious statutory or constitutional limitations on his powers or if his conduct was a manifestly erroneous application of the statute.Pierson v. Ray,?386 U.S. 547?(1967), decided that §1983 was not intended to abrogate the immunity of state judges which existed under the common law and which the Court had held applicable to federal judges in Bradley v. Fisher, 13 Wall. 335 (1872). Pierson also presented the issue “whether immunity was available to that segment of the Executive Branch of a state government that is...most frequently exposed to situations which can give rise to claims under §1983 - the local police officer.” Scheuer v. Rhodes, 416 U.S. at 244. Relying on the common law, we held that police officers were entitled to a defense of “good faith and probable cause,” even though an arrest might subsequently be proved to be unconstitutional. We observed, however, that “[t]he common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one.”In Scheuer v. Rhodes, the issue was whether “higher officers of the Executive Branch” of state governments were immune from liability under §1983 for violations of constitutionally protected rights. There, the Governor of a State, the senior and subordinate officers of the state National Guard, and a state university president had been sued on the allegation that they had suppressed a civil disturbance?in an unconstitutional manner. We explained that the doctrine of official immunity from §1983 liability, although not constitutionally grounded and essentially a matter of statutory construction, was based on two mutually dependent rationales:“(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.”The opinion also recognized that Executive Branch officers must often act swiftly and on the basis of factual information supplied by others, constraints which become even more acute in the “atmosphere of confusion, ambiguity, and swiftly moving events” created by a civil disturbance. Although quoting at length from Barr v. Matteo, we did not believe that there was a need for absolute immunity from §1983 liability for these high-ranking state officials. Rather the considerations discussed above indicated:“[I]n varying scope, a qualified immunity is available to officers of the Executive Branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the?existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.”The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees. The broad authority possessed by these officials enables them to direct their subordinates to undertake a wide range of projects - including some which may infringe such important personal interests as liberty, property, and free speech. It makes?little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen’s house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees.Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law:“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee,?106 U.S., at 220.See also Marbury v. Madison, 1 Cranch 137 (1803); Scheuer v. Rhodes,?416 U.S., at 239. In light of this principle, federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.This is not to say that considerations of public policy fail to support a limited immunity for federal executive officials. We consider here, as we did in Scheuer, the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Yet Scheuer and other cases have recognized that it is not unfair to hold liable the official who knows or should know he is acting outside the law, and that insisting on an awareness of clearly established constitutional limits will not?unduly interfere with the exercise of official judgment. We therefore hold that, in a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business. The Scheuer principle of only qualified immunity for constitutional violations is consistent with Barr v. Matteo,?360 U.S. 564?(1959), Spalding v. Vilas,?161 U.S. 483?(1896), and Kendall v. Stokes, 3 How. 87 (1847). Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law. But we see no substantial basis for holding, as the United States would have us do, that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the United States Constitution or in a manner that they should know transgresses a clearly established constitutional rule. The principle should prove as workable in suits against federal officials as it has in the context of suits against state officials. Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive?a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity. In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, our decisions recognize that there are some officials whose special functions require a full exemption from liability. E.g., Bradley v. Fisher, 13 Wall. 335 (1872); Imbler v. Pachtman,?424 U.S. 409?(1976). In each case, we have undertaken “a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.”In Bradley v. Fisher, the Court analyzed the need for absolute immunity to protect judges from lawsuits claiming that their decisions had been tainted by improper motives. The Court began by noting that the principle of immunity for acts done by judges “in the exercise of their judicial functions” had been “the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country.”The Court explained that the value of this rule was proved by experience.?Judges were often called to decide “[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings.” Such adjudications invariably produced at least one losing party, who would “accep[t] anything but the soundness of the decision in explanation of the action of the judge.” “Just in proportion to the strength of his convictions of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge.” If a civil action could be maintained against a judge by virtue of an allegation of malice, judges would lose “that independence without which no Judiciary can either be respectable or useful.” Thus, judges were held to be immune from civil suit “for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction.” The principle of Bradley was extended to federal prosecutors through the summary affirmance in Yaselli v. Goff,?275 U.S. 503?(1927), aff’d 12 F.2d 396 (CA2 1926). The Court of Appeals in that case discussed in detail the common-law precedents extending absolute immunity to parties participating in the judicial process: judges, grand jurors, petit jurors, advocates, and witnesses. Grand jurors had received absolute immunity “‘lest they should be biased with the fear of being?harassed by a vicious suit for acting according to their consciences (the danger of which might easily be insinuated where powerful men are warmly engaged in a cause and thoroughly prepossessed of the justice of the side which they espouse).’” Quoting 1 W. Hawkins, Pleas of the Crown 349 (6th ed. 1787). The court then reasoned that “‘[t]he public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury.’” 12 F.2d, at 404, quoting Smith v. Parman, 101 Kan. 115, 165 P. 663 (1917). The court held the prosecutor in that case immune from suit for malicious prosecution and this Court, citing Bradley v. Fisher, affirmed.“Attaining the system’s goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence.... If prosecutors were hampered in exercising their judgment as to the use of...witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant evidence.”In light of these and other practical considerations, the Court held that the defendant in that case was entitled to absolute immunity with respect to his activities as an advocate, “activities [which] were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.” We think that the Court of Appeals placed undue emphasis on the fact that the officials sued here are - from an administrative perspective - employees of the Executive Branch. Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities. This point is underlined by the fact that prosecutors - themselves members of the Executive?Branch - are also absolutely immune. “It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well.”The cluster of immunities protecting the various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location. As the Bradley Court suggested, controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus. See Pierson v. Ray,?386 U.S., at 554. Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges. Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court. Jurors are carefully screened to remove all possibility of bias. Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.The defendant in an enforcement proceeding has ample opportunity to challenge the legality of the proceeding. An?administrator’s decision to proceed with a case is subject to scrutiny in the proceeding itself. The respondent may present his evidence to an impartial trier of fact and obtain an independent judgment as to whether the prosecution is justified. His claims that the proceeding is unconstitutional may also be heard by the courts. Indeed, respondent in this case was able to quash the administrative order entered against him by means of judicial review. See Economou v. U.S. Department of Agriculture, 494 F.2d 519 (CA2 1974).We believe that agency officials must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, we hold that those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision.We turn finally to the role of an agency attorney in conducting a trial and presenting evidence on the record to the trier of fact. We can see no substantial difference between the function of the agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court. In either case, the evidence?will be subject to attack through cross-examination, rebuttal, or reinterpretation by opposing counsel. Evidence which is false or unpersuasive should be rejected upon analysis by an impartial trier of fact. If agency attorneys were held personally liable in damages as guarantors of the quality of their evidence, they might hesitate to bring forward some witnesses or documents. “This is particularly so because it is very difficult if not impossible for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present.” Imbler v. Pachtman, at 440. Apart from the possible unfairness to agency personnel, the agency would often be denied relevant evidence. Cf. Imbler v. Pachtman. Administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record. We therefore hold that an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence.MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE STEVENS join, concurring in part and dissenting in part.Indeed, the language from Spalding quoted above unquestionably applies with equal force in the case at bar. No one seriously contends that the Secretary of Agriculture or the Assistant Secretary, who are being sued for $32 million in damages, had wandered completely off the official reservation in authorizing prosecution of respondent for violation of regulations promulgated by the Secretary for the regulation of “futures commission merchants,” 7 U.S.C. §6 (1976 ed.). This is precisely what the Secretary and his assistants were empowered and required to do. That they would on occasion be mistaken in their judgment that a particular merchant had in fact violated the regulations is a necessary concomitant of any known system of administrative adjudication; that they acted “maliciously” gives no support to respondent’s claim against them unless we are to overrule Spalding.Putting to one side the illogic and impracticability of distinguishing between constitutional and common-law claims for purposes of immunity, which will be discussed shortly, this sort of immunity analysis badly misses the mark. It amounts to saying that an official has immunity until someone alleges he has acted unconstitutionally. But that is no immunity at all: The “immunity” disappears at the very moment when it is needed. The critical inquiry in determining whether an official is entitled to claim immunity is not whether someone has in fact been injured by his action; that is part of the plaintiff’s case in chief. The immunity defense turns on whether the action was one taken “when engaged in the discharge of duties imposed upon [the official] by law,” Spalding,?161 U.S., at 498, or in other words, whether the official was acting within the outer bounds of his authority. Only if the immunity inquiry is approached in this manner does it have any meaning. That such a rule may occasionally result in individual injustices has never been doubted, but at least until?today, immunity has been accorded nevertheless. As Judge Learned Hand said in Gregoire v. Biddle, 177 F.2d, at 581:“The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. 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....”Indeed, in that very case Judge Hand laid bare the folly of approaching the question of immunity in the manner suggested today by the Court.“The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the?whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him....”…There is undoubtedly force to the argument that injunctive relief, in these cases where a court determines that an official defendant has violated a legal right of the plaintiff, sets the matter right only as to the future. But there is at least as much force to the argument?that the threat of injunctive relief without the possibility of damages in the case of a Cabinet official is a better tailoring of the competing need to vindicate individual rights, on the one hand, and the equally vital need, on the other, that federal officials exercising discretion will be unafraid to take vigorous action to protect the public interest.… As the Court observed in District of Columbia v. Carter,?409 U.S. 418?(1973):“Although there are threads of many thoughts running through the debates on the 1871 Act, it seems clear that 1 of the Act, with which we are here concerned, was designed primarily in response to unwillingness or inability of the state governments to enforce their own laws against those violating the civil rights of others.”“[T]he [basic] rationale underlying Congress’ decision not to enact legislation similar to §1983 with respect to?federal officials [was] the assumption that the Federal Government could keep its own officers under control....”The Court attempts to avoid the force of this argument by suggesting that the statute which vests federal courts with general federal-question jurisdiction is basically the equivalent of §1983. But that suggestion evinces a basic misunderstanding of the difference between a statute which vests jurisdiction in federal courts, which are, as a constitutional matter, courts of limited jurisdiction, and a statute, or even a constitutional provision, which creates a private right of action. As even the Court’s analysis in Bivens made clear, a statute giving jurisdiction to federal courts does not, in and of itself, create a right of action. And to date, the Court has not held that the Constitution itself creates a private right of action for damages except when federal law enforcement officials arrest someone and search his premises in violation of the Fourth Amendment. Thus, the Court’s attempt to equate §1983 and 28 U.S.C. §1331 (1976 ed.) simply fails, and its further observation - that there should be no difference in immunity between state and federal officials - remains subject to serious doubt.My biggest concern, however, is not with the illogic or impracticality of today’s decision, but rather with the potential for disruption of Government that it invites. The steady increase in litigation, much of it directed against governmental officials and virtually all of which could be framed in constitutional terms, cannot escape the notice of even the most casual observer. From 1961 to 1977, the number of cases brought in the federal courts under civil rights statutes increased from 296 to 13,113. See Director of the Administrative Office of the United States Courts Ann. Rep. 189, Table 11 (1977); Ann. Rep. 173, Table 17 (1976). It simply defies logic and common experience to suggest that officials will not have this in the back of their minds when considering?what official course to pursue. It likewise strains credulity to suggest that this threat will only inhibit officials from taking action which they should not take in any event. It is the cases in which the grounds for action are doubtful, or in which the actor is timid, which will be affected by today’s decision.My biggest concern, however, is not with the illogic or impracticality of today’s decision, but rather with the potential for disruption of Government that it invites. The steady increase in litigation, much of it directed against governmental officials and virtually all of which could be framed in constitutional terms, cannot escape the notice of even the most casual observer. From 1961 to 1977, the number of cases brought in the federal courts under civil rights statutes increased from 296 to 13,113. See Director of the Administrative Office of the United States Courts Ann. Rep. 189, Table 11 (1977); Ann. Rep. 173, Table 17 (1976). It simply defies logic and common experience to suggest that officials will not have this in the back of their minds when considering?what official course to pursue. It likewise strains credulity to suggest that this threat will only inhibit officials from taking action which they should not take in any event. It is the cases in which the grounds for action are doubtful, or in which the actor is timid, which will be affected by today’s decision.The Court, of course, recognizes this problem and suggests two solutions. First, judges, ever alert to the artful pleader, supposedly will weed out insubstantial claims. That, I fear, shows more optimism than prescience. Indeed, this very case, unquestionably frivolous in the extreme, belies any hope in that direction. And summary judgment on affidavits and the like is even more inappropriate when the central, and perhaps only, inquiry is the official’s state of mind. See C. Wright, Law of Federal Courts 493 (3d ed. 1976) (It “is not feasible to resolve on motion for summary judgment cases involving state of mind”); Subin v. Goldsmith, 224 F.2d 753 (CA2 1955).The second solution offered by the Court is even less satisfactory. The Court holds that in those special circumstances “where it is demonstrated that absolute immunity is essential for the conduct of the public business,” absolute immunity will be extended. But this is a form of “absolute immunity” which in truth exists in name only. If, for example, the Secretary of Agriculture may never know until inquiry by a trial court whether there is a possibility that vexatious constitutional litigation will interfere with his decisionmaking process, the Secretary will obviously think not only twice but thrice about whether to prosecute a litigious commodities merchant who has played fast and loose with the regulations for his own profit. Careful consideration of the rights of every individual subject to his jurisdiction is one thing; a timorous reluctance to prosecute any of such individuals who have a reputation for using litigation as a defense weapon is quite another. Since Cabinet officials are mortal,?it is not likely that we shall get the precise judgmental balance desired in each of them, and it is because of these very human failings that the principles of Spalding, dictate that absolute immunity be accorded once it be concluded by a court that a high-level executive official was “engaged in the discharge of duties imposed upon [him] by law.”?History will surely not condemn the Court for its effort to achieve a more finely ground product from the judicial mill, a product which would both retain the necessary ability of public officials to govern and yet assure redress to those who are the victims of official wrongs. But if such a system of redress for official wrongs was indeed capable of being achieved in practice, it surely would not have been rejected by this Court speaking through the first Mr. Justice Harlan in 1896, by this Court speaking through the second Mr. Justice Harlan in 1959, and by Judge Learned Hand speaking for the Court of Appeals for the Second Circuit in 1948. These judges were not inexperienced neophytes who lacked the vision or the ability to define immunity doctrine to accomplish that result had they thought it possible. Nor were they obsequious toadies in their attitude toward high-ranking officials of coordinate branches of the Federal Government. But they did see with more prescience than the Court does today, that there are inevitable trade-offs in connection with any doctrine of official liability and immunity. They forthrightly accepted the possibility that an occasional failure to redress a claim of official wrongdoing would result from the doctrine of absolute immunity which they espoused, viewing it as a lesser evil than the impairment of the ability of responsible public officials to govern.But while I believe that history will look approvingly on the motives of the Court in reaching the result it does today, I do not believe that history will be charitable in its judgment of the all but inevitable result of the doctrine espoused by the Court in this case. That doctrine seeks to gain and hold a middle ground which, with all deference, I believe the teachings of those who were at least our equals suggest cannot long be held. That part of the Court’s present opinion from which I dissent will, I fear, result in one of two evils, either one of which is markedly worse than the effect of according absolute immunity to the Secretary and the Assistant Secretary in this?case. The first of these evils would be a significant impairment of the ability of responsible public officials to carry out the duties imposed upon them by law. If that evil is to be avoided after today, it can be avoided only by a necessarily unprincipled and erratic judicial “screening” of claims such as those made in this case, an adherence to the form of the law while departing from its substance. Either one of these evils is far worse than the occasional failure to award damages caused by official wrongdoing, frankly and openly justified by the rule of Spalding v. Vilas, Barr v. Matteo, and Gregoire v. Biddle.Footnotes:5. In the second “cause of action,” respondent stated that the defendants had issued administrative orders “illegal and punitive in nature” against him when he was no longer subject to their authority. The fourth “cause of action” alleged, inter alia, that respondent’s rights to due process of law and to privacy as guaranteed by the Federal Constitution had been infringed by the furnishing of the administrative complaints to interested persons without respondent’s answers. The fifth “cause of action” similarly alleged as a violation of due process that defendants had issued a press release containing facts the defendants knew or should have known were false. Respondent’s remaining “causes of action” allege common-law torts: abuse of legal process, malicious prosecution, invasion of privacy, negligence, and trespass.8. The Court’s opinion in Bivens concerned only a Fourth Amendment claim and therefore did not discuss what other personal interests were similarly protected by provisions of the Constitution. We do not consider that issue here. Cf. Doe v. McMillan,?412 U.S. 306?(1973).14. Mr. Chief Justice Marshall explained:“An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of congress to imply, without expressing, this very exemption from State control.... The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts by which these institutions are created, and is secured to the individuals employed in them by the judicial power alone....”15. Indeed, there appears to have been some doubt as to whether even an Act of Congress would immunize federal officials from suits seeking damages for constitutional violations. See Milligan v. Hovey, 17 F.Cas. 380 (No. 9,605) (CC Ind. 1871); Griffin v. Wilcox, 21 Ind. 370, 372-373 (1863). See generally Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 50-51 (1972).18. …The Court plainly applied Bradley v. Fisher principles in holding that proof of malice would not subject an executive officer to liability for performing an act which he was authorized to perform by federal law. These principles, however, were not said to be completely applicable; and, as indicated in the text, the Court revealed no intention to overrule Kendall v. Stokes or Wilkes or to immunize an officer from liability for a willful misapplication of his authority. Also, on the face of the Spalding opinion, it would appear that an executive officer would be vulnerable if he took action “manifestly or palpably” beyond his authority or ignored a clear limitation on his enforcement powers.21. During the period prior to Barr, the lower federal courts broadly extended Spalding in according absolute immunity to federal officials sued for common-law torts. E.g., Jones v. Kennedy, 73 App. D.C. 292, 121 F.2d 40, cert. denied,?314 U.S. 665?(1941); Papagianakis v. The Samos, 186 F.2d 257 (CA4 1950), cert. denied,?341 U.S. 921?(1951). See cases collected in Gray.25. As early as 1971, Judge, now Attorney General, Bell, concurring specially in a judgment of the Court of Appeals for the Fifth Circuit,?recorded his “continuing belief that all police and ancillary personnel in this nation, whether state or federal, should be subject to the same accountability under law for their conduct.” Anderson v. Nosser, 438 F.2d 183, 205 (1971). He objected to the notion that there should be “one law for Athens and another for Rome.” It appears from a recent decision that the Fifth Circuit has abandoned the view he criticized. See Weir v. Muller, 527 F.2d 872 (1976).28. In Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974), Judge Leventhal compared the Governor of a State with the highest officers of a federal executive department:“The difference in office is relevant, for immunity depends in part upon ‘scope of discretion and responsibilities of the office,’ Scheuer v. Rhodes,?416 U.S., at 247.... But the difference is not conclusive in this case. Like the highest executive officer of a state, the head of a Federal executive department has broad discretionary authority. Each is?called upon to act under circumstances where judgments are tentative and an unambiguously optimal course of action can be ascertained only in retrospect. Both officials have functions and responsibilities concerned with maintaining the public order; these may impel both officials to make decisions ‘in an atmosphere of confusion, ambiguity, and swiftly moving events.’ Scheuer v. Rhodes,?416 U.S., at 247.... Having a wider territorial responsibility than the head of a state government, a Federal Cabinet officer may be entitled to consult fewer sources and expend less effort inquiring into the circumstances of a localized problem. But these considerations go to the showing an officer vested with a qualified immunity must make in support of ‘good faith belief;’ they do not make the qualified immunity itself inappropriate. The head of an executive department, no less than the chief executive of a state, is adequately protected by a qualified immunity.”31. The purpose of §1 of the Civil Rights Act was not to abolish the immunities available at common law, see Pierson v. Ray,?386 U.S. 547?(1967), but to insure that federal courts would have jurisdiction of constitutional claims against state officials. We explained in District of Columbia v. Carter,?409 U.S., at 427:“At the time this Act was adopted,...there existed no general federal-question jurisdiction in the lower federal courts. Rather, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws.’ Zwickler v. Koota,?389 U.S. 241?(1967). With the growing awareness that this reliance had been misplaced, however, Congress recognized the need for original federal court jurisdiction as a means to provide at least indirect federal control over the unconstitutional actions of state officials.”31. At the time of the Bivens decision, the Federal Tort Claims Act prohibited recovery against the Government for“Any claim arising out of assault, battery, false imprisonment, false?arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. §2680(h).The statute was subsequently amended in light of Bivens to lift the bar against some of these claims when arising from the act of federal law enforcement officers. See 28 U.S.C. §2680(h) (1976 ed.).34. The Government argued in Bivens that the plaintiff should be relegated to his traditional remedy at state law. “In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them and they would stand before the state law merely as private individuals.” Although, as this passage makes clear, traditional doctrine did not accord immunity to officials who transgressed constitutional limits, we believe that federal officials sued by such traditional means should similarly be entitled to a Scheuer immunity.36. In Pierson v. Ray,?386 U.S. 547?(1967), we recognized that state judges sued on constitutional claims pursuant to §1983 could claim a similar absolute immunity. The Court reasoned:“It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His 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. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”40. That prosecutors act under “serious constraints of time and even information” was not central to our decision in Imbler, for the same might be said of a wide variety of state and federal officials who enjoy only qualified immunity. See Scheuer v. Rhodes,?416 U.S., at 246. Nor do we think that administrative enforcement proceedings may be distinguished from criminal prosecutions on the ground that the former often turn on documentary proof. The key point is that administrative personnel, like prosecutors, “often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence.” Imbler,?424 U.S. 409. The complexity and quantity of documentary proof that may be adduced in a full-scale enforcement proceeding may make this decision even more difficult than the decision to prosecute a suspect.1. The ultimate irony of today’s decision is that in the area of common-law official immunity, a body of law fashioned and applied by judges, absolute immunity within the federal system is extended only to judges and prosecutors functioning in the judicial system. See Bradley v. Fisher, 13 Wall. 335 (1872); Yaselli v. Goff, 12 F.2d 396 (CA2 1926), summarily aff’d,?275 U.S. 503?(1927). Similarly, where this Court has interpreted 42 U.S.C. §1983 in the light of common-law doctrines of official immunity, again only judges and prosecutors are accorded absolute immunity. See Pierson v. Ray,?386 U.S. 547?(1967); Stump v. Sparkman,?435 U.S. 349?(1978); Imbler v. Pachtman,?424 U.S. 409(1976). If one were to hazard an informed guess as to why such a distinction in treatment between judges and prosecutors, on the one hand, and other public officials on the other, obtains, mine would be that those who decide the common law know through personal experience the sort of pressures that might exist for such decision makers in the absence of absolute immunity, but may not know or may have forgotten that similar pressures exist in the case of nonjudicial public officials to whom difficult decisions are committed. But the cynical among us might not unreasonably feel that this is simply another unfortunate example of judges treating those who are not part of the judicial machinery as “lesser breeds without the law.”IMBLER v. PACHTMAN, 424 U.S. 409, 96 S.Ct. 984 (1976)MR. JUSTICE POWELL delivered the opinion of the Court.Civil Rights Act of 1871 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them. 42 U.S.C.A. §1983.Absolute immunity of public official under Civil Rights Act of 1871 defeats suit at outset, so long as official’s actions were within scope of immunity, but fate of official with qualified immunity depends upon circumstances and motivations of his actions, as established by evidence at trial. 42 U.S.C.A. §1983.After conviction is obtained, prosecutor is bound by ethics of his office to inform the appropriate authority of after-acquired or other information that cast doubt upon correctness of the conviction.The question presented in this case is whether a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution is amenable to suit under 42 U.S.C. §1983 for alleged deprivations of the defendant’s constitutional rights. The Court of Appeals for the Ninth Circuit held that he is not. We affirm.In his brief to the Supreme Court of California on this habeas petition, Imbler’s counsel described Pachtman’s post-trial detective work as “[i]n the highest tradition of law enforcement and justice,” and as a premier example of “devotion to duty.” But he also charged that the prosecution had knowingly used false testimony and suppressed material evidence at Imbler’s trial. In a thorough opinion by then Justice Traynor, the Supreme Court of California unanimously rejected these contentions and denied the writ.?In re Imbler, 60 Cal.2d 554, 387 P.2d 6 (1963). The California court noted that the hearing record fully supported the referee’s finding that Costello’s recantation of his identification lacked credibility compared to the original identification itself, and that the new corroborating witnesses who appeared on Imbler’s behalf were unsure of their stories or were otherwise impeached.In 1964, the year after denial of his state habeas petition, Imbler succeeded in having his death sentence overturned on grounds unrelated to this case.?In re Imbler,?61 Cal.2d 556, 393 P.2d 687 (1964). Rather than resentence him, the State stipulated to life imprisonment. There the matter lay for several years, until, in late 1967 or early 1968, Imbler filed a habeas corpus petition in Federal District Court based on the same contentions previously urged upon and rejected by the Supreme Court of California.The District Court held no hearing. Instead, it decided the petition upon the record, including Pachtman’s letter to the Governor and the transcript of the referee’s hearing ordered by the Supreme Court of California. Reading that record quite differently than had the seven justices of the State Supreme Court, the District Court found eight instances of state misconduct at Imbler’s trial, the cumulative effect of which required issuance of the writ.?Imbler v. Craven,?298 F.Supp. 795 (CD Cal.1969). Six occurred during Costello’s testimony, and amounted, in the court’s view, to the culpable use by the prosecution of misleading or false testimony. The other two instances were suppressions of evidence favorable to Imbler by a police fingerprint expert who testified at trial and by the police who investigated Hasson’s murder. The District Court ordered that the writ of habeas corpus issue unless California retried Imbler within 60 days, and denied a petition for rehearing.At this point, after a decade of litigation and with Imbler now free, the stage was set for the present suit. In April, 1972, Imbler filed a civil rights action, under 42 U.S.C. §1983 and related statutes, against respondent Pachtman, the police fingerprint expert, and various other officers of the Los Angeles police force. He alleged that a conspiracy among them unlawfully to charge and convict him had caused him loss of liberty and other grievous injury. He demanded $2.7 million in actual and exemplary damages from each defendant, plus $15,000 attorney’s fees.Title 42 U.S.C. §1983 provides that “[e]very person” who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages. The statute thus creates a species of tort liability that, on its face, admits of no immunities, and some have argued that it should be applied as stringently as it reads. But that view has not prevailed.The decision in?Tenney?established that §1983 is to be read in harmony with general principles of tort immunities and defenses, rather than in derogation of them. Before today, the Court has had occasion to consider the liability of several types of government officials in addition to legislators. The common law absolute immunity of judges for “acts committed within their judicial jurisdiction,”?See?Bradley v. Fisher,?13 Wall. 335 (1872), was found to be preserved under §1983 in?Pierson v. Ray,?386 U.S. 547 (1967). In the same case, local police officers sued for a deprivation of liberty resulting from unlawful arrest were held to enjoy under §1983 a “good faith and probable cause” defense coextensive with their defense to false arrest actions at common law. 386 U.S. at?555-557. We found qualified immunities appropriate in two recent cases. In?Scheuer v. Rhodes,?416 U.S. 232?(1974), we concluded that the Governor and other executive officials of a State had a qualified immunity that varied with “the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action....” Last Term, in?Wood v. Strickland,?420 U.S. 308?(1975), we held that school officials, in the context of imposing disciplinary penalties, were not liable so long as they could not reasonably have known that their action violated students’ clearly established constitutional rights, and provided they did not act with malicious intention to cause constitutional or other injury.?Cf. O’Connor v. Donaldson,?422 U.S. 563?(1975). In?Scheuer?and in?Wood, as in the two earlier cases, the considerations underlying the nature of the immunity of the respective officials in suits at common law led to essentially the same immunity under §1983.This case marks our first opportunity to address the §1983 liability of a state prosecuting officer. The Courts of Appeals, however, have confronted the issue many times and under varying circumstances. Although the precise contours of their holdings have been unclear at times, at bottom, they are virtually unanimous that a prosecutor enjoys absolute immunity from §1983 suits for damages when he acts within the scope of his prosecutorial duties. These courts sometimes have described the prosecutor’s immunity as a form of “quasi-judicial” immunity, and referred to it as derivative of the immunity of judges recognized in?Pierson v. Ray. Petitioner focuses upon the “quasi-judicial” characterization, and contends that it illustrates a fundamental illogic in according absolute immunity to a prosecutor. He argues that the prosecutor, as a member of the Executive Branch, cannot claim the immunity reserved for the Judiciary, but only a qualified immunity akin to that accorded other executive officials in this Court’s previous cases.The function of a prosecutor that most often invites a common law tort action is his decision to initiate a prosecution, as this may lead to a suit for malicious prosecution if the State’s case misfires. The first American case to address the question of a prosecutor’s amenability to such an action was?Griffith v. Slinkard,?146 Ind. 117, 44 N.E. 1001 (1896). The complaint charged that a local prosecutor, without probable cause, added the plaintiff’s name to a grand jury true bill after the grand jurors had refused to indict him, with the result that the plaintiff was arrested and forced to appear in court repeatedly before the charge finally was?nolle prossed.?Despite allegations of malice, the Supreme Court of Indiana dismissed the action on the ground that the prosecutor was absolutely immune.The?Griffith?view on prosecutorial immunity became the clear majority rule on the issue. The question eventually came to this Court on writ of certiorari to the Court of Appeals for the Second Circuit. In?Yaselli v. Goff,?12 F.2d 396 (1926), the claim was that the defendant, a Special Assistant to the Attorney General of the United States, maliciously and without probable cause procured plaintiff’s grand jury indictment by the willful introduction of false and misleading evidence. Plaintiff sought some $300,000 in damages for having been subjected to the rigors of a trial in which the court ultimately directed a verdict against the Government. The District Court dismissed the complaint, and the Court of Appeals affirmed. After reviewing the development of the doctrine of prosecutorial immunity, that court stated:“In our opinion, the law requires us to hold that a special assistant to the Attorney General of the United States, in the performance of the duties imposed upon him by law, is immune from a civil action for malicious prosecution based on an indictment and prosecution, although it results in a verdict of not guilty rendered by a jury. The immunity is absolute, and is grounded on principles of public policy.” After briefing and oral argument, this Court affirmed the Court of Appeals in a per curiam opinion.?Yaselli v. Goff,?275 U.S. 503 (1927).The common law immunity of a prosecutor is based upon the same considerations that underlie the common law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust. One court expressed both considerations as follows:“The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case.... The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded, and we would have moved away from the desired objective of stricter and fairer law enforcement.” Pearson v. Reed,?6 Cal.App.2d 277, 44 P.2d 592 (1935)?See also Yaselli v. Goff,?12 F.2d at 404.If a prosecutor had only a qualified immunity, the threat of §1983 suits would undermine performance of his duties no less than would the threat of common law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor’s office would suffer if he were constrained in making every decision by the consequences in terms of his own potential liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.?Cf. Bradley v. Fisher,?13 Wall. at?80 U.S. 348;?Pierson v. Ray,?386 U.S. at?554. Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor. The prosecutor’s possible knowledge of a witness’ falsehoods, the materiality of evidence not revealed to the defense, the propriety of a closing argument, and - ultimately in every case - the likelihood that prosecutorial misconduct so infected a trial as to deny due process, are typical of issues with which judges struggle in actions for post-trial relief, sometimes to differing conclusions. The presentation of such issues in a §1983 action often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury. It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.?Cf. Bradley v. Fisher,?at?80 U.S. 349.The affording of only a qualified immunity to the prosecutor also could have an adverse effect upon the functioning of the criminal justice system. Attaining the system’s goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence. The veracity of witnesses in criminal cases frequently is subject to doubt before and after they testify, as is illustrated by the history of this case. If prosecutors were hampered in exercising their judgment as to the use of such witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant evidence.We conclude that the considerations outlined above dictate the same absolute immunity under §1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system. Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. With the issue thus framed, we find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor’s immunity from actions for malicious prosecution:“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 (CA2 1949),?cert. denied,?339 U.S. 949 (1950). See Yaselli v. Goff,?12 F.2d at 404;?cf. Wood v. Strickland,?420 U.S. at?320.?We emphasize that the immunity of prosecutors from liability in suits under §1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. §242, the criminal analog of §1983.?O’Shea v. Littleton,?414 U.S. 488 (1974);?cf. Gravel v. United States,?408 U.S. 606?(1972). The prosecutor would fare no better for his willful acts. Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, concurring in the judgment.I concur in the judgment of the Court and in much of its reasoning. I agree with the Court that the gravamen of the complaint in this case is that the prosecutor knowingly used perjured testimony, and that a prosecutor is absolutely immune from suit for money damages under 42 U.S.C. §1983 for presentation of testimony later determined to have been false, where the presentation of such testimony is alleged to have been unconstitutional solely because the prosecutor did not believe it or should not have believed it to be true. I write, however, because I believe that the Court’s opinion may be read as extending to a prosecutor an immunity broader than that to which he was entitled at common law; broader than is necessary to decide this case; and broader than is necessary to protect the judicial process. Most seriously, I disagree with any implication that?absolute?immunity for prosecutors extends to suits based on claims of unconstitutional suppression of evidence, because I believe such a rule would threaten to?injure?the judicial process and to interfere with Congress’ purpose in enacting 42 U.S.C. §1983, without any support in statutory language or history.Title 42 U.S.C. §1983 provides:“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution...shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”As the language itself makes clear, the central purpose of §1983 is to “give a remedy to parties deprived of constitutional rights, privileges and immunities by an?official’s abuse of his position.”?Monroe v. Pape,?365 U.S. 167?(1961). The United States Constitution, among other things, places substantial limitations upon state action, and the cause of action provided in 42 U.S.C. §1983 is fundamentally one for “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”United States v. Classic,?313 U.S. 299?(1941). It is manifest, then, that all state officials as a class cannot be immune absolutely from damage suits under 42 U.S.C. §1983, and that, to extend absolute immunity to any group of state officials is to negate pro tanto?the very remedy which it appears Congress sought to create.?Scheuer v. Rhodes,?416 U.S. 232?(1974). Thus, as there is no language in 42 U.S.C. §1983 extending?any?immunity to any state officials, the Court has not extended?absolute?immunity to such officials in the absence of the most convincing showing that the immunity is necessary. Accordingly, we have declined to construe §1983 to extend absolute immunity from damage suits to a variety of state officials, Wood v. Strickland,?420 U.S. 308?(1975) (school board members);?Scheuer v. Rhodes?(various executive officers, including the State’s chief executive officer);?Pierson v. Ray,?386 U.S. 547?(1967) (policemen); and this notwithstanding the fact that, at least with respect to high executive officers, absolute immunity from suit for damages would have applied at common law.?Spalding v. Vilas,?161 U.S. 483?(1896);?Alzua v. Johnson,?231 U.S. 106?(1913). Instead, we have construed the statute to extend only a qualified immunity to these officials and they may be held liable for unconstitutional conduct absent “good faith.”?Wood v. Strickland,?at?420 U.S. 315. Any other result would “deny much of the promise of §1983.” Nonetheless, there are certain absolute immunities so firmly rooted in the common law and supported by such strong policy reasons that the Court has been unwilling to infer that Congress meant to abolish them in enacting 42 U.S.C. §1983. Thus, we have held state legislators to be absolutely immune from liability for damages under §1983 for their legislative acts,?Tenney v. Brandhove,?341 U.S. 367?(1951), and state judges to be absolutely immune from liability for their judicial acts,?Pierson v. Ray.In justifying absolute immunity for certain officials, both at common law and under 42 U.S.C. §1983, courts have invariably rested their decisions on the proposition that such immunity is necessary to protect the decisionmaking process in which the official is engaged. Thus, legislative immunity was justified on the ground that such immunity was essential to protect “freedom of speech and action in the Legislature” from the dampening effects of threatened lawsuits.?Tenney v. Brandhove,?at?341 U.S. 372. Similarly, absolute immunity for judges was justified on the ground that, no matter how high the standard of proof is set, the burden of defending damage suits brought by disappointed litigants would “contribute not to principled and fearless decisionmaking, but to intimidation.”?Pierson v. Ray?at?386 U.S. 554. In?Bradley v. Fisher,?13 Wall. 335,?80 U.S. 347?(1872), the Court stated:“For 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 consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and would destroy that independence without which no Judiciary can be either respectable or useful....” See also?cases discussed in?Yaselli v. Goff,?12 F.2d 396 (CA2 1926), summarily aff’d,?275 U.S. 503 (1927).The majority articulates other adverse consequences which may result from permitting suits to be maintained against public officials. Such suits may expose the official to an unjust damage award; such suits will be expensive to defend even if the official prevails, and will take the official’s time away from his job; and the liability of a prosecutor for unconstitutional behavior might induce a federal court in a habeas corpus proceeding to deny a valid constitutional claim in order to protect the prosecutor. However, these adverse consequences are present with respect to suits against policemen, school teachers, and other executives, and have never before been thought sufficient to immunize an official absolutely, no matter how outrageous his conduct. Indeed, these reasons are present with respect to suits against all state officials, and must necessarily have been rejected by Congress as a basis for absolute immunity under 42 U.S.C. §1983, for its enactment is a clear indication that at least some officials should be accountable in damages for their official acts. Thus, unless the threat of suit is also thought to injure the governmental decisionmaking process, the other unfortunate consequences flowing from damage suits against state officials are sufficient only to extend a qualified immunity to the official in question. Accordingly, the question whether a prosecutor enjoys an absolute immunity from damage suits under §1983, or only a qualified immunity, depends upon whether the common law and reason support the proposition that extending absolute immunity is necessary to protect the?judicial process.The public prosecutor’s absolute immunity from suit at common law is not so firmly entrenched as a judge’s, but it has considerable support. The general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution. 1 F. Harper & F. James, The Law of Torts §4.3, p. 305 n. 7 (1956) (hereafter Harper & James), and cases there cited;?Yaselli v. Goff; Gregoire v. Biddle,?177 F.2d 579 (CA2 1949);Kauffman v. Moss,?420 F.2d 1270 (CA3 1970);?Bauers v. Heisel,?361 F.2d 581 (CA3 1965);?Tyler v. Witkowski,?511 F.2d 449 (CA7 1975);?Hampton v. City of Chicago,?484 F.2d 602 (CA7 1973);?Barnes v. Dorsey,?480 F.2d 1057 (CA8 1973);?Duba v. McIntyre,501 F.2d 590 (CA8 1974);?Robichaud v. Ronan,?351 F.2d 533 (CA9 1965).?But see Leong Yau v. Carden,?23 Haw. 362 (1916). The rule, like the rule extending absolute immunity to judges, rests on the proposition that absolute immunity is necessary to protect the judicial process. Absent immunity, “‘it would be but human that they [prosecutors] might refrain from presenting to a grand jury or prosecuting a matter which, in their judgment, called for action, but which a jury might possibly determine otherwise.’” Harper & James §4.3, pp. 305 306, quoting?Yaselli v. Goff,?8 F.2d 161 (SDNY 1925). Indeed, in deciding whether or not to prosecute, the prosecutor performs a “quasi-judicial” function. 1 Harper & James 305;?Yaselli v. Goff,?12 F.2d at 404. Judicial immunity had always been extended to grand jurors with respect to their actions in returning an indictment, and “the public prosecutor, in deciding whether a particular prosecution shall be instituted...performs much the same function as a grand jury.’”?Quoting?Smith v. Parman,?101 Kan. 115, 165 P. 633 (1917). The analogy to judicial immunity is a strong one. Moreover, the risk of injury to the judicial process from a rule permitting malicious prosecution suits against prosecutors is real. There is no one to sue the prosecutor for an erroneous decision not to prosecute. If suits for malicious prosecution were permitted, the prosecutor’s incentive would always be not to bring charges. Moreover, the “fear of being harassed by a vexatious suit, for acting according to their consciences” would always be the greater “where powerful” men are involved, 1 W. Hawkins, Pleas of the Crown 349 (6th ed. 1787). Accordingly, I agree with the majority that, with respect to suits based on claims that the prosecutor’s decision to prosecute was malicious and without probable cause - at least where there is no independent allegation that the prosecutor withheld exculpatory information from a grand jury or the court- the judicial process is better served by absolute immunity than by any other rule.Public prosecutors were also absolutely immune at common law from suits for defamatory remarks made during and relevant to a judicial proceeding, 1 Harper & James §§5.21, 5.22;?Yaselli v. Goff,?12 F.2d at 402; and this immunity was also based on the policy of protecting the judicial process. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col.L.Rev. 463 (1909). The immunity was not special to public prosecutors, but extended to lawyers accused of making false and defamatory statements, or of eliciting false and defamatory testimony from witnesses; and it applied to suits against witnesses themselves for delivering false and defamatory testimony. 1 Harper & James §5.22, pp. 423-424, and cases there cited;?King v. Skinner,?Lofft 55, 98 Eng.Rep. 529, 530 (K.B. 1772) (per Lord Mansfield);?Yaselli v. Goff,?12 F.2d at 403. The reasons for this rule are also substantial. It is precisely the function of a judicial proceeding to determine where the truth lies. The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be “given every encouragement to make a full disclosure of all pertinent information within their knowledge.” 1 Harper & James §5.22, p. 424. For a witness, this means he must be permitted to testify without fear of being sued if his testimony is disbelieved. For a lawyer, it means that he must be permitted to call witnesses without fear of being sued if the witness is disbelieved and it is alleged that the lawyer knew or should have known that the witness’ testimony was false. Of course, witnesses should not be encouraged to testify falsely, nor lawyers encouraged to call witnesses who testify falsely. However, if the risk of having to defend a civil damage suit is added to the deterrent against such conduct already provided by criminal laws against perjury and subornation of perjury, the risk of self-censorship becomes too great. This is particularly so because it is very difficult, if not impossible, for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present. A prosecutor faced with a decision whether or not to call a witness whom he believes, but whose credibility he knows will be in doubt and whose testimony may be disbelieved by the jury, should be given every incentive to submit that witness’ testimony 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.“Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings (to take a typical class for illustration) should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences.” Veeder,?9 Col.L.Rev. at 469. For the above-stated reasons, I agree with the majority that history and policy support an absolute immunity for prosecutors from suits based solely on claims that they knew or should have known that the testimony of a witness called by the prosecution was false; and I would not attribute to Congress an intention to remove such immunity in enacting 42 U.S.C. §1983.Since the gravamen of the complaint in this case is that the prosecutor knew or should have known that certain testimony of a witness called by him was untrue, and since - for reasons set forth below - the other allegations in the complaint fail to state a cause of action on any other theory, I concur in the judgment in this case. However, insofar as the majority’s opinion implies an absolute immunity from suits for constitutional violations other than those based on the prosecutor’s decision to initiate proceedings or his actions in bringing information or argument to the court, I disagree. Most particularly, I disagree with any implication that the absolute immunity extends to suits charging unconstitutional suppression of evidence.?Brady v. Maryland,?373 U.S. 83 (1963).The absolute immunity extended to prosecutors in defamation cases is designed to encourage them to bring information to the court which will resolve the criminal case. That is its single justification. Lest they withhold valuable but questionable evidence or refrain from making valuable but questionable arguments, prosecutors are protected from liability for submitting before the court information later determined to have been false to their knowledge. It would stand this immunity rule on its head, however, to apply it to a suit based on a claim that the prosecutor unconstitutionally?withheld?information from the court. Immunity from a suit based upon a claim that the prosecutor suppressed or withheld evidence would discourage?precisely the disclosure of evidence sought to be encouraged by the rule granting prosecutors immunity from defamation suits.?Denial?of immunity for unconstitutional withholding of evidence would encourage such disclosure. A prosecutor seeking to protect himself from liability for failure to disclose evidence may be induced to disclose more than is required. But this will hardly injure the judicial process. Indeed, it will help it. Accordingly, lower courts have held that unconstitutional suppression of exculpatory evidence is beyond the scope of “duties constituting an integral part of the judicial process,” and have refused to extend absolute immunity to suits based on such claims.?Hilliard v. Williams,?465 F.2d 1212 (CA6),?cert. denied,?409 U.S. 1029 (1972);?Haaf v. Grams,?355 F.Supp. 542 (Minn.1973); Peterson v. Stanczak,?48 F.R.D. 426 (ND Ill.1969).?Contra, Barnes v. Dorsey,?480 F.2d 1057 (CA8 1973).The stakes are high. In?Hilliard v. Williams,?a woman was convicted of second-degree murder upon entirely circumstantial evidence. The most incriminating item of evidence was the fact that the jacket worn by the defendant at the time of arrest - and some curtains - appeared to have bloodstains on them. The defendant denied that the stains were bloodstains, but was convicted and subsequently spent a year in jail. Fortunately, in that case, the defendant later found out that an FBI report - of which the prosecutor had knowledge at the time of the trial and the existence of which he instructed a state investigator not to mention during his testimony - concluded, after testing, that the stains were not bloodstains. On retrial, the defendant was acquitted. She sued the prosecutor and the state investigator under 42 U.S.C. §1983, claiming that the FBI report was unconstitutionally withheld under?Brady v. Maryland,?373 U.S. 83?(1963), and obtained a damage award against both after trial. The prosecutor’s petition for certiorari is now pending before this Court.?Hilliard v. Williams,?516 F.2d 1344 (CA6 1975),?cert. pending,?No. 75-272. The state investigator’s petition, in which he claimed that he had only followed the prosecutor’s orders, has been denied.?Clark v. Hilliard,?423 U.S. 1066 (1976). It is apparent that the injury to a defendant which can be caused by an unconstitutional suppression of exculpatory evidence is substantial, particularly if the evidence is never uncovered. It is virtually impossible to identify?any injury to the judicial process resulting from a rule permitting suits for such unconstitutional conduct, and it is very easy to identify an injury to the process resulting from a rule which does not permit such suits. Where the reason for the rule extending absolute immunity to prosecutors disappears, it would truly be “monstrous to deny recovery.” Gregoire v. Biddle,?177 F.2d at 581.The complaint in this case, while fundamentally based on the claim that the prosecutor knew or should have known that his witness had testified falsely in certain respects, does contain some allegations that exculpatory evidence and evidence relating to the witness’ credibility had been suppressed. Insofar as the complaint is based on allegations of suppression or failure to disclose, the prosecutor should not, for the reasons set forth above, be absolutely immune. However, as the majority notes, the suppression of fingerprint evidence and the alleged suppression of information relating to certain pretrial lineups is not alleged to have been known, in fact, to the prosecutor - it is simply claimed that the suppression is legally chargeable to him. While this may be so as a matter of federal habeas corpus law, it is untrue in a civil damage action. The result of a lie detector test claimed to have been suppressed was allegedly known to respondent, but it would have been inadmissible at Imbler’s trial, and is thus not constitutionally required to be disclosed. The alteration of the police artist’s composite sketch after Imbler was designated as the defendant is not alleged to have been suppressed - and, in fact, appears not to have been suppressed. The opinion of the California Supreme Court on direct review of Imbler’s conviction states that “the picture was modified later, following suggestions of Costello and other witnesses,” and that court presumably had before it only the trial record. The other items allegedly suppressed all relate to background information about only one of the three eyewitnesses to testify for the State, and were in large part concededly known to the defense, and thus may not be accurately described as suppressed. The single alleged fact not concededly known to the defense which might have been helpful to the defense was that the State’s witness had written some bad checks for small amounts, and that a criminal charge based on one check was outstanding against him. However, the witness had an extensive criminal record which was known to but not fully used by the defense. Thus, even taken as true, the failure to disclose the check charges is patently insufficient to support a claim of unconstitutional suppression of evidence. The Court has, in the past, having due regard for the fact that the obligation of the government to disclose exculpatory evidence is an exception to the normal operation of an adversary system of justice, imposed on state prosecutors a constitutional obligation to turn over such evidence only when the evidence is of far greater significance than that involved here.?See Moore v. Illinois,?408 U.S. 786?(1972). Thus, the only constitutional violation adequately alleged against the prosecutor is that he knew in his mind that testimony presented by him was false; and from a suit based on such a violation, without more, the prosecutor is absolutely immune. For this reason, I concur in the judgment reached by the majority in this case.Footnotes:13. The procedural difference between the absolute and the qualified immunities is important. An absolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial.?See Scheuer v. Rhodes,?416 U.S. 232 (1974);?Wood v. Strickland,?420 U.S. 308 (1975).14. The elements of this immunity were described in?Scheuer?as follows: “It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.” 416 U.S. at?247-248.18. The Supreme Court of Indiana, in?Griffith,?cited an earlier Massachusetts decision, apparently as authority for its own holding. But that case,?Parker v. Huntington,?68 Mass. 124 (1854), involved the elements of a malicious prosecution cause of action, rather than the immunity of a prosecutor.?See also?Note, 73 U.Pa.L.Rev. 300, 304 (1925).23. In the law of defamation, a concern for the airing of all evidence has resulted in an absolute privilege for any courtroom statement relevant to the subject matter of the proceeding. In the case of lawyers, the privilege extends to their briefs and pleadings as well.?See generally?1 T. Cooley, Law of Torts §153 (4th ed.1932); 1 F. Harper & F. James,?§5.22. In the leading case of?Hoar v. Wood,?44 Mass. 193 (1841), Chief Justice Shaw expressed the policy decision as follows:“Subject to this restriction [of relevancy], it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech, in conducting the causes and advocating and sustaining the rights, of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions.”24. A prosecutor often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence. The appropriate course of action in such a case may well be to permit a jury to resolve the conflict. Yet a prosecutor understandably would be reluctant to go forward with a close case where an acquittal likely would trigger a suit against him for damages.?Cf.?American Bar Association Project on Standards for Criminal Justice, Prosecution and Defense Function §3.9(c) (Approved Draft 1971).26. In addressing the consequences of subjecting judges to suits for damages under §1983, the Court has commented: “Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation.” Pierson v. Ray,?386 U.S. at?554.28. “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.”32. Both in his complaint in District Court and in his argument to us, petitioner characterizes some of respondent’s actions as “police-related” or investigative. Specifically, he points to a request by respondent of the police during a courtroom recess that they hold off questioning Costello about a pending bad-check charge until after Costello had completed his testimony. Petitioner asserts that this request was an investigative activity, because it was a direction to police officers engaged in the investigation of crime. Seen in its proper light, however, respondent’s request of the officers was an effort to control the presentation of his witness’ testimony, a task fairly within his function as an advocate.BLACK et al. v. UNITED STATES et al., 534 F.2d 524 (1976)LUMBARD, Circuit Judge:Income tax preparer and a number of his clients brought class action against the United States, the Secretary of Treasury, the commissioner of the Internal Revenue Service and the district director for declaratory and injunctive relief based on claim that IRS agents were engaged in intimidating tactics calculated to drive preparer out of business in violation of his constitutional and statutory rights. The United States District Court for the Eastern District of New York, Edward R. Neaher, J., 338 F.Supp. 805 entered order dismissing complaints for lack of personal jurisdiction, lack of subject matter jurisdiction and failure to state a claim for relief. The plaintiffs appealed. The Court of Appeals, Lombard, Circuit Judge, held, inter alia, that the anti-injunction act precluded the enjoining of IRS from continuing its investigation into returns, and that complaint was deficient for failure to allege the named official’s direct and personal responsibility for purported unlawful conduct of their subordinates.Statute precluding suits to restrain assessment or collection of any tax barred right of income tax preparer and his clients to injunctive relief to put an end to alleged Internal Revenue Service harassment, since to enjoin IRS from continuing its investigation into returns would hinder its efforts to uncover and correct improper deductions which may have been claimed by preparer on behalf of his clients. 26 U.S.C.A. (I.R.C.1954) §7421(a).Internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to recommendation for criminal prosecution.To recover damages under civil rights statute against federal officials who have a qualified immunity, plaintiff must allege the official’s direct and personal responsibility for the purportedly unlawful conduct of its subordinates and the general doctrine of respondeat superior does not suffice. 42 U.S.C.A. §1983.Reasoning from the fact that he and most of his 560 clients are black, appellant Black charges that the course of conduct outlined above was racially motivated and thus in violation of his right to equal protection of the laws as guaranteed the Fifth Amendment. In his amended complaint, Black additionally claims that the IRS investigation was prompted by the personal animus of Elonia Spruill, his former mother-in-law, who is an employee in the Brooklyn office of the IRS. Black further asserts that the tactics of the IRS are designed to intimidate his customers and drive him out of business without the just compensation to which he is entitled. Appellant clients similarly complain of the government’s methods, joining in the allegation that they are discriminatory, contending that they exceed statutory of authority and charging that they infringe their right to privacy under the Fourth and Ninth Amendments.This is not to say that appellants are left wholly without recourse. As Judge Neaher noted, the clients are free to file individual claims for refund and, after six months, to sue for the refunds in federal court, 26 U.S.C. §§6532(a) and 7422(a). Moreover, any challenge to an IRS summons may be raised in an administrative hearing and, if rebuffed in that forum, reasserted in District Court as a defense to enforcement proceedings. Reisman v. Caplin, 375 U.S. 440 (1964). Having chosen to by-pass these available and adequate legal remedies, appellants cannot now come before this court in search of equitable relief. See Commissioner v. Schapiro, 424 U.S. 614 (1976); Enoch v. Williams Packing and Navigation Co., 370 U.S. 1 (1962).The courts, however, have been careful to couple this expansion in the liability of executive officers with new and necessary safeguards. In an effort to limit vexatious litigation and to minimize interference of the orderly workings of government, it is required in suits against state officials under 42 U.S.C. §1983 that the plaintiff alleged the defendant’s direct and personal responsibility for the purportedly unlawful conduct of his subordinates. In Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied 414 U.S. 1033 (1973), we stated with regard to state officials that “the general doctrine of respondeat superior does not suffice…” We see no reason why the pleading requirements would be any different in actions against federal officials. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1346–7 (2d Cir. 1972). Insofar as appellants’ complaint is silent in this critical regard, it is fatally defective.FITZPATRICK et al., v. BITZER, etc., et al., 427 U.S. 445, 96 S.Ct. 2666 (1976)Mr. Justice REHNQUIST delivered the opinion of the Court.The judgment in No. 75-251 isReversed.The judgment in No. 75-283 isAffirmed.Mr. Justice BRENNAN, concurring in the judgment.This suit was brought by present and retired employees of the State of Connecticut against the State Treasurer, the State Comptroller, and the Chairman of the State Employees’ Retirement Commission. In that circumstance, Connecticut may not invoke the Eleventh Amendment, since that Amendment bars only federal-court suits against States by citizens of other States. Rather, the question is whether Connecticut may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to a claim for damages under Title VII. In my view Connecticut may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973): The States surrendered that immunity, in Hamilton’s words, “in the plan of the Convention” that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. Edelman v. Jordan, 415 U.S. 651 (1974);?Parden v. Terminal R. Co., 377 U.S. 184 (1964). Congressional authority to enact the provisions of Title VII at issue in this case is found in the Commerce Clause, Art. I, §8, cl. 3, and in §5 of the Fourteenth Amendment, two of the enumerated powers granted Congress in the Constitution. Cf. Oregon v. Mitchell, 400 U.S. 112 (1970); Katzenbach v. Morgan, 384 U.S. 641 (1966). I remain of the opinion that “because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver.” Employees v. Missouri Public Health Dept., 411 U.S., at 300.I therefore concur in the judgment of the Court.ESTELLE, et al., v. GAMBLE, 429 U.S. 97, 97 S.Ct. 285 (1976)MR. JUSTICE MARSHALL, J., delivered the opinion of the Court.Since prisoner’s civil rights complaint was dismissed for failure to state a claim, Supreme Court must take as true its handwritten, pro se allegations. 42 U.S.C.A. §1983.Punishments which are incompatible with evolving standards of decency that mark progress of maturing society or which involve unnecessary or wanton infliction of pain are repugnant to Eighth Amendment. U.S.C.A. Const. Amend. 8.In order to state a cognizable claim under civil rights statute because of inadequate medical care, prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. U.S.C.A. Const. Amend. 8; 42 U.S.C.A. §1983.Handwritten pro se civil rights complaint of prisoner was to be liberally construed and must be held to less stringent standards than formal pleadings by lawyer, and complaint could be dismissed for failure to state a claim only if it appeared beyond a reasonable doubt that plaintiff could prove no set of facts in support of claim which would entitle him to relief.…The District Court dismissed the complaint for failure to state a claim upon which relief could be granted….…The District Court, sua sponte, dismissed the complaint for failure to state a claim upon which relief could be granted. The Court of Appeals reversed and remanded with instructions to reinstate the complaint. 516 F.2d 937 (CA5 1975). We granted certiorari, 424 U.S. 907 (1976).Because the complaint was dismissed for failure to state a claim, we must take as true its handwritten, pro se allegations. Cooper v. Pate, 378 U.S. 546 (1964)….The gravamen of respondent’s §1983 complaint is that petitioners have subjected him to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth.?See Robinson v. California, 370 U.S. 660 (1962). We therefore base our evaluation of respondent’s complaint on those Amendments and our decisions interpreting them.Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See Gregg v. Georgia; Trop v. Dulles, 356 U.S. 86 (1958); Weems v. United States, 217 U.S. 349 (1910). The Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency...,” Jackson v. Bishop, 404 F.2d 571 (CA8 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles; see also Gregg v. Georgia; Weems v. United States, or which “involve the unnecessary and wanton infliction of pain,” Gregg v. Georgia; see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Wilkerson v. Utah.…It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment.Against this backdrop, we now consider whether respondent’s complaint states a cognizable §1983 claim. The handwritten pro se document is to be liberally construed. As the Court unanimously held in Haines v. Kerner, 404 U.S. 519 (1972), a pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears “‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).…But the question whether an X-ray - or additional diagnostic techniques or forms of treatment - is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act….JUSTICE STEVENS, Dissenting.The Haines test is not whether the facts alleged in the complaint would entitle the plaintiff to relief. Rather, it is whether the Court can say with assurance on the basis of the complaint that, beyond any doubt, no set of facts could be proved that would entitle the plaintiff to relief.?The reasons for the Haines test are manifest. A pro se complaint provides an unsatisfactory foundation for deciding the merits of important questions because typically it is inartfully drawn, unclear, and equivocal, and because thorough pleadings, affidavits, and possibly an evidentiary hearing will usually bring out facts which simplify or make unnecessary the decision of questions presented by the naked complaint.The principal beneficiaries of today’s decision will not be federal Judges, very little of whose time will be saved, but rather the “writ-writers” within the prison walls, whose semiprofessional services will be in greater demand. I have no doubt about the ability of such a semiprofessional to embellish this pleading with conclusory allegations which could be made in all good faith and which would foreclose a dismissal without any response from the State. It is unfortunate that today’s decision will increase prisoners’ dependence on those writ-writers. See Cruz v. Beto, 405 U.S. 319.Frankly, I was, and still am, puzzled by the Court’s decision to grant certiorari.?If the Court merely thought the Fifth Circuit misapplied Haines v. Kerner by reading the complaint too liberally, the grant of certiorari is inexplicable. On the other hand, if the Court thought that instead of a pleading question, the case presented an important constitutional question about the State’s duty to provide medical care to prisoners, the crude allegations of this complaint do not provide the kind of factual basis?the Court normally requires as a predicate for the adjudication of a novel and serious constitutional issue, see Rescue Army v. Municipal Court, 331 U.S. 549; Ellis v. Dixon, 349 U.S. 458; Wainwright v. City of New Orleans, 392 U.S. 598.?Moreover, as the Court notes, all the Courts of Appeals to consider the question have reached substantially the same conclusion that the Court adopts. Since the Court seldom takes a case merely to reaffirm settled law, I fail to understand why it has chosen to make this case an exception to its normal practice. By its reference to the accidental character of the first unsuccessful attempt to electrocute the prisoner in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, and by its repeated references to “deliberate indifference” and the “intentional” denial of adequate medical care, I believe the Court improperly attaches significance to the subjective motivation of the defendant as a criterion for determining whether cruel and unusual punishment has been inflicted. Subjective motivation may well determine what, if any, remedy is appropriate against a particular defendant. However, whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it. Whether the conditions in Andersonville were the product of design, negligence, or mere poverty, they were cruel and inhuman.In sum, I remain convinced that the petition for certiorari should have been denied. It having been granted, I would affirm the judgment of the Court of Appeals.Footnotes:3. This poorly drafted complaint attempts to describe conditions which resemble those reported in other prison systems. For instance, a study of the Pennsylvania prison system reported:“When ill, the prisoner’s point of contact with a prison’s health care program is the sick-call line. Access may be barred by a guard, who refuses to give the convict a hospital pass out of whimsy or prejudice, or in light of a history of undiagnosed complaints. At sick call the convict commonly first sees a civilian paraprofessional or a nurse, who may treat the case with a placebo without actual examination, history-taking or recorded diagnosis. Even seeing the doctor at some prisons produces no more than aspirin for symptoms, such as dizziness and fainting, which have persisted for years.” Health Law Project, University of Pennsylvania, Health Care and Conditions in Pennsylvania’s State Prisons, in American Bar Association Commission on Correctional Facilities and Services, Medical and Health Care in Jails, Prisons, and Other Correctional Facilities: A Compilation of Standards and Materials 71, 81-82 (Aug. 1974).A legislative report on California prisons found:“By far, the area with the greatest problem at the hospital [at one major prison], and perhaps at all the hospitals, was that of the abusive doctor-patient relationship. Although the indifference of M.T.A.s [medical technical assistants] toward medical complaints by inmates is not unique at Folsom, and has been reported continuously elsewhere, the calloused and frequently hostile attitude exhibited by the doctors is uniquely reprehensible....“Typical complaints against [one doctor] were that he would...not adequately diagnose or treat a patient who was a disciplinary problem at the prison....” Assembly Select Committee on Prison Reform and Rehabilitation, An Examination of California’s Prison Hospitals, 60-61 (1972).These statements by responsible observers demonstrate that it is far from fanciful to read a prisoner’s complaint as alleging that only pro forma treatment was provided.5. In Haines a unanimous Supreme Court admonished the Federal Judiciary to be especially solicitous of the problems of the uneducated inmate seeking to litigate on his own behalf. The Court said:“Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U.S. 41 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2 1944).” 404 U.S., at 520.Under that test the complaint should not have been dismissed without, at the very minimum, requiring some response from the defendants. It appears from the record that although the complaint was filed in February, instead of causing it to be served on the defendants as required by Fed. Rule Civ.Proc. 4, the Clerk of the District Court referred it to a magistrate who decided in June that the case should be dismissed before any of the normal procedures were even commenced. At least one Circuit has held that dismissal without service on the defendants is improper, Nichols v. Schubert, 499 F.2d 946 (CA7 1974). The Court’s Disposition of this case should not be taken as an endorsement of this practice since the question was not raised by the parties.GOLDFARB et al. v. VIRGINIA STATE BAR et al., 421 U.S. 773, 95 S.Ct. 2004 (1975)MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The effect of an anti-competitive activity on interstate commerce must be viewed in a practical sense for Sherman Act purposes. Sherman Anti-Trust Act, §1, 15 U.S.C.A. §1.Petitioners, husband and wife, contracted to buy a home in Fairfax County, Va. and the lender who financed the purchase required them to obtain title insurance, which necessitated a title examination that could be performed legally only by a member of respondent Virginia State Bar. Petitioners unsuccessfully tried to find a lawyer who would examine the title for less than the fee prescribed in a minimum fee schedule published by respondent Fairfax County Bar Association and enforced by respondent Virginia State Bar. Petitioners then brought this class action against respondents, seeking injunctive relief and damages, and alleging that the minimum fee schedule and its enforcement mechanism, as applied to fees for legal services relating to residential real estate transactions, constitute price-fixing in violation of §1 of the Sherman Act. Although holding that the State Bar was exempt from the Sherman Act, the District Court granted judgment against the County Bar Association and enjoined the publication of the fee schedule. The Court of Appeals reversed, holding not only that the State Bar’s actions were immune from liability as “state action,”?Parke v. Brown,?317 U.S. 341, but also that the County Bar Association was immune because the practice of law, as a “learned profession,” is not “trade or commerce” under the Sherman Act; and that, in any event, respondents’ activities did not have sufficient effect on interstate commerce to support Sherman Act jurisdiction.Held:?The minimum fee schedule, as published by the County Bar Association and enforced by the State Bar, violates §1 of the Sherman Act.(a) The schedule and its enforcement mechanism constitute price-fixing, since the record shows that the schedule, rather than being purely advisory, operated as a fixed, rigid price floor. The fee schedule was enforced through the prospect of professional discipline by the State Bar, by reason of attorneys’ desire to comply with announced professional norms, and by the assurance that other lawyers would not compete by underbidding.(b) Since a significant amount of funds furnished for financing the purchase of homes in Fairfax County comes from outside the State, and since a title examination is an integral part of such interstate transactions, interstate commerce is sufficiently affected for Sherman Act purposes notwithstanding that there is no showing that prospective purchasers were discouraged from buying homes in Fairfax County by the challenged activities, and no showing that the fee schedule resulted in raising fees.(c) Congress did not intend any sweeping “learned profession” exclusion from the Sherman Act; a title examination is a service, and the exchange of such a service for money is “commerce” in the common usage of that term.(d) Respondents’ activities are not exempt from the Sherman Act as “state action” within the meaning of?Parker v. Brown.?Neither the Virginia Supreme Court nor any Virginia statute required such activities, and, although the State Bar has the power to issue ethical opinions, it does not appear that the Supreme Court approves them. It is not enough that the anticompetitive conduct is “prompted” by state action; to be exempt, such conduct must be compelled by direction of the State acting as a sovereign. Here the State Bar, by providing that deviation from the minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and hence cannot claim it is beyond the Sherman Act’s reach.?The fee schedule the lawyers referred to is a list of recommended minimum prices for common legal services. Respondent Fairfax County Bar Association published the fee schedule although, as a purely voluntary association of attorneys, the County Bar has no formal power to enforce it. Enforcement has been provided by respondent Virginia State Bar, which is the administrative agency through which the Virginia Supreme Court regulates the practice of law in that State; membership in the State Bar is required in order to practice in Virginia. Although the State Bar has never taken formal disciplinary action to compel adherence to any fee schedule, it has published reports condoning fee schedules, and has issued two ethical opinions indicating that fee schedules cannot be ignored. The most recent opinion states that “evidence that an attorney?habitually?charges less than the suggested minimum fee schedule adopted by his local bar Association, raises a presumption that such lawyer is guilty of misconduct....”Because petitioners could not find a lawyer willing to charge a fee lower than the schedule dictated, they had their title examined by the lawyer they had first contacted. They then brought this class action against the State Bar and the County Bar alleging that the operation of the minimum fee schedule, as applied to fees for legal services relating to residential real estate transactions, constitutes price-fixing in violation of §1 of the Sherman Act. Petitioners sought both injunctive relief and damages.After a trial solely on the issue of liability, the District Court held that the minimum fee schedule violated the Sherman Act. 355 F.Supp. 491 (ED Va.1973). The court viewed the fee-schedule system as a significant reason for petitioners’ failure to obtain legal services for less than the minimum fee, and it rejected the County Bar’s contention that, as a “learned profession,” the practice of law is exempt from the Sherman Act.The Court of Appeals reversed as to liability. 497 F.2d 1 (CA4 1974). Despite its conclusion that it “is abundantly clear from the record before us that the fee schedule and the enforcement mechanism supporting it act as a substantial restraint upon competition among attorneys practicing in Fairfax County,” the Court of Appeals held the State Bar immune under?Parker v. Brown,?and held the County Bar immune because the practice of law is not “trade or commerce” under the Sherman Act. There has long been judicial recognition of a limited exclusion of “learned professions” from the scope of the antitrust laws, the court said; that exclusion is based upon the special form of regulation imposed upon the professions by the States, and the incompatibility of certain competitive practices with such professional regulation. It concluded that the promulgation of a minimum fee schedule is one of “those matters with respect to which an accord must be reached between the necessities of professional regulation and the dictates of the antitrust laws.” The accord reached by that court was to hold the practice of law exempt from the antitrust laws.We granted certiorari, 419 U.S. 963 (1974), and are thus confronted for the first time with the question of whether the Sherman Act applies to services performed by attorneys in examining titles in connection with financing the purchase of real estate.These arguments misconceive the nature of the transactions at issue and the place legal services play in those transactions. As the District Court found, “a significant portion of funds furnished for the purchasing of homes in Fairfax County comes from without the State of Virginia,” and “significant amounts of loans on Fairfax County real estate are guaranteed by the United States Veterans Administration and Department of Housing and Urban Development, both headquartered in the District of Columbia.” Thus, in this class action, the transactions which create the need for the particular legal services in question frequently are interstate transactions. The necessary connection between the interstate transactions and the restraint of trade provided by the minimum fee schedule is present because, in a practical sense, title examinations are necessary in real estate transactions to assure a lien on a valid title of the borrower. In financing realty purchases, lenders require, “as a condition of making the loan, that the title to the property involved be examined....” Thus, a title examination is an integral part of an interstate transaction, and this Court has long held that “there is an obvious distinction to be drawn between a course of conduct wholly within a state and conduct which is an inseparable element of a larger program dependent for its success upon activity which affects commerce between the states.” United States v. Frankfort Distilleries,?324 U.S. 293?(1945).?See United States v. Yellow Cab Co.,?332 U.S. 218 (1947).The County Bar argues that Congress never intended to include the learned professions within the terms “trade or commerce” in §1 of the Sherman Act, and therefore the sale of professional services is exempt from the Act. No explicit exemption or legislative history is provided to support this contention; rather, the existence of state regulation seems to be its primary basis. Also, the County Bar maintains that competition is inconsistent with the practice of a profession because enhancing profit is not the goal of professional activities; the goal is to provide services necessary to the community. That, indeed, is the classic basis traditionally advanced to distinguish professions from trades, businesses, and other occupations, but it loses some of its force when used to support the fee control activities involved here.Footnotes:4. In 1962, the State Bar published a minimum fee schedule report that listed a series of fees and stated that they “represent the considered judgment of the Committee [on Economics of Law Practice] as to [a] fair minimum fee in each instance.” The report stated, however, that the fees were not mandatory, and it recommended only that the State Bar?consider?adopting such a schedule. Nevertheless, shortly thereafter, the County Bar adopted its own minimum fee schedule that purported to be “a conscientious effort to show lawyers in their true perspective of dignity, training and integrity.” The suggested fees for title examination were virtually identical to those in the State Bar report. In accord with Opinion 98 of the State Bar Committee on Legal Ethics, the schedule stated that, although there is an ethical duty to charge a lower fee in a deserving case, if a lawyer “purely for his own advancement, intentionally and regularly bills less than the customary charges of the bar for similar services...[in order to] increase his business with resulting personal gain, it becomes a form of solicitation contrary to Canon 27 and also a violation of Canon 7, which forbids the efforts of one lawyer to encroach upon the employment of another.”In 1969, the State Bar published a second fee-schedule report that, as it candidly stated, “reflect[ed] a general scaling up of fees for legal services.” The report again stated that no local bar association was bound by its recommendations; however, respondent County Bar again quickly moved to publish an updated minimum fee schedule, and generally to raise fees. The new schedule stated that the fees were not mandatory, but tempered that by referring again to Opinion 98. This time, the schedule also stated that lawyers should feel free to charge?more?than the recommended fees; and to avoid condemnation of higher fees charged by some lawyers, it cautioned County Bar members that “to...publicly criticize lawyers who charge more than the suggested fees herein might in itself be evidence of solicitation....”16. The reason for adopting the fee schedule does not appear to have been wholly altruistic. The first sentence in respondent State Bar’s 1962 Minimum Fee Schedule Report states: “‘The lawyers have slowly, but surely, been committing economic suicide as a profession.’”Virginia State Bar, Minimum Fee Schedule Report 1962, p. 3, App. 20.18. Virginia Code Ann. §54-48 (1972) provides:“Rules and regulations defining practice of law and prescribing codes of ethics and disciplinary procedure. The Supreme Court of Appeals may, from time to time, prescribe, adopt, promulgate and amend rules and regulations:”“(a) Defining the practice of law.”“(b) Prescribing a code of ethics governing the professional conduct of attorneys at law and a code of judicial ethics.”“(c) Prescribing procedure for disciplining, suspending, and disbarring attorneys at law.”In addition, the Supreme Court of Virginia, has inherent power to regulate the practice of law in that State.?Button v. Day,?204 Va. 547, 132 S.E.2d 292 (1963).?See Lathrop v. Donohue,?367 U.S. 820?(1961).GERSTEIN v. PUGH et al., 420 U.S. 103, 95 S.Ct. 854 (1975)MR. JUSTICE POWELL delivered the opinion of the Court.Under Florida law, indictments are required only for prosecution of capital offenses; prosecutors may charge all other crimes by information. 33 West’s F.S.A. Rules of Criminal Procedure, Rule 3.140(a).Habeas corpus was not the exclusive remedy for challenging Florida procedure whereby a person arrested without a warrant and charged by information could be jailed without an opportunity for a probable cause determination where the suing Florida prisoner sought only declaratory and injunctive relief and release was neither asked nor ordered. West’s F.S.A. §907.045; 33 West’s F.S.A. Rules of Criminal Procedure, Rules 3.122, 3.131(a), 3.140(a), 3.160.The Younger doctrine, which imposes equitable restraints on federal intervention in state prosecutions, did not bar claims for federal relief as regards Florida procedures whereby a person arrested without a warrant and charged by information may be jailed without an opportunity for a probable cause determination since injunctive relief was not directed at state prosecutions as such but only at legality of pretrial detention without judicial hearing, an issue that could not be raised in defense of a criminal prosecution; an order requiring such hearings could not prejudice the conduct of a trial on the merits. 33 West’s F.S.A. Rules of Criminal Procedure, Rule 3.140(a); 28 U.S.C.A. §1343(3); 42 U.S.C.A. §1983; U.S.C.A. Const. Amends. 4, 14.Conviction of the named plaintiffs, who brought Civil Rights Act class action challenging constitutionality of Florida procedures whereby a person arrested without a warrant and charged by information could be jailed without an opportunity for probable cause determination, did not moot the claims of the unnamed class members since the case fell within exception to general rule, in that such claim was distinctly capable of repetition yet evading review, there was a continuing class of persons suffering such deprivation and the representative plaintiffs’ attorney had other clients with a continuing live interest in the case. 33 West’s F.S.A. Rules of Criminal Procedure, Rule 3.140(a); 28 U.S.C.A. §1343(3); 42 U.S.C.A. §1983; U.S.C.A. Const. Amends. 4, 14.The standard for arrest is probable cause, defined in terms of facts and circumstances sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. U.S.C.A. Const. Amend. 4.The probable cause standard for arrest, like those for searches and seizures, represents a necessary accommodation between the individual’s right to liberty and the state’s duty to control crime. U.S.C.A. Const. Amend. 4.To implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy, it is required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible. U.S.C.A. Const. Amend. 4.Although maximum protection of individual rights can be assured by requiring a magistrate’s review of the factual justification prior to any arrest, such a requirement would constitute an intolerable handicap for legitimate law enforcement; however, an arrest warrant is preferred when feasible. U.S.C.A. Const. Amend. 4.A policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime and for a brief period of detention to take the administrative steps incident to arrest; however, once the suspect is in custody the reasons that justify dispensing with the magistrate’s neutral judgment evaporates and the suspect’s need for a neutral determination of probable cause increases significantly. U.S.C.A. Const. Amend. 4.Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest. U.S.C.A. Const. Amend. 4.The initial common-law determination of probable cause to commit an arrestee to jail or bail could be reviewed by higher court on a writ of habeas corpus. U.S.C.A. Const. Amend. 4.Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, the prosecutor’s assessment of probable cause, standing alone, does not meet the requirements of the Fourth Amendment and is insufficient to justify restraint of liberty pending trial. U.S.C.A. Const. Amend. 4.Illegal arrest or detention does not void a subsequent conviction. U.S.C.A. Const. Amend. 4.An arrestee may challenge the probable cause for his pretrial confinement; however, his conviction will not be vacated on ground that he was detained pending trial without such a determination. U.S.C.A. Const. Amend. 4.Standard for determining whether to detain an arrested person pending further proceedings is the same as that for arrest, i.e., probable cause to believe the suspect has committed a crime. U.S.C.A. Const. Amend. 4.A prosecutor has a professional duty not to charge a suspect with a crime unless he is satisfied with probable cause.There is no single preferred pretrial procedure for determining probable cause for detaining an arrested person pending further proceedings; nature of the determination usually will be shaped to accord with the state’s pretrial procedure viewed as a whole; flexibility and experimentation by the state is desirable. U.S.C.A. Const. Amend. 4.Whatever procedure a state may adopt for making a pretrial determination of probable cause for detaining an arrested person pending further proceedings, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty; such determination must be made by a judicial officer either before or promptly after arrest. U.S.C.A. Const. Amend. 4.Probable cause determination is not a constitutional prerequisite to the charging decision; it is required only for those suspects who suffer restraint of liberty other than the condition that they appear for trial. U.S.C.A. Const. Amend. 4.The Court of Appeals for the Fifth Circuit stayed the District Court’s order pending appeal, but while the case was awaiting decision, the Dade County Judiciary voluntarily adopted a similar procedure of its own. Upon learning of this development, the Court of Appeals remanded the case for specific findings on the constitutionality of the new Dade County system. Before the District Court issued its findings, however, the Florida Supreme Court amended the procedural rules governing preliminary hearings statewide, and the parties agreed that the District Court should direct its inquiry to the new rules rather than the Dade County procedures.Under this practical compromise, a policeman’s on-the-scene assessment of probable cause provides legal justification?for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz, Justice Is the Crime 51-62 (1972). Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. See 18 U.S.C. §§3146(a)(2), (5). When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.The reason for this separation of functions was expressed by Mr. Justice Frankfurter in a similar context:“A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication.” McNabb v. United States,?318 U.S. 332?(1943).In holding that the prosecutor’s assessment of probable?cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington,?369 U.S. 541?(1962); Lem Woon v. Oregon,?229 U.S. 586?(1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins,?342 U.S. 519(1952); Ker v. Illinois,?119 U.S. 436?(1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. 483 F.2d, at 786. Compare Scarbrough v. Dutton, 393 F.2d 6 (CA5 1968), with Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971), and Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969).Both the District Court and the Court of Appeals held that the determination of probable cause must be accompanied by the full panoply of adversary safeguards - counsel, confrontation, cross-examination, and compulsory process for witnesses. A full preliminary hearing of this sort is modeled after the procedure used in many states to determine whether the evidence justifies going to trial under an information or presenting the case to a grand jury. See Coleman v. Alabama (1970); Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure 957-967, 996-1000 (4th ed. 1974). The standard of proof required of the prosecution is usually referred to as “probable cause,” but in some jurisdictions it may approach a prima facie case of guilt.?ALI, Model Code of Pre-arraignment Procedure, Commentary on Art. 330, pp. 90-91 (Tent. Draft No. 5, 1972). When the hearing takes this form, adversary procedures are customarily employed. The importance of the issue to both the State and the accused justifies the presentation of witnesses and full exploration of their testimony on cross-examination. This kind of hearing also requires appointment of counsel for indigent defendants. Coleman v. Alabama. And, as the hearing assumes increased importance and the procedures become more complex, the likelihood that it can be held promptly after arrest diminishes. See ALI, Model Code of Pre-arraignment Procedure, at 33-34.These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard - probable cause to believe the suspect has committed a crime - traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.“Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition,?to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.”“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” Brinegar v. United States,?338 U.S., at 174.The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109 (1969). This is not to say that confrontation and?cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause. Because of its limited function and its nonadversary character, the probable cause determination is not a “critical stage” in the prosecution that would require appointed counsel. The Court has identified as “critical stages” those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. Coleman v. Alabama,?399 U.S. 1?(1970); United States v. Wade, 388 U.S. 218 (1967). In Coleman v. Alabama, where the Court held that a preliminary hearing was a critical stage of an Alabama prosecution, the majority and concurring opinions identified two critical factors that distinguish the Alabama preliminary hearing from the probable cause determination required by the Fourth Amendment. First,?under Alabama law the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense. A finding of no probable cause could mean that he would not be tried at all. The Fourth Amendment probable cause determination is addressed only to pretrial custody. To be sure, pretrial custody may affect to some extent the defendant’s ability to assist in preparation of his defense, but this does not present the high probability of substantial harm identified as controlling in Wade and Coleman. Second, Alabama allowed the suspect to confront and cross-examine prosecution witnesses at the preliminary hearing. The Court noted that the suspect’s defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses’ testimony. This consideration does not apply when the prosecution is not required to produce witnesses for cross-examination.Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure and the nature of the probable cause determination usually will be shaped to accord with a State’s pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable for example, to make the probable cause determination a the suspect’s first appearance before a judicial officer,?see McNabb v. United States,?318 U.S., at 342?-344, or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some States, existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment, such as acceleration of existing preliminary hearings. Current proposals for criminal procedure reform suggest other ways of testing probable cause for detention. Whatever?procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest. MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, AND MR. JUSTICE MARSHALL join concurring.Specifically, I see no need in this case for the Court to say that the Constitution extends less procedural protection to an imprisoned human being than is required to test the propriety of garnishing a commercial bank account, North Georgia Finishing, Inc. v. Di-Chem, Inc.,?419 U.S. 601; the custody of a refrigerator, Mitchell v. W. T. Grant Co.,?416 U.S. 600; the temporary suspension of a public school student, Goss v. Lopez,?419 U.S. 565; or the suspension of a driver’s license, Bell v. Burson,?402 U.S. 535. Although it may be true that the Fourth Amendment’s “balance between individual and public interests always has been thought to define the ‘process that is due’ for seizures of person or property in criminal cases,” this case does not involve an initial arrest, but rather the continuing incarceration of a presumptively innocent person. Accordingly, I cannot join the Court’s effort to foreclose any claim that the traditional requirements of constitutional due process are applicable in the context of pretrial detention.It is the prerogative of each State in the first instance to develop pretrial procedures that provide defendants in pretrial custody with the fair and reliable determination of probable cause for detention required by the Constitution. Cf. Morrissey v. Brewer,?408 U.S. 471. The constitutionality of any particular method for determining probable cause can be properly decided only by evaluating a State’s pretrial procedures as a whole, not by isolating a particular part of its total system. As the Court recognizes, great diversity exists among the procedures employed by the States in this aspect of their criminal justice system.There will be adequate opportunity to evaluate in an appropriate future case the constitutionality of any new procedures that may be adopted by Florida in response to the Court’s judgment today holding that Florida’s present procedures are constitutionally inadequate.?Footnotes:11. At oral argument counsel informed us that the named respondents have been convicted. Their pretrial detention therefore has ended. This case belongs, however, to that narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. See Sosna v. Iowa,?419 U.S. 393?(1975). Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”At the time the complaint was filed, the named respondents were?members of a class of persons detained without a judicial probable cause determination, but the record does not indicate whether any of them were still in custody awaiting trial when the District Court certified the class. Such a showing ordinarily would be required to avoid mootness under Sosna. But this case is a suitable exception to that requirement. See Sosna, at 402 n. 11; cf. Rivera v. Freeman, 469 F.2d 1159, 1162-1163 (CA9 1972). The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case.12. We reiterated this principle in United States v. United States District Court,?407 U.S. 297?(1972). In terms that apply equally to arrests, we described the “very heart of the Fourth Amendment directive” as a requirement that “where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation.”13. Another aspect of Trupiano was overruled in United States v. Rabinowitz,?339 U.S. 56 (1950), which was overruled in turn by Chimel v. California,?395 U.S. 752?(1969).The issue of warrantless arrest that has generated the most controversy, and that remains unsettled, is whether and under what circumstances an officer may enter a suspect’s home to make a warrantless arrest. See Coolidge v. New Hampshire,?403 U.S. 443 (1971); Jones v. United States,?357 U.S. 493 (1958).EDELMAN v. JORDAN et al., 415 U.S. 651, 94 S.Ct. 1347 (1974)MR. JUSTICE REHNQUIST delivered the opinion of the Court.The Supreme Court, Mr. Justice Rehnquist, held that (1) the Eleventh Amendment barred the retroactive payment of benefits found to have been wrongfully withheld, (2) Illinois did not ‘constructively consent’ to the suit by participating in the AABD program and agreeing to administer federal state funds in compliance with federal law, and (3) the Eleventh Amendment sufficiently partook of the nature of a jurisdictional bar so that it could be considered even though it was not raised in the District Court.Reversed and remanded.While the Eleventh Amendment by its terms does not bar suits against a state by its own citizens, an unconsenting state is nonetheless immune from suits brought in federal courts by her own citizens as well as by citizens of another state.Even though a state is not made a party to an action, the suit made nonetheless be barred by the Eleventh Amendment. U.S.C.A. Const. Amend. 11.A suit by private parties seeking to impose a liability from public funds state treasury is barred by the Eleventh Amendment. U.S.C.A. Const. Amend. 11.A County does not occupy the same position as the state for purposes of the Eleventh Amendment. U.S.C.A. Const. Amend. 11.While county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state for purposes of the Eleventh Amendment. U.S.C.A. Const. Amends. 11, 14.In class suit which alleged that state and county officials were administering the federal-state AABD programs in a manner inconsistent federal regulations and the Fourteenth Amendment, the Eleventh Amendment barred the retroactive payment of benefits which were wrongfully withheld, since the funds to satisfy such an award would inevitably have to come from the general revenues of the State of Illinois, and since the award, though described as a form of “equitable restitution,” was in practical effect indistinguishable in many aspects from an award of damages against the state; over-ruling contrary decisions. S.H.A.Ill. ch. 23, §§3-1 to 3-12; Social Security Act, §§1601-1605, 42 U.S.C.A. §§1381-1385 U.S.C.A. Const. Amends. 11, 14.Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights.In deciding whether a state has waived its constitutional protection under the Eleventh Amendment, Supreme Court will find waiver only where stated by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction. U.S.C.A. Const. Amend. 11.Mere fact that a state participates in a program through which the federal government provides assistance for the operation by the state of a system of public aid in not sufficient to establish consent on the part of the state to be sued in the federal courts. U.S.C.A. Const. Amend. 11.Although a civil rights action may be instituted by public aid recipients against state officers, the federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from a state treasury. U.S.C.A. Const. Amend. 11; 42 U.S.C.A. §1983.Respondent brought this class action for injunctive and declaratory relief against the Illinois officials administering the federal-state programs of Aid to the Aged, Blind, and Disabled (AABD), which are funded equally by the State and Federal Governments, contending that they were violating federal law and denying equal protection of the laws by following state regulations that did not comply with the federal time limits within which participating States had to process and make grants with respect to AABD applications. The District Court by a permanent injunction required compliance with the federal time limits and also ordered the state officials to release and remit AABD benefits wrongfully withheld to all persons found eligible who had applied therefor between July 1, 1968, the date of the federal regulations, and April 16, 1971, the date of the court’s preliminary injunction. The Court of Appeals affirmed, rejecting the state officials’ contentions that the Eleventh Amendment barred the award of the retroactive benefits and that the judgment of inconsistency between federal regulations and state provisions could be given only prospective effect.Held:?The Eleventh Amendment of the Constitution bars that portion of the District Court’s decree that ordered retroactive payment of benefits.(a) A suit by private parties seeking to impose a liability payable from public funds in the state treasury is foreclosed by the Amendment if the State does not consent to suit.(b) The Court of Appeals erred in holding that?Ex parte Young,?209 U.S. 123, which awarded only prospective relief, did not preclude the retroactive monetary award here on the ground that it was an “equitable restitution,” since that award, though on its face directed against the state official individually, as a practical matter, could be satisfied only from the general revenues of the State, and was indistinguishable from an award of damages against the State.?Ford Motor Co. v. Department of Treasury, 323 U.S. 459, followed.?Shapiro v. Thompson,?394 U.S. 618;?State Dept. of Health and Rehabilitation Services v. Zarate,?407 U.S. 918;?Sterrett v. Mothers’ & Children’s Rights Organization,?409 U.S. 809;?Wyman v. Bowens,?397 U.S. 49, disapproved to extent that their holdings do not comport with the holding in the instant case on the Eleventh Amendment issue.(c) The State of Illinois did not waive its Eleventh Amendment immunity and consent to the bringing of respondent’s suit by participating in the federal AABD program.?Parden v. Terminal R. Co.,?377 U.S. 184, and?Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, distinguished. Nor does the mere fact that a State participates in a program partially funded by the Federal Government manifest consent by the State to be sued in federal courts.(d) The Court of Appeals properly considered the Eleventh Amendment defense, which the state officials did not assert in the District Court, since that defense partakes of the nature of a jurisdictional bar.?Ford Motor Co. v. Department of Treasury.Respondent John Jordan filed a complaint in the United States District Court for the Northern District of Illinois, individually and as a representative of a class, seeking declaratory and injunctive relief against two former directors of the Illinois Department of Public Aid, the director of the Cook County Department of Public Aid, and the comptroller of Cook County. Respondent alleged that these state officials were administering the federal-state programs of Aid to the Aged, Blind, or Disabled (AABD) in a manner inconsistent with various federal regulations and with the Fourteenth Amendment to the Constitution.During the period in which the federal regulations went into effect, Illinois public aid officials were administering the benefits pursuant to their own regulations as provided in the Categorical Assistance Manual of the Illinois Department of Public Aid. Respondent’s complaint charged that the Illinois defendants, operating under those regulations, were improperly authorizing grants to commence only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law. The complaint also alleged that the Illinois defendants were not processing the applications within the applicable time requirements of the federal regulations; specifically, respondent alleged that his own application for disability benefits was not acted on by the Illinois Department of Public Aid for almost four months. Such actions of the Illinois officials were alleged to violate federal law and deny the equal protection of the laws. Respondent’s prayer requested declaratory and injunctive relief, and specifically requested “a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all AABD benefits wrongfully withheld.”Ex parte Young?was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in?Ex parte Young?was prospective only; the Attorney General of Minnesota was enjoined to conform his future conduct of that office to the requirement of the Fourteenth Amendment. Such relief is analogous to that awarded by the District Court in the prospective portion of its order under review in this case.We do not read?Ex parte Young?or subsequent holdings of this Court to indicate that any form of relief may be awarded against a state officer, no matter how closely it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled “equitable” in nature. The Court’s opinion in?Ex parte Young hewed to no such line. Its citation of?Hagood v. Southern,?117 U.S. 52?(1886), and?In re Ayers,?123 U.S. 443?(1887), which were both actions against state officers for specific performance of a contract to which the State was a party, demonstrate that equitable relief may be barred by the Eleventh Amendment.As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under?Ex parte Young?will not in many instances be that between day and night. The injunction issued in?Ex parte Young?was not totally without effect on the State’s revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in?Ex parte Young.?In?Graham v. Richardson,?403 U.S. 365?(1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In?Goldberg v. Kelly, 397 U.S. 254?(1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in?Ex parte Young.Were we to uphold this portion of the District Court’s decree, we would be obligated to overrule the Court’s holding in?Ford Motor Co. v. Department of Treasury. There, a taxpayer, who had, under protest, paid taxes to the State of Indiana, sought a refund of those taxes from the Indiana state officials who were charged with their collection. The taxpayer claimed that the tax had been imposed in violation of the United States Constitution. The term “equitable restitution” would seem even more applicable to the relief sought in that case, since the taxpayer had at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction. Yet this Court had no hesitation in holding that the taxpayer’s action was a suit against the State, and barred by the Eleventh Amendment. We reach a similar conclusion with respect to the retroactive portion of the relief awarded by the District Court in this case.Monaco v. Mississippi,?292 U.S. 313?(1934), reaffirmed the principle that the Eleventh Amendment was no bar to a suit by the United States against a State. In view of Mr. Chief Justice Hughes’ vigorous reaffirmation in?Monaco?of the principles of the Eleventh Amendment and sovereign immunity, we think it unlikely that the Court in?Department of Employment v. United States,?in citing?Ex parte Young?as well as?Monaco, intended to foreshadow a departure from the rule to which we adhere today.MR. JUSTICE DOUGLAS, dissenting.Congress provided in 42 U.S.C. §1983 that:“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”In this class action, respondent sought to enforce against state aid officials of Illinois provisions of the Social Security Act, 42 U.S.C. §§1381-1385, known as the Aid to the Aged, Blind, or Disabled (AABD) program. The complaint alleges violations of the Equal Protection Clause of the Fourteenth Amendment and also violations of the Social Security Act. Hence, §1983 is satisfied,?in haec verba,?for a deprivation of “rights” which are “secured by the Constitution and laws” is alleged. The Court of Appeals, though ruling that the alleged constitutional violations had not occurred, sustained federal jurisdiction because federal “rights” were violated. The main issue tendered us is whether that ruling of the Court of Appeals is consistent with the Eleventh Amendment.In?Ex parte Young,?209 U.S. 123, a suit by stockholders of a railroad was brought in a federal court against state officials to enjoin the imposition of confiscatory rates on the railroad in violation of the Fourteenth Amendment. The Eleventh Amendment was interposed as a defense. The Court rejected the defense, saying that state officials with authority to enforce state laws “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal Court of Equity from such action.” The Court went on to say that a state official seeking to enforce in the name of a State an unconstitutional act “comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character, and is subjected in his person to the consequence of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”We have not always been unanimous in concluding when a State has waived its immunity. In?Parden v. Terminal R. Co.,?377 U.S. 184, where Alabama was sued by some of its citizens for injuries suffered in the interstate operation of an Alabama railroad, the State defended on the grounds of the Eleventh Amendment. The Court held that Alabama was liable as a carrier under the Federal Employers’ Liability Act, saying: “Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by that Act,” The Court added: “Our conclusion that this suit may be maintained is in accord with the common sense of this Nation’s federalism. A State’s immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.” As the Court of Appeals in the instant case concluded, Illinois, by entering into the joint federal-state welfare plan, just as surely “[left] the sphere that is exclusively its own.”MR. JUSTICE MARSHALL, with whom MR. JUSTICE BLACKMUN joins, dissenting.Absent any remedy which may act with retroactive effect, state welfare officials have everything to gain and nothing to lose by failing to comply with the congressional mandate that assistance be paid with reasonable promptness to all eligible individuals. This is not idle speculation without basis in practical experience. In this very case, for example, Illinois officials have knowingly violated since 1968 federal regulations on the strength of an argument as to its invalidity which even the majority deems unworthy of discussion. Without a retroactive payment remedy, we are indeed faced with “the spectre of a state, perhaps calculatingly, defying federal law and thereby depriving welfare recipients of the financial assistance Congress thought it was giving them.” Jordan v. Weaver,?472 F.2d 985, 995 (CA7 1972). Like the Court of Appeals, I cannot believe that Congress could possibly have intended any such result.Illinois chose to participate in the AABD program with its eyes wide open. Drawn by the lure of federal funds, it voluntarily obligated itself to comply with the Social Security Act and HEW regulations, with full knowledge that Congress had authorized assistance recipients to go into federal court to enforce these obligations and to recover benefits wrongfully denied. Any doubts on this score must surely have been removed by our decisions in?Rosado v. Wyman,?and?Shapiro v. Thompson,?394 U.S. 618 (1969), where we affirmed a District Court retroactive payment order. I cannot avoid the conclusion that, by virtue of its knowing and voluntary decision to nevertheless participate in the program, the State necessarily consented to subject itself to these suits. I have no quarrel with the Court’s view that waiver of constitutional rights should not lightly be inferred. But I simply cannot believe that the State could have entered into this essentially contractual agreement with the Federal Government without recognizing that it was subjecting itself to the full scope of the §1983 remedy provided by Congress to enforce the terms of the agreement.A finding of waiver here is also consistent with the reasoning of the majority in Employees,?which relied on a distinction between “governmental” and “proprietary” functions of state government. This distinction apparently recognizes that, if sovereign immunity is to be at all meaningful, the Court must be reluctant to hold a State to have waived its immunity simply by acting in its sovereign capacity -?i.e.,?by merely performing its “governmental” functions. On the other hand, in launching a profitmaking enterprise, “a State leaves the sphere that is exclusively its own,”?Parden v. Terminal R. Co.,?377 U.S. at?196, and a voluntary waiver of sovereign immunity can more easily be found. While conducting an assistance program for the needy is surely a “governmental” function, the State here has done far more than operate its own program in its sovereign capacity. It has voluntarily subordinated its sovereignty in this matter to that of the Federal Government, and agreed to comply with the conditions imposed by Congress upon the expenditure of federal funds. In entering this federal-state cooperative program, the State again “leaves the sphere that is exclusively its own,” and similarly may more readily be found to have voluntarily waived its immunity.Indeed, this is the lesson to be drawn from this Court’s decision in?Petty v. Tennessee-Missouri Bridge Comm’n,?359 U.S. 275?(1959), where the Court found that the States had waived the sovereign immunity of the Commission by joining in an interstate compact subject to the approval of Congress. The Court in?Petty?emphasized that it was “called on to interpret not unilateral state action, but the terms of a consensual agreement” between the States and Congress, and held that the States who join such a consensual agreement, “by accepting it and acting under it assume the conditions that Congress under the Constitution attached.” Although the congressional intent regarding the sue-and-be-sued clause was by no means certain, the Court held that the surrounding conditions made it clear that the States accepting it waived their sovereign immunity, especially since this interpretation was necessary to keep the compact “a living interstate agreement which performs high functions in our federalism.”Footnotes:5. Paragraph 5 of the District Court’s judgment provided:“That the defendant EDWARD T. WEAVER, Director, Illinois Department of Public Aid, his agents, including all of the County Departments of Public Aid in the State of Illinois, and employees, and all persons in active concert and participation with them, are hereby enjoined to release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968 and April 16, 1972 [sic] [should read ‘1971’], and were determined eligible, as follows:”“(a) For those aged and blind applicants whose first full AABD check was not mailed within thirty days from the date of application, AABD assistance for the period beginning with the thirtieth day from the date of application to the date the applicant’s entitlement to AABD became effective;”“(b)(i) For those disabled applicants who applied between July 1, 1968 and December 31, 1970, whose first full AABD check was not mailed within forty-five days from the date of application, AABD assistance for the period beginning with the forty-fifth day from the date of application to the date the applicant’s entitlement became effective;”“(ii) For those disabled applicants who applied between January 1, 1971, and April 16, 1971, whose first full AABD check was not mailed within sixty days from the date of application, AABD assistance for the period beginning with the sixtieth day from the date of application to the date the applicant’s entitlement became effective.”“These AABD benefits shall be mailed to those persons currently receiving AABD within eight months with an explanatory letter, said letter having been first approved by plaintiffs’ attorney. Any AABD benefits received pursuant to this paragraph shall not be deemed income or resources under Article III of the Illinois Public Aid Code.”“For those persons not presently receiving AABD:”“(a) A certified letter (return receipt requested), said letter having been first approved by plaintiffs’ attorney, shall be sent to the last known address of the person, informing him in concise and easily understandable terms that he is entitled to a specified amount of AABD benefits wrongfully withheld, and that he may claim such amount by contacting the County Department of Public Aid at a specified address, within 45 days from the receipt of said letter.”“(b) If the County Department of Public Aid does not receive a claim for the AABD benefits within 45 days from the date of actual notice to the person, the right to said AABD benefits shall be forfeited and the file shall be closed. Persons who do not receive actual notice do not forfeit their rights to AABD benefits wrongfully withheld under this provision.”Paragraph 6 of the District Court’s judgment provided:“Within 15 days from the date of this decree, defendant EDWARD T. WEAVER, Director, Illinois Department of Public Aid, shall submit to the court and the plaintiffs’ attorney a detailed statement as to the method for effectuating the relief required by paragraph 5,?of this Decree. Any disputes between the parties as to whether the procedures and steps outlined by the defendant WEAVER will fulfill the requirements of this Decree will be resolved by the Court.”On July 19, 1973, the author of this opinion stayed until further order of this Court these two paragraphs of the District Court’s judgment.?414 U.S. 1301.11. It may be true, as stated by our Brother DOUGLAS in dissent, that “[m]ost welfare decisions by federal courts have a financial impact on the States.” But we cannot agree that such a financial impact is the same where a federal court applies?Ex parte Young?to grant prospective declaratory and injunctive relief, as opposed to an order of retroactive payments as was made in the instant case. It is not necessarily true that “[w]hether the decree is prospective only or requires payments for the weeks or months wrongfully skipped over by the state officials, the nature of the impact on the state treasury is precisely the same.”This argument neglects the fact that, where the State has a definable allocation to be used in the payment of public aid benefits, and pursues a certain course of action such as the processing of applications within certain time periods as did Illinois here, the subsequent ordering by a federal court of retroactive payments to correct delays in such processing will invariably mean there is less money available for payments for the continuing obligations of the public aid system.As stated by Judge McGowan in?Rothstein v. Wyman,?467 F.2d 226 (CA2 1972):“The second federal policy which might arguably be furthered by retroactive payments is the fundamental goal of congressional welfare legislation - the satisfaction of the ascertained needs of impoverished persons. Federal standards are designed to ensure that those needs are equitably met; and there may perhaps be cases in which the prompt payment of funds wrongfully withheld will serve that end. As time goes by, however, retroactive payments become compensatory, rather than remedial; the coincidence between previously ascertained and existing needs becomes less clear.”12. The Court of Appeals considered the Court’s decision in?Griffin v. School Board,?377 U.S. 218?(1964), to be of like import. But as may be seen from?Griffin’s?citation of?Lincoln County v. Luning,?133 U.S. 529?(1890), a county does not occupy the same position as a State for purposes of the Eleventh Amendment.?See also Moor v. County of Alameda,?411 U.S. 693?(1973). The fact that the county policies executed by the county officials in?Griffin?were subject to the commands of the Fourteenth Amendment, but the county was not able to invoke the protection of the Eleventh Amendment, is no more than a recognition of the long-established rule that, while county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment.14. In the words of Mr. Justice Brandeis:“Stare decisis?is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than that it be settled right.... This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” Burnet v. Coronado Oil & Gas Co.,?285 U.S. 393 (1932).O’SHEA v. LITTLETON, et al., 414 U.S. 488, 94 S.Ct. 669 (1974)Mr. Justice WHITE delivered the opinion of the Court.Class action complaint charging state magistrate and state circuit court judge with allegedly depriving representative plaintiffs and class members of rights under the Constitution and under civil rights statutes by engaging, under color of state law, in continuing pattern and practice of conduct consisting of illegal bond, sentencing, and jury fee practices in criminal cases failed to satisfy the threshold constitutional requirement that those who seek to invoke the power of federal courts must allege an actual case or controversy since none of the named plaintiffs was identified as having himself suffered any injury in the manner specified, claim alleging injury was in only the most general terms and there were no allegations that any relevant state criminal statute was unconstitutional on its face or as applied or that plaintiffs had been or would be improperly charged with violating the criminal law. U.S.C.A. Const. Art. 3, §1 et seq.; Amends. 1, 6, 8, 13, 14; 42 U.S.C.A. §§1981-1983, 1985.Those who seek to invoke the power of federal courts must allege an actual case or controversy; a plaintiff must allege some threatened or actual injury before a federal court may assume jurisdiction. U.S.C.A. Const. Art. 3, §1 et seq.Although Congress may enact statutes creating legal rights, the invasion of which creates standing even though no injury would exist without the statute, such statutes do not purport to bestow the right to sue in absence of any indication that invasion of the statutory right has occurred or is likely to occur; the constitutional requirement of an actual case or controversy remains. U.S.C.A. Const. Art. 3, §1 et seq.Before a federal court can constitutionally assume jurisdiction a litigant must show that he has a personal stake in the outcome so as to assure that concrete adverseness which sharpens the presentation of issues; such principle applies whether statutory issues or common law issues are sought to be litigated. U.S.C.A. Const. Art. 3, §1 et seq.Abstract injury is not enough to warrant assumption of jurisdiction by a federal court; to establish a case or controversy it must be alleged that plaintiff has sustained or is in immediately in danger of sustaining some direct injury; the injury or threat of injury must be both real and immediate and not conjectural or hypothetical. U.S.C.A. Const. Art. 3, §1 et seq.If none of the named plaintiffs purporting to represent a class meets the case or controversy requirement, none may seek relief on behalf of himself or any member of the class. U.S.C.A. Const. Art. 3, §1 et seq.Past exposure to illegal conduct does not in itself show a present case or controversy requiring injunctive relief if unaccompanied by any continuing, present adverse effects. U.S.C.A. Const. Art. 3, §1 et seq.Past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury; however, allegation of past wrongs does not constitute that showing of real and immediate injury, i.e., an actual case or controversy, necessary before a federal court may assume jurisdiction. U.S.C.A. Const. Art. 3, §1 et seq.…no adequate basis for equitable relief had been stated since for a federal court to issue an injunction restraining such practices generally would constitute a major continuing intrusion of federal courts into daily conduct of state criminal proceedings; also, in view of conjectural nature of threatened injury, plaintiffs had failed to establish the basic requisites to issuance of equitable relief, i.e., likelihood of substantial and immediate irreparable injury and inadequacy of legal remedies. U.S.C.A. Const. Amends. 1, 6, 8, 13, 14; 18 U.S.C.A. §242; 42 U.S.C.A. §§1981-1983, 1985; S.H.A.Ill. Const. 1970, Art. 6, §15(e); S.H.A.Ill. ch. 38, §§114-5, 114-6.It is a basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.Principles of equity, comity, and federalism are important factors precluding issuance of an injunction by a federal court restraining state court proceedings.The judicially fashioned doctrine of official immunity does not reach so far as to immunize criminal conduct proscribed by an Act of Congress.Seventeen black and two white residents of Cairo, Illinois, brought a civil rights class action against petitioners, a magistrate and a circuit court judge, who allegedly engaged under color of state law, in a continuing pattern and practice of conduct consisting of illegal bond-setting, sentencing, and jury-fee practices in criminal cases, which assertedly deprived respondents and members of their class of their rights under the Constitution and 42 U.S.C. §§1981-1983, 1985. The District Court dismissed the action for want of jurisdiction to issue the injunctive relief sought and on the ground of judicial immunity. The Court of Appeals reversed, holding that issuance of injunctions against judicial officers was not forbidden if their conduct was intentionally racially discriminatory against a cognizable class of persons. Absent sufficient remedy at law, it was held that if respondents proved their allegations, the District Court should fashion appropriate relief to enjoin petitioners from depriving others of their constitutional rights while carrying out their judicial duties in the future. Held:1. The complaint fails to satisfy the threshold requirement of Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy, where none of the named plaintiffs is identified as himself having suffered any injury in the manner specified, the claim alleging injury is in only the most general terms, and there are no allegations that any relevant state criminal statute is unconstitutional on its face or as applied or that plaintiffs have been or will be improperly charged with violating criminal law.(a) If none of the named plaintiffs purporting to represent a class meets the case-or-controversy requirement, none may seek relief on behalf of himself or any other member of the class.(b) That requirement is not satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws.(c) Where it can only be speculated whether respondents will be arrested for violating an ordinance or state statute, particularly in the absence of allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct, and respondents have not pointed to any imminent prosecutions contemplated against them so that they do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.2. Even if the complaint were considered to present an existing case or controversy, no adequate basis for equitable relief has been stated.(a) The injunctive relief sought by respondents would constitute a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings, and would sharply conflict with recognized principles of equitable restraint, Younger v. Harris, 401 U.S. 37.(b) Respondents also failed to establish the basic requisites of the issuance of equitable relief - the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law - in view of the conjectural nature of the threatened injury to which respondents are allegedly subjected, and where there are available other procedures, both state and federal, which could provide relief.With respect to the petitioners, the county magistrate and judge, a continuing pattern and practice of conduct, under color of law, is alleged to have denied and to continue to deny the constitutional rights of respondents and members of their class in three respects: (1) petitioners set bond in criminal cases according to an unofficial bond schedule without regard to the facts of a case or circumstances of an individual defendant in violation of the Eighth and Fourteenth Amendments; (2) ‘on information and belief’ they set sentences higher and impose harsher conditions for respondents and members of their class than for white persons, and (3) they require respondents and members of their class when charged with violations of city ordinances which carry fines and possible jail penalties if the fine cannot be paid, to pay for a trial by jury in violation of the Sixth, Eighth, and Fourteenth Amendments. Each of these continuing practices is alleged to have been carried out intentionally to deprive respondents and their class of the protections of the county criminal justice system and to deter them from engaging in their boycott and similar activities. The complaint further alleges that there is no adequate remedy at law and requests that the practices be enjoined. No damages were sought against the petitioners in this case, nor were any specific instances involving the individually named respondents set forth in the claim against these judicial officers.The District Court dismissed the case for want of jurisdiction to issue the injunctive relief prayed for and on the ground that petitioners were immune from suit with respect to acts done in the course of their judicial duties. The Court of Appeals reversed, holding that Pierson v. Ray,?386 U.S. 547 (1967), on which the District Court relied, did not forbid the issuance of injunctions against judicial officers if it is alleged and proved that they have knowingly engaged in conduct intended to discriminate against a cognizable class of persons on the basis of race. Absent sufficient remedy at law, the Court of Appeals ruled that in the event respondents proved their allegations, the District Court should proceed to fashion appropriate injunctive relief to prevent petitioners from depriving others of their constitutional rights in the course of carrying out their judicial duties in the future. We granted certiorari. 411 U.S. 915 (1973).We reverse the judgment of the Court of Appeals. The complaint failed to satisfy the threshold requirement imposed by Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy. Flast v. Cohen,?392 U.S. 83 (1968); Jenkins v. McKeithen, 395 U.S. 411 (1969). Plaintiffs in the federal courts ‘must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.’ Linda R.S. v. Richard D.,?410 U.S. 614 (1973). There must be a ‘personal stake in the outcome’ such as to ‘assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ Baker v. Carr,?369 U.S. 186 (1962). Nor is the principle different where statutory issues are raised. Cf. United States v. SCRAP,?412 U.S. 669 (1973). Abstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct. Massachusetts v. Mellon,?262 U.S. 447 (1923). The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ Golden v. Zwickler,?394 U.S. 103 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co.,?312 U.S. 270 (1941); United Public Workers v. Mitchell,?330 U.S. 75 (1947). Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class. Bailey v. Patterson,?369 U.S. 31 (1962); Indiana Employment Division v. Burney,?409 U.S. 540 (1973). See 3B J. Moore, Federal Practice, 23.10-1, n. 8 (2d ed. 1971).In the complaint that began this action, the sole allegations of injury are that petitioners ‘have engaged in and continue to engage in, a pattern and practice of conduct...all of which has deprived and continues to deprive plaintiffs and members of their class of their’ constitutional rights and, again, that petitioners ‘have denied and continue to deny to plaintiffs and members of their class their constitutional rights’ by illegal bond-setting, sentencing, and jury-fee practices. None of the named plaintiffs is identified as himself having suffered any injury in the manner specified. In sharp contrast to the claim for relief against the State’s Attorney where specific instances of misconduct with respect to particular individuals are alleged, the claim against petitioners alleges injury in only the most general terms. At oral argument, respondents’ counsel stated that some of the named plaintiffs-respondents, who could be identified by name if necessary, had actually been defendants in proceedings before petitioners and had suffered from the alleged unconstitutional practices. Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. Neither the complaint nor respondents’ counsel suggested that any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial before petitioners. Indeed, if any of the respondents were then serving an assertedly unlawful sentence, the complaint would inappropriately be seeking relief from or modification of current, existing custody. See Preiser v. Rodriguez,?411 U.S. 475 (1973). Furthermore, if any were then on trial or awaiting trial in state proceedings, the complaint would be seeking injunctive relief that a federal court should not provide. Younger v. Harris,?401 U.S. 37 (1971); see also Part II. We thus do not strain to read inappropriate meaning into the conclusory allegations of this complaint.Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. Important to this assessment is the absence of allegations that any relevant criminal statute of the State of Illinois is unconstitutional on its face or as applied or that respondents have been or will be improperly charged with violating criminal law. If the statutes that might possibly be enforced against respondents are valid laws, and if charges under these statutes are not improvidently made or pressed, the question becomes whether any perceived threat to respondents is sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses, in which event they may appear before petitioners and, if they do, will be affected by the allegedly illegal conduct charged. Apparently, the proposition is that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. But it seems to us that attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture. See Younger v. Harris, at 41-42. The nature of respondents’ activities is not described in detail and no specific threats are alleged to have been made against them. Accepting that they are deeply involved in a program to eliminate racial discrimination in Cairo and that tensions are high, we are nonetheless unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws. We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.As in Golden v. Zwickler, we doubt that there is “sufficient immediacy and reality” to respondents’ allegations of future injury to warrant invocation of the jurisdiction of the District Court. There, ‘it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint.’ 394 U.S., at 109. Here we can only speculate whether respondents will be arrested, either again or for the first time, for violating a municipal ordinance or a state statute, particularly in the absence of any allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct. Cf. Perez v. Ledesma,?401 U.S. 82 (1971). Even though Zwickler attacked a specific statute under which he had previously been prosecuted, the threat of a new prosecution was not sufficiently imminent to satisfy the jurisdictional requirements of the federal courts. Similarly, respondents here have not pointed to any imminent prosecutions contemplated against any of their number and they naturally do not suggest that any one of them expects to violate valid criminal laws. Yet their vulnerability to the alleged threatened injury from which relief is sought is necessarily contingent upon the bringing of prosecutions against one or more of them. Under these circumstances, where respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.In Boyle v. Landry,?401 U.S. 77 (1971), the Court ordered a complaint dismissed for insufficiency of its allegations where there was no basis for inferring ‘that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner.’ The Court expressed the view that ‘the normal course of state criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the last analysis amount to nothing more than speculation about the future.’ A similar element of uncertainty about whether the alleged injury will be likely to occur is present in this case, and a similar reluctance to interfere with the normal operation of state administration of its criminal laws in the manner sought by respondents strengthens the conclusion that the allegations in this complaint are too insubstantial to warrant federal adjudication of the merits of respondents’ claim.The foregoing considerations obviously shade into those determining whether the complaint states a sound basis for equitable relief; and even if we were inclined to consider the complaint as presenting an existing case or controversy, we would firmly disagree with the Court of Appeals that an adequate basis for equitable relief against petitioners had been stated. The Court has recently reaffirmed the ‘basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.’ Younger v. Harris,?401 U.S. 37 (1971). Additionally, recognition of the need for a proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers engaged in the administration of the State’s criminal laws in the absence of a showing of irreparable injury which is “both great and immediate.” See Fenner v. Boykin,?271 U.S. 240 (1926); Douglas v. City of Jeannette,?319 U.S. 157 (1943). In holding that 42 U.S.C. §1983 is an act of Congress that falls within the ‘expressly authorized’ exception to the absolute bar against federal injunctions directed at state court proceedings provided by 28 U.S.C. §2283, the Court expressly observed that it did not intend to ‘question or quality in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding.’ Mitchum v. Foster,?407 U.S. 225 (1972). Those principles preclude equitable intervention in the circumstances present here.Respondents have failed, moreover, to establish the basic requisites of the issuance of equitable relief in these circumstances - the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. We have already canvassed the necessarily conjectural nature of the threatened injury to which respondents are allegedly subjected. And if any of the respondents are ever prosecuted and face trial, or if they are illegally sentenced, there are available state and federal procedures which could provide relief from the wrongful conduct alleged. Open to a victim of the discriminatory practices asserted under state law are the right to a substitution of judge or a change of venue, Ill.Rev.Stat., c. 38, §§114-5, 114-6 (1971), review on direct appeal or on postconviction collateral review, and the opportunity to demonstrate that the conduct of these judicial officers is so prejudicial to the administration of justice that available disciplinary proceedings, including the possibility of suspension or removal, are warranted. Ill.Const., Art. VI, §15(e). In appropriate circumstances, moreover, federal habeas relief would undoubtedly be available.Nor is it true that unless the injunction sought is available federal law will exercise no deterrent effect in these circumstances. Judges who would willfully discriminate on the ground of race or otherwise would willfully deprive the citizen of his constitutional rights, as this complaint alleges, must take account of 18 U.S.C. §242. See Greenwood v. Peacock, at 830; United States v. Price,?383 U.S. 787 (1966); United States v. Guest,?383 U.S. 745 (1966); Screws v. United States,?325 U.S. 91 (1945); United States v. Classic,?313 U.S. 299 (1941). Cf. Monroe v. Pape,?365 U.S. 167 (1961). That section provides:‘Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State...to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined...or imprisoned....’Whatever may be the case with respect to civil liability generally, see Pierson v. Ray,?386 U.S. 547 (1967), or civil liability for willful corruption, see Alzua v. Johnson,?231 U.S. 106 (1913); Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872), we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivation of constitutional rights. Cf. Ex parte Virginia,?100 U.S. 339 (1880). On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress....’ Gravel v. United States,?408 U.S. 606 (1972).Considering the availability of other avenues of relief open to respondents for the serious conduct they assert, and the abrasive and unmanageable intercession which the injunctive relief they seek would represent, we conclude that, apart from the absence of an existing case or controversy presented by respondents for adjudication, the Court of Appeals erred in deciding that the District Court should entertain respondents’ claim.Reversed.Mr. Justice BLACKMUN, concurring in part.I join the judgment of the Court and Part I of the Court’s opinion which holds that the complaint ‘failed to satisfy the threshold requirement imposed by Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy.’Mr. Justice Frankfurter stated the applicable principle in speaking for the Court in International Longshoremen’s & Warehousemen’s Union v. Boyd,?347 U.S. 222 (1954):‘On this appeal, appellee contends that the District Court should not have reached the statutory and constitutional questions - that it should have dismissed the suit for want of a ‘case or controversy,’ for lack of standing on the union’s part to bring this action,.... Since the first objection is conclusive, there is an end of the matter.’I would adhere to that principle. Either there is no case or controversy and that is the end of the matter, or there is a case or controversy and the Court may go on to a decision on the merits. In my view, the Court may not have it both ways.Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.This Court now decides for the first time in the course of this litigation that the complaint is deficient because it does not state a ‘case or controversy’ within the meaning of Art. III.The fact that no party has raised that issue in this closely contested case is no barrier, of course, to our consideration of it. But the reasoning and result reached by the Court are to say the least a tour de force and quite inconsistent with the allegations in the complaint, which are within constitutional requirements.As respects O’Shea, the Magistrate, and Spomer, the Circuit Judge, the charges concerning named plaintiffs are as follows:(1) That excessive bonds have been required in violation of the Eighth and Fourteenth Amendments because petitioners follow an unofficial bond schedule without regard to the facts of individual cases; (2) on information and belief, that petitioners set higher sentences and impose harsher conditions for respondents and members of their class than for white persons; (3) that, where the named plaintiffs have been fined and at times sentenced to jail and cannot pay the fines, these judges have required them to pay for a trial by jury.Moreover, the amended complaint alleges that O’Shea and Spomer ‘continue to engage in a pattern and practice’ which ‘has deprived and continues to deprive’ the named plaintiffs and members of their class of their constitutional rights. Moreover, it is alleged that since early in the 1960’s the blacks of Cairo and some whites have been actively and peaceably seeking to end discrimination in Cairo and that those activities have generated and continue to generate tension and antagonism in Cairo.It is also alleged that the police commissioner in Cairo ‘has denied and continues to deny to plaintiffs and members of their class their constitutional rights in the following ways:‘(a) Defendant has made or caused to be made or cooperated in the making of arrests and the filing of charges against plaintiffs and members of their class where such charges are not warranted and are merely for the purpose of harassment and to discourage and prevent plaintiffs and their class from exercising their constitutional rights.‘(b) Defendant has made or caused to be made or cooperated in the making of arrests and the filing of charges against plaintiffs and members of their class where there may be some colorable basis to the arrest or charge, but the crime defined in the charge is much harsher than is warranted by the facts and is far more severe than like charges would be against a white person.’These allegations support the likelihood that the named plaintiffs as well as members of their class will be arrested in the future and therefore will be brought before O’Shea and Spomer and be subjected to the alleged discriminatory practices in the administration of justice.These allegations of past and continuing wrongdoings clearly state a case or controversy in the Art. III sense. They are as specific as those alleged in Jenkins v. McKeithen,?395 U.S. 411, and in Doe v. Bolton,?410 U.S. 179, where we held that cases or controversies were presented.Specificity of proof many not be forthcoming; but specificity of charges is clear.What has been alleged here is not only wrongs done to named plaintiffs, but a recurring pattern of wrongs which establishes, if proved, that the legal regime under control of the whites in Cairo, Illinois, is used over and over again to keep the blacks from exercising First Amendment rights, to discriminate against them, to keep from the blacks the protection of the law in their lawful activities, to weight the scales of justice repeatedly on the side of white prejudices and against black protests, fears, and suffering. This is a more pervasive scheme for suppression of blacks and their civil rights than I have ever seen. It may not survive a trial. But if this case does not present a ‘case or controversy’ involving the named plaintiffs, then that concept has been so watered down as to be no longer recognizable. This will please the white superstructure, but it does violence to the conception of evenhanded justice envisioned by the Constitution.Suits under 42 U.S.C. §1983 are exceptions to the absolute bar against federal injunctions directed at state court proceedings provided in 28 U.S.C. §2283. See Mitchum v. Foster, 407 U.S. 225. It will be much more appropriate to pass on the nature of any equitable relief to be granted after the case has been tried. It may be that when the case is ended, no injunction against any state proceeding will be asked for or will seem appropriate. Or the injunctive relief in final analysis may come down to very narrow and discrete orders prohibiting precise practices. The Court labels this an ‘ongoing federal audit of state criminal proceedings.’ That of course is a regime that we do not foster. But the federal Constitution is supreme and if the power of the white power-structure in Cairo, Illinois, is so great as to disregard it, extraordinary relief is demanded. I would cross the bridge of remedies only when the precise contours of the problem have been established after a trial.To repeat, in the instant case, there are allegations that state lower-court judges are willfully discriminating in their sentencing determinations and are imposing excessive bail. The effects of such results may well persist quite aside from the disposition of the underlying substantive charges at trial or on appeal, and may well be functionally unreviewable. The Court of Appeals observed that the individual defendant in a criminal case will find it difficult, if not impossible, to obtain review of a sentence within statutory limits unless it is manifestly harsh or unjustified, citing the Illinois rule that ‘imposition of sentence is a matter of judicial discretion, and in the absence of a manifest abuse of that discretion it will not be altered by a reviewing court.’ People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527 (1967), cert. denied, 392 U.S. 910 (1968).There are seven statutes in addition to 42 U.S.C. §1983 which the Court has recognized constitute ‘express exceptions’ to the policy of nonintervention in state proceedings enunciated by the anti-injunction statute: (1) The Bankruptcy Act, 11 U.S.C. §1 et seq., specifically recognized by Congress as an exception to 28 U.S.C. §2283. See Mitchum v. Foster,?407 U.S. 225. (2) The Interpleader Act of 1936, 28 U.S.C. §2361, allowing federal courts to restrain prosecution of state court suits involving property involved in federal interpleader actions. See Treinies v. Sunshine Mining Co.,?308 U.S. 66. (3) The 1851 Act limiting the liability of ship owners by providing for the cessation of proceedings against them when they have made a deposit equal to the value of their ships with a federal court, 46 U.S.C. §185. See Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578. (4) The Frazier-Lemke Farm Mortgage Act, 11 U.S.C. §203(s)(2) (1958 ed.). See Kalb v. Feuerstein,?308 U.S. 433. (5) The Federal Habeas Corpus Act, 28 U.S.C. §2251, permitting a stay of state court proceedings when a federal habeas action is pending. See Ex parte Royall,?117 U.S. 241. (6) Section 205(a) of the Emergency Price Control Act of 1942, 56 Stat. 33. See Porter v. Dicken,?328 U.S. 252. (7) Legislation providing for the removal of litigation to federal courts and the simultaneous cessation of state court proceedings, 28 U.S.C. §1446(e). See French v. Hay, 22 Wall. 250, 22 L.Ed. 857.Footnotes:2.Title 28 U.S.C. §2283 provides that:‘A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.’UNITED STATES v. CALANDRA, 414 U.S. 338, 94 S.Ct. 613 (1974)MR. JUSTICE POWELL delivered the opinion of the Court.Grand jury may not force witness to answer questions in violation of constitutional guarantee and may override Fifth Amendment claim only if witness is granted immunity coextensive with privilege against self-incrimination. U.S.C.A. Const. Amend. 5.Grand jury may not compel person to produce books and papers that would incriminate him. U.S.C.A. Const. Amend. 5.Grand jury is without power to invade legitimate privacy interest protected by Fourth Amendment, and grand jury’s subpoena duces tecum will be disallowed if it is far too sweeping in terms to be regarded as reasonable under Fourth Amendment. U.S.C.A. Const. Amend. 4.Where grand jury seeks to exercise powers in violation of Fourth or Fifth Amendments, judicial supervision is properly exercised to prevent wrong before it occurs. U.S.C.A. Const. Amends. 4, 5; Fed. Rules Crim.Proc. Rule 17(c), 18 U.S.C.A.Purpose of rule excluding, at trial of criminal prosecution, illegally-seized evidence and fruits thereof is not to redress injury to privacy of such victim, but is primarily to deter future unlawful police conduct. U.S.C.A. Const. Amend. 4; Fed. Rules Crim.Proc. Rule 41(e), 18 U.S.C.A.Evidence obtained in violation of Fourth Amendment cannot be used in criminal proceeding against victim of illegal search and seizure, and prohibition applies to fruits of illegally-seized evidence as well as to the illegally-seized evidence itself. U.S.C.A. Const. Amend. 4; Fed. Rules Crim.Proc. Rule 41(e), 18 U.S.C.A.Standing to invoke rule excluding use of illegally-seized evidence in criminal trial is confined to situations where government seeks to use such evidence to incriminate victim of unlawful search. U.S.C.A. Const. Amend. 4; Fed. Rules Crim.Proc. Rule 41(e), 18 U.S.C.A.Grand jury questions based on evidence obtained from illegal search and seizure involve no independent governmental invasion of one’s person, house, papers or effects but are only derivative use of product of past unlawful search and seizure and are not fresh violation of witness’ constitutional rights. U.S.C.A. Const. Amend. 4; Fed. Rules Crim.Proc. Rule 41(e), 18 U.S.C.A.Ordinarily, a witness has no right of privacy before grand jury, and, though he may invoke Fifth Amendment privilege against compulsory self-incrimination, he may not decline to answer on grounds that his response might prove embarrassing or result in unwelcome disclosure of his personal affair. U.S.C.A. Const. Amends. 4, 5.Witness summoned to appear and testify before grand jury may not refuse to answer questions on ground that they are based on evidence obtained from unlawful search and seizure, and rule applies alike to evidence obtained during the course of unlawful search and seizure, and derivative use of such evidence, such as any question or evidence derived therefrom. U.S.C.A. Const. Amend. 4.Calandra later moved pursuant to Fed. Rule Crim.Proc. 41(e) for suppression and return of the seized evidence on the grounds that the affidavit supporting the warrant was insufficient, and that the search exceeded the scope of the warrant. On August 27, the District Court held a hearing at which Calandra stipulated that he would refuse to answer questions based on the seized materials. On October 1, the District Court entered its judgment ordering the evidence suppressed and returned to Calandra and further ordering that Calandra need not answer any of the grand jury’s questions based on the suppressed evidence. 332 F.Supp. 737 (1971). The court held that “due process...allows a witness to litigate the question of whether the evidence which constitutes the basis for the questions asked of him before the grand jury has been obtained in a way which violates the constitutional protection against unlawful search and seizure.” The court found that the search warrant had been issued without probable cause and that the search had exceeded the scope of the warrant.The Court of Appeals for the Sixth Circuit affirmed, holding that the District Court had properly entertained the suppression motion and that the exclusionary rule may be invoked by a witness before the grand jury to bar questioning based on evidence obtained in an unlawful search and seizure. 465 F.2d 1218 (1972). The offer to grant Calandra immunity was deemed irrelevant.We granted the Government’s petition for certiorari, 410 U.S. 925 (1973). We now reverse.The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country, the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by “a presentment or indictment of a Grand Jury.”?Cf. Costello v. United States,?350 U.S. 359 (1956). The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.?Branzburg v. Hayes,?408 U.S. 665 (1972).Traditionally, the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret, and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.“It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States,?250 U.S. 273?(1919).The scope of the grand jury’s powers reflects its special role in insuring fair and effective law enforcement. A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an?ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person. The grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged.?Branzburg v. Hayes?at?408 U.S. 700;?Costello v. United States?at?350 U.S. 364.In?Branzburg,?the Court had occasion to reaffirm the importance of the grand jury’s role:“[T]he investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen....”“The role of the grand jury as an important instrument of effective law enforcement necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it.... ‘When the grand jury is performing its investigatory function into a general problem area..., society’s interest is best served by a thorough and extensive investigation.’?Wood v. Georgia,?370 U.S. 375?(1962). A grand jury investigation ‘is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.’?United States v. Stone,?429 F.2d 138 (CA2 1970). Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors.?Costello v. United States, 350 U.S. at?362. It is only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made....”The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence,?Costello v. United States; Holt v. United States,?218 U.S. 245?(1910); or even on the basis of information obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination,?Lawn v. United States,?355 U.S. 339?(1958).The power of a federal court to compel persons to appear and testify before a grand jury is also firmly established.?Kastigar v. United States,?406 U.S. 441?(1972). The duty to testify has long been recognized as a basic obligation that every citizen owes his Government.?Blackmer v. United States,?284 U.S. 421 (1932); United States v. Bryan,?339 U.S. 323 (1950). In?Branzburg v. Hayes,?at?408 U.S. 682, the Court noted that “[c]itizens generally are not constitutionally immune from grand jury subpoenas...,” and that “the longstanding principle that?the public...has a right to every man’s evidence’...is particularly applicable to grand jury proceedings.” The duty to testify may on occasion be burdensome, and even embarrassing. It may cause injury to a witness’ social and economic status. Yet the duty to testify has been regarded as “so necessary to the administration of justice” that the witness’ personal interest in privacy must yield to the public’s overriding interest in full disclosure.?Blair v. United States,?250 U.S. at?281. Furthermore, a witness may not interfere with the course of the grand jury’s inquiry. He “is not entitled to urge objections of incompetency or irrelevancy, such as a party might raise, for this is no concern of his.” Nor is he entitled “to challenge the authority of the court or of the grand jury” or “to set limits to the investigation that the grand jury may conduct.”Of course, the grand jury’s subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law.?Branzburg v. Hayes; United States v. Bryan; Blackmer v. United States;?8 J. Wigmore, Evidence §§2290-2391 (McNaughton rev. ed.1961). Although, for example, an indictment based on evidence obtained in violation of a defendant’s Fifth Amendment privilege is nevertheless valid,?Lawn v. United States,?the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Rather, the grand jury may override a Fifth Amendment claim only if the witness is granted immunity coextensive with the privilege against self-incrimination.?Kastigar v. United States.?Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him.?Boyd v. United States,?116 U.S. 616 (1886).?Cf. Couch v. United States,?409 U.S. 322?(1973). The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury’s subpoena?duces tecum?will be disallowed if it is “far too sweeping in its terms to be regarded as reasonable” under the Fourth Amendment. Hale v. Henkel,?201 U.S. 43?(1906). Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs.In the instant case, the Court of Appeals held that the exclusionary rule of the Fourth Amendment limits the grand jury’s power to compel a witness to answer questions based on evidence obtained from a prior unlawful search and seizure. The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.?Weeks v. United States,?232 U.S. 383?(1914);?Mapp v. Ohio,?367 U.S. 643(1961). This prohibition applies as well to the fruits of the illegally seized evidence. Wong Sun v. United States,?371 U.S. 471?(1963);?Silverthorne Lumber Co. v. United States,?251 U.S. 385?(1920).The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim:“[T]he ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.” Linkletter v. Walker,?381 U.S. 618 (1965).Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures:“The rule is calculated to prevent, not to repair. Its purpose is to deter - to compel respect for the constitutional guaranty in the only effectively available way - by removing the incentive to disregard it.” Elkins v. United States,?364 U.S. 206 (1960).Accord, Mapp v. Ohio,?at?367 U.S. 656;?Tehan v. Schott,?382 U.S. 406 (1966);?Terry v. Ohio,?392 U.S. 1 (1968). In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The balancing process implicit in this approach is expressed in the contours of the standing requirement. Thus, standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search.?Brown v. United States,?411 U.S. 223?(1973);?Alderman v. United States,?394 U.S. 165?(1969);?Won Sun v. United States; Jones v. United States,?362 U.S. 257?(1960). This standing rule is premised on a recognition that the need for deterrence, and hence the rationale for excluding the evidence, are strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on the victim of the search.The purpose of the Fourth Amendment is to prevent unreasonable governmental intrusions into the privacy of one’s person, house, papers, or effects. The wrong condemned is the unjustified governmental invasion of these areas of an individual’s life. That wrong, committed in this case, is fully accomplished by the original search without probable cause. Grand jury questions based on evidence obtained thereby involve no independent governmental invasion of one’s person, house, papers, or effects, but rather the usual abridgment of personal privacy common to all grand jury questioning. Questions based on illegally obtained evidence are only a derivative use of the product of a past unlawful search and seizure. They work no new Fourth Amendment wrong. Whether such derivative use of illegally obtained evidence by a grand jury should be proscribed presents a question, not of rights, but of remedies.In the usual context of a criminal trial, the defendant is entitled to the suppression of not only the evidence obtained through an unlawful search and seizure, but also any derivative use of that evidence. The prohibition of the exclusionary rule must reach such derivative use if it is to fulfill its function of deterring police misconduct. In the context of a grand jury proceeding, we believe that the damage to that institution from the unprecedented extension of the exclusionary rule urged by respondent outweighs the benefit of any possible incremental deterrent effect. Our conclusion necessarily controls both the evidence seized during the course of an unlawful search and seizure and any question or evidence derived therefrom (the fruits of the unlawful search). The same considerations of logic and policy apply to both the fruits of an unlawful search and seizure and derivative use of that evidence, and we do not distinguish between them.MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.The Court holds that the exclusionary rule in search and seizure cases does not apply to grand jury proceedings because the principal objective of the rule is “to deter future unlawful police conduct,” and “it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.”This downgrading of the exclusionary rule to a determination whether its application in a particular type of proceeding furthers deterrence of future police misconduct reflects a startling misconception, unless it is a purposeful rejection, of the historical objective and purpose of the rule.The commands of the Fourth Amendment are, of course, directed solely to public officials. Necessarily, therefore, only official violations of those commands could have created the evil that threatened to make the Amendment a dead letter. But curtailment of the evil, if a consideration at all, was at best only a hoped-for effect of the exclusionary rule, not its ultimate objective. Indeed, there is no evidence that the possible deterrent effect of the rule was given any attention by the judges chiefly responsible for its formulation. Their concern as guardians of the Bill of Rights was to fashion an enforcement tool to give content and meaning to the Fourth Amendment’s guarantees. They thus bore out James Madison’s prediction in his address to the First Congress on June 8, 1789:“If they [the rights] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”1 Annals of Cong. 439 (1789). Since, however, those judges were without power to direct or control the conduct of law enforcement officers, the enforcement tool had necessarily to be one capable of administration by judges. The exclusionary rule, if not perfect, accomplished the twin goals of enabling the Judiciary to avoid the taint of partnership in official lawlessness and of assuring the people - all potential victims of unlawful government conduct - that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.That these considerations, not the rule’s possible deterrent effect, were uppermost in the minds of the framers of the rule clearly emerges from the decision which fashioned it:“The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law.... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures...should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights....”“This protection is equally extended to the action of the Government and officers of the law acting under it....?To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.” Weeks v. United States,?232 U.S. 383 (1914).Mr. Justice Brandeis and Mr. Justice Holmes added their enormous influence to these precepts in their notable dissents in?Olmstead v. United States,?277 U.S. 438?(1928). Mr. Justice Brandeis said:“In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”Thus, the Court seriously errs in describing the exclusionary rule as merely “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect....” Rather, the exclusionary rule is “part and parcel of the Fourth Amendment’s limitation upon [governmental] encroachment of individual privacy,”?Mapp v. Ohio,?367 U.S.?at 651, and “an essential part of both the Fourth and Fourteenth Amendments,” that “gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.”This?Mapp?summation crystallizes the series of decisions that developed the rule and with which today’s holding is plainly at war. For the first time, the Court today discounts to the point of extinction the vital function of the rule to insure that the Judiciary avoid even the slightest appearance of sanctioning illegal government conduct. This rejection of “the imperative of judicial integrity,”?Elkins v. United States,?364 U.S. 206?(1960), openly invites “[t]he conviction that all government is staffed by...hypocrites[, a conviction] easy to instill and difficult to erase.” Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255, 258 (1961). When judges appear to become “accomplices in the willful disobedience of a Constitution they are sworn to uphold,”?Elkins v. United States,?at?364 U.S. 223, we imperil the very foundation of our people’s trust in their Government on which our democracy rests. See?On Lee v. United States,?343 U.S. 747 (1952). The exclusionary rule is needed to make the Fourth Amendment something real; a guarantee that does not carry with it the exclusion of evidence obtained by its violation is a chimera. Moreover,“[I]nsistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.” Miller v. United States,?357 U.S. 301 (1958).Respondent does not seek vicariously to assert another’s Fourth Amendment rights. He himself has been the victim of an illegal search and desires “to mend no one’s privacy [but his] own.”?Gelbard v. United States,408 U.S. at?63. Respondent is told that he must look to damages to redress the concededly unconstitutional invasion of his privacy. In other words, officialdom may profit from its lawlessness if it is willing to pay a price.In?Mapp,?the Court thought it had “close[d] the only courtroom door remaining open to evidence secured by official lawlessness” in violation of Fourth Amendment rights. 367 U.S. at?654. The door is again ajar. As a consequence, I am left with the uneasy feeling that today’s decision may signal that a majority of my colleagues have positioned themselves to reopen the door still further and abandon altogether the exclusionary rule in search and seizure cases, for surely they cannot believe that application of the exclusionary rule at trial furthers the goal of deterrence, but that its application in grand jury proceedings will not “significantly” do so. Unless we are to shut our eyes to the evidence that crosses our desks every day, we must concede that official lawlessness has not abated, and that no empirical data distinguishes trials from grand jury proceedings. I thus fear that, when next we confront a case of a conviction rested on illegally seized evidence, today’s decision will be invoked to sustain the conclusion in that case also, that “it is unrealistic to assume” that application of the rule at trial would “significantly further” the goal of deterrence - though, if the police are presently undeterred, it is difficult to see how removal of the sanction of exclusion will induce more lawful official conduct.The exclusionary rule gave life to Madison’s prediction that “independent tribunals of justice...will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” 1 Annals of Cong. 439 (1789). We betray the trust upon which that prediction rested by today’s long step toward abandonment of the exclusionary rule. The observations of a recent commentator highlight the grievous error of the majority’s retreat:“If constitutional rights are to be anything more than pious pronouncements, then some measurable consequence must be attached to their violation. It would be intolerable if the guarantee against unreasonable search and seizure could be violated without practical consequence. It is likewise imperative to have a practical procedure by which courts can review alleged violations of constitutional rights and articulate the meaning of those rights. The advantage of the exclusionary rule - entirely apart from any direct deterrent effect -is that it provides an occasion for judicial review, and it gives credibility to the constitutional guarantees. By demonstrating that society will attach serious consequences to the violation of constitutional rights, the exclusionary rule invokes and magnifies the moral and educative force of the law. Over the long term, this may integrate some Fourth Amendment ideals into the value system or norms of behavior of law enforcement agencies.” Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 756 (1970).?See also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1562-1563 (1972).Footnotes:4. The grand jury is subject to the court’s supervision in several respects.?See Brown v. United States,?359 U.S. 41 (1959); Fed. Rules Crim.Proc. 6 and 17; 1 L. Orfield, Criminal Procedure Under the Federal Rules §6:108, pp. 475-477 (1966). In particular, the grand jury must rely on the court to compel production of books, papers, documents, and the testimony of witnesses, and the court may quash or modify a subpoena on motion if compliance would to “unreasonable or oppressive.” Fed. Rule Crim.Proc. 17(c).9. At oral argument, counsel for respondent stated the contention as follows:“I submit to the Court that each question asked of the Respondent before the Grand Jury, which question was only asked because of a past violation of the Fourth Amendment, [amounts to] a new, immediate violation of the Fourth Amendment.... [A] question derived from a past violation, a question into the privacy of the witness amounts to another intrusion in violation of the Fourth Amendment.”“[R]efusing to answer a question in which the question conceivably is derived from a past violation of the Fourth Amendment gives rise to an additional or new Fourth Amendment right to resist answering that question, because the question itself becomes an additional intrusion....”BLUE, et al. v. CRAIG, et al., 505 F.2d 830 (1974)DONALD RUSSELL, Circuit Judge.Even where a complainant has incorrectly planted his case on one federal right, he is still entitled to maintain his action if jurisdiction can be sustained on any ground appearing in the record.Claim that state plan for medical assistance deprived recipients of medical assistance allegedly secured to them by the Social Security Act and regulations set forth at least a colorable claim of denial of equal protection for purpose of predicating jurisdiction on statute granting District Courts jurisdiction of any action to redress the deprivation of any rights secured by the Constitution of the United States. Social Security Act, §1902 et seq., 42 U.S.C.A. §1396a et seq.; G.S.N.C. §§108-59 to 108-61.1; 28 U.S.C.A. §§1331, 1343(3, 4), 2201, 2202; 42 U.S.C.A. §1983.A colorable claim of denial of equal protection is all that is required for jurisdiction under statute granting District Courts jurisdiction of any action to redress the deprivation of any rights secured by the Constitution of the United States. U.S.C.A. Const. Amend. 14; 28 U.S.C.A. §1343(3); 42 U.S.C.A. §1983.The plaintiffs are all residents of Durham, North Carolina, and certified as eligible for medical assistance under the North Carolina Medical Assistance Program, as established by the State of North Carolina in cooperation with the federal government under the terms of the Social Security Act. They sue not only individually but also on behalf of the entire class of recipients similar in interest to them.Federal jurisdiction of the action was asserted under §1983, 42 U.S.C., and §§1331, 1343(3) and 1343(4), 28 U.S.C. and §§2201, 2202, 28 U.S.C. Of its own motion, the District Court suggested dismissal of the action for failure to state a claim cognizable under §1983. After a hearing on that motion, the District Court dismissed the action, ‘insofar as §1983 is relied upon to maintain this suit.’ It likewise found want of jurisdiction on the alternative ground under §1331 by reason of the absence of the jurisdictional amount. The plaintiffs have appealed from this dismissal. We reverse.The primary theory on which the plaintiffs predicated their federal right of action and which the District Court disallowed was that their action itself was authorized by §1983, 42 U.S.C. and that jurisdiction of that action in turn was conferred by §§1343(3) and (4), 28 U.S.C., for which there is no jurisdictional amount requirement. Numerous authorities may be cited in support of the availability of §1983 as a vehicle for redress of violations of rights guaranteed by the Social Security Act. Edelman v. Jordan,?415 U.S. 651(1974); Hagans v. Lavine,?415 U.S. 528(1974); California Human Resources Dept. v. Java,?402 U.S. 121(1971); Rosado v. Wyman,?397 U.S. 397(1970); Goldberg v. Kelly,?397 U.S. 254(1970); Dandridge v. Williams,?397 U.S. 471(1970); King v. Smith,?392 U.S. 309(1968); Damico v. California,?389 U.S. 416(1967); Anderson v. Graham,?492 F.2d 986(8th Cir. 1973); Gilliard v. Craig, 331 F.Supp. 587, aff’d 409 U.S. 807(D.C.N.C.1971); Roselli v. Affleck, 373 F.Supp. 36(D.C.R.I.1974); Bass v. Rockefeller, 331 F.Supp. 945(D.C.N.Y.1971), vacated on other grounds,?464 F.2d 1300(2 Cir.); Ojeda v. Hackney, 319 F.Supp. 149(D.C.Tex.1970), vacated on other grounds,?452 F.2d 947(5th Cir.). Such cases have, however, generally involved claims of constitutional deprivations, and the District Court held in this case that the availability of §1983 as a basis for an action such as this extends only to situations where the claim is constitutionally based. Specifically, it held §1983 does not afford a right of action on account of a deprivation under ‘color’ of a state statute or regulation of a right based merely on a federal statute. Since, under its construction of the complaint, the plaintiffs stated no constitutional deprivation as a basis for their cause of action but had rested their action entirely on the claim that the state regulation in question was simply inconsistent with the federal statute, it concluded that the plaintiffs were without any rights under §1983. For the reasons hereafter given, we are not certain the complaint should be so narrowly construed as premising plaintiffs’ cause of action wholly on inconsistency of state regulation and federal law and as not presenting constitutional issues. Accepting, however, for the moment the premise that plaintiffs’ action poses only a claim of an infringement by a state regulation on a right conferred merely by federal ‘law,’ we disagree with the conclusion reached by the District Court.This conclusion that §1983 authorizes actions brought ‘to provide protection of rights, privileges, or immunities secured by federal law’ has been recognized and applied in a number of well-reasoned federal decisions. The first decision to give it such application was Bomar v. Keyes, 162 F.2d 136 (2d Cir. 1947), cert. denied, 332 U.S. 825, reh. denied, 332 U.S. 845, in which Judge Learned Hand put the matter tersely:‘…Although the books are full of cases under that statute concerning deprivation of rights and privileges, secured by the Constitution, we have been unable to find any in which the right or privilege at stake was secured by a ‘law’ of the United States. Nevertheless the language is so plain that the only question is whether this particular ‘law’ secured to the plaintiff a ‘privilege.”The same conclusion was reached in Gomez v. Florida State Employment Service,?417 F.2d 569(5th Cir. 1969), a case strongly disapproved in Wynn. There, the Court declared that, ‘It is true that §1983 has quite often been used as a means of protecting constitutionally guaranteed rights, particularly in the area of equal protection of the Negro. But the language of this civil rights statute is broad: it is a violation of the statute to transgress ‘any rights, privileges, or immunities secured by the Constitution and laws’ of the United States. …Moreover, the Supreme Court in Peacock v. City of Greenwood,?384 U.S. 808 (1964), clearly indicated that §1983 was applicable when statutory, as well as, constitutional ‘rights, privileges and immunities’ were involved.’ And Anderson v. Graham, 492 F.2d 986, though it does not discuss the point, represents a judicial recognition of the same construction of §1983, since the basis of the right of action, upheld in that case, was the same as that here, i.e., a claim that a state AFDC regulation violated the federal law. See, to the same effect: Giguere v. Affleck, 370 F.Supp. 154 (D.C.R.I.1974), Roselli v. Affleck, 373 F.Supp. at 39, and Bass v. Rockefeller, 331 F.Supp. at 949. We accordingly have no difficulty in resolving that this action, which seeks to invalidate a state-wide regulation alleged to deprive the plaintiffs of civil rights given them by the Social Security Act, even if regarded as being wholly statutorily-based, qualifies under §1983.But §1983, while providing a substantive right of action, is not a jurisdictional statute. The ‘jurisdictional counterpart’ for §1983 was traditionally §1343(3), 28 U.S.C., though jurisdiction has recently been enlarged by §1343(4). To establish jurisdiction in this case, without satisfying the requirement for jurisdictional amount, the plaintiffs must meet the standards for qualification under §1983 and either §1343(3) or §1343(4)-or both. Since §1343(4) was only enacted in 1957, we shall first deal with jurisdiction in terms of §1343(3), since for almost eighty years, §1343(3), in one form or another, was regarded as the proper jurisdictional counterpart for §1983. The two initial provisions-the substantive and the jurisdictional provisions - were initially parts of a single act, the Civil Rights Act of 1871, a single act which gave both a right of action and a grant of federal jurisdiction over that action. 17 Stat. 13. As one commentator has remarked, ‘…the parent statute of §1983 and §1343(3) did not create new substantive rights; rather, by providing a private cause of action at law or in equity in the federal courts, the 1871 Act created an enforcement mechanism to secure the equal rights and equal protection of the laws granted by the Fourteenth Amendment.’ Herzer, Federal Jurisdiction Over Statutorily-Based Welfare Claims, 6 Harv.Civ. Rights-Civ. Liberties L.Rev. 1, 5 (1970). And the grant of jurisdiction provided by this original Act was as broad and extensive as the cause of action granted thereby. Thus, to such extent as the statute gave a right of action it conferred full federal jurisdiction for the vindication of that right of action.In the 1875 revision, however, the 1871 Act was separated into substantive and jurisdictional provisions. The substantive part of the statute is now codified as §1983, 42 U.S.C. and the jurisdictional part as §1343(3), 28 U.S.C. But such separation into distinct sections was not intended to alter in any way the inter-relation of the two sections, as they had previously existed in the original Act; the substantive and jurisdictional sections were still intended to be co-extensive, just as they had been initially. No other construction can be placed on the explanatory language as used by the Reviser in discussing the rearrangement of the two sections. And this was indisputably the case in connection with jurisdiction conferred on the District Courts in this 1875 revision. The jurisdictional statute as it related to actions under the substantive act in District Courts, under this 1875 revision, ‘was identical in scope with the expanded substantive provision’ itself (i.e., §1983). Such misunderstanding as there is in the construction of §1343(3) had its genesis, however, in the provision for concurrent jurisdiction in the circuit courts over an action under the substantive provision, as provided in this 1875 revision. In this jurisdictional section covering circuit courts, the violations which would support jurisdiction were defined as those deprivations which were violative of the Constitution or laws ‘providing for equal rights.’ Even though there was this difference in the language of the two jurisdictional sections, with the District Court section being ‘identical’ with the substantive provision and with the circuit court section including the additional phrase ‘providing for equal rights’, there is no indication that, by such difference, with one jurisdictional statute referring to ‘civil rights’ and the other to ‘equal rights’, the Congress intended to make the jurisdiction in either the district or the circuit court over an action under §1983 any less than the full scope of the substantive provision itself and it perceived, it would seem, no difference in the actual application of the two jurisdictional sections, so far as §1983 was concerned.Nor does it seem that too much significance should be accorded the use of the phrase ‘equal rights’ in the circuit court jurisdictional statute. The term “equal protection’…had no significant history prior to incorporation in the Fourteenth Amendment’, and, in its incorporation in that Amendment, it ‘was given ‘only general attention’ by the Congress.’ Note, Development in the Law - Equal Protection, 82 Harv.L.Rev. 1065, 1068 (1969). It was, in fact, a general term used to characterize all the post-war Civil Rights Statutes, including what is now §1983, and it was in this sense it was used - as a reference broadly by way of identification to all the enforcing legislation enacted to give effect to what was often spoken of as the ‘Equal Rights Amendment.’ This point was persuasively put in Herzer, Federal Jurisdiction Over Statutorily-Based Welfare Claims, 6 Harv. Civil Rights - Civil Liberties L.Rev. 1, 7-8 (1970):‘…in the process of codification and reorganization of §1983 and §1343(3), no clear congressional intent that the scope of §1343(3) should be narrower than the reach of §1983 ever appeared. The crucial ‘equal rights’ language did not appear until the general revision of 1875, which made no substantive changes in the Act of 1871 but merely separated its substantive and jurisdictional provisions. Since the phrase was placed in a jurisdictional subsection, the equal rights language appears to have been employed solely to refer to the estranged substantive sections of the Ku Klux Klan Act rather than to limit the scope of the substantive provisions. Because the Fourteenth Amendment was originally intended to secure ‘equal rights’ to emancipated blacks, it is understandable that the revisors would use this wording to refer to the displaced substantive provisions which had been enacted to enforce the Amendment. It seems illogical to infer from this history that Congress intended to limit substantially the scope of §1983 by restricting its jurisdictional counterpart, §1343(3), or to create causes of action under §1983 for which it excluded jurisdiction under §1343(3). Instead of constricting the operation of §1343(3), the equal rights phrase should be interpreted to refer this jurisdictional section back to its substantive and coextensive partner. Since §1983 has been expanded well beyond equal rights cases, the scope of §1343(3) should be similarly extended.’‘…Section 1983 grants jurisdiction without regard to the amount in controversy when there is an unconstitutional infringement on individual rights (e.g., speech, liberty, vote, press, religion) incapable of monetary valuation. …It would appear that the limited exception to the amount in controversy requirement remaining in 42 U.S.C. §1983 which consists of suits under the Civil Rights Act of 1871 does not extend to suits involving solely money claims not related to violation of civil rights.’ McCall v. Shapiro, 416 F.2d at 250.It has been assumed up to this point that the claim of the plaintiffs rested entirely on an inconsistency between the state regulation and the controlling federal law and that it presented no constitutional ‘overtones.’ Of course, if such a claim does present a constitutional issue, all the authorities agree that jurisdiction may be predicated on §1343(3). See, New York Dept. of Social Services v. Dublino,?413 U.S. 405(1973); Aguayo v. Richardson, 473 F.2d at 1102. In Townsend v. Swank,?404 U.S. 282(1971), the Court, construing the earlier decision of King v. Smith, 392 U.S. 309 said that ‘a state eligibility standard that excludes persons eligible for assistance, under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.’ This language of Townsend was quoted approvingly in Carleson v. Remillard,?406 U.S. 598(1972), in which the Court also cited with approval Stoddard v. Fisher, 330 F.Supp. 566 (D.C.Me.1971), which found in a welfare case a constitutional violation ‘under the Supremacy Clause.’ In Dublino v. New York State Department of Social Serv., 348 F.Supp. 290 (D.C.N.Y.1972), rev.,?413 U.S. 405, the Court, in sustaining jurisdiction under §1343(3) over a claim of conflict between federal and state welfare laws, as one arising under the Constitution, said:‘In King v. Smith,?392 U.S. 309 (1968), Townsend v. Swank, 404 U.S. 282 (1971) and Carleson v. Remillard,?406 U.S. 598 (1972), the Court held that ‘a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.”And in the recent case of Hagans v. Lavine, 415 U.S. 533, the Court recognizes the argument that a conflict between federal and state law in the administration of the welfare provisions of the Social Security Act may be ‘itself a constitutional matter within the meaning of §1343(3)’, though it left the resolution of the argument ‘for another day.’ It observed, however, that ‘when we have previously determined that state AFDC laws do not conform with the Social Security Act of HEW regulations, they have been invalidated under the Supremacy Clause. See Townsend v. Swank,?404 U.S. 282 (1971).’ It, also, noted that Swift & Co. v. Wickham,?382 U.S. 111(1965), had assumed ‘that a suit to have a state statute declared void and to secure the benefits of the federal statute with which the state law is allegedly in conflict cannot succeed without ultimate resort to the Federal Constitution’ to be sure, any determination that a state statute is void for obstructing a federal statute does rest in the Supremacy Clause of the Federal Constitution.” Despite its reservation of decision, the Court by this language in its opinion, it would seem, has pointed inescapably to the conclusion ‘that the ‘secured by the Constitution’ language of §1343(3) should not be construed to exclude Supremacy Clause issues’ and that a claim that a state statute or regulation is inconsistent with federal law poses a constitutional issue under the Supremacy Clause, jurisdictionally cognizable under §1343(3). This is such a case. It is true, the plaintiffs have not invoked in haec verba the Supremacy Clause in aid of jurisdiction but they have plead the facts that make out a violation of that constitutional provision. By alleging that the state regulation is inconsistent with the controlling federal statute, they have plead all that is required under our liberal form of pleading to make the constitutionality of the regulation an issue. As the Court in Williams v. United States,?405 F.2d 951(9th Cir. 1969), citing in support Schwarz v. United States,?191 F.2d 618(4th Cir. 1951), put it, ‘If facts giving the court jurisdiction are set forth in the complaint the provision conferring jurisdiction need not be specifically pleaded.’ After all, ‘It is well settled that the recitation of a statute can neither deprive a court of jurisdiction nor confer jurisdiction upon it.’ Beeler v. United States,?338 F.2d 687(3d Cir. 1964). Even where a complainant has incorrectly planted his case on one federal right, he is still entitled to maintain his action if jurisdiction can be sustained on any other ground appearing in the record. Blanchard v. Terry & Wright, Inc.,?331 F.2d 467(6th Cir. 1964), cert. denied, 379 U.S. 831. And even were this not so, it would be inequitable and unjust to dismiss on jurisdictional grounds this action without giving the plaintiffs an opportunity to amend their complaint to set forth in formal terms the constitutional issue. That right is given them by §1653, 28 U.S.C.Nor, for that matter, is it clear that this case does not present an ‘equal rights’ case, as that term has come to be interpreted. In Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv.L.Rev. 1486, 1496 (1969), the author states:‘If by state action a class has been deprived of federal rights, or an individual so deprived on account of his membership in a class, there will probably have been a denial of equal protection of the laws.’It is argued, too, that jurisdiction exists under §1331, 28 U.S.C. Since we have found jurisdiction clearly to exist under both §1343(3) and §1343(4), 28 U.S.C., it is unnecessary to consider this additional jurisdictional ground. We, of course, intimate no views on the merits of plaintiffs’ claim but remand the cause to the District Court for the resolution of that issue.Reversed and remanded.Footnotes:9. See, Hagans v. Lavine, 415 U.S. at 535: ‘By its terms, §1983 embraces petitioners’ claims that the challenged regulation enforced by respondent state and county welfare officials deprives them of a right ‘secured by the Constitution and laws,’ viz., the equal protection of the laws. But the federal cause of action created by the section does not by itself confer jurisdiction upon the Federal District Courts to adjudicate these claims.’Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Col.L.Rev. at 1407: ‘…It is important to recognize that §1983 does not in itself confer federal jurisdiction; rather, it merely creates a cause of action. Section 1983 is a functional prerequisite to establishing jurisdiction under §1343(3) and, for analytical purposes, is treated independently.’16. Cf., People of State of New York v. Galamison,?342 F.2d 255(2d Cir. 1965), cert. denied, 380 U.S. 977: “‘It should be noted that the Civil Rights Act of 1870 was considered the first enforcement act (entitled ‘An Act to enforce the Right of Citizens of the United States to vote in the Several States of the Union and for other Purposes’) and the Civil Rights Act of 1871 considered the second enforcement act; this would support the tendency to view them together, as the members of the same class’ any law providing for equal rights.”20. This same Circuit in Bomar v. Keyes, 162 F.2d 136, had no difficulty in reaching what amounted to a contrary conclusion, though Judge Learned Hand, in Bomar, apparently thought so little of the jurisdictional objection based on §1343(3) that he did not even advert to it in his opinion but assumed that the jurisdictional provision under §1343(3) was ‘identical’ with the reach of §1983 itself.See, however, McGuire v. Amrein, 101 F.Supp. 414 (D.C.Md.1951), which also would take the strict lexicographer’s view of the term ‘equal rights’ in §1343(3) rather than recognizing that the phrase ‘is always a notion of many shades and connotations,’ to be defined in its historical setting, as a general reference to all the enforcing statutes adopted under the Fourteenth Amendment. Note, 82 Harv.L.Rev. 1065, 1160 (1969).DISTRICT OF COLUMBIA v. CARTER, 409 U.S. 418, 93 S.Ct. 602 (1973)MR. JUSTICE BRENNAN delivered the opinion of the Court.Civil rights statute dealing only with those deprivations of rights that are accomplished under the color of the law of “any State or Territory” does not reach purely private conduct and, with the exception of the Territories, actions of the Federal Government and its officers are at least facially exempt from its proscriptions. 42 U.S.C.A. §1983.On February 12, 1969, respondent filed this civil action in the United States District Court for the District of Columbia alleging that, in 1968, Police Officer John R. Carlson of the Metropolitan Police Department of the District of Columbia arrested him without probable cause and, while he was being held by two other officers, beat him with brass knuckles. The complaint alleged further that Carlson’s precinct captain, the chief of police, and the District of Columbia each had negligently failed to train, instruct, supervise, and control Carlson with regard to the circumstances in which an arrest may be made and the extent to which various degrees of force may be used to effect an arrest. Respondent sought damages against each defendant upon several theories, including a common law theory of tort liability and an action for deprivation of civil rights pursuant to 42 U.S.C. §1983, which provides:“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”The situation is wholly different, however, with respect to §1983. Unlike §1982, which derives from the Civil Rights Act of 1866, §1983 has its roots in §1 of the Ku Klux Klan Act of 1871, Act of Apr 20, 1871, §1, 17 Stat. 13. This distinction has great significance, for, unlike the 1866 Act, which was passed as a means to enforce the Thirteenth Amendment, the primary purpose of the 1871 Act was “to enforce the Provisions of the Fourteenth Amendment.” 17 Stat. 13;?see, e.g., Lynch v. Household Finance Corp.,?405 U.S. 538 (1972);?Monroe v. Pape,?365 U.S. 167 (1961);?see also?Cong. Globe, 42 Cong., 1st Sess., App. 68, 80, 83-85. And it has long been recognized that “[d]ifferent problems of statutory meaning are presented by two enactments deriving from different constitutional sources.?See?the?Civil Rights Cases,?109 U.S. 3.?Compare?Williams,?341 U.S. 70,?with Screws v. United States,?325 U.S. 91.” Monroe v. Pape,?365 U.S. at 205.In contrast to the reach of the Thirteenth Amendment, the Fourteenth Amendment has only limited applicability; the commands of the Fourteenth Amendment are addressed only to the State or to those acting under color of its authority.?See Civil Rights Cases; United States v. Harris,?106 U.S. 629?(1883);?United States v. Cruikshank,?92 U.S. 542?(1876). The Fourteenth Amendment itself “erects no shield against merely private conduct, however discriminatory or wrongful.” Shelley v. Kraemer,?334 U.S. 1 (1948);?see also United States v. Price, 383 U.S. 787?(1966);?Evans v. Newton,?382 U.S. 296?(1966);?Hodges v. United States,?203 U.S. 1?(1906). Similarly, actions of the Federal Government and its officers are beyond the purview of the Amendment. And since the District of Columbia is not a “State” within the meaning of the Fourteenth Amendment,?see Bolling v. Sharpe,?347 U.S. 497 (1954);?Shelley v. Kraemer,?at?334 U.S. 8;?Wight v. Davidson,?181 U.S. 371 (1901), neither the District nor its officers are subject to its restrictions.Any analysis of the purposes and scope of §1983 must take cognizance of the events and passions of the time at which it was enacted. After the Civil War ended in 1865, race relations in the South became increasingly turbulent. The Ku Klux Klan was organized by southern whites in 1866, and a wave of murders and assaults was launched against both blacks and Union sympathizers. Thus, at the opening of the 42d Congress, considerable apprehension was expressed by Republicans about the insecurity of life and property in the South, and on March 23, 1871, President Grant sent a message to Congress requesting additional federal legislation to curb this rising tide of violence. Such legislation was deemed essential in light of the inability of the state governments to control the situation. Five days later, Congressman Shellabarger of Ohio introduced the bill that eventually was to become the Ku Klux Klan Act of 1871.Although there are threads of many thoughts running through the debates on the 1871 Act, it seems clear that §1 of the Act, with which we are here concerned, was designed primarily in response to the unwillingness or inability of the state governments to enforce their own laws against those violating the civil rights of others. Thus, while the Klan itself provided the principal catalyst for the legislation, the remedy created in §1 “was not a remedy against [the Klan] or its members but against those who, representing a State in some capacity, were?unable?or?unwilling?to enforce a state law.”?Monroe v. Pape,?365 U.S. at?175. Senator Pratt of Indiana summarized this concern when he said:“[O]f the hundreds of outrages committed upon loyal people through the agency of this Ku Klux organization, not one has been punished. This defect in the administration of the laws does not extend to other cases. Vigorously enough are the laws enforced against Union people. They only fail in efficiency when a man of known Union sentiments, white or black, invokes their aid. Then Justice closes the door of her temples.”Similarly, Congressman Hoar of Massachusetts stated:“Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection.”To the Reconstruction Congress, the need for some form of federal intervention was clear. It was equally clear, however, that Congress had neither the means nor the authority to exert any direct control, on a day-to-day basis, over the actions of state officials. The solution chosen was to involve the Federal Judiciary. At the time this Act was adopted, it must be remembered, there existed no general federal question jurisdiction in the lower federal courts. Rather, “Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws.” Zwickler v. Koota,?389 U.S. 241 (1967). With the growing awareness that this reliance had been misplaced, however, Congress recognized the need for original federal court jurisdiction as a means to provide at least indirect federal control over the unconstitutional actions of state officials. Congressman Coburn explained:“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 or bad passions or terror more easily.... We believe that we can trust our United States courts, and we propose to do so.”The District of Columbia, on the other hand, “is an exceptional community...established under the Constitution as the seat of the National Government.”?District of Columbia v. Murphy,?314 U.S. 441?(1941). As such, it “is as lasting as the States from which it was carved or the union whose permanent capital it became.” O’Donoghue v. United States,?at?289 U.S. 538. Indeed, it is “the very heart-of the Union itself, to be maintained as the ‘permanent’ abiding place of all its supreme departments, and within which the immense powers of the general government were destined to be exercised....” Unlike either the States or Territories, the District is truly?sui generis?in our governmental structure.With this unique status of the District of Columbia in mind, and in the absence of any indication in the language, purposes, or history of §1983 of a legislative intent to include the District within the scope of its coverage, the conclusion is compelled that the Court of Appeals erred in holding that the District of Columbia constitutes a “State or Territory” within the meaning of §1983. Just as “[w]e are not at liberty to seek ingenious analytical instruments” to avoid giving a congressional enactment the broad scope its language and origins may require,?United States v. Price,?383 U.S. at?801, so too are we not at liberty to recast this statute to expand its application beyond the limited reach Congress gave it. This is not to say, of course, that a claim, such as a possible claim against Officer Carlson, of alleged deprivation of constitutional rights is not litigable in the federal courts of the District.?See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,?403 U.S. 388?(1971);?Bell v. Hood, 327 U.S. 678?(1946). But insofar as the judgment of the Court of Appeals sustaining respondent’s claims rested on §1983, that judgment must be, and is, Reversed.Footnotes:1. Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, §1, 17 Stat. 13, Rev.Stat. §1979, 42 U.S.C. §1983.2. Officer Carlson was never found for service of process. The precinct captain and police chief moved to dismiss the complaint on the ground that it failed to state a claim for which relief could be granted. Their supporting memorandum argued that no tort on their part had been committed, and that, in any event, they were protected by the doctrine of official immunity. The District of Columbia moved to dismiss the complaint for failure to state a claim, and also on the ground of sovereign immunity.13. For an appreciation of the nature and character of the Ku Klux Klan as it appeared to Congress in 1871,?see?S.Rep. No. 1, 42d Cong., 1st Sess. (1871), and the voluminous report of the Joint Select Committee to inquire into the Condition of Affairs in the late Insurrectionary States, published as S.Rep. No. 41, pts. 1-13 and H.R.Rep. No. 22, pts. 1-13, 42d Cong., 2d Sess. (1872).25. The District of Columbia police system, for example, was operated under the direction of a board of five commissioners appointed by the President with the advice and consent of the Senate. The statutes creating the metropolitan police system established a network of regulations and reporting requirements that enabled the Federal Government to keep a watchful eye over police conduct.?See?Act of Aug. 6, 1861, 12 Stat. 320; Act of July 16, 1862, 12 Stat. 578.Respondent seeks to make much of the fact that, in 1871, Congress established a “territorial” form of government for the District of Columbia, with a governor and legislative assembly, to which the general administration of the affairs of the District was committed. Act of Feb. 21, 1871, 16 Stat. 419. In light of this development, respondent argues, Congress must have intended the word “Territory” in §1 of the Ku Klux Klan Act to include the District of Columbia. What respondent apparently overlooks, however, is that, on June 20, 1874, the very day that the phrase “or Territory” was formally enacted into the revised version of §1 of the Ku Klux Klan Act,?Congress also abolished the “territorial” form of government in the District and, in its stead, authorized the President, with the advice and consent of the Senate, to appoint a commission of three members to exercise the power previously vested in the governor and assembly. Act of June 20, 1874, c. 337, 18 Stat. 116.26. Article IV, §3, cl. 2, provides:“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States....”GRAVEL v. UNITED STATES, 408 U.S. 606, 92 S.Ct. 2614 (1972)Opinion of the Court by MR. JUSTICE WHITE, announced by MR. JUSTICE BLACKMUN.Implicit in the narrow scope of the privilege of freedom of arrest is the judgment that members of Congress ought not to stand above the law they create but ought generally to be bound by it as our ordinary persons. U.S.C.A. Const. Art. 1, §6, cl. 1.Neither members of Congress nor their aides are immune from liability or questioning if they executed an invalid resolution by themselves caring out an illegal arrest, or if, in order to secure information for hearing, they seized the property or invade the privacy of a citizen. U.S.C.A. Const. Art. 1, §6, cl. 1.Claim of privilege under the “Speech or Debate Clause” by an aide of member of Congress can be repudiated and thus waived by the member of Congress. U.S.C.A. Const. Art. 1, §6, cl. 1.The privilege under the “Speech or Debate Clause” is the privilege of the Senator, and invokable only by the Senator or by his aid on the Senator’s behalf and, in all events, the privilege available to the aid is confined to those services that would be immune legislative conduct is performed by the Senator himself. U.S.C.A. Const. Art. 1, §6, cl. 1.The “Speech or Debate Clause” provided no protection for criminal conduct threatening the security of the person or property of others, whether performed the direction of the Senator in preparation for or in execution of legislative act or done without his knowledge or direction in it does not immunize a Senator or his aid from testifying at trials or grand jury proceedings involving the third-party crimes were the questions do not require testimony about or impugn a legislative act. U.S.C.A. Const. Art. 1, §6, cl. 1.The District Court has ample power to keep grand jury proceedings, with respect to inquiry into whether private publication of classified government documents violated federal law, within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of the members of Congress that are no proper concern of the grand jury or the Executive Branch. U.S.C.A. Const. Art. 1, §6, cl. 1.These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret-Sensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U.S.C. §641)the gathering and transmitting of national defense information (18 U.S.C. §73),the concealment or removal of public records or documents (18 U.S.C. §2071), and conspiracy to commit such offenses and to defraud the United States (18 U.S.C. §371).It appeared that, on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator’s staff earlier in the day and assisted Gravel in preparing for and conducting the hearing. Some weeks later there were press reports that Gravel had arranged for the papers to be published by Beacon Press and that members of Gravel’s staff had talked with Webber as editor of M.I.T. Press.The United States fears the abuses that history reveals have occurred when legislators are invested with the power to relieve others from the operation of otherwise valid civil and criminal laws. But these abuses, it seems to us, are for the most part obviated if the privilege applicable to the aide is viewed, as it must be, as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator’s behalf, and if, in all events, the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself. This view places beyond the Speech or Debate Clause a variety of services characteristically performed by aides for Members of Congress, even though within the scope of their employment. It likewise provides no protection for criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction. Neither does it immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act. Thus, our refusal to distinguish between Senator and aide in applying the Speech or Debate Clause does not mean that Rodberg is for all purposes exempt from grand jury questioning.MR. JUSTICE DOUGLAS, dissenting.In all other situations, however, the Judiciary’s view of the motives or germaneness of a Senator’s conduct before a committee is irrelevant. For, “[t]he claim of an unworthy purpose does not destroy the privilege.”?Tenney v. Brandhove,?341 U.S. 367. If there is an abuse, there is a remedy; but it is legislative, not judicial.The secrecy of documents in the Executive Department has been a bone of contention between it and Congress from the beginning. Most discussions have centered on the scope of the executive privilege in stamping documents as “Secret,” “Top Secret,” “Confidential,” and so on, thus withholding them from the eyes of Congress and the press. The practice has reached large proportions, it being estimated that:(1) Over 30,000 people in the Executive Branch have the power to wield the classification stamp.(2) The Department of State, the Department of Defense, and the Atomic Energy Commission have over 20 million classified documents in their files.(3) Congress appropriates approximately $15 billion annually without most of its members or the public or the press knowing for what purposes the money is to be used.The problem looms large as one of separation of powers. Woodrow Wilson wrote about it in terms of the “informing function” of Congress:“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration. The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government. Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion.”Classification of documents is a concern of the Congress. It is, however, no concern of the courts, as I see it, how a document is stamped in an Executive Department or whether a committee of Congress can obtain the use of it. The federal courts do not sit as an ombudsman refereeing the disputes between the other two branches. The federal courts do become vitally involved whenever their power is sought to be invoked either to protect the press against censorship as in?New York Times Co. v. United States,?403 U.S. 713, or to protect the press against punishment for publishing “Secret” documents or to protect an individual against his disclosure of their contents for any of the purposes of the First Amendment.Forcing the press to become the Government’s coconspirator in maintaining state secrets is at war with the objectives of the First Amendment. That guarantee was designed in part to ensure a meaningful version of self-government by immersing the people in a “steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and reexamination.” Branzburg v. Hayes,?at?408 U.S. 715; Brandenburg v. Ohio,?395 U.S. 444; Stanley v. Georgia,?394 U.S. 557;?Lamont v. Postmaster General,?381 U.S. 301;?New York Times Co. v. Sullivan,?376 U.S. 254. As I have said, in dissent, elsewhere,?e.g., Branzburg; Kleindienst v. Mandel,?at?408 U.S. 771, that Amendment is aimed at protecting not only speakers and writers but also listeners and readers. The essence of our form of governing was at the heart of Mr. Justice Black’s reminder in the Pentagon Papers case that “[t]he press was protected so that it could bare the secrets of government and inform the people.” 403 U.S. 717. Similarly, Senator Sam Ervin has observed: “When the people do not know what their government is doing, those who govern are not accountable for their actions - and accountability is basic to the democratic system. By using devices of secrecy, the government attains the power to ‘manage’ the news, and, through it, to manipulate public opinion.” Ramsey Clark, as Attorney General, expressed a similar sentiment: “If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy.” And see?Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245; Press Freedoms Under Pressure: Report of the Twentieth Century Fund Task Force on the Government and the Press 109-117 (1972) (background paper by Fred Graham on access to news); M. Johnson, The Government Secrecy Controversy 3941 (1967).Jefferson, in a letter to Madison dated December 20, 1787, posed the question “whether peace is best preserved by giving energy to the government, or information to the people,” and then answered, “This last is the most certain, and the most legitimate engine of government.” 6 Writings of Thomas Jefferson 392 (Memorial ed.1903).Madison, at the time of the Whiskey Rebellion, spoke in the House against a resolution of censure against the groups stirring up the turmoil against that rebellion.“If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.” Brant, The Madison Heritage, 35 N.Y.U.L.Rev. 882, 90.The late Mr. Justice Harlan, in the Pentagon Papers case, said that in that situation the courts had only two restricted functions to perform: first, to ascertain whether the subject matter of the dispute lies within the proper compass of the President’s constitutional power; and second, to insist that the head of the Executive Department concerned - whether State or Defense - determine if disclosure of the subject matter “would irreparably impair the national security.” Beyond those two inquiries, he concluded, the Judiciary may not go.When the Executive Branch launches a criminal prosecution against the press, it must do so only under an Act of Congress. Yet Congress has no authority to place the press under the restraints of the executive privilege without “abridging” the press within the meaning of the First Amendment.In related and analogous situations, federal courts have subordinated the executive privilege to the requirements of a fair trial.The prosecution often dislikes to make public the identity of the informer on whose information its case rests. But his identity must be disclosed where his testimony is material to the trial.?Roviaro v. United States,?353 U.S. 53. In other words, the desire for Government secrecy does not override the demands for a fair trial.?And see Scher v. United States,?305 U.S. 251. The constitutional demands for a fair trial, implicit in the concept of due process,?In re Murchison,?349 U.S. 133, override the Government’s desire for secrecy, whether the identity of an informer or the executive privilege be involved.?And see Smith v. Illinois,?390 U.S. 129.What would be permissible if Beacon Press “stole” the Pentagon Papers is irrelevant to today’s decision. What Beacon Press plans to publish is matter introduced into a public record by a Senator acting under the full protection of the Speech or Debate Clause. In light of the command of the First Amendment, we have no choice but to rule that here, government, not the press, is lawless.MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.Thus, the Court excludes from the sphere of protected legislative activity a function that I had supposed lay at the heart of our democratic system. I speak, of course, of the legislator’s duty to inform the public about matters affecting the administration of government. That this “informing function” fall into the class of thing “generally done in a session of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson,?103 U.S. 168 (1881), was explicitly acknowledged by the Court in?Watkins v. United States,?354 U.S. 178?(1957). In speaking of the “power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government,” the Court noted that, “[f]rom the earliest times in its history, the Congress has assiduously performed an?informing function’ of this nature.”Though I fully share these and related views on the educational values served by the informing function, there is yet another, and perhaps more fundamental, interest at stake. It requires no citation of authority to state that public concern over current issue - the war, race relations, governmental invasions of privacy - has transformed itself in recent years into what many believe is a crisis of confidence in our system of government and its capacity to meet the needs and reflect the wants of the American people. Communication between Congress and the electorate tends to alleviate that doubt by exposing and clarifying the workings of the political system, the policies underlying new laws, and the role of the Executive in their administration. To the extent that the informing function succeeds in fostering public faith in the responsiveness of Government, it is not only an “ordinary” task of the legislator, but one that is essential to the continued vitality of our democratic institutions.“That when circumstances required that the ancient confederation of this with the sister States, for the government of their common concerns, should be improved into a more regular and effective form of general government, the same representative principle was preserved in the new Legislature, one branch of which was to be chosen directly by the citizens of each State, and the laws and principles remained unaltered which privileged the representative functions, whether to be exercised in the State or General Government, against the cognizance and notice of the coordinate branches, Executive and Judiciary; and for its safe and convenient exercise, the intercommunication of the Representative and constituent has been sanctioned and provided for through the channel of the public post at the public expense.”“That the grand jury is a part of the Judiciary, not permanent indeed, but in office,?pro hac vice?and responsible as other judges are for their actings and doings while in office; that, for the Judiciary to interpose in the legislative department between the constituent and his Representative, to control them in the exercise of their functions or duties towards each other, to overawe the free correspondence which exists and ought to exist between them, to dictate what communications may pass between them, and to punish all others, to put the Representative into jeopardy of criminal prosecution, of vexation, expense, and punishment before the Judiciary, if his communications, public or private, do not exactly square with their ideas of fact or right, or with their designs of wrong, is to put the legislative department under the feet of the Judiciary, is to leave us, indeed, the shadow, but to take away the substance of representation, which requires essentially that the Representative be as free as his constituents would be, that the same interchange of sentiment be lawful between him and them as would be lawful among themselves were they in the personal transaction of their own business; is to do away the influence of the people over the proceedings of their Representatives by excluding from their knowledge, by the terror of punishment, all but such information or misinformation as may suit their own views; and is the more vitally dangerous when it is considered that grand jurors are selected by officers nominated and holding their places at the will of the Executive...; and finally, is to give to the Judiciary, and through them to the Executive, a complete preponderance over the Legislature rendering ineffectual that wise and cautious distribution of powers made by the constitution between the three branches, and subordinating to the other two that branch which most immediately depends on the people themselves, and is responsible to them at short periods.” 8 The Works of Thomas Jefferson 322-327 (Ford ed. 104).Jefferson’s protest is perhaps the most significant and certainly the most cogent analysis of the privileged nature of communication between Congressman and public. Its comments on the history, purpose, and scope of the Clause leave no room for the notion that the Executive or Judiciary can in any way question the contents of that dialogue. Nor was Jefferson alone among the Framers in that view. Aside from Madison, who joined in the protest, James Wilson took the position that a member of Congress “should enjoy the fullest liberty of speech, and...should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.” 1 Works of James Wilson 421 (R. McCloskey ed.1967). Wilson, a member of the Committee responsible for drafting the Speech or Debate Clause, stated in plainest terms his belief in the duty of Congressmen to inform the people about proceedings in the Congress:“That the conduct and proceedings of Representatives should be as open as possible to the inspection of those whom they represent seems to be, in republican government, a maxim of whose truth or importance the smallest doubt cannot be entertained. That, by a necessary consequence, every measure, which will facilitate or secure this open communication of the exercise of delegated power should be adopted and patronised by the Constitution and laws of every free state seems to be another maxim which is the unavoidable result of the former.”The Court, however, offers not a shred of evidence concerning the Framers’ intent, but relies instead on the English view of legislative privilege to support its interpretation of the Clause. Like the Court itself, I have some doubt concerning the relevance of English authority to this case, particularly authority postdating the adoption of our Constitution. But in any event it is plain that the Court has misread the history on which it relies. The Speech or Debate Clause of the English Bill of Rights was at least in part the product of a struggle between Parliament and Crown over the very type of activity involved in this litigation. During the reign of Charles II, the House of Commons received a number of reports about an alleged plot between the Crown and the King of France to restore Catholicism as the established religion of England. The most famous of these reports, Dangerfield’s Narrative, was entered into the Commons Journal and then republished by order of the Speaker of the House, Sir William Williams, with the consent of Commons. In 1686, after James II came to the throne, informations charging libel were filed against Williams in King’s Bench. Despite the arguments of his attorney, Sir Robert Atkyns, that the publication was necessary to the “counseling” and “enquiring” functions of Parliament, Williams’ plea of privilege was rejected and he was fined $10,000. Shortly after Williams’ conviction, James II was sent into exile, and a committee was appointed by the House of Commons to report upon “such things as are absolutely necessary for securing the Laws and Liberties of the Nation.” 9 Debates of the House of Commons, coll. by A. Grey, 1763, p. 37. In reporting to the House, the chairman of the committee stated that the provision for freedom of speech and debate was included “for the sake of one...Sir William Williams, who was punished out of Parliament for what he had done in Parliament.” Following consultation with the House of Lords, that provision was included as part of the English Bill of Rights, and the judgment against Williams was declared by Commons “illegal and subversive of the freedom of parliament.” 1 W. Townsend, Memoirs of the House of Commons 414 (2d ed. 1844).Thus, from the standpoint of function or history, it is plain that Senator Gravel’s dissemination of material, placed by him in the record of a congressional hearing, is itself legislative activity protected by the privilege of speech or debate. Whether or not that privilege protects the publisher from prosecution or the Senator from senatorial discipline, it certainly shields the Senator from any grand jury inquiry about his part in the publication. As we held in?United States v. Johnson,?383 U.S. 169?(1966), neither a Congressman, nor his aides, nor third parties may be made to testify concerning privileged act or their motives. That immunity, which protects legislators “from deterrents to the uninhibited discharge of their legislative duty,”?Tenney v. Brandhove,?341 U.S. 367 (1951), is the essence of the Clause, designed not for the legislators’ “private indulgence, but for the public good.”Similarly, the Government cannot strip Senator Gravel of the immunity by asserting that his conduct “did not relate to any pending Congressional business.” The Senator has stated that his hearing on the Pentagon Papers had a direct bearing on the work of his Subcommittee on Buildings and Grounds, because of the effect of the Vietnam War on the domestic economy and the lack of sufficient federal funds to provide adequate public facilities. If, in fact, the Senator is wrong in this contention, and his conduct at the hearing exceeded the subcommittee’s jurisdiction, then again it is the Senate that must call him to task. This Court has permitted congressional witnesses to defend their refusal to answer questions on the ground of nongermaneness.?Watkins v. United States,?354 U.S. 178?(1957). Here, however, it is the Executive that seeks the aid of the Judiciary, not to protect individual rights, but to extend its power of inquiry and interrogation into the privileged domain of the Legislature. In my view, the Court should refuse to turn the freedom of speech or debate on the Government’s notions of legislative propriety and relevance. We would weaken the very structure of our constitutional system by becoming a partner in this assault on the separation of powers.Whether the Speech or Debate Clause extends to the informing function is an issue whose importance goes beyond the fate of a single Senator or Congressman. What is at stake is the right of an elected Representative to inform, and the public to be informed, about matters relating directly to the workings of our Government. The dialogue between Congress and people has been recognized, from the days of our founding, as one of the necessary elements of a representative system. We should not retreat from that view merely because, in the course of that dialogue, information may be revealed that is embarrassing to the other branches of government or violates their notions of necessary secrecy. A Member of Congress who exceeds the bounds of propriety in performing this official task may be called to answer by the other Members of his chamber. We do violence to the fundamental concepts of privilege, however, when we subject that same conduct to judicial scrutiny at the instance of the Executive. The threat of “prosecution by an unfriendly Executive and conviction by a hostile Judiciary,”?United States v. Johnson,?383 U.S. at?17, that the Clause was designed to avoid, can only lead to timidity in the performance of this vital function. The Nation as a whole benefits from the congressional investigation and exposure of official corruption and deceit. It likewise suffers when that exposure is replaced by muted criticism, carefully hushed behind congressional walls.MR. JUSTICE STEWART, dissenting in part.In preparing for legislative hearings, debates, and roll calls, a member of Congress obviously needs the broadest possible range of information. Valuable information may often come from sources in the Executive Branch or from citizens in private life. And informants such as these may be willing to relate information to a Congressman only in confidence, fearing that disclosure of their identities might cause loss of their jobs or harassment by their colleagues or employers. In fact, I should suppose it to be self-evident that many such informants would insist upon an assurance of confidentiality before revealing their information. Thus, the acquisition of knowledge through a promise of nondisclosure of its source will often be a necessary concomitant of effective legislative conduct, if the members of Congress are properly to perform their constitutional duty.Footnotes:6. The Government maintained that Congress does not enjoy unlimited power to conduct business and that judicial review has often been exercised to curb extra-legislative incursions by legislative committees, citing?Watkins v. United States,?354 U.S. 178(1957);?McGrain v. Daugherty,?273 U.S. 135?(1927);?Hentoff v. Ichord,?318 F.Supp. 1175 (DC 1970), at least where such incursions are unrelated to a legitimate legislative purpose. It was alleged that Gravel had “convened a special, unauthorized, and untimely meeting of the Senate Subcommittee on Public Works (at midnight on June 29, 1971), for the purpose of reading the documents and thereafter placed all unread portions in the subcommittee record, with Dr. Rodberg soliciting publication following the meeting.”The District Court rejected the contention: “Senator Gravel has suggested that the availability of funds for the construction and improvement of public buildings and grounds has been affected by the necessary costs of the war in Vietnam, and that therefore the development and conduct of the war is properly within the concern of his subcommittee. The court rejects the Government’s argument without detailed consideration of the merits of the Senator’s position, on the basis of the general rule restricting judicial inquiry into matters of legislative purpose and operations.”United States v. Doe,?332 F.Supp. at 935. Cases such as?Watkins,?were distinguished on the ground that they concerned the power of Congress under the Constitution: “It has not been suggested by the Government that the Subcommittee itself is unauthorized, nor that the war in Vietnam is an issue beyond the purview of congressional debate and action. Also, the individual rights at stake in these proceedings are not those of a witness before a congressional committee or of a subject of a committee’s investigation, but only those of a Congressman and member of his personal staff who claim ‘intimidation by the Executive.’”8. The protective order entered by the District Court provided as follows:“(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel’s conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971 nor about things done by the Senator in preparation for and intimately related to said meeting.”“(2) Dr. Leonard S. Rodberg may not be questioned about his own actions on June 29, 1971, after having been engaged as a member of Senator Gravel’s personal staff to the extent that they were taken at the Senator’s direction either at a meeting of the Subcommittee on Public Buildings and Grounds or in preparation for and intimately related to said meeting.”11. In?Kilbourn v. Thompson,?103 U.S. 168 (1881), the Court noted a second example, used by Mr. Justice Coleridge in?Stockdale v. Hansard,?9 Ad. & E. 1, 225-226, 112 Eng.Rep. 1112, 1196-1197 (K.B. 1839):“‘Let me suppose, by way of illustration, an extreme case; the House of Commons resolves that anyone wearing a dress of a particular manufacture is guilty of a breach of privilege, and orders the arrest of such persons by the constable of the parish. An arrest is made and action brought, to which the order of the House is pleaded as a justification.... In such a case as the one supposed, the plaintiff’s counsel would insist on the distinction between power and privilege; and no lawyer can seriously doubt that it exists; but the argument confounds them, and forbids us to enquire, in any particular case, whether it ranges under the one or the other. I can find no principle which sanctions this.’”13. It follows that an aide’s claim of privilege can be repudiated and thus waived by the Senator.4. One estimate of the number of officials who can classify documents is even higher. In the Department of Defense alone, 803 persons have the authority to classify documents Top Secret; 7,687 have permission to stamp them Secret, and 31,048 have the authorization to denominate papers Confidential. United States Government Information Policies and Practices - The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 2, p. 599 (statement of David Cooke, Deputy Assistant Secretary of Defense).5. Senator Fulbright, chairman of the Senate Foreign Relations Committee, recently testified that his committee had been so unsuccessful in obtaining accurate information about the Vietnam War from the Executive Branch that it was required to hire its own investigators and send them to Southeast Asia.9. United States Government Information Policies and Practices - The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 1, p. 97; Cong. Horton, The Public’s Right to Know, 77 Case & Comm. 3, 5 (1972). We are told that the military has withheld as Confidential a large selection of photographs showing atrocities against Vietnamese civilians wrought by both Communist and United States forces. Even a training manual devoted to the history of the Bolshevik revolution was dubbed Secret by the military. (Testimony of former classification officer). And ordinary newspaper clippings of criticism aimed at the military have been routinely marked Secret.?Former Justice and former Ambassador to the United Nations Arthur Goldberg has stated:“I have read and prepared countless thousands of classified documents. In my experience, 75 percent of these documents should never have been classified in the first place; another 15 percent quickly outlived the need for secrecy; and only about 10 percent genuinely required restricted access over any significant period of time.”4. During oral argument, the Solicitor General virtually conceded, in the course of arguing that aides should not enjoy the same testimonial privilege as Congressmen, that a Senator could not be called before the grand jury to testify about the sources of his information:“Q. Mr. Solicitor, am I correct that you wouldn’t be able to question the Senator as to where he got the papers from?”“A. Oh, Mr. Justice, we are not able to question the Senator about anything insofar as it relates to speech or debate.”“Q. Well, this was related, you agree, to speech and debate?”“A. I am not contending to the contrary....”The following exchange also took place:“Q. You can’t ask a Senator where you got the material you used in your speech.”“A. Yes, Mr. Justice.”“Q. You can’t.”“A. Yes.”At another point in the oral argument, the Solicitor General said that, even when a Senator or Representative has knowledge of crime as a result of legislative acts, “[t]hey can’t even be required to respond to questions with respect to their speeches and debates. That is a great and historic privilege which ought to be maintained, which I fully support, but which does not extend to any other persons than Senators and Representatives.”HAINES v. KERNER, 404 U.S. 519, 92 S.Ct. 594 (1972)Allegations of pro se complaint of state prisoner, seeking to recover damages for claimed injuries and deprivation of rights while placed in solitary confinement as a disciplinary measure after he had struck another inmate on the head with a shovel following a verbal altercation and asserting as physical suffering the aggravation of a preexisting foot injury and circulatory ailment caused by being required to sleep on floor of cell with only blankets, were such as to entitle him to an opportunity to offer proof, since it did not appear beyond doubt that prisoner could prove no set of facts in support of his claim which would entitle him to relief. 28 U.S.C.A. §1343(3); 42 U.S.C.A. §1983; Fed. Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.Allegations of a pro se complaint to less stringent standards than formal pleadings drafted by lawyers.The District Court granted respondents’ motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief could be granted, suggesting that only under exceptional circumstances should courts inquire into the internal operations of state penitentiaries and concluding that petitioner had failed to show a deprivation of federally protected rights. The Court of Appeals affirmed, emphasizing that prison officials are vested with “wide discretion” in disciplinary matters. We granted certiorari and appointed counsel to represent petitioner. The only issue now before us is petitioner’s contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims. Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2 1944). Accordingly, although we intimate no view whatever on the merits of petitioner’s allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed and the case is remanded for further proceedings consistent herewith. Reversed and remanded.GRIFFIN, et al. v. BRECKENRIDGE, et al. 403 U.S. 88, 91 S.Ct. 1790 (1971)MR. JUSTICE STEWART delivered the opinion of the Court.Ku Klux Klan Act, affording civil remedy for conspiracy to deprive person or class of persons of equal protection of laws or equal privileges and immunities, covers private conspiracies. 42 U.S.C.A. §1985(3).Ku Klux Klan Act language requiring intent to deprive of equal protection or equal privileges and immunities means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind conspirators’ action; conspiracy must aim at deprivation of equal enjoyment of rights secured by law to all. 42 U.S.C.A. §1985(3).Thirteenth Amendment is not mere prohibition of state laws establishing or upholding slavery, but absolute declaration that slavery or involuntary servitude shall not exist in any part of United States. 42 U.S.C.A. §1985(3); U.S.C.A. Const. Amend. 13.Thirteenth Amendment committed nation to proposition that former slaves and their descendents should be forever free and to keep that promise Congress has power rationally to determine what our badges and incidences of slavery and authority to translate that determination into effective legislation. 42 U.S.C.A. §1985(3); U.S.C.A. Const. Amend. 13.The District Court dismissed the complaint for failure to state a cause of action, relying on the authority of this Court’s opinion in?Collins v. Hardyman,?341 U.S. 651, which in effect construed the above language of §1985(3) as reaching only conspiracies under color of state law. The Court of Appeals for the Fifth Circuit affirmed the judgment of dismissal. 410 F.2d 817. Judge Goldberg’s thorough opinion for that court expressed “serious doubts” as to the “continued vitality” and stated that “it would not surprise us if?Collins v. Hardyman?were disapproved and if §1985(3) were held to embrace private conspiracies to interfere with rights of national citizenship,” but concluded that “[s]ince we may not adopt what the Supreme Court has expressly rejected, we obediently abide the mandate in?Collins.” We granted certiorari to consider questions going to the scope and constitutionality of 42 U.S.C. §1985(3).The approach of this Court to other Reconstruction civil rights statutes in the years since?Collins?has been to “accord [them] a sweep as broad as [their] language.”?United States v. Price,?383 U.S. 787;?Jones v. Alfred H. Mayer Co.,?392 U.S. 409. Moreover, very similar language in closely related statutes has early and late received an interpretation quite inconsistent with that given to §1985(3) in Collins.?In construing the exact criminal counterpart of §1985(3), the Court in?United States v. Harris,?observed that the statute was “not limited to take effect only in case [of state action],”?at?106 U.S. 639, but “was framed to protect from invasion by private persons, the equal privileges and immunities under the laws, of all persons and classes of persons.” In?United States v. Williams,?341 U.S. 70, the Court considered the closest remaining criminal analogue to §1985(3), 18 U.S.C. §241. Mr. Justice Frankfurter’s plurality opinion, without contravention from the concurrence or dissent, concluded that, “if language is to carry any meaning at all, it must be clear that the principal purpose of [§241], unlike [18 U.S.C. §242], was to reach private action, rather than officers of a State acting under its authority. Men who ‘go in disguise upon the public highway, or upon the premises of another,’ are not likely to be acting in official capacities.” 341 U.S. at?76. “Nothing in [the] terms [of §241] indicates that color of State law was to be relevant to prosecution under it.”It is thus evident that all indicators - text, companion provisions, and legislative history - point unwaveringly to §1985(3)’s coverage of private conspiracies. That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, “that Congress has a right to punish an assault and battery when committed by two or more persons within a State.” The constitutional shoals that would lie in the path of interpreting §1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment.?See?the remarks of Representatives Willard and Shellabarger, quoted?at?403 U.S. 100. The language requiring intent to deprive of?equal?protection, or?equal?privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.We return to the petitioners’ complaint to determine whether it states a cause of action under §1985(3) as so construed. To come within the legislation a complaint must allege that the defendants did (1) “conspire or go in disguise on the highway or on the premises of another” (2) “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” It must then assert that one or more of the conspirators (3) did, or caused to be done, “any act in furtherance of the object of [the] conspiracy,” whereby another was (4a) “injured in his person or property” or (4b) “deprived of having and exercising any right or privilege of a citizen of the United States.”The constitutionality of §1985(3) might once have appeared to have been settled adversely by?United States v. Harris,?106 U.S. 629, and?Baldwin v. Franks,?120 U.S. 678, which held unconstitutional its criminal counterpart, then §5519 of the Revised Statutes. The Court in those cases, however, followed a severability rule that required invalidation of an entire statute if any part of it was unconstitutionally overbroad, unless its different parts could be read as wholly independent provisions. E.g., Baldwin v. Franks,?at?120 U.S. 685. This Court has long since firmly rejected that rule in such cases as?United States v. Raines,?362 U.S. 17. Consequently, we need not find the language of §1985(3) now before us constitutional in all its possible applications in order to uphold its facial constitutionality and its application to the complaint in this case.Footnotes:3. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”4. “If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or” “If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured…” “They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” The penalty section was amended in 1968.?See?18 U.S.C. §241 (1964 ed., Supp. V).POOLE v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, 47 Ala.App. 453, 256 So.2d 193 (1971)WRIGHT, Judge.…Question of whether death of insured was caused solely by accidental means without contribution directly or indirectly from disease was for jury.In action to recover under policies insuring against accidental death, reading portions of hospital records pertaining to insured’s death to jury after their admission into evidence in before argument to the jury was not improper on theory that such reading unduly emphasized portions selected to be read.If specific ground of objection is stated, all other grounds are considered waived and are not available as basis for error on appeal. Supreme Court Rules, Rule 9.Assignments of error not argued on appeal are waived. Supreme Court Rules, Rule 9.For ground of objection to a statement made during reading of hospital record to jury was not argued in brief, assignment of error pertaining to such statement was waived. Supreme Court Rules, Rule 9.On appeal from refusal of trial court to give affirmative charge for appellant, evidence must be viewed in light most favorable to appellee and action of trial court will be affirmed if reasonable inferences may be drawn from evidence adverse to appellant.The ground of objection stated is not argued in brief. It has long been the rule that if a specific ground of objection is stated, all other grounds are considered waived and are not available as basis for error on appeal. Central of Ga. Ry. Co. v. Wilson, 215 Ala. 612, 111 So. 901. It is further the rule that assignments of error not argued on appeal are waived. It was stated in Cook v. Latimer, 279 Ala. 294,?184 So.2d 807?as follows: “…Accordingly, the ground argued, which was not assigned when the objection was made, cannot be considered; and the ground assigned when the objection was made cannot be considered because it is not argued.”LANDMAN v. ROYSTER, 333 F.Supp. 621 (1971)MERHIGE, District Judge.Prisons [Key] 4, Federal courts may inquire into prison administrators’ restriction of constitutional rights other than that of liberty itself. 42 U.S.C.A. §1983.Criminal Law [Key] 1213, In an obvious sense any term of incarceration, with all of its incidents, constitutes a penalty, and purposes of Eighth Amendment might best be served by treating preliminary issue as to whether a practice constitutes a punishment as thus resolved, and any treatment imposed upon convict would then be tested by: unusual standard. U.S.C.A. Const. Amend. 8.Criminal Law [Key] 1213, Practice of taking clothing of inmates while in solitary and keeping them in unheated cells with open windows in winter works to degrade an inmate by denying him any of sources of human dignity, and perils his health, and constitutes cruel and unusual punishment. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 8.Prisons [Key] 13, An inmate may be nude in his cell only when a doctor states in writing that inmate’s health will not thereby be affected and that inmate presents a substantial risk of injuring himself if given garments. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 8.Injunction [Key] 75, Although, in respect to prisoners confined to state penal institutions, instances of chaining, denial of clothing, and exposure to cold had, on evidence, not been everyday occurrences, and although new regulations purported to outlaw some of such practices, where punishments of such sort had been inflicted and passed by guards acting alone, and where administrators had not been in complete control of their subordinates, injunctive relief restraining use of such practices would be granted. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 8.Prisons [Key] 13, Use of tear gas to physically disable an inmate who poses no present physical threat constitutes a form of corporal punishment, the use of which in such a situation is generally disapproved. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 8.MEMORANDUMThis class action by prisoners of the Virginia Penal System is brought against defendants charged with the powers and duties encompassing the maintenance and supervision of the correctional system of the Commonwealth of Virginia. The jurisdiction of the Court is acquired pursuant to 28 U.S.C. §§1343(3), (4), 2201, and 42 U.S.C. §§1981, 1983, 1985.Defendants named in the complaint, or their successors, are the Director of the Department of Welfare and Institutions, the Director of the Division of Corrections, the Superintendent of the State Penitentiary, and the Superintendent of the State Farm.Plaintiffs, who are representative of the class they purport to represent, mount their attack upon the administration of discipline within the prisons: the reasons for invoking sanctions, the adjudication process, and the various penalties imposed. The evidence adduced has disclosed as to each of these points a disregard of constitutional guaranties of so grave a nature as to violate the most common notions of due process and humane treatment by certain of the defendants, their agents, servants and employees.One of the principal issues before the Court has to do with lack of appropriate due process prior to punishing members of the class for supposed infraction of rules. As the Court has already indicated, it finds that in many instances punishment has been of such a nature as to be abusive and violative of the most generic elements of due process and humane treatment.Of necessity the Court must herein set out an extensive review of the testimony to illustrate the existence of what the Court finds to have been a consistent course of conduct by prison administrators and those beneath them, resulting in the denial of the fundamental elements of due process.A prefatory remark is due on a point of terminology. The good conduct allowance - “good time” - is a credit of ten days against one’s sentence for each twenty days served without a rule infraction. Va. Code §53-213 (Supp.1970). The Director of the Department of Welfare and Institutions is empowered to impose forfeitures and restorations of accumulated good time. Va. Code §53-214 (1967 Repl. Vol.).“C-cell” inmates at the Virginia State Penitentiary and occupants of other “segregation” units there and at the Virginia State Farm enjoy substantially fewer privileges than men among the general population. Prisoners in C-cell cannot be employed in any work program; thus they are denied the opportunity to earn money. A reduced diet - two meals a day - is served. Religious services and educational classwork are unavailable, although men may be visited by a chaplain. There is no access to a library, although the men can receive magazines (under a recent change in rules) and books. The likelihood of release on parole is almost nonexistent for men placed in C-cell, and in practice there is no chance that lost good time will be restored. In addition, showers are permitted only at weekly intervals instead of daily, and men in some segregation units are unable to exercise outdoors.In the Virginia Penal System there are five major units and about thirty smaller correctional field units. About 1100 inmates, all felons, are housed in the maximum security Virginia State Penitentiary, located in the City of Richmond. The Virginia State Farm, a medium security facility, holds about 1200. The Virginia Industrial Farm for Women contains about 300 inmates. Southhampton and Bland Correctional Farms each hold about 450. The combined Correctional Field Units, minimum security institutions, hold some 2200 inmates. There are about 30 of these “road camps;” the permanent ones house about 80 to 90 men, and the semi-permanent units contain 50 to 60.The volume of testimony concerning rules generally covering sanctions and their application in specific instances is immense. Even allowing for the changes in policy which no doubt took place over the time period - over two years - embraced by the deposition and ore tenus evidence presented, the Court has observed a disturbing number of inconsistencies in the officials’ accounts of applicable rules. These factfindings must be read, and compared with the evidence, with the awareness that when it is said?that a given disciplinary procedure is followed, the Court is speaking of theory and not necessarily practice, and, at that, theory as expressed by the most apparently authoritative individual.There was at the time the Court heard this case no general, central set of regulations for the penal system stating which offenses justify the taking of a prisoner’s good time or his commitment to a solitary cell.As of July, 1970, according to depositions then taken, the Superintendent of the Virginia State Penitentiary was empowered to take a man’s good time in any amount on the recommendation of a disciplinary committee. No guidelines exist for the penitentiary fixing the range of penalties available for particular infractions. Men in C-cell maximum security section seem generally to be ineligible for restoration of good time. For men among the general population there is a rule of thumb that good time cannot be restored unless a man has served at least twelve months without an offense.The disciplinary committee does not call as a witness the guard who reported an offense. Needless to say, cross-examination is therefore impossible. No written charges are served on the prisoner before or after the proceedings, and lawyers may not participate. The committee does not make factfindings. No formal appeal procedure exists.If a penitentiary prisoner is continually obstreperous in solitary, there is no further method used to control him other than by chaining or tear gassing. On occasion a man’s clothing may be taken if he appears to be a suicide risk or a menace to others.The Assistant Superintendent at the Penitentiary may “padlock” a man without any hearing for any length of time.Disciplinary boards have at times included the accusing guard. Furthermore, although representation by another is forbidden, the Director testified that some inmates are so very dull mentally that they probably cannot properly present their case.Good time has been taken in amounts at least as large as one year on the basis of the briefest of guards’ reports. Maximum security confinement has often been imposed out of unsubstantiated fear, suspicion, or rumor. In some cases this form of detention has been used for prisoners who were simply too feeble minded to adhere to the usual prison routine.On October 1, 1970, less than two months before trial on this case, Division Guideline 800 was put into effect. These regulations, as adapted to cover all institutions, govern inmate discipline. They are set out in full in a footnote. These were the first substantive regulations on the subject put into effect in the Virginia Penal System.The new guidelines require a three to five member “adjustment committee” composed “normally” of department heads or their assistants. A counselor - a social worker assigned to one of the large institutions - may be present if one of his charges is accused.There is provision for notice of charges to the inmate, although not in writing. The inmate is put in “detention” pending hearing, which takes place within 48 hours. There is some vague provision for witnesses and cross-examination, at the discretion of the committee chairman. The result of the hearing is recorded and transmitted to the Superintendent for “review and approval;” whether that officer can reverse a not guilty verdict is unclear.The new regulations do not forbid a charging officer from sitting in judgment. Presumably this practice will be disapproved in theory, as in the past. In practice, however, an accusing official has sat on the panel; Assistant Superintendent H. P. Jackson of the State Farm has done so numerous times.Offenses are described only as major or minor misconduct. There is no apparent restriction on available penalties, save that corporal punishment is outlawed, and described “minor” penalties can be imposed by a guard supervisor, with appeal to the committee.The guidelines place conditions on the use of solitary confinement cells. Normal practice will be to permit an inmate to keep his usual clothing. The cells are to be lighted and heated, and occupants receive something to sit on in the?daytime. Mail is not substantially curtailed, and “jail” terms are limited to 15 days. However, a “supervisory officer” may direct the removal of all furnishings and clothing from the cell if the inmate is “destructive,” and a man can be kept in isolation longer than 15 days at the order of the Director. Alternatively, he may be placed in a maximum security cell “until he can, with reasonable safety, be returned to the general population.”Forfeiture of good time is imposed on the recommendation of the adjustment committee to the institutional superintendent. That official withholds his decision for seven days while the inmate presents his case to him in writing. There is no procedure established to cover the restoration of lost good time, although the discipline board may “set new behavioral goals…and offer restoration of good time.” Final authority to restore credit, however, seems to rest in the superintendent, as it did previously.Procedure for transfer to maximum security facilities is not established, although there is provision for a “formal review” every 120 days of each inmate’s “behavior and attitude.”Finally there is a saving provision reserving full authority over disciplinary matters in the Director.Copies of these regulations were not sent to inmates.The rules do not seek to define offenses. As before, inmates may be penalized for “abusive language,” a term particularly vague in its content in the prison milieu, where the norms of polite conversation do not prevail. Whether language is “abusive,” according to Cunningham, depends a great deal on the tone of voice or manner in which words are spoken. In the past, nevertheless, men have been punished for “abusive language” on the basis of written guards’ reports which sometimes did not even report the words spoken.“Insubordination,” “insolence,” and “sarcasm,” likewise offenses, are also undefined; their substance is left to the judgment of administrators. A superintendent also may penalize men for “poor work” and “disrespect” if their conduct is such, in his opinion.Whether a man has in fact attempted to escape or has escaped will be left to the determination of the adjustment board and the superintendent, as before.“Agitation” is also undefined. Cunningham states that it consists of influencing others to do illegal things, or acts which would be disturbing to the institution. Guards’ reports, however, occasionally give no specifics as to the acts constituting “agitation.”No maximum time of padlock confinement is fixed by the new rules. Cunningham stated that the decision to padlock a man must be made by an official of the office of Assistant Superintendent or higher, but the “minor misconduct” provision appears to allow the chief guard officer to impose this penalty.The guidelines make no reference to the practice of imposing fines. In the past this has been done summarily by guard officers.Maximum and minimum amounts of good time that can be taken for various offenses are not set forth. As before, these will be governed, under guideline 800, by patterns and rules of thumb passed on orally. Moreover in practice a superintendent’s decision to take or restore good time will not be effectively appealable. At most correctional field units this means that the ruling will be made by a man without a high school education or any special training in the goals and techniques of penology.Guideline 800 also authorizes a continuation of the practice of confining mental defectives in the maximum security segregation cells. The inmates Elbe and Gonzales were referred to C-5 segregation at the State Farm for the offense of having insufficient mentality to participate in ordinary prison business. This is still authorized for those who “cannot safely function in the regular inmate population.”Regular appeal procedures are not established. In the past prisoners aggrieved by decisions against them have been able to “appeal” to the institution superintendent or the Director, by writing a letter. Review, however, has been highly informal, and the Director has not hesitated to go outside the record to secure information on a man’s behavior both in the incident in issue and in the past. Never, however, has he reversed a superintendent’s decision to take good time.The Court finds that the reserved powers clause would retain for Cunningham the power to take good time without a committee hearing, to place someone in a solitary cell without a statement of reasons, and to keep a man in maximum security indefinitely on his sole order. Despite that according to Guideline 800 a normal diet is served in isolation, the director may still nonetheless impose a bread and water menu. Moreover, even the adjustment committee may extend a man’s term in “jail” if it finds that he committed a second offense during his first fifteen-day term.Cunningham had formed no fixed opinion on whether counsel should be admitted to the disciplinary committee hearings. He thought that lawyers might be unfamiliar with the goals and means of penology, even by comparison with some of the guards. The director had no objection to the presence of lay counsel, however.Going to the Court’s findings concerning not only the named plaintiffs but others of the class, the Court makes the following additional factual findings:ROBERT JEWELL LANDMANLandman, a prisoner now released from the Virginia system after having served his full term on August 28, 1970, had been technically eligible for parole for six years prior to his mencing in 1964, Landman embarked upon a career, well-known to this Court, as a writ-writer. The evidence before the Court is that between that time and the time of his release, on behalf of himself he filed a minimum of 20 suits, and it is estimated that in addition he assisted fellow inmates in approximately 2,000 other petitions.Landman’s troubles with the prison authorities apparently commenced with his having written a letter to one of the local newspapers, for which he served 20 days in solitary confinement. This was followed with correspondence to the then Governor, and in 1964 he was sent to what is known as the “C” Building and placed in punitive segregation where he was held for a period of 150 days. He was removed from there and put in the general population until January 1965 when he was moved to a prison camp. His move from the penitentiary to the camp came the day before he was due to confer with a local attorney.His reassignment to the penitentiary from the camp undoubtedly came about by reason of his having by then commenced his writ-writing endeavors, and in May 1965 it was recommended that he be placed in the “C” Building for his efforts in that regard. In “C” Building his life appears to have been a series of transfers to and from solitary confinement. In at least one instance he was put in solitary confinement for 58 days and never given any reason whatsoever for this confinement.Apparently for assisting another prisoner in preparing a writ in 1966, he was once again put in solitary confinement.This Court finds that up to November 1966, the man was punished 16 times and had good time taken from him once. He served a total of 266 days in solitary confinement and 743 days on padlock.In August of 1968, this Court entered a consent injunction enjoining the prison officials from denying inmates of the Virginia State Penitentiary certain of their rights. The day following the injunction, Landman was once again put in solitary confinement for a period of 40 days, allegedly for conferring with another prisoner. Landman’s attempts to contact his lawyer were to no avail. From March 15, 1969, to July, Landman?was placed on what is known as “padlock,” wherein a padlock is placed on a particular cell so that when all other cells are opened electronically, that particular cell remains closed.In short, the Court finds that there was imposed upon Landman over 265 days of solitary confinement and in no instance did he receive even the rudimentary elements of a hearing or opportunity to defend any allegations made against him. The Court is satisfied that Landman’s exercise of his right to file petitions with the courts, and his assisting other prisoners in so doing, were the primary reasons for the punishments put upon him.CALVIN M. AREYArey was placed in solitary confinement on December 6, 1965. Although the record is devoid of any accounts of violence on the part of Arey, he had with justification been considered an escape risk and remained in “C” Building for a period of more than 4? years until released into the general population in July 1970. At least twice while in maximum security he was placed in solitary confinement, one of the times for allegedly discussing with Landman an order of this Court, and he, like Landman, was transferred to solitary confinement for a period of 42 days during which time neither of them was permitted to file legal pleadings or to send letters to courts or attorneys; and in one instance he was placed in solitary confinement for reading to inmates a letter that he had received from a state Senator. No notice or hearing of any kind was held in regard to these punishments, nor in regard to his loss of good time which he sustained. It would appear from the evidence that Arey’s good time was taken on the basis of information received from a guard and upon the recommendation of the Assistant Superintendent that his good time be taken. Not even the rudimentary elements of a hearing or opportunity to be heard was given this man prior to the taking of good time.The fact that some of the matters which gave rise to the many punishments received by Arey may well have been factually accurate can in no way be used as an excuse for the failure to accord him due process.The record abounds with evidence of Arey’s attempts to communicate with attorneys, only to be subjected to delay or frustration. In at least one instance Arey was forbidden by the Superintendent to communicate with an attorney who was not then currently representing him. Perhaps the most striking example of the indignities suffered by Arey is exemplified by an incident which occurred on August 13, 1968. On that day radio news reports gave an account of this Court’s injunction against the employment of certain methods of punishment in the state prisons. According to punishment reports submitted by guards, Arey yelled to other inmates concerning the Court order, telling the population of “C” Building generally that tear gas and the taking of bedding had been prohibited. Arey’s commitment to solitary for this was approved by Superintendent Peyton who, so far as the evidence before this Court shows, failed to check out the account of the occurrence with anyone who had been allegedly present. The prison records as to this incident show the spaces on the form designed to record the members of the disciplinary panel who heard the case to be blank. Obviously no hearing was held. In fact it was standard practice at that time, the Court finds, to discipline men in C-cell without any hearing. On occasion, according to the testimony of R. M. Oliver, a committee might sometimes be used.Arey was released from his isolation on September 23rd. That same day he found on his cell cot a letter he had tried to send to an attorney on August 14th; permission to mail it had been refused. He, of course, had been denied leave to write counsel during his solitary confinement.The record shows that a letter went from Superintendent Peyton going to Director?Cunningham, which indicates as well that copies of this Court’s order mailed by an attorney to certain prisoners were intercepted apparently on instructions of an Assistant Attorney General.It was three days after his release from meditation, where he had not been allowed to shave, brush his teeth or comb his hair, and after having been on a bread and water diet for two days out of three while incarcerated in a cell which contained only a sink and a commode, and, in the night, a mattress and two blankets, that he wrote a letter to a state Senator which ultimately was returned to him without having been mailed. The letter, which concerned penitentiary conditions, was taken to R. M. Oliver who disapproved this correspondence. No satisfactory explanation for this action has ever been received.In 1969 Arey received a copy of a letter from a state Senator which he read aloud to another inmate. While there is some dispute over how loud he spoke and what extemporaneous remarks he added, as a consequence a guard filed a punishment report. While no hearing was held, Arey lost all accumulated good time and stayed in meditation until February 5, 1970. The effect of the loss of good time was to extend his term by a year and eleven days.Arey was kept in C-cell through 1969 and well into 1970. In early 1969 no concrete reason could be given by Peyton as to why Arey was still in maximum security. At least one official testified that it was principally on account of his alleged disruptive, contentious attitude. The same official, however, in conversation with the state Senator who visited the prison, stated that Arey’s litigiousness was at least a contributing cause for the resolve to keep him in C-cell.In mid-1969, after J. D. Cox succeeded Peyton as Superintendent, a four-man review committee for the penitentiary recommended to W. K. Cunningham that Arey, Leroy Mason and several others be returned to the general population from C-cell. Cunningham rejected this proposal, and the men were kept in segregation for many more months.EDWARD R. BELVINThe prisoner, Belvin, a person with a sixth grade education, had lost 66 days good time for alleged attempted escapes. He was accorded no hearings prior to the taking of his good time. The prison administration simply sent him a “green slip” revising his sentence. As a consequence of these sanctions, 66 days were added to his term.In April, 1970, Belvin was in the prison hospital for treatment of a nervous condition. On one occasion he threatened to scream if he was not given a shot which he felt he needed. As a result he was taken to a meditation cell without a hearing. There the guards restrained him by handcuffing him and chaining his body to the cell bars. They wrapped tape around his neck and secured that to the bars also. Belvin remained?in this position for fourteen hours until a guard cut him down at 4:00 a. m. Belvin was kept nude in a bare meditation cell for seventeen days during April. His clothing was taken because he refused to surrender a food tray to guards.Guards in the penitentiary have had the authority to chain a violent man until recently; currently it can be done only at the Superintendent’s orders. Prison policy, however, dictates that mentally disturbed inmates not be so treated, but rather that commitment proceedings be begun as soon as possible. It is inexplicable why Belvin was placed in an ordinary punishment cell rather than some less brutal form of confinement. He had reportedly twice attempted suicide prior to this episode, yet medical supervision appears to have been lax. The decision to chain him was made by guards, without the prior approval of any doctor, yet this incident did not, so far as the record shows, result in so much as a reprimand for those responsible.BARRY CLINTON JOHNSONJohnson, a prisoner under sentence of death, was placed in meditation three times. In January, 1969, he spent about seven days in meditation for complaining to guards and arguing about officials’ treatment of money sent to him at the prison. The guards’ reports recount a very poor attitude in making requests and nasty remarks about personnel. No hearing was held; Johnson gathered from a guard that his complaints about his money were cause for his “jailing.” Just before his confinement, Johnson filed a complaint in this Court along with one Short alleging mistreatment by guards.The second time, Johnson was reported as having harassed a guard when he inquired of him about some shirts which another correctional officer had promised him. The week before he had been shot with tear gas in his cell and had written to Philip J. Hirschkop, an attorney in his case, complaining about the incident. He also encouraged other inmates subjected to such treatment to write Hirschkop. Before his transfer to solitary, Johnson was accorded a semblance of a hearing in that he was taken to a back office and confronted with the charge by three guards, two of whom were officers. The allegedly harassed guard was not present at this hearing to be questioned. The guards sent him to meditation without advising him of the length of his stay.In July, 1970, Johnson was sent to solitary for loud talking, although the man with whom he allegedly was engaged in loud talking was not punished. One guard, Captain Baker, had previously threatened to punish him for cursing other guards. Another, Gibbs, told him to stop complaining to courts and lawyers or he would be placed in solitary. Johnson was taken to solitary by five or six guards and brought the next morning to the guards’ office. There, Gibbs threatened to cut off commissary privileges, hot water, and coffee if he did not cease his complaints. Others accused him of cursing a guard; he denied it, but they refused to check out his story. Less than two weeks before this incident Johnson had written a complaint letter to the Governor of Virginia.When he was taken to C-cell solitary the third time, Johnson was punched by Captain Baker with a tear gas gun and then, at Baker’s orders, chained to the cell bars. This endured for five days. His waist and arms were secured to the bars in such a fashion that he could just barely recline. He was not released in order to urinate or defecate.STANLEY DOUGLAS POWELLPowell, an inmate of Correctional Field Unit No. 4 for six months prior to trial, stated that he was summarily punished for allegedly cursing a guard. Two days after the offense he was taken aside by that guard, Anderson, and one other; the latter ordered him to strip naked. Lieutenant Anderson thereupon struck him with a nightstick. Powell was taken to a doctor some time later and his head was stitched up. The same day he was taken before the Superintendent and ordered into solitary confinement. At some point during this episode, Powell wrote his brother about the incident. Anderson, having apparently intercepted the mail, called him in and said that if he made no trouble about the beating he need not go to “jail.” Powell spent eighteen days in solitary confinement; he never had a hearing, nor was he given reasons for his punishment.The guard, Anderson, testified that he struck Powell only after being attacked himself. Cunningham stated, however, that it is the policy throughout the penal system that any man who attacks a guard loses all of his good time. This did not occur in Powell’s case. The Court rejects the account given by Lieutenant Anderson.THOMAS JEFFERSONJefferson gave an account of a series of run-ins with authorities in various field units. His innocence of misconduct may be and indeed is open to question; nevertheless the procedures followed in imposing sanctions is not seriously disputed.At Field Unit 16 he was sent to solitary three times at the order of various guards or guard officers. No hearing or statement of reasons was offered. A bread and water diet was enforced at various times.As soon as he was transferred to Unit 2, Jefferson was jailed for 31 days for misbehavior without a hearing. Following an argument with guards in the dinner line, Jefferson was committed to solitary a second time. The guards refused to let him see the superintendent. When he argued, a guard shot him with tear gas and kicked him, although he did not resist. Twice again that day he was tear gassed in his cell. This jail term lasted 56 days, during which Jefferson did not have a shower nor get a change of clothing. In addition, he lost between sixty and ninety days of good time. No hearing was ever held.Jefferson’s reputation as a trouble maker accompanied him to Field Unit 4. Only minutes after his arrival he was jailed for “misbehavior” - cursing a guard. Jefferson, who is black, says this occurred when a white guard called him “boy.” No hearing was held on this offense. This was the first of twenty-one terms he spent in “jail” in Unit 4. His offenses included refusing to work, refusing to work in cold weather, and talking to civilians on the highway. For an escape attempt he lost 60 days’ good time. No hearings were held in any case, but he knew generally the nature of his alleged offense each time he was punished.Superintendent Honeycutt of Field Unit No. 2 wrote to D. P. Edwards, Superintendent of the Bureau of Correctional Field Units, after the chow line affair, stating that he intended to keep Jefferson in a solitary cell indefinitely until his attitude toward authority changed for the better. Honeycutt in theory had no power to confine a man more than thirty days, but Edwards made no objection.TIM SCOTTScott witnessed part of Jefferson’s chow line melee. Jefferson was loud, Scott says, but he made no physical threats, nor did he resist physically. Another inmate persuaded him to submit and go to jail, according to Scott’s testimony, which the Court accepts.Scott himself is an adherent of the Black Muslim faith. As part of his religion he must each day wash the exposed?parts of his body. At Field Unit 2 he was committed to a solitary cell when he was discovered washing in a basin in the dormitory. A guard, one Wyatt, directed him to stop. Scott protested that he was not breaking any regulation, but continued to wash. The guard drew up a charge and Scott went before the superintendent the next day. That official confronted him with Wyatt’s charge and asked why he had not complied with the guard’s order; Scott again replied that rules had been posted and no regulation forbade using the basin in the evening. He was sentenced to seven days in jail.At Field Unit 11, to which he was transferred, Scott at one point asked to see a doctor. He was taken, examined, and returned. A guard lieutenant then brought him some medicine which had been prescribed and told him to take it. Another inmate told him that the “medicine” was suppositories, not to be taken orally; Scott had received no instructions. The lieutenant returned and discovered that Scott had not taken the medicine. After a hearing of sorts before the guards, the details of which do not appear, the prisoner was taken to another camp and put in solitary for nineteen days. On his return to Camp 11 he was notified that he had lost 30 days’ good time for “misconduct.” He asked the superintendent what his offense was; that officer said that Scott had asked to see the doctor when there was nothing wrong with him and then refused to take his prescribed medicine. Scott infers that he was punished because only a few days before a man in his camp, one Page Early, had died while begging to be allowed to see a doctor, and the authorities wanted to keep the matter quiet. In fact the superintendent and a guard told other inmates that if they tried to get word of Early’s death out of the institution and into court they might be put in solitary or lose good time.Scott’s Islamic religion threatened to bring other sanctions upon him. A guard sergeant threatened him with transfer from Camp 2 if he continued to proselytize; a captain directed him to speak to no more than one or two at a time. Such restrictions are not imposed upon conversations on other topics, nor is the use of the washbasin restricted for others as it is for Scott. Cunningham himself said that by Scott’s own account he had committed no offense.DAVID LEON BROOKSBrooks also was committed to solitary confinement in field units three or four times without a prior hearing. At one time in October 1968, he lost 60 days of good time and was jailed for allegedly?refusing to work. During one period of confinement Brooks was kept nude in his cell for nine days.CHARLES LEE MELTONCharles Lee Melton had a substantial record of infractions at Field Units 2, 31 and 7. “Jail punishment reports” indicate that in most cases the decision to punish was made by a two or three man board, including the superintendent. At Unit 31, Melton said, he was usually given a chance to explain his conduct by Superintendent Sumner.On December 4, 1968, according to the defendants’ records, Melton was jailed for the following reason:Offense: When E. Phillips #90872 was put in solitary he said might as well put him in.Melton was heard on this “charge” by the superintendent alone. Records show that he was not released until March 12, 1969. Until February 12 he received full rations only every third day. Meals the other days consisted of four slices of bread, served twice each day. During the first 32 days of “jail” a window was left open in Melton’s cell and snow fell in on him.From July 29, 1970, through September 15, 1970, Melton was in a meditation cell in Camp 7; during this time his diet was bread and water for two of every three days and his weight fell from 160 to 140 pounds.After his three month term in meditation had been served in 1969, Melton was transferred to the penitentiary where he was notified that he had lost all his accumulated good time - over twelve months - for refusing to work. No hearing was held.Testimony by prison administrators illustrated the accuracy of Tolstoy’s observations about the limits of bureaucratic power. A specific order invariably deteriorates in content as it travels from chief to subordinates on the line. Higher prison officials, generally speaking, displayed a confident perception of the rules and procedures applicable in various situations. Lower officers who in fact implement the rules were, however, less sure about the regulations governing the prisoners’ conduct and their own.The rule for years has been that, absent claims of gross violations of fundamental rights, federal courts will make no inquiry into the manner in which state prison officials manage their charges. McCloskey v. Maryland, 337 F.2d 72 (4th Cir. 1964). It is not difficult to discern the principal rationales for this doctrine. A prisoner after all is presumed to have been justly convicted and sentenced; that presumptively valid judgment imposed a punishment of confinement under certain contemplated conditions. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnstone, 334 U.S. 266 (1948). This is not to say that prisoners possess no further rights to be infringed or liberties to be taken. However, while confined, their fate is by law in the hands of administrators whose acts, like those of most administrative decision-makers, may be presumed legal.Furthermore, courts have, perhaps implicitly, honored the theory of criminal punishment that holds that men who have been found guilty of violations of criminal laws may be utilized, so to speak, by society for ends related to the general welfare, such as the deterrence of similar acts by others and the alteration of their own patterns of behavior. Criminal activity, it is thought, once proved by legal procedures, fairly works a forfeiture of any rights the curtailment of which may be necessary in pursuit of these ends, such as the right of privacy, association, travel, and choice of occupation. Because federal courts have considered themselves both lacking in the authority to dictate those uses to which society may put convicts and without the specialized knowledge to test the necessity of losing certain?liberties to accomplish various goals, they have not generally questioned such deprivations. Even now no court has required that states adapt their penal system to the goal of rehabilitation.Moreover, in a society concededly subject to increasing legal regulations, prisoners more than any others are subjected to state control. State officials govern inmates’ lives by a series of decisions on an hourly, indeed continual, basis. Many of their decisions may be subject to more than colorable constitutional attack. If each is to be subject for federal examination of a plenary sort, the energy and time of the Federal Judiciary and of state penal officials would be diverted to an inordinate extent. Even if the law permitted many such matters to be determined without the taking of testimony, little if any saving in time would be accomplished. Concerns of judicial efficiency must be among the reasons which cause courts to pause in considering whether Congress intended federal civil rights jurisdiction to extend over such claims. See Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971); Weddle v. Director, Patuxent Institution, 436 F.2d 342 (4th Cir. 1970).Nevertheless, whether detention should be imposed at all has always been matter for federal review. In consequence any substantial restriction upon access to a federal forum for examination of the legality of confinement has been barred as well. See?Johnson v. Avery, 393 U.S. 483 (1969); McDonough v. Director of Patuxent, 429 F.2d 1189 (4th Cir. 1970).Recent caselaw too supports inquiry into prison administrators’ restriction of constitutional rights other than that of liberty itself.There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene. It is clear, however, that in instances where state regulations applicable to inmates of prison facilities conflict with such rights, the regulations may be invalidated. Johnson v. Avery,?393 U.S. 486.Prior to?Johnson?and since, federal courts have directed state and federal penal officials to honor convicts’ claims to religious freedom, freedom of speech and association, and freedom from racial classification. See?Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970); Lee v. Washington, 390 U.S. 333 (1968). The reasoning supporting such intervention must be that the prison authorities have shown no compelling need to suppress these rights. Plainly stated, they have not shown such remarkable success in achieving any conceivable valid penological end by means which entail the abridgment of these constitutional guarantees as might make their denial seem worthwhile. Cf. In re Gault, 387 U.S. 1 (1967).Courts have also intervened when sentences are administered in a manner that seems unintended and unauthorized by the convicting court. Relief is justifiable in some cases on the fairly basic rationale that to extend or augment punishment beyond that imposed by a state court is to penalize without due process. A valid state judgment affords no license to exceed its terms. Perkins v. Peyton, 369 F.2d 590 (4th Cir. 1966).Inquiry into the administration of sentences has also been promoted by the trend elsewhere in law to reject the so-called right-privilege distinction. Although state law may authorize the grant or withdrawal of certain benefits during incarceration, and state authorities may be taken, in sentencing, to contemplate the administration of their judgments in conformity with state law, still the federal Constitution circumscribes governmental power to withhold such benefits arbitrarily or discriminatorily.Finally, penal authorities have been constrained to refrain from punishment deemed cruel and unusual in situations where some other penalty might legally be imposed. Some courts have, further, held that any penalty at all for an act which could not legally be a violation amounts to cruel and unusual punishment. Carothers v. Follette,?314 F.Supp. 1026.Rejection of the right-privilege distinction as a sterile form of words has likewise cast doubt upon the logical difference between deprivations constituting “punishment” and those presented as techniques for the maintenance of “control” or “security.” Presumably the consequence of labeling a deprivation a matter of control is that it may be imposed without procedural preliminaries. The distinction is unpersuasive. Substantial deprivations of rights even in matters called civil where no misconduct is alleged have not been permitted without due process. Reasons of security may justify restrictive confinement, but that is not to say that such needs may be determined arbitrarily or without appropriate procedures. In an obvious sense, too, any treatment to which a prisoner is exposed is a form of punishment and subject to Eighth Amendment standards. This is not to say, though, that prison officials may not treat their charges as individuals. Deprivations of benefits of various sorts may be used so long as they are related to some valid penal objective and substantial deprivations are administered with due process. “Security” or “rehabilitation” are not shibboleths to justify any treatment. Still courts must keep in mind that a recognized valid object of imprisonment is not just to separate and house prisoners but to change them. When it is asserted that certain disabilities must be imposed to these ends, courts may still inquire as to the actuality of a relation between means and end. The test of necessity will, as mentioned above, be more stringent when a deprivation of a fundamental constitutional right is involved. When officials assert lack of funds needed to achieve their goals by means which would not infringe constitutional rights, moreover, the attempted justification will usually fail. Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark. 1971).Extensive evidence was presented and detailed factfindings have been made for the reason that the plaintiffs contend, and the Court has concluded, that the constitutional violations of which they complain are not isolated deviations from normal practice but rather indicated traditional procedures in the state penal system. When such a showing is made it is the Court’s duty not solely to amend so far as possible the defaults of the past but to prevent their likely recurrence in the future.The Court, at trial, granted counsel a certain amount of leeway in presenting evidence; as a result the record runs at some points far afield into issues not strictly of constitutional scope. For this reason it bears examination not only by lawyers but by any officials of our state government concerned to provide a penal system better, perhaps, than required by minimum constitutional guaranties.One problem raised and not resolved by a study of the cold record, the credibility of much of the testimony, pervades this case as it has few others in this Court’s experience. Witnesses drawn from a society of convicts as a rule may not have so refined a regard for the value of truth as most citizens. All of the unreliable testimony in the case has not, however, come from members of the plaintiff class. Custodial personnel live with their charges in a climate of intimate tension; it would be surprising indeed if an exchange of standards and values did not take place between them. Prison administrators too, perhaps understandably, may develop a self-protective instinct that manifests itself in a tendency to preserve and fall back on the written record of propriety, although it may not reflect reality. These observations must lead this Court, and anyone else concerned?with maintaining fairness in the operation of our penal system, to conclude that the fairest rules must fail to fulfill that goal if they are not administered by fair-minded and intellectually capable men. The work of custodial personnel is such as to frequently try the patience of Job. Nevertheless, the daily administration of rules for conduct of an admittedly different society requires not only firmness but awareness of the purpose of incarceration.The proof shows three general classes of constitutional deprivation, each a subject for injunctive relief. Discipline has been imposed for the wrong reasons. It has been imposed in cases of what may have been validly punishable misconduct, but without the requisites of procedural due process. And, punishment of a sort that the Constitution bars in any event has been imposed.Just as the cruel and unusual punishment clause restrains the Judiciary and the Legislature, Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), reh. denied, March 1, 1971, so also it limits the discretion of administrators. The evidence here shows that these limits have been exceeded.In gauging the compliance of Virginia officials with this constitutional command, the Court has not found it necessary to explore deeply the question whether a practice in issue constitutes a punishment. Compare Trop v. Dulles, 356 U.S. 86 (1958). As noted above, in an obvious sense any term of incarceration, with all of its incidents, constitutes a penalty. The purposes of the Eighth Amendment might best be served by treating the preliminary issue as thus resolved. Any treatment imposed upon the convict would then be tested by the cruel and unusual standard. See Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1971), aff’d 442 F.2d 304 (8th Cir. 1971). A deprivation imposed for purposes not of deterring misconduct in the institution but instead for some nonpunitive end, such as disabling a man from injuring himself or property, or for no specific purpose at all, might nonetheless be unconstitutional. A defect in that approach taken alone is that it tends to obscure the issue of disproportion between offense and penalty - a valid Eighth Amendment inquiry - when a deprivation has concededly been imposed as a consequence of past misconduct within the prison and for the end of deterrence and example. A prisoner is both a participant in society as a whole and a member of the smaller penal community, a relatively closed society subject to a separate set of rules. The cruel and unusual test may validly be applied, in effect, on both levels to intraprison discipline.Courts have not articulated detailed standards establishing what penalties are cruel and unusual. It is recognized that standards may change. Indeed it is hoped that they will:The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Trop v. Dulles,?356 U.S. 100.The provision, some have suggested, may be violated by the imposition of a penalty that is excessive in comparison with prevailing practice disproportionate with the gravity of the crime, or greater than is necessary to achieve the permissible aims of punishment. Rudolph v. Alabama, 375 U.S. 889 (1963). It is cruel and unusual, furthermore, to impose any punishment whatsoever upon an individual guilty of no harmful act but solely possessed of an incriminating condition. Robinson v. California, 370 U.S. 660 (1962).A penalty may likewise violate the clause even though it consists only of exposing an individual to a high probability of suffering grievous injury. Cruelty exists for example in imposing on a man the anguish of continued uncertainty as?to his fate, with knowledge that severe consequences may befall him for unforeseeable reasons against which he is powerless to protect himself:This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. Trop v. Dulles,?356 U.S. 102; See also, Holt v. Sarver,?309 F.Supp. at 372.Our own Court of Appeals has stated that lawful incarceration must not include exposure of the prisoner to the risk of arbitrary and capricious action, Landman v. Peyton, 370 F.2d 135 (4th Cir. 1965), cert. denied 388 U.S. 920 (1967).Although most of the administrators who testified in this case stated that the imposition of a bread and water diet is now extremely rare, the issue is not moot nor unsuitable for injunctive relief. The director still retains the power to approve bread and water, and in the past he has done so on application by subordinates. Moreover, subordinates have on their own initiative used the practice without approval in the past.Bread and water provides a daily intake of only 700 calories, whereas sedentary men on the average need 2000 calories or more to maintain continued health. Evidence is not presented on the other nutritional shortcomings of a bread diet, but it does no violence to doctrine of judicial notice to remark that vitamin, protein, and mineral content is probably deficient as well. The purpose and intended effect of such a diet is to discipline a recalcitrant by debilitating him physically. Without food, his strength and mental alertness begin to decline immediately. It is a telling reminder too that prison authorities enjoy complete control over all sources of pleasure, comfort, and basic needs. Moreover, the pains of hunger constitute a dull, prolonged sort of corporal punishment. That marked physical effects ensue is evident from the numerous instances of substantial weight loss during solitary confinement.Even the Superintendent of the Virginia State Farm, one of whose foremost concerns, and rightly so, must be the safe confinement of dangerous men, has not found it necessary to use bread and water in his memory. Other officials report a very rare use of the tactic. A current manual on prison practices strongly disapproves any disciplinary diet which impairs health. American Correctional Association, Manual of Correctional Standards (hereinafter A.C.A. Manual), 417 (1966).The practice is therefore both generally disapproved and obsolescent even within this penal system. It is not seriously defended as essential to security. It amounts therefore to an unnecessary infliction of pain. Furthermore, as a technique designed to break a man’s spirit not just by denial of physical comforts but of necessities, to the end that his powers of resistance diminish, the bread and water diet is inconsistent with current minimum standards of respect for human dignity. The Court has no difficulty in determining that it is a violation of the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Wright v. McMann, 321 F.Supp. 127 (N.D.N.Y.1970).Likewise, to restrain or control misbehavior by placing an inmate in chains or handcuffs in his cell is unconstitutionally excessive. The evidence showed that in Belvin’s case this practice left him with permanent scars, and in his case and that of Johnson it caused lack of sleep and prolonged physical pain. Neither man was released to respond to a call of nature, nor could they?eat. Further details are not necessary in order to reveal that it constituted physical torture.Corporal punishment should never be used under any circumstances. This includes such practices as handcuffing to cell doors or posts, shackling so as to enforce cramped position or to cut off circulation,…deprivation of sufficient light, ventilation, food or exercise to maintain physical and mental health, forcing a prisoner to remain awake until he is mentally exhausted, etc.The regulations of well-run?prisons usually provide, in effect,?that force may be used only when necessary to protect one’s self or others from injury, or to prevent escape, or serious injury to property.?A.C.A. Manual,?417.Corporal punishment of this variety is outmoded and inhuman. The Constitution forbids it, and this Court shall enforce that ban. It is not contended that a man in a locked solitary cell cannot be kept from escaping, injuring others, or destroying things of value. The only justification for the policy is to prevent self-injury. (Ironically, Belvin seems to have been seriously cut by his “protective” chains, either despite or on account of his own efforts). The Court simply cannot conceive that no less drastic means can achieve that legitimate end. The extent of the constitutional guaranty is not fixed by the administrators’ budget or imagination. Jackson v. Bishop,?404 F.2d 580. Here the evidence shows that Belvin’s fetters were put on without medical approval. A doctor, if called on for a recommendation, might well have prescribed some form of drug treatment. Only recently have penitentiary officials sought to borrow some strait jackets for such emergencies. Indeed to a great extent the control of violent inmates has been left in the hands of guard personnel, who call to their superiors’ attention incidents such as Belvin’s experience only after the fact by brief written reports. Thus efforts to explore alternative treatment methods have not been exhausted; indeed they have hardly been commenced. On this showing the practice of fettering inmates in closed cells is both cruel and unnecessarily so.The practices of taking inmates’ clothing while in solitary and keeping them in unheated cells with open windows in the winter have been disapproved in Wright v. McMann.?Such penalties, which work to degrade an inmate by denying him any of the sources of human dignity and imperil his health as well, are cruel and unusual. The Court recognizes, as pointed out by the prison authorities, that recalcitrant inmates may well, and undoubtedly do, break windows deliberately - nevertheless this conduct can surely be punished by a method less likely to endanger the health of the inmate. See also, Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971). The Court will permit an inmate to be kept nude in his cell only when a doctor states in writing that the inmate’s health will not thereby be affected and that the inmate presents a substantial risk of injuring himself if given garments.The instances of chaining, denial of clothing, and exposure to cold have, on the evidence, not been everyday occurrences. New regulations in Guideline 800 also purport to outlaw some of these practices. Nevertheless injunctive relief seems appropriate for the reason that in the past punishments of this sort have been inflicted by guards acting alone. Administrators, in other words, have not been in complete control of their subordinates. There is no particular reason to believe that this situation is being remedied. See Landman v. Peyton.?Only injunctive relief will adequately protect the plaintiff class.On occasion prisoners in solitary confinement have been deprived of their mattresses and blankets as punishment for misconduct. The new guidelines authorize this to be done to punish “destructive behavior.” In the past this?has been done for such offenses as noise-making, as in Moon’s case. The penalty is undoubtedly harsh, but the Court is not persuaded that it is cruel and unusual. There is no evidence that it had a substantial effect upon anyone’s health. If the cell is otherwise clean, and well heated, and the prisoner keeps his clothing, it should not be detrimental. Other cases holding solitary confinement, which included a denial of bedding, cruel and unusual generally included the element of unsanitary conditions. See Wright v. McMann,?321 F.Supp. at 139; Knuckles v. Prasse, 302 F.Supp. 1036 (E.D.Pa.1969); Hancock v. Avery, 301 F.Supp. 786 (M.D.Tenn.1969); Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Calif. 1966).The practice of crowding several men into a single “solitary” cell, however, must be condemned. Wade Edmond Thompson was held for twenty-four days in a meditation cell at Field Unit No. 7. When first “jailed,” he was put in a one-man cell with six or seven others. All had apparently refused to work in cold weather, but there is no evidence that any threatened violence. Thompson was taken briefly to a solitary cell at another camp, but then for some reason he was returned to Unit 7 and kept for a further two weeks in a cell with three other men. Three men slept on two mattresses, and the fourth slept in one corner with his feet stretched over the others. They were also denied the usual Bible to read. Several administrators stated that more than one man should be put into a solitary cell only if emergency conditions required it. In Thompson’s case, however, no such justification is shown. Clearly if a number of men had earned a term in meditation, the authorities had the capacity to distribute them among various penal units. The crowding is thus shown unnecessary and takes on a vindictive aspect.Cases involving overcrowding in prison cells have generally included aggravating conditions such as denial of clothing, unhygienic conditions, and other abuses. Anderson v. Nosser;?Knuckles v. Prasse.?Here there is no sign that health was in fact jeopardized.?Anderson?and?Knuckles?concerned conditions that prevailed for less than three days. Four men here were penned like animals in a small cell, designed for one, for fourteen days without respite. Lack of space made sleeping very difficult. If confined men retain any claim at all to human dignity, they cannot be needlessly so dealt with for such long periods of time. The system’s new guidelines provide that superintendents shall “proceed to alleviate [excess occupancy] as promptly as possible.” Again, in view of the systems past difficulties in securing compliance with its regulations at lower levels, the Court shall enjoin extended, unnecessary confinement in solitary cells of more men than the cell was meant to hold.Tear gas has also been used to silence noisy, misbehaving men while confined to their cells. Thomas Jefferson was gassed three times, and others have been gassed in their cells at the penitentiary. The problem of dealing with convicts who persist in disturbing entire cell blocks and inciting others to join in the disorder is a real one. The Court has not found any instances of gassing men in cells who were not currently disruptive. Yet the use of gas to disable a man physically who poses no present physical threat constitutes a form of corporal punishment, the use of which in such a situation is generally disapproved. Undoubtedly it is effective, but it is painful, and its abuse is difficult to forestall. The problem appears to arise because there appears to be no way to isolate a misbehaving inmate to an area where his rantings will not disturb anyone. This difficulty is, however, one of the system’s own creation. If chaining a man to his bars, punishing him with a strap, and other corporal punishment should be enjoined, Jackson v. Bishop,?this Court cannot make a principled distinction which would permit the use of tear gas to punish or control the nonthreatening inmate.There was evidence, furthermore, that some inmates were not permitted to shower during extended stays in solitary. Relief on this score will be denied because there is no proof that at such times they were also denied the necessary sanitary items so that they might wash in their cells.Still, matter for preliminary inquiry is whether this Court ought to consider any claim of unlawful denial of good time credit prior to the exhaustion of state court remedies. The general rule is that the 1871 Civil Rights Act, 42 U.S.C. §1983, will not serve as a substitute for the federal habeas corpus remedy, such that one might avoid the exhaustion requirement by invoking the former. Rodriguez v. McGinnis, 451 F. 2d 730 (2d Cir. 1971). So stated, the rule begs the question: When must a claim be presented in habeas?Recent caselaw has expanded the scope of federal habeas corpus, so that the writ is available to achieve relief other than immediate release. See?Peyton v. Rowe, 391 U.S. 54 (1968). In consequence it has been said that “[i]nsofar as one attacks only the state computation of sentence-service, and not the validity of the entire sentence, habeas corpus is still the proper remedy in those exceptional cases where the state’s computation of service of a sentence presents a federal question.” Schiro v. Peyton, No. 13,086, mem. decis. (4th Cir. 1968).In a sense, of course, any claim of violation of a prisoner’s constitutional rights amounts to an allegation that he is “in custody in violation of the Constitution…,” 28 U.S.C. §2254(a). Still it has long been clear that many such claims, whether or not they might have been raised in a habeas case, see Developments in the Law - Federal Habeas Corpus, 83 Harvard L.Rev. 1038, 1079-87 (1970), are nonetheless properly presented in a civil suit in equity.?Prevailing precedent in this Circuit permits claims that good behavior time has been arbitrarily denied, and that injunctive relief is therefore owing, to be litigated in §1983 actions,?and indeed disapproves the use of habeas corpus. Roberts v. Pegelow, 313 F.2d 548 (4th Cir. 1963). If the scope of habeas has since expanded, see Johnson v. Avery;?Peyton v. Rowe,?there is nonetheless no reason to assume that the ambit of §1983 has thereby?pro tanto?contracted. Other circuits as well have dealt with “good time” claims under the Civil Rights Act. United States ex rel. Campbell v. Pate, 401 F.2d 55 (7th Cir. 1968); Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967). The rule of Rodriguez v. McGinnis,?does not prevail in this Circuit.The constitutional challenge cannot be answered by an argument that public assistance benefits are “a ‘privilege’ and not a ‘right.’” Shapiro v. Thompson, 394 U.S. 618 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation, Sherbert v. Verner, 374 U.S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S. 513 (1958); or to discharge from public employment, Slochower v. Board of Higher Education, 350 U.S. 551 (1956). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss,” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951)and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961), “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the governmental function involved as well as of the private interest that has been affected by governmental action.” See also, Hannah v. Larche, 363 U.S. 420 (1960). Goldberg v. Kelly, 397 U.S. 254 (1970); see also, Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir. 1970).In dictum, the Second Circuit has recognized the requirement of procedural fairness:We would not lightly condone the absence of such basic safeguards against arbitrariness as adequate notice, an opportunity for the prisoner to reply to charges lodged against him, and a reasonable investigation into the?relevant facts - at least in cases of substantial discipline. Sostre v. McGinnis.That case has been followed in this Circuit in Bundy v. Cannon, 328 F.Supp. 165 (D.Md. 1971), where the court required procedural safeguards prior to withholding of good time credit, transfer to maximum security, and solitary confinement.Similar possible penalties were found sufficiently grievous in Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal. 1971), to require notice, hearing before an impartial tribunal, confrontation, the presentation of witnesses, counsel or a substitute, and written factfindings. See also, Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970); Meola v. Fitzpatrick, 322 F.Supp. 878, 8 Cr.L.Rptr. 2404 (D.Mass.1971); Carothers v. Follette;?Kritsky v. McGinnis, 313 F.Supp. 1247 (N.D.N.Y.1970); Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970).The individual interest at stake is obvious - the avoidance of severe punishment. The privileges at stake are substantial. A man in solitary confinement is denied all human intercourse and any means of diversion. Padlock confinement isolates the individual as well from his fellows. Maximum security confinement is a lesser penalty, but like the others it interrupts a prisoner’s efforts at rehabilitation and curtails many recreational activities. Loss of good time credit may in effect amount to an additional prison sentence. On the other hand, the effect on a man in prison of a further sixty day term may be less than the effect of a sixty day jail term on a free man. The prisoner, one assumes, has already suffered loss of his job and damage to his reputation, and his family ceased to rely upon him, when he was convicted, whereas the free man may find these interests imperiled by even a short sentence. The losses which ensue from a prison disciplinary action may not be as lasting as the employment opportunities at stake in Greene v. McElroy, 360 U.S. 474 (1959) and Willner v. Committee On Character and Fitness, 373 U.S. 96 (1963). At the same time deprivation may be momentarily as telling as the loss of financial support or housing which were treated in?Goldbergand?Caulder.In these adjudicatory proceedings the Court concludes that certain due process rights are both necessary and will not unduly impede legitimate prison functions.First, the decision to punish must be made by an impartial tribunal. This bars any official who reported a violation from ruling. Goldberg v. Kelly,?397 U.S. 271; Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970). A substantial question arises whether field unit officials can ever so divorce themselves from events in their small units sufficiently to sit impartially. The Court has not been shown that this is impossible, but in any individual case participation in occurrences giving rise to a charge shall bar any man from sitting in judgment. There appears to be no reason to require that the disciplinary board be composed of any specific number of individuals. Each member of a panel must, however, be free of prior involvement with the incident under examination so that he may settle the case on the basis of the evidence at the hearing.Second, there shall be a hearing. Disposition of charges on the basis of written reports is insufficient. Prisoners are not as a class highly educated men, nor is assistance readily available. If they are forced to present their evidence in writing, moreover, they will be in many cases unable to anticipate the evidence adduced against them. Particularly where credibility and veracity are at issue written submissions are a wholly unsatisfactory basis for decision.”Goldberg v. Kelly,397 U.S. 269. Necessarily a hearing encompasses the right to present evidence in defense, including the testimony of voluntary witnesses.A hearing must be preceded by notice in writing of the substance of the factual charge of misconduct. Only with written notice can a prisoner prepare to meet claims and insist that the hearing be kept within bounds. In re Gault,?387 U.S. 33. A reasonable interval to prepare a defense must be allowed as well, but the Court declines to fix any definite period. Rather, whether a trial has been too speedy, must be determined on a case-by-case basis.Cross-examination of adverse witnesses likewise is necessary. The Court appreciates the concern of prison officials that interrogation by prisoner of the guard force may be at variance with their ordinary respective positions in the penal hierarchy. Because most disciplinary cases will turn on issues of fact, however, the right to confront and cross-examine witnesses is essential. Escalera v. New York City Housing Authority,?425 F.2d 862. It is, however, well within the power of the disciplinary official or tribunal to restrict questioning to relevant matters, to preserve decorum, and to limit repetition.Fundamental to due process is that the ultimate decision be based upon evidence presented at the hearing, which the prisoner has the opportunity to refute. Goldberg v. Kelly,?397 U.S. 271; Escalera v. New York City Housing Authority,?425 F. 2d 862. “To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on,” Goldberg v. Kelly,?397 U.S. 271. To permit punishment to be imposed for reasons not presented and aired would invite arbitrariness and nullify the right to notice and hearing.The Court will not require an appellate procedure. However, if higher authorities than the disciplinary committee feel duty bound to re-examine decisions, their review must be restricted to the charge made and the evidence presented. The practice of going outside the record in search of bases for punishment?must cease. “It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, 333 U.S. 196 (1948).In addition, for the reason that the evidence shows that some inmates are unfortunately intellectually unable to represent themselves in discipline hearings, the tribunal should permit a prisoner to select a lay adviser to present his case. This may be either a member of the noncustodial staff or another inmate, serving on a voluntary basis. See Bundy v. Cannon.?Notice of charges shall include the information that such assistance is available.In other instances where proceedings may result in the loss of substantial rights, the right to representation by counsel has been considered an essential element of due process. “Counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the recipient.” Goldberg v. Kelly,?397 U.S. 270; see Caulder v. Durham Housing Authority,?433 F.2d 1004. Following Bearden v. South Carolina, 443 F.2d 1090 (4th Cir. 1971), it seems that there is no requirement that the state provide legal aid. However, where substantial sanctions are possible and the assistance of counsel may be of benefit, retained counsel is necessary to protect the factfinding and adjudication process unless there is shown some “compelling governmental interest in summary adjudication,” Caulder v. Durham Housing Authority,?433 F.2d 1004 n. 3, the fulfillment of which is inconsistent with the right to retained counsel. Cf. Brown v. Peyton,?437 F.2d 1231. The state has not endeavored to do so, other than by testimony that the presence of counsel might turn the hearing into a “hassle.” The Court does not accept this speculation as well-founded. Experience with?pro se?trial litigants indicates that the contrary is more likely true. On the other hand, the Court has observed that prison officials legitimately desire to conduct disciplinary proceedings speedily. Therefore a prisoner who desires to secure counsel for hearing may be required to notify the committee of that fact, and postponement of the hearing to secure counsel may reasonably be limited to four days.These minimum due process standards are necessary when solitary confinement, transfer to maximum security confinement, or loss of good time are imposed, or a prisoner is held in padlock confinement more than ten days.The imposition of the minor fines disclosed by the evidence, for example, or, hypothetically, loss of commissary rights, restriction of individual recreational privileges, or padlocking for less than ten days, do not require this panoply of guaranties. The right to be represented by another may be omitted. Written notice may be dispensed with, and appellate review need not be formally conducted. The Court will only require verbal notice and the opportunity for a hearing before an impartial decision maker, with a chance to cross-examine the complaining officer and to present testimony in defense. As always, however, procedural formality may not shield arbitrary action. Impartiality and a chance to air the facts may be expected to prevent arbitrary action as well as the good faith factual errors which the Court has observed in the record.To recanvass the full range of justifications for the vagueness doctrine would unduly prolong this opinion. For useful commentary, see McGautha v. California, 402 U.S. 183(1971); Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969). In the prison context these considerations argue for application of the requirement:1. At least in Virginia, where discipline has been used to suppress litigation efforts, the need exists to establish in advance, to avoid a chilling effect, the limits of administrators’ power.2. Like other elements of due process, prior notice of standards of behavior enhances the prisoner’s sense of fair treatment and contributes to rehabilitation. See In re Gault.3. Equal treatment of similar conduct - at least to the extent of recording offenses, if not in penalties - will be more certain with fixed rules.4. The ingredient, in vagueness law, of something like a doctrine forbidding delegation of legislative powers is essential in prison, where the risk of arbitrary action by lower officials is great.5. The need for judicial review of prison disciplinary actions may greatly decrease in the future if violations of existing rules can be shown.6. Prison life is highly routine; it therefore ought not to be difficult to establish in advance reasonably clear rules as to expected behavior. Automatic compliance may be expected of many.7. Specificity has been required in the academic sphere, where administrators likewise are not specialists in legislation.8. Severe sanctions may result in prison; the greater the individual loss, the higher the requirements of due process.Countervailing considerations deserve mention:1. Life is complex in prison as well as outside, and all forms of misbehavior cannot be anticipated. Some may go unpunished for want of a rule.2. Administrators ought not to be put to the choice of foregoing discipline in such cases or resorting to the ordinary criminal process, for flexibility may work to the benefit of the institution and the inmates as well.3. Legalistic wrangling over whether a rule was broken may visibly undermine the administration’s position of total authority, necessary for security’s sake.4. Prisoners, unlike free men, must well know that they are considered potentially dangerous men and must expect to be highly regimented. In such cases the law requires less in the way of?notice, and places a greater burden on the individual to make inquiry or ask permission before acting. Cf. United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971).The objections to the application of some vagueness principle may all be met simply by relaxing the standard somewhat in deference to the state’s legitimate needs, rather than by abandoning it. The Court concludes, therefore, that the existence of some reasonably definite rule is a prerequisite to prison discipline of any substantial sort. Regulations must in addition be distributed, posted, or otherwise made available in writing to inmates. Discussion here will be confined to those bases for punishment disclosed in the evidence.For the time may come in the future when substantial reasons for depriving men of various liberties, to the end that their behavior may be amended, may be presented. “Prison authorities have a legitimate interest in the rehabilitation of prisoners, and may legitimately restrict freedoms in order to further this interest, where a coherent, consistently-applied program of rehabilitation exists.”Brown v. Peyton,?437 F.2d 1231. At such time the best justification for the hands-off doctrine will appear. While courts by definition are expert in the field of quasi-criminal procedures, their knowledge of the administration of programs that educate and change men may rightly be questioned. Likewise, it may be imagined that judicial intervention or formal administrative procedures might be positively harmful to some rehabilitative efforts.This is not to say, of course, that courts should then abandon the individual. However, where the state supports its interest in certain practices by demonstrating a substantial hope of success, deference may be owing, and courts may tend to find certain rights, now protected by conventional procedures, implicitly limited while a man is incarcerated.BIVENS v. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS, 403 U.S. 388, 91 S.Ct. 1999 (1971)Mr. Justice BRENNAN delivered the opinion of the Court.The Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the state in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen, and citizen who sustains damages as a result of federal agents’ violation of Fourth Amendment is not limited to action in tort, under state law, in state courts, to obtain money damages to redress invasion of Fourth Amendment rights. U.S.C.A. Const. Amend. 4.The Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant. U.S.C.A. Const. Amend. 4.State law may not authorize federal agents to violate the Fourth Amendment. U.S.C.A. Const. Amend. 4.Damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials. U.S.C.A. Const. Amend. plaint alleging that agents of Federal Bureau of Narcotics, acting under color of federal authority, made warrantless entry of petitioner’s apartment, searched the apartment and arrested him on narcotics charges, all without probable cause, stated federal cause of action under the Fourth Amendment for damages recoverable upon proof of injuries resulting from agents’ violation of that Amendment. U.S.C.A. Const. Amend. 4.The Supreme Court on writ of certiorari to United States Court of Appeals would not consider question not passed upon by the Court of Appeals.Petitioner’s complaint alleged that respondent agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges. All of the acts were alleged to have been done without probable cause. Petitioner’s suit to recover damages from the agents was dismissed by the District Court on the alternative grounds (1) that it failed to state a federal cause of action and (2) that respondents were immune from suit by virtue of their official position. The Court of Appeals affirmed on the first ground alone. Held:1. Petitioner’s complaint states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents’ violation of that Amendment.2. The Court does not reach the immunity question, which was not passed on by the Court of Appeals.409 F.2d 718, reversed and remanded.The Fourth Amendment provides that:‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….’In Bell v. Hood,?327 U.S. 678 (1946), we reserved the question whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause. Petitioner claimed to have suffered great humiliation, embarrassment, and mental suffering as a result of the agents’ unlawful conduct, and sought $15,000 damages from each of them. The District Court, on respondents’ motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action. 276 F.Supp. 12 (EDNY 1967). The Court of Appeals, one judge concurring specially, affirmed on that basis. 409 F.2d 718 (CA2 1969). We granted certiorari.?399 U.S. 905 (1970). We reverse.We think that respondents’ thesis rests upon an unduly restrictive view of the Fourth Amendment’s protection against unreasonable searches and seizures by federal agents, a view that has consistently been rejected by this Court. Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting - albeit unconstitutionally - in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Cf. Amos v. United States,?255 U.S. 313 (1921); United States v. Classic,?313 U.S. 299 (1941). Accordingly, as our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And ‘where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.’ Bell v. Hood,?327 U.S., at 684; see Bemis Bros. Bag Co. v. United States,?289 U.S. 28 (1933); The Western Maid,?257 U.S. 419 (1922).…But ‘it is…well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’ Bell v. Hood, 327 U.S., at 684……Noting that Congress was normally quite solicitous where the federal purse was involved, we pointed out that ‘the United States (was) the party plaintiff to the suit. And the United States has power at any time to create the liability.’ See United States v. Gilman,?347 U.S. 507 (1954)……‘The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’ Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.Mr. Justice HARLAN, concurring in the judgment.My initial view of this case was that the Court of Appeals was correct in dismissing the complaint, but for reasons stated in this opinion I am now persuaded to the contrary. Accordingly, I join in the judgment of reversal.Petitioner alleged, in his suit in the District Court for the Eastern District of New York, that the defendants, federal agents acting under color of federal law, subjected him to a search and seizure contravening the requirements of the Fourth Amendment. He sought damages in the amount of $15,000 from each of the agents. Federal jurisdiction was claimed, inter alia, under?28 U.S.C. §1331(a)?which provides:‘The District Courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.’The District Court dismissed the complaint for lack of federal jurisdiction under?28 U.S.C. §1331(a)?and failure to state a claim for which relief may be granted. 276 F.Supp. 12 (EDNY 1967). On appeal, the Court of Appeals concluded, on the basis of this Court’s decision in Bell v. Hood,?327 U.S. 678 (1946), that petitioner’s claim for damages did ‘(arise) under the Constitution’ within the meaning of?28 U.S.C. §1331(a); but the District Court’s judgment was affirmed on the ground that the complaint failed to state a claim for which relief can be granted. 409 F.2d 718 (CA2 1969).If explicit congressional authorization is an absolute prerequisite to the power of a federal court to accord compensatory relief regardless of the necessity or appropriateness of damages as a remedy simply because of the status of a legal interest as constitutionally protected, then it seems to me that explicit congressional authorization is similarly prerequisite to the exercise of equitable remedial discretion in favor of constitutionally protected interests. Conversely, if a general grant of jurisdiction to the federal courts by Congress is thought adequate to empower a federal court to grant equitable relief for all areas of subject-matter jurisdiction enumerated therein, see?28 U.S.C. §1331(a), then it seems to me that the same statute is sufficient to empower a federal court to grant a traditional remedy at law. Of course, the special historical traditions governing the federal equity system, see Sprague v. Ticonic National Bank,?307 U.S. 161 (1939), might still bear on the comparative appropriateness of granting equitable relief as opposed to money damages. That possibility, however, relates, not to whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power. To that question, I now pass.The major thrust of the Government’s position is that, where Congress has not expressly authorized a particular remedy, a federal court should exercise its power to accord a traditional form of judicial relief at the behest of a litigant, who claims a constitutionally protected interest has been invaded, only where the remedy is ‘essential,’ or ‘indispensable for vindicating constitutional rights.’ While this ‘essentially’ test is most clearly articulated with respect to damage remedies, apparently the Government believes the same test explains the exercise of equitable remedial powers. It is argued that historically the Court has rarely exercised the power to accord such relief in the absence of an express congressional authorization and that ‘(i)f Congress had thought that federal officers should be subject to a law different than state law, it would have had no difficulty in saying so, as it did with respect to state officers….’ See?42 U.S.C. §1983. Although conceding that the standard of determining whether a damage remedy should be utilized to effectuate statutory policies is one of ‘necessity’ or ‘appropriateness,’ see J. I. Case Co. v. Borak,?377 U.S. 426 (1964); United States v. Standard Oil Co.,?332 U.S. 301 (1947), the Government contends that questions concerning congressional discretion to modify judicial remedies relating to constitutionally protected interests warrant a more stringent constraint on the exercise of judicial power with respect to this class of legally protected interests.…Damages as a traditional form of compensation for invasion of a legally protected interest may be entirely appropriate even if no substantial deterrent effects on future official lawlessness might be thought to result….Putting aside the desirability of leaving the problem of federal official liability to the vagaries of common-law actions, it is apparent that some form of damages is the only possible remedy for someone in Bivens’ alleged position. It will be a rare case indeed in which an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief from any court. However desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit. Finally, assuming Bivens’ innocence of the crime charged, the ‘exclusionary rule’ is simply irrelevant. For people in Bivens’ shoes, it is damages or nothing.The only substantial policy consideration advanced against recognition of a federal cause of action for violation of Fourth Amendment rights by federal officials is the incremental expenditure of judicial resources that will be necessitated by this class of litigation. There is, however, something ultimately self-defeating about this argument. For if, as the Government contends, damages will rarely be realized by plaintiffs in these cases because of jury hostility, the limited resources of the official concerned, etc., then I am not ready to assume that there will be a significant increase in the expenditure of judicial resources on these claims. Few responsible lawyers and plaintiffs are likely to choose the course of litigation if the statistical chances of success are truly de minimis. And I simply cannot agree with my Brother BLACK that the possibility of ‘frivolous’ claims if defined simply as claims with no legal merit - warrants closing the courthouse doors to people in Bivens’ situation. There are other ways, short of that, of coping with frivolous lawsuits.Mr. Chief Justice BURGER, dissenting.I dissent from today’s holding which judicially creates a damage remedy not provided for by the Constitution and not enacted by Congress. We would more surely preserve the important values of the doctrine of separation of powers - and perhaps get a better result - by recommending a solution to the Congress as the branch of government in which the Constitution has vested the legislative power. Legislation is the business of the Congress, and it has the facilities and competence for that task - as we do not. Professor Thayer, speaking of the limits on judicial power, albeit in another context, had this to say:‘And if it be true that the holders of legislative power are careless or evil, yet the constitutional duty of the court remains untouched; it cannot rightly attempt to protect the people, by undertaking a function not its own. On the other hand, by adhering rigidly to its own duty, the court will help, as nothing else can, to fix the spot where responsibility lies, and to bring down on that precise locality the thunderbolt of popular condemnation. …For that course - the true course of judicial duty always - will powerfully help to bring the people and their Representatives to a sense of their own responsibility.’This case has significance far beyond its facts and its holding. For more than 55 years this Court has enforced a rule under which evidence of undoubted reliability and probative value has been suppressed and excluded from criminal cases whenever it was obtained in violation of the Fourth Amendment. Weeks v. United States,?232 U.S. 383 (1914); Boyd v. United States,?116 U.S. 616 (1886). This rule was extended to the States in Mapp v. Ohio,?367 U.S. 643 (1961). The rule has rested on a theory that suppression of evidence in these circumstances was imperative to deter law enforcement authorities from using improper methods to obtain evidence.The deterrence theory underlying the suppression doctrine, or exclusionary rule, has a certain appeal in spite of the high price society pays for such a drastic remedy. Notwithstanding its plausibility, many judges and lawyers and some of our most distinguished legal scholars have never quite been able to escape the force of Cardozo’s statement of the doctrine’s anomalous result:‘The criminal is to go free because the constable has blundered. …A room is searched against the law, and the body of a murdered man is found. …The privacy of the home has been infringed, and the murderer goes free.’ People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926). The plurality opinion in Irvine v. California,?347 U.S. 128 (1954), catalogued the doctrine’s defects:Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.’From time to time members of the Court, recognizing the validity of these protests, have articulated varying alternative justifications for the suppression of important evidence in a criminal trial. Under one of these alternative theories the rule’s foundation is shifted to the ‘sporting contest’ thesis that the government must ‘play the game fairly’ and cannot be allowed to profit from its own illegal acts. Olmstead v. United States,?277 U.S. 438 (1928); see Terry v. Ohio, 392 U.S. 1 (1968). But the exclusionary rule does not ineluctably flow from a desire to ensure that government plays the ‘game’ according to the rules. If an effective alternative remedy is available, concern for official observance of the law does not require adherence to the exclusionary rule. Nor is it easy to understand how a court can be thought to endorse a violation of the Fourth Amendment by allowing illegally seized evidence to be introduced against a defendant if an effective remedy is provided against the government.The exclusionary rule has also been justified on the theory that the relationship between the Self-Incrimination Clause of the Fifth Amendment and the Fourth Amendment requires the suppression of evidence seized in violation of the latter. Boyd v. United States,?116 U.S., at 633; Wolf v. Colorado,?338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. at 661.Even ignoring, however, the decisions of this Court that have held that the Fifth Amendment applies only to ‘testimonial’ disclosures, United States v. Wade,?388 U.S. 218 (1967); Schmerber v. California,?384 U.S. 757 (1966), it seems clear that the Self-Incrimination Clause does not protect a person from the seizure of evidence that is incriminating. It protects a person only from being the conduit by which the police acquire evidence. Mr. Justice Holmes once put it succinctly, ‘A party is privileged from producing the evidence, but not from its production.’ (Johnson v. United States,?228 U.S. 457 (1913)).It is clear, however, that neither of these theories undergirds the decided cases in this Court. Rather the exclusionary rule has rested on the deterrent rationale - the hope that law enforcement officials would be deterred from unlawful searches and seizures if the illegally seized, albeit trustworthy, evidence was suppressed often enough and the courts persistently enough deprived them of any benefits they might have gained from their illegal conduct.This evidentiary rule is unique to American jurisprudence. Although the English and Canadian legal systems are highly regarded, neither has adopted our rule. See Martin, The Exclusionary Rule Under Foreign Law - Canada, 52 J.Crim.L.C. & P.S. 271, 272 (1961); Williams, The Exclusionary Rule Under Foreign Law England, 52 J.Crim.L.C. & P.S. 272 (1961).I do not question the need for some remedy to give meaning and teeth to the constitutional guarantees against unlawful conduct by government officials. Without some effective sanction, these protections would constitute little more than rhetoric. Beyond doubt the conduct of some officials requires sanctions as cases like Irvine indicate. But the hope that this objective could be accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream. Although I would hesitate to abandon it until some meaningful substitute is developed, the history of the suppression doctrine demonstrates that it is both conceptually sterile and practically ineffective in accomplishing its stated objective. This is illustrated by the paradox that an unlawful act against a totally innocent person such as petitioner claims to be - has been left without an effective remedy, and hence the Court finds it necessary now - 55 years later - to construct a remedy of its own.Some clear demonstration of the benefits and effectiveness of the exclusionary rule is required to justify it in view of the high price it extracts from society - the release of countless guilty criminals. See Allen, Federalism and the Fourth Amendment: A Requiem for Wolf, 1961 Sup.Ct.Rev. 1, 33 n. 172. But there is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 667 (1970).There are several reasons for this failure. The rule does not apply any direct sanction to the individual official whose illegal conduct results in the exclusion of evidence in a criminal trial. With rare exceptions law enforcement agencies do not impose direct sanctions on the individual officer responsible for a particular judicial application of the suppression doctrine. Thus there is virtually nothing done to bring about a change in his practices. The immediate sanction triggered by the application of the rule is visited upon the prosecutor whose case against a criminal is either weakened or destroyed. The doctrine deprives the police in no real sense; except that apprehending wrongdoers is their business, police have no more stake in successful prosecutions than prosecutors or the public.The suppression doctrine vaguely assumes that law enforcement is a monolithic governmental enterprise. For example, the dissenters in Wolf v. Colorado,?338 U.S., at 44, argued that:‘Only by exclusion can we impress upon the zealous prosecutor that violation of the Constitution will do him no good. And only when that point is driven home can the prosecutor be expected to emphasize the importance of observing the constitutional demands in his instructions to the police.’But the prosecutor who loses his case because of police misconduct is not an official in the police department; he can rarely set in motion any corrective action or administrative penalties. Moreover, he does not have control or direction over police procedures or police actions that lead to the exclusion of evidence. It is the rare exception when a prosecutor takes part in arrests, searches, or seizures so that he can guide police action.Whatever educational effect the rule conceivably might have in theory is greatly diminished in fact by the realities of law enforcement work. Policemen do not have the time, inclination, or training to read and grasp the nuances of the appellate opinions that ultimately define the standards of conduct they are to follow. The issues that these decisions resolve often admit of neither easy nor obvious answers, as sharply divided courts on what is or is not ‘reasonable’ amply demonstrate. Nor can judges, in all candor, forget that opinions sometimes lack helpful clarity.The presumed educational effect of judicial opinions is also reduced by the long time lapse - often several years - between the original police action and its final judicial evaluation. Given a policeman’s pressing responsibilities, it would be surprising if he ever becomes aware of the final result after such a delay. Finally, the exclusionary rule’s deterrent impact is diluted by the fact that there are large areas of police activity that do not result in criminal prosecutions - hence the rule has virtually no applicability and no effect in such situations.Today’s holding seeks to fill one of the gaps of the suppression doctrine - at the price of impinging on the legislative and policy functions that the Constitution vests in Congress. Nevertheless, the holding serves the useful purpose of exposing the fundamental weaknesses of the suppression doctrine. Suppressing unchallenged truth has set guilty criminals free but demonstrably has neither deterred deliberate violations of the Fourth Amendment nor decreased those errors in judgment that will inevitably occur given the pressures inherent in police work having to do with serious crimes.Although unfortunately ineffective, the exclusionary rule has increasingly been characterized by a single, monolithic, and drastic judicial response to all official violations of legal norms. Inadvertent errors of judgment that do not work any grave injustice will inevitably occur under the pressure of police work. These honest mistakes have been treated in the same way as deliberate and flagrant Irvine-type violations of the Fourth Amendment. For example, in Miller v. United States,?357 U.S. 301 (1958), reliable evidence was suppressed because of a police officer’s failure to say a ‘few more words’ during the arrest and search of a known narcotics peddler.This Court’s decision announced today in Coolidge v. New Hampshire,?403 U.S. 443,?dramatically illustrates the extent to which the doctrine represents a mechanically inflexible response to widely varying degrees of police error and the resulting high price that society pays. I dissented in Coolidge primarily because I do not believe the Fourth Amendment had been violated. Even on the Court’s contrary premise, however, whatever violation occurred was surely insufficient in nature and extent to justify the drastic result dictated by the suppression doctrine. A fair trial by jury has resolved doubts as to Coolidge’s guilt. But now his conviction on retrial is placed in serious question by the remand for a new trial - years after the crime - in which evidence that the New Hampshire courts found relevant and reliable will be withheld from the jury’s consideration. It is hardly surprising that such results are viewed with incomprehension by nonlawyers in this country and lawyers, judges, and legal scholars the world over.Freeing either a tiger or a mouse in a schoolroom is an illegal act, but no rational person would suggest that these two acts should be punished in the same way. From time to time judges have occasion to pass on regulations governing police procedures. I wonder what would be the judicial response to a police order authorizing ‘shoot to kill’ with respect to every fugitive. It is easy to predict our collective wrath and outrage. We, in common with all rational minds, would say that the police response must relate to the gravity and need; that a ‘shoot’ order might conceivably be tolerable to prevent the escape of a convicted killer but surely not for a car thief, a pickpocket or a shoplifter.I submit that society has at least as much right to expect rationally graded responses from judges in place of the universal ‘capital punishment’ we inflict on all evidence when police error is shown in its acquisition. See ALI, Model Code of Pre-Arraignment Procedure §8.02(2), p. 23 (Tent. Draft No. 4, 1971), reprinted in the Appendix to this opinion. Yet for over 55 years, and with increasing scope and intensity as today’s Coolidge holding shows, our legal system has treated vastly dissimilar cases as if they were the same. Our adherence to the exclusionary rule, our resistance to change, and our refusal even to acknowledge the need for effective enforcement mechanisms bring to mind Holmes’ well known statement:‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.’ Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897).In characterizing the suppression doctrine as an anomalous and ineffective mechanism with which to regulate law enforcement, I intend no reflection on the motivation of those members of this Court who hoped it would be a means of enforcing the Fourth Amendment. Judges cannot be faulted for being offended by arrests, searches, and seizures that violate the Bill of Rights or statutes intended to regulate public officials. But we can and should be faulted for clinging to an unworkable and irrational concept of law. My criticism is that we have taken so long to find better ways to accomplish these desired objectives. And there are better ways.Instead of continuing to enforce the suppression doctrine inflexibly, rigidly, and mechanically, we should view it as one of the experimental steps in the great tradition of the common law and acknowledge its shortcomings. But in the same spirit we should be prepared to discontinue what the experience of over half a century has shown neither deters errant officers nor affords a remedy to the totally innocent victims of official misconduct.I do not propose, however, that we abandon the suppression doctrine until some meaningful alternative can be developed. In a sense our legal system has become the captive of its own creation. To overrule Weeks and Mapp, even assuming the Court was now prepared to take that step, could raise yet new problems. Obviously the public interest would be poorly served if law enforcement officials were suddenly to gain the impression, however erroneous, that all constitutional restraints on police had somehow been removed - that an open season on ‘criminals’ had been declared. I am concerned lest some such mistaken impression might be fostered by a flat overruling of the suppression doctrine cases. For years we have relied upon it as the exclusive remedy for unlawful official conduct; in a sense we are in a situation akin to the narcotics addict whose dependence on drugs precludes any drastic or immediate withdrawal of the supposed prop, regardless of how futile its continued use may be.Reasonable and effective substitutes can be formulated if Congress would take the lead, as it did for example in 1946 in the Federal Tort Claims Act. I see no insuperable obstacle to the elimination of the suppression doctrine if Congress would provide some meaningful and effective remedy against unlawful conduct by government officials.The problems of both error and deliberate misconduct by law enforcement officials call for a workable remedy. Private damage actions against individual police officers concededly have not adequately met this requirement, and it would be fallacious to assume today’s work of the Court in creating a remedy will really accomplish its stated objective. There is some validity to the claims that juries will not return verdicts against individual officers except in those unusual cases where the violation has been flagrant or where the error has been complete, as in the arrest of the wrong person or the search of the wrong house. there is surely serious doubt, for example, that a drug peddler caught packing his wares will be able to arouse much sympathy in a jury on the ground that the police officer did not announce his identity and purpose fully or because he failed to utter a ‘few more words.’ See Miller v. United States. Jurors may well refuse to penalize a police officer at the behest of a person they believe to be a ‘criminal’ and probably will not punish an officer for honest errors of judgment. In any event an actual recovery depends on finding non-exempt assets of the police officer from which a judgment can be satisfied.I conclude, therefore, that an entirely different remedy is necessary but it is one that in my view is as much beyond judicial power as the step the Court takes today. Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated. The venerable doctrine of respondeat superior in our tort law provides an entirely appropriate conceptual basis for this remedy. If, for example, a security guard privately employed by a department store commits an assault or other tort on a customer such as an improper search, the victim has a simple and obvious remedy - an action for money damages against the guard’s employer, the department store. W. Prosser, The Law of Torts §68, pp. 470-480 (3d ed., 1964). Such a statutory scheme would have the added advantage of providing some remedy to the completely innocent persons who are sometimes the victims of illegal police conduct - something that the suppression doctrine, of course, can never accomplish.A simple structure would suffice. For example, Congress could enact a statute along the following lines:(a) A waiver of sovereign immunity as to the illegal acts of law enforcement officials committed in the performance of assigned duties;(b) The creation of a cause of action for damages sustained by any person aggrieved by conduct of governmental agents in violation of the Fourth Amendment or statutes regulating official conduct;(c) The creation of a tribunal, quasijudicial in nature or perhaps patterned after the United States Court of Claims to adjudicate all claims under the statute;(d) A provision that this statutory remedy is in lieu of the exclusion of evidence secured for use in criminal cases in violation of the Fourth Amendment; and(e) A provision directing that no evidence, otherwise admissible, shall be excluded from any criminal proceeding because of violation of the Fourth Amendment.I doubt that lawyers serving on such a tribunal would be swayed either by undue sympathy for officers or by the prejudice against ‘criminals’ that has sometimes moved lay jurors to deny claims. In addition to awarding damages, the record of the police conduct that is condemned would undoubtedly become a relevant part of an officer’s personnel file so that the need for additional training or disciplinary action could be identified or his future usefulness as a public official evaluated. Finally, appellate judicial review could be made available on much the same basis that it is now provided as to District Courts and regulatory agencies. This would leave to the courts the ultimate responsibility for determining and articulating standards.Once the constitutional validity of such a statute is established,?it can reasonably be assumed that the States would develop their own remedial systems on the federal model. Indeed there is nothing to prevent a State from enacting a comparable statutory scheme without waiting for the Congress. Steps along these lines would move our system toward more responsible law enforcement on the one hand and away from the irrational and drastic results of the suppression doctrine on the other. Independent of the alternative embraced in this dissenting opinion, I believe the time has come to re-examine the scope of the exclusionary rule and consider at least some narrowing of its thrust so as to eliminate the anomalies it has produced.In a country that prides itself on innovation, inventive genius, and willingness to experiment, it is a paradox that we should cling for more than a half century to a legal mechanism that was poorly designed and never really worked. I can only hope now that the Congress will manifest a willingness to view realistically the hard evidence of the half-century history of the suppression doctrine revealing thousands of cases in which the criminal was set free because the constable blundered and virtually no evidence that innocent victims of police error - such as petitioner claims to be - have been afforded meaningful redress.Mr. Justice BLACK, dissenting.In my opinion for the Court in Bell v. Hood,?327 U.S. 678 (1946), we did as the Court states, reserve the question whether an unreasonable search made by a federal officer in violation of the Fourth Amendment gives the subject of the search a federal cause of action for damages against the officers making the search. There can be no doubt that Congress could create a federal cause of action for damages for an unreasonable search in violation of the Fourth Amendment. Although Congress has created such a federal cause of action against state officials acting under color of state law,?it has never created such a cause of action against federal officials. If it wanted to do so, Congress could, of course, create a remedy against federal officials who violate the Fourth Amendment in the performance of their duties. But the point of this case and the fatal weakness in the Court’s judgment is that neither Congress nor the State of New York has enacted legislation creating such a right of action. For us to do so is, in my judgment, an exercise of power that the Constitution does not give us.Even if we had the legislative power to create a remedy, there are many reasons why we should decline to create a cause of action where none has existed since the formation of our Government. The courts of the United States as well as those of the States are choked with lawsuits. The number of cases on the docket of this Court have reached an unprecedented volume in recent years. A majority of these cases are brought by citizens with substantial complaints - persons who are physically or economically injured by torts or frauds or governmental infringement of their rights; persons who have been unjustly deprived of their liberty or their property; and persons who have not yet received the equal opportunity in education, employment, and pursuit of happiness that was the dream of our forefathers. Unfortunately, there have also been a growing number of frivolous lawsuits, particularly actions for damages against law enforcement officers whose conduct has been judicially sanctioned by state trial and appellate courts and in many instances even by this Court. My fellow Justices on this Court and our brethren throughout the Federal Judiciary know only too well the time-consuming task of conscientiously poring over hundreds of thousands of pages of factual allegations of misconduct by police, judicial, and corrections officials. Of course, there are instances of legitimate grievances, but legislators might well desire to devote judicial resources to other problems of a more serious nature.We sit at the top of a judicial system accused by some of nearing the point of collapse. Many criminal defendants do not receive speedy trials and neither society nor the accused are assured of justice when inordinate delays occur. Citizens must wait years to litigate their private civil suits. Substantial changes in correctional and parole systems demand the attention of the Lawmakers and the Judiciary. If I were a legislator I might well find these and other needs so pressing as to make me believe that the resources of lawyers and judges should be devoted to them rather than to civil damage actions against officers who generally strive to perform within constitutional bounds. There is also a real danger that such suits might deter officials from the proper and honest performance of their duties.All of these considerations make imperative careful study and weighing of the arguments both for and against the creation of such a remedy under the Fourth Amendment. I would have great difficulty for myself in resolving the competing policies, goals, and priorities in the use of resources, if I thought it were my job to resolve those questions. But that is not my task. The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the Legislatures of the States. Congress has not provided that any federal court can entertain a suit against a federal officer for violations of Fourth Amendment rights occurring in the performance of his duties. A strong inference can be drawn from creation of such actions against state officials that Congress does not desire to permit such suits against federal officials. Should the time come when Congress desires such lawsuits, it has before it a model of valid legislation,?42 U.S.C. §1983, to create a damage remedy against federal officers. Cases could be cited to support the legal proposition which I assert, but it seems to me to be a matter of common understanding that the business of the Judiciary is to interpret the laws and not to make them.I dissent.Mr. Justice BLACKMUN, dissenting.I, too, dissent. I do so largely for the reasons expressed in Chief Judge Lumbard’s thoughtful and scholarly opinion for the Court of Appeals. But I also feel that the judicial legislation, which the Court by its opinion today concededly is effectuating, opens the door for another avalanche of new federal cases. Whenever a suspect imagines, or chooses to assert, that a Fourth Amendment right has been violated, he will now immediately sue the federal officer in federal court. This will tend to stultify proper law enforcement and to make the day’s labor for the honest and conscientious officer even more onerous and more critical. Why the Court moves in this direction at this time of our history, I do not know. The Fourth Amendment was adopted in 1791, and in all the intervening years neither the Congress nor the Court has seen fit to take this step. I had thought that for the truly aggrieved person other quite adequate remedies have always been available. If not, it is the Congress and not this Court that should act.Footnotes:4. ‘(S)ince it is the present policy of the Department of Justice to remove to the federal courts all suits in state courts against federal officers for trespass or false imprisonment, a claim for relief, whether based on state common law or directly on the Fourth Amendment will ultimately be heard in a federal court.’ Brief for Respondents 13; see?28 U.S.C. §1442(a); Willingham v. Morgan,?395 U.S. 402 (1969). In light of this, it is difficult to understand our Brother BLACKMUN’s complaint that our holding today ‘opens the door for another avalanche of new federal cases.’ In estimating the magnitude of any such ‘avalanche,’ it is worth noting that a survey of comparable actions against state officers under?42 U.S.C. §1983?found only 53 reported cases in 17 years (1951-1967) that survived a motion to dismiss. Ginger & Bell, Police Misconduct Litigation - Plaintiff’s Remedies, 15 Am.Jur. Trials 555, 580-590 (1968). Increasing this figure by 900% to allow for increases in rate and unreported cases, every federal district judge could expect to try one such case every 13 years.8. Although no State has undertaken to limit the common-law doctrine that one may use reasonable force to resist an unlawful arrest by a private person, at least two States have outlawed resistance to an unlawful arrest sought to be made by a person known to be an officer of the law. R.I.Gen. Laws §12-7-10 (1969); State v. Koonce, 89 N.J.Super. 169.9. The same, of course, may not be true with respect to other types of constitutionally protected interests, and therefore the appropriateness of money damages may well vary with the nature of the personal interest asserted. See Monroe v. Pape,?365 U.S. 167.4. For example, in a case arising under Mapp, state judges at every level of the state Judiciary may find the police conduct proper. On federal habeas corpus a District Judge and a Court of Appeals might agree. Yet, in these circumstances, this Court, reviewing the case as much as 10 years later, might reverse by a narrow margin. In these circumstances it is difficult to conclude that the policeman has violated some rule that he should have known was a restriction on his authority.5. Damage verdicts for such acts are often sufficient in size to provide an effective deterrent and stimulate employers to corrective action.YOUNGER v. HARRIS,?401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)MR. JUSTICE BLACK delivered the opinion of the Court.Appellee Harris, who had been indicted for violating the California Criminal Syndicalism Act, sued in the Federal District Court to enjoin appellant, the county District Attorney, from prosecuting him, contending that the Act is unconstitutional on its face and inhibits him in exercising his free speech rights. Appellees Dan and Hirsch, claiming that the prosecution of Harris would “inhibit” them from peacefully advocating the program of the political party to which they belonged, and appellee Broslawsky, a college professor, claiming that the prosecution made him “uncertain” as to whether his teaching and reading practices would subject him to prosecution, intervened as plaintiffs. All asserted that they would suffer irreparable injury unless a federal injunction was issued. A three-judge court, relying on?Dombrowski v. Pfister,?380 U.S. 479, held the Act void for vagueness and overbreadth, and enjoined Harris’ prosecution.Held:1. There is no basis for equitable jurisdiction based on the allegations of appellees other than Harris, who have not been indicted, arrested, or threatened with prosecution, and the normal course of a state criminal prosecution cannot be blocked on the basis of fears of prosecution that are merely speculative.2. Federal courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where the danger of irreparable loss is both great and immediate in that (unlike the situation affecting Harris) there is a threat to the plaintiff’s federally protected rights that cannot be eliminated by his defense against a single prosecution. The decision in?Dombrowski?which involved alleged bad faith harassment and is factually distinguishable from this case, does not substantially broaden the availability of injunctions against state criminal prosecutions.281 F.Supp. 507, reversed.Appellee, John Harris, Jr., was indicted in a California state court, charged with violation of the California Penal Code §§11400 and 11401, known as the California Criminal Syndicalism Act, set out below. He then filed?a complaint in the Federal District Court asking that court to enjoin the appellant, Younger, the District Attorney of Los Angeles County, from prosecuting him, and alleging that the prosecution and even the presence of the Act inhibited him in the exercise of his rights of free speech and press, rights guaranteed him by the First and Fourteenth Amendments. Appellees Jim Dan and Diane Hirsch intervened as plaintiffs in the suit, claiming that the prosecution of Harris would inhibit them as members of the Progressive Labor Party from peacefully advocating the program of their party, which was to replace capitalism with socialism and to abolish the profit system of production in this country. Appellee Farrell Broslawsky, an instructor in history at Los Angeles Valley College, also intervened, claiming that the prosecution of Harris made him uncertain as to whether he could?teach about the doctrines of Karl Marx or read from the Communist Manifesto as part of his classwork. All claimed that, unless the United States court restrained the state prosecution of Harris, each would suffer immediate and irreparable injury. A three-judge Federal District Court, convened pursuant to?28 U.S.C. §2284?held that it had jurisdiction and power to restrain the District Attorney from prosecuting, held that the State’s Criminal Syndicalism Act was void for vagueness and overbreadth in violation of the First and Fourteenth Amendments, and accordingly restrained the District Attorney from “further prosecution of the currently pending action against plaintiff Harris for alleged violation of the Act.” 281 F.Supp. 507 (1968).The case is before us on appeal by the State’s District Attorney Younger, pursuant to?28 U.S.C. §1253. In his notice of appeal and his jurisdictional statement, appellant presented two questions: (1) whether the decision of this Court in?Whitney v. California,?274 U.S. 357, holding California’s law constitutional in 1927 was binding on the District Court and (2) whether the State’s law is constitutional on its face. In this Court, the brief for the State of California, filed at our request, also argues that only Harris, who was indicted, has standing to challenge the State’s law, and that issuance of the injunction was a violation of a longstanding judicial policy and of?28 U.S.C. §2283?which provides:A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.See Atlantic Coast Line R. Co. v. Engineers,?398 U.S. 281 (1970). Without regard to the questions?raised about?Whitney v. California,?since overruled by?Brandenburg v. Ohio,?395 U.S. 444?(1969), or the constitutionality of the state law, we have concluded that the judgment of the District Court, enjoining appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances. We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun.Appellee Harris has been indicted, and was actually being prosecuted by California for a violation of its Criminal Syndicalism Act at the time this suit was filed. He thus has an acute, live controversy with the State and its prosecutor. But none of the other parties plaintiff in the District Court, Dan, Hirsch, or Broslawsky, has such a controversy. None has been indicted, arrested, or even threatened by the prosecutor. About these three, the three-judge court said:Plaintiffs Dan and Hirsch allege that they are members of the Progressive Labor Party, which advocates change in industrial ownership and political change, and that they feel inhibited in advocating?the program of their political party through peaceful, nonviolent means, because of the presence of the Act “on the books,” and because of the pending criminal prosecution against Harris. Plaintiff Broslawsky is a history instructor, and he alleges that he is uncertain as to whether his normal practice of teaching his students about the doctrines of Karl Marx and reading from the Communist Manifesto and other revolutionary works may subject him to prosecution for violation of the Act.Whatever right Harris, who is being prosecuted under the state syndicalism law, may have, Dan, Hirsch, and Broslawsky cannot share it with him. If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true - either on the admission of the State’s district attorney or on any other evidence - then a genuine controversy might be said to exist. But here appellees Dan, Hirsch, and Broslawsky do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. They claim the right to bring this suit solely because, in the language of their complaint, they “feel inhibited.” We do not think this allegation, even if true, is sufficient to bring the equitable jurisdiction of the federal courts into play to enjoin a pending state prosecution. A federal lawsuit to stop a prosecution in a state court is a serious matter. And persons having no fears of state prosecution except those that are imaginary or speculative are not to be accepted as appropriate plaintiffs in such cases. See Golden v. Zwickler,?394 U.S. 103?(1969). Since Harris is actually being prosecuted under the challenged laws, however, we proceed with him as a proper party.Since the beginning of this country’s history, Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts. In 1793, an Act unconditionally provided: “[N]or shall a writ of injunction be granted to stay proceedings in any court of a state. . . .” 1 Stat. 335, c. 22, §5. A comparison of the 1793 Act with?28 U.S.C. §2283?its present-day successor, graphically illustrates how few and minor have been the exceptions granted from the flat, prohibitory language of the old Act. During all this lapse of years from 1793 to 1970, the statutory exceptions to the 1793 congressional enactment have been only three: (1) “except as expressly authorized by Act of Congress”; (2) “where necessary in aid of its jurisdiction”; and (3) “to protect or effectuate its judgments.” In addition, a judicial exception to the longstanding policy evidenced by the statute has been made where a person about to be prosecuted in a state court can show that he will, if the proceeding in the state court is not enjoined, suffer irreparable damages.?See Ex parte Young,?209 U.S. 123?(1908).The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified, but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable?injury if denied equitable relief. The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as “Our Federalism,” and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of “Our Federalism.” The concept does not mean blind deference to “States’ Rights” any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, “Our Federalism,” born in the early struggling days of?our Union of States, occupies a highly important place in our Nation’s history and its future.This brief discussion should be enough to suggest some of the reasons why it has been perfectly natural for our cases to repeat time and time again that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions. In?Fenner v. Boykin,?271 U.S. 240?(1926), suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a unanimous opinion, made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances:Ex parte Young,?209 U.S. 123, and following cases have established the doctrine that, when absolutely necessary for protection of constitutional rights, courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.These principles, made clear in the?Fenner?case, have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions.?See Spielman Motor?Sales Co. v. Dodge,?295 U.S. 89?(1935);?Beal v. Missouri Pac. R. Co., 312 U.S. 45?(1941);?Watson v. Buck,?313 U.S. 387?(1941);?Williams v. Miller,?317 U.S. 599 (1942);?Douglas v. City of Jeannette,?319 U.S. 157?(1943).In all of these cases, the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that, in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is “both great and immediate.”?Fenner.?Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not, by themselves, be considered “irreparable” in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.?See Ex parte Young?at 145. Thus, in the?Buck?case,?at 400, we stressed:Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional.No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution, even though alleged to be unauthorized, and, hence, unlawful, is not, alone, ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. Beal v. Missouri Pacific Railroad Corp.,?312 U.S. 45 (1941).And, similarly, in?Douglas?we made clear, after reaffirming this rule, that:It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith....Moreover, the existence of a “chilling effect,” even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action. Where a statute does not directly abridge free speech, but - while regulating a subject within the State’s power - tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so.?Schneider v. State,?308 U.S. 147?(1939);?Cantwell v. Connecticut,?310 U.S. 296?(1940);?Mine Workers v. Illinois Bar Assn.,?389 U.S. 217?(1967). Just as the incidental “chilling effect” of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not, in itself, justify prohibiting the State from carrying out the important?and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.Beyond all this is another, more basic consideration. Procedures for testing the constitutionality of a statute “on its face” in the manner apparently contemplated by Dombrowski,?and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is, in the final analysis, derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution.?Marbury v. Madison,?1 Cranch 137 (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation, it has been clear that, even when suits of this kind involve a “case or controversy” sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect is rarely, if ever, an appropriate task for the judiciary.?The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and, above all, the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,?see Landry v. Daley,?280 F.Supp. 938 (ND Ill.1968),?rev’d sub nom. Boyle v. Landry, post,?p. 77, ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process.The judgment of the District Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Reversed.MR. JUSTICE STEWART, with whom MR. JUSTICE HARLAN joins, concurring.The questions the Court decides today are important ones. Perhaps as important, however, is a recognition of the areas into which today’s holdings do not necessarily extend. In all of these cases, the Court deals only?with the proper policy to be followed by a federal court when asked to intervene by injunction or declaratory judgment in a criminal prosecution which is contemporaneously pending in a state court.In basing its decisions on policy grounds, the Court does not reach any questions concerning the independent force of the federal anti-injunction statute,?28 U.S.C. §2283. Thus, we do not decide whether the word “injunction” in §2283 should be interpreted to include a declaratory judgment, or whether an injunction to stay proceedings in a state court is “expressly authorized” by §1 of the Civil Rights Act of 1871, now?42 U.S.C. §1983. And since all these cases involve state criminal prosecutions, we do not deal with the considerations that should govern a federal court when it is asked to intervene in state civil proceedings, where, for various reasons, the balance might be struck differently. Finally, the Court today does not resolve the problems involved when a federal court is asked to give injunctive or declaratory relief from?future?state criminal prosecutions.MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE MARSHALL join, concurring in the result.I agree that the judgment of the District Court should be reversed. Appellee Harris had been indicted for violations of the California Criminal Syndicalism Act before he sued in federal court. He has not alleged that the prosecution was brought in bad faith to harass him. His constitutional contentions may be adequately adjudicated?in the state criminal proceeding, and federal intervention at his instance was therefore improper.MR. JUSTICE DOUGLAS, dissenting.The fact that we are in a period of history when enormous extrajudicial sanctions are imposed on those who assert their First Amendment rights in unpopular causes emphasizes the wisdom of?Dombrowski v. Pfister,?380 U.S. 479. There, we recognized that, in times of repression, when interests with powerful spokesmen generate symbolic pogroms against nonconformists, the federal judiciary, charged by Congress with special vigilance for protection of civil rights, has special responsibilities to prevent an erosion of the individual’s constitutional rights.Dombrowski?represents an exception to the general rule that federal courts should not interfere with state criminal prosecutions. The exception does not arise merely because prosecutions are threatened to which the First Amendment will be the proffered defense. Dombrowski?governs statutes which are a blunderbuss by?themselves or when used en masse?- those that have an “overbroad” sweep.If the rule were otherwise, the contours of regulation would have to be hammered out case by case - and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.It was in the context of overbroad state statutes that we spoke of the “chilling effect upon the exercise of First Amendment rights” caused by state prosecutions.As respects overbroad statutes, we said at least as early as 1940 that, when dealing with First Amendment rights, we would insist on statutes “narrowly drawn to prevent the supposed evil.”?Cantwell v. Connecticut,?310 U.S. 296, 307.The special circumstances when federal intervention in a state criminal proceeding is permissible are not restricted to bad faith on the part of state officials or the threat of multiple prosecutions. They also exist where, for any reason, the state statute being enforced is unconstitutional on its face. As Mr. Justice Butler, writing for the Court, said in Terrace v. Thompson,?263 U.S. 197:Equity jurisdiction will be exercised to enjoin the threatened enforcement of a state law which contravenes the Federal Constitution wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irremediable; and, in such a case, a person, who as an officer of the State is clothed with the duty of enforcing its laws, and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected may be enjoined from such action by a federal court of equity.Our?Dombrowski?decision was only another facet of the same problem.In?Younger,?“criminal syndicalism” is defined so broadly as to jeopardize “teaching” that socialism is preferable to free enterprise.Harris’ “crime” was distributing leaflets advocating change in industrial ownership through political action. The statute under which he was indicted was the one involved in?Whitney v. California,?274 U.S. 357, a decision we overruled in?Brandenburg v. Ohio,?395 U.S. 444, 449.If the “advocacy” which Harris used was an attempt at persuasion through the use of bullets, bombs, and arson, we would have a different case. But Harris is charged only with distributing leaflets advocating political action toward his objective. He tried unsuccessfully to have the state court dismiss the indictment on constitutional grounds. He resorted to the state appellate court for writs of prohibition to prevent the trial, but to no avail. He went to the federal court as a matter of last resort in an effort to keep this unconstitutional trial from being saddled on him.The “anti-injunction” statute,?28 U.S.C. §2283 is not a bar to a federal injunction under these circumstances. That statute was adopted in 1793, §6, 1 Stat. 335, and reflected the early view of the proper role of the federal courts within American federalism.Whatever the balance of the pressures of localism and nationalism prior to the Civil War, they were fundamentally altered by the war. The Civil War Amendments made civil rights a national concern. Those Amendments, especially §5 of the Fourteenth Amendment, cemented the change in American federalism brought on by the war. Congress immediately commenced to use its new powers to pass legislation. Just as the first Judiciary Act, 1 Stat. 73, and the “anti-injunction” statute represented the early views of American federalism, the Reconstruction statutes, including the enlargement of federal jurisdiction, represent a later view of American federalism.One of the jurisdiction-enlarging statutes passed during Reconstruction was the Act of April 20, 1871. 17?Stat. 13. Beyond its jurisdictional provision that statute, now codified as?42 U.S.C. §1983?provides:Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof?to the deprivation of any rights, privileges, or immunities secured by the Constitution?and laws, shall be liable to the party injured in an action at law,?suit in equity,?or other proper proceeding for redress.A state law enforcement officer is someone acting under “color of law” even though he may be misusing his authority.?Monroe v. Pape,?365 U.S. 167. And prosecution under a patently unconstitutional statute is a “deprivation of...rights, privileges, or immunities secured by the Constitution.” “Suit[s] in equity” obviously includes injunctions.I hold to the view that §1983 is included in the “expressly authorized” exception to §2283, a point not raised or considered in the much-discussed?Douglas v. City of Jeannette,?319 U.S. 157. There is no more good reason for allowing a general statute dealing with federalism passed at the end of the 18th century to control another statute also dealing with federalism, passed almost 80 years later, than to conclude that the early concepts of federalism were not changed by the Civil War.That was the view of Judge Will in the?Boyle?case,?Landry v. Daley,?288 F.Supp. 200. In speaking of the Civil War Amendments as “a constitutional revolution in the nature of American federalism,” he said:This revolution, in turn, represents a historical judgment. It emphasizes the overwhelming concern of the Reconstruction Congresses for the protection of the newly won rights of freedmen. By interposing the federal government between the states and their inhabitants, these Congresses sought to avoid the risk of nullification of these rights by the states. With the subsequent passage of the Act of 1871, Congress sought to implement this plan by expanding the federal judicial power. Section 1983 is, therefore, not only an expression of the importance of protecting federal rights from infringement by the states, but also, where necessary, the desire to place the national government between the state and its citizens.In?Boyle,?the statute makes “intimidation” to “commit any criminal offense” an offense. The three-judge court said:It...makes criminal threats such as the following: (1) threats by dissentient groups to engage in disorderly conduct, threats by residents of a high-crime neighborhood to carry concealed weapons for their own protection, and threats by mothers to block a dangerous state highway to demonstrate the need for increased safety measures. Indeed, the phrase “commit any criminal offense” is so broad as to include threats to commit misdemeanors punishable by fine only. These evils are not so substantial that the state’s interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion a wide berth.Landry and others brought a class action challenging the constitutional validity of five sections of the Illinois statutes. They alleged arrests under all but two of the challenged sections. Just before trial, they abandoned their challenge of two of the five sections. The District Court held one of the remaining sections constitutional, and the “mob action” and “intimidation” sections unconstitutional. Appellants have not appealed the determination that the “mob action” section of the Illinois statutes is unconstitutional.The Court dismisses this case because there is no showing of irreparable injury on what it describes as “flimsy allegations.” The Court states:There is nothing contained in the allegations of the complaint from which one could infer that any one or more of the citizens who brought this suit is in any jeopardy of suffering irreparable injury if the State is left free to prosecute under the intimidation statute in the normal manner.Landry and his associates, however, allege that appellants are using the intimidation section along with several other sections to harass them, not to prosecute them in the normal manner. They allege that appellants are arresting them without warrants or probable cause, and detaining them on excessive bail. They allege that the arrests are made during peaceful demonstrations and without any expectation of securing valid convictions. In sum, Landry and his group allege that the “intimidation” section is one of several statutes which appellants are using?en masse?as part of a plan to harass them and discourage their exercise of their First Amendment rights. There is thus a lively and existing case or controversy concerning First Amendment rights. And I believe that the federal court acted in our finest tradition when it issued the stay.As the standards of certainty in statutes containing criminal sanctions are higher than those in statutes containing civil sanctions, so are the standards of certainty touching on freedom of expression higher than those in other areas.?Winters v. New York,?333 U.S. 507.There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act...or in regard to the applicable tests to ascertain guilt.Where freedom of expression is at stake, these requirements must be more sedulously enforced.In?Younger,?there is a prosecution under an unconstitutional statute, and relief is denied. In?Boyle,?there is harassment, but, as yet, no prosecution. Allegations of a prosecution or harassment under facially unconstitutional statutes should be sufficient for the exercise of federal equity powers.Dombrowski?and?42 U.S.C. §1983?indicate why, in?Boyle,?federal intervention against enforcement of the state laws is appropriate. The case of?Younger?is even stronger. There, the state statute challenged is the prototype of the one we held unconstitutional in Brandenburg v. Ohio.The eternal temptation, of course, has been to arrest the speaker, rather than to correct the conditions about which he complains. I see no reason why these appellees should be made to walk the treacherous ground of these statutes. They, like other citizens, need the umbrella of the First Amendment as they study, analyze, discuss, and debate the troubles of these days. When criminal prosecutions can be leveled against them because they express unpopular views, the society of the dialogue is in danger.Footnotes:1. §11400.?Definition“Criminal syndicalism” as used in this article means any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.§11401.?Offense; punishmentAny person who:1. By spoken or written words or personal conduct advocates, teaches or aids and abets criminal syndicalism or the duty, necessity or propriety of committing crime, sabotage, violence or any unlawful method of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change; or2. Wilfully and deliberately by spoken or written words justifies or attempt to justify criminal syndicalism or the commission or attempt to commit crime, sabotage, violence or unlawful methods of terrorism with intent to approve, advocate or further the doctrine of criminal syndicalism; or3. Prints, publishes, edits, issues or circulates or publicly displays any book, paper, pamphlet, document, poster or written or printed matter in any other form, containing or carrying written or printed advocacy, teaching, or aid and abetment of, or advising, criminal syndicalism; or4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism; or5. Wilfully by personal act or conduct, practices or commits any act advised, advocated, taught or aided and abetted by the doctrine or precept of criminal syndicalism, with intent to accomplish a change in industrial ownership or control, or effecting any political change;is guilty of a felony and punishable by imprisonment in the state prison not less than one nor more than 14 years.4. Neither the cases dealing with standing to raise claims of vagueness or overbreadth, Thornhill v. Alabama,?310 U.S. 88?(1940), nor the loyalty oath cases, Baggett v. Bullitt, 377 U.S. 360?(1964), changed the basic principles governing the propriety of injunctions against state criminal prosecutions. In the standing cases, we allowed attacks on overly broad or vague statutes in the absence of any showing that the defendant’s conduct could not be regulated by some properly drawn statute. But in each of these cases, the statute was not merely vague or overly broad “on its face”; the statute was held to be vague or overly broad as construed and applied to a particular defendant in a particular case. If the statute had been too vague as written, but sufficiently narrow as applied, prosecutions and convictions under it would ordinarily have been permissible.?See Dombrowski at 491 n. 7.In?Baggett?and similar cases, we enjoined state officials from discharging employees who failed to take certain loyalty oaths. We held that the States were without power to exact the promises involved, with their vague and uncertain content concerning advocacy and political association, as a condition of employment. Apart from the fact that any plaintiff discharged for exercising his constitutional right to refuse to take the oath would have had no adequate remedy at law, the relief sought was of course the kind that raises no special problem - an injunction against allegedly unconstitutional state action (discharging the employees) that is not part of a criminal prosecution.2.?These considerations would not, to be sure, support any distinction between civil and criminal proceedings should the ban of?28 U.S.C. §2283?which makes no such distinction, be held unaffected by?42 U.S.C. §1983.3.?The negative pregnant in this sentence - that a federal court may, as a matter of policy, intervene when such “exceptional and extremely limited circumstances” are found - is subject to any further limitations that may be placed on such intervention by?28 U.S.C. §2283.2. A court of the United States may not grant an injunction to stay proceedings in a State court?except as expressly authorized by Act of Congress,?or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.3.?In its initial form, the “anti-injunction” Act provided: “[N]or shall a writ of injunction be granted [by any court of the United States] to stay proceedings in any court of a state.” There were no exceptions. In 1874, it was subsequently modified by an insertion of the Revisers to read:The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. Rev.Stat. §720.In?Toucey v. New York Life Ins. Co.,?314 U.S. 118, in discussing the statutory exceptions to the “anti-injunction” Act, we noted that, while only bankruptcy was the explicit exception, there were others. (1) The “Removal Acts qualify?pro tanto?the Act of 1793.” (2) The Act of 1851 limiting shipowners’ liability “[b]eing a “subsequent statute” to the Act of 1793..., operates as an implied legislative amendment to it.” We also added (3) the Interpleader Act of 1926 and (4) the Frazier-Lemke Act, 47 Stat. 1473.?Toucey limited a line of cases dealing with nonstatutory exceptions to the “anti-injunction” Act. Shortly thereafter, the current language of §2283 was written into the Judicial Code. The Reviser’s Note states: “[T]he revised section restores the basic law as generally understood and interpreted prior to the?Toucey?decision.” Both pre-Toucey?and post-Toucey?decisions recognize implied legislative exceptions to the “anti-injunction” Act.?See Porter v. Dicken, 328 U.S. 252;?Leiter Minerals v. United States,?352 U.S. 220.4.?What is now?28 U.S.C. §1343(3) was added in 1871, 17 Stat. 13, and the federal question jurisdiction of?28 U.S.C. §1331?was added in 1875. 18 Stat. 470.5.?We have already held that §1983 requires no exhaustion of state remedies.?McNeese v. Board of Education,?373 U.S. 668.McLHINNEY, et ux. v. LANSDELL CORPORATION OF MARYLAND et al., 254 Md. 7, 254 A.2d 177 (1969)MARBURY, J., delivered the opinion of the Court.Rule that “an opening statement is not evidence” is correct in so far statements made in attorney’s opening comments cannot replace requirement of substantial of evidence, but it does not mean that an attorney, acting as his client’s agent with in scope of his authority, should not be able to make admissions favorable to opposing side.Where plaintiffs’ declaration alleged that corporate defendant owned tractor-trailer which collided with fire engine on which plaintiff was riding, and corporate defendant did not deny such ownership in its next successive pleading, corporate defendant could not raise defense of lack of ownership. Maryland Rules, Rule 311a.In action by firemen against truck driver and corporate owner of truck for injuries sustained as a result of collision between tractor-trailer and fire engine on which fireman was riding at intersection while fire engine had warning devices going, evidence of truck driver’s and owner’s negligence was sufficient for jury.The appellants, James C. McLhinney and his wife Shirley J. McLhinney, brought suit on July 27, 1967, in the Circuit Court for Howard County against John C. Hafner, Sr. and the Lansdell Corporation of Maryland (Lansdell) for alleged personal injuries and loss of consortium sustained as the result of a collision between a tractor trailer and a fire engine on which appellant James C. McLhinney was riding. At the conclusion of the plaintiffs’ case, the lower court granted the defendants’ motion for a directed verdict on the grounds that the plaintiffs had failed to establish a prima facie case of negligence and further, they had failed to connect either Lansdell or Hafner with the accident. After the lower court denied a motion for a new trial and entered judgment against the plaintiffs for costs, this appeal was taken.The appellants produced no testimony that the appellees,?or either of them, owned or operated the tractor trailer which collided with the fire engine. Further, the appellants produced no testimony at all regarding the existence of any agency relationship between the appellees. However, at the trial, counsel for the appellees admitted in his opening statement the following: (1) Hafner’s operation of the tractor trailer, and his involvement in the accident; (2) Hafner’s employment by the Lansdell Corporation at the time of the accident; and (3) the fact that when the accident occurred, Hafner was en route to pick up a load of “tar or some type of oil.”At the conclusion of the appellants’ case the appellees’ attorney moved for a directed verdict on the ground that “there is no legally sufficient evidence to show a violation of any duty which might have been owing from the Defendants to the Plaintiffs,” and also that “the Plaintiff has not established whose vehicle it was with which the fire truck collided...” Appellants’ attorney asked the trial court to allow him to supply the additional testimony, but permission was denied and the court directed a verdict in the appellees’ favor. From the unfavorable judgment the McLhinneys appealed to this Court.The appellants urge that in light of these remarks the trial court should not have directed a verdict against them on the basis that they had failed to establish Hafner’s involvement in the accident and Lansdell’s ownership of the vehicle. We agree that appellees’ counsel had removed these issues from the matters in controversy to the extent that the trial court should not have directed a verdict against the appellants. A review of the Maryland cases indicates that this precise question has not been decided by this Court. However, in?Secor, Adm’r v. Brown,?221 Md. 119, 156 A.2d 225, we stated:“But there is a?prima facie?presumption that an attorney has authority to bind his client by his actions relating to the conduct of litigation.?Posko v. Climatic Control Corp.,?198 Md. 578, 584;?Wanzer v. State,?202 Md. 601;?Thomas v. Hopkins,?209 Md. 321;?Smith v. Warden,?213 Md. 643. Cf. 2?Restatement (Second), Agency,?§284, comment e (1958). This is particularly true of stipulations or admissions made in the course of a trial.”Appellees argue that the sole purpose of an opening statement is to acquaint the judge and jury with facts that counsel expects to prove, citing?Hartman v. Meadows,?243 Md. 158, 220 A.2d 555, and that an opening statement is not to be construed as substantive evidence. While this Court indicated in?Hartman?that the function of an opening statement should not be changed into?an opening “argument,” nothing was stated to indicate that its?sole?purpose was merely to make the judge and jury better informed about what counsel intended to prove. And further, to say that “an opening statement is not evidence” is misleading. It is correct insofar as statements made in an attorney’s opening comments cannot replace the requirement that substantive evidence be produced during the trial to establish counsel’s theory of the case. However, this phrase should not be interpreted to mean that an attorney, acting as his client’s agent within the scope of his authority, should not be able to make admissions favorable to the opposing side. “They [admissions of counsel] may dispense with proof of facts for which witnesses would otherwise be called... Indeed, any fact, bearing upon the issues involved, admitted by counsel, may be the ground of the court’s procedure, equally as if established by the clearest proof....”?Oscanyan v. Arms Co.,?103 U.S. 261. As stated in 7 C.J.S. Attorney and Client §100b (1937):“An attorney employed to prosecute or defend a particular cause is usually held to have the implied power to bind his client by statements and admissions in the pleadings, or?in the opening statement;?or by any admission or statement of fact deliberately made in good faith in open court during the progress of the case for the purpose of dispensing with testimony or facilitating the trial of the cause, unless the admission or statement is one which is expressly required by statute to be made or signed by the client personally.”?The appellants’ evidence indicated that the fire engine’s siren, lights and bell were in full operation, yet the appellee Hafner failed to yield the right-of-way. It is well settled in Maryland that a violation of a statute may be evidence or prima facie evidence of negligence, although it does not constitute negligence per se.?Paramount Development v. Hunter,?249 Md. 188, 238 A.2d 869;?Aravanis?v. Eisenberg,?237 Md. 242, 206 A.2d 148;?Alston v. Forsythe,?226 Md. 121, 172 A.2d 474. The appellees, however, argue that the driver of the fire engine had the duty to operate his vehicle with “due regard for the safety of all persons using the highway” and that since the driver did not know which color the light was when he entered the intersection, “as a matter of law he alone was negligent.” Even conceding for purposes of this case only that the driver of the fire engine was negligent in not slowing down to a speed less than the 18-20 miles per hour which he testified he did, such conduct would not as a matter of law excuse the action of the appellee Hafner in failing to yield the right-of-way in light of the fact that the engine’s warning signals were in operation. Ordinarily, the issue of whether a party was negligent should be left for the jury’s determination, and the trial court should rule that there is no probative evidence only when the circumstances are such that reasonable minds could not reach different conclusions on that issue.?Md. Chemical v. Monn, 241 Md. 127, 215 A.2d 731;?Bernardi v. Roedel,?225 Md. 17, 168 A.2d 886, and cases cited therein. We hold that the lower court should not have directed a verdict against the appellants.Accordingly, the judgment must be reversed and the case remanded for a new trial.PIERSON v. RAY, 386 U.S. 547 (1967)Petitioners, members of a group of white and Negro clergymen on a “prayer pilgrimage” to promote racial integration, attempted to use a segregated interstate bus terminal waiting room in Jackson, Mississippi, in 1961. They were arrested by respondent policemen and charged with conduct breaching the peace in violation of §2087.5 of the Mississippi Code which this Court, in 1965, held unconstitutional in Thomas v. Mississippi,?380 U.S. 524?, as applied to similar facts. Petitioners waived a jury trial and were convicted by respondent municipal police justice. On appeal one petitioner was accorded a trial de novo and, following a directed verdict in his favor, the cases against the other petitioners were dropped. Petitioners then brought this action in the District Court for damages (1) under 42 U.S.C. §1983, which makes liable “every person” who under color of law deprives another person of his civil rights, and (2) at common law for false arrest and imprisonment. The evidence showed that the ministers expected to be arrested on entering a segregated area. Though the witnesses agreed that petitioners entered the waiting room peacefully, petitioners testified that there was no crowd at the terminal, whereas the police testified that a threatening crowd followed petitioners. The jury found for respondents. On appeal the Court of Appeal held that (1) respondent police justice had immunity for his judicial acts under both §1983 and the state common law and (2) the policemen had immunity under the state common law of false arrest if they had probable cause to believe §2087.5 valid since they were not required to predict what laws are constitutional, but that, by virtue of Monroe v. Pape,?365 U.S. 167, they had no such immunity under §1983 where the state statute was subsequently declared invalid. The court remanded the case against the officers for a new trial under §1983 because of prejudicial cross-examination of petitioners, but ruled that they?could not recover if it were shown at the new trial that they had gone to Mississippi in anticipation that they would be illegally arrested. Held:1. The settled common-law principle that a judge is immune from liability for damages for his judicial acts was not abolished by §1983. Cf. Tenney v. Brandhove,?341 U.S. 367.2. The defense of good faith and probable cause which is available to police officers in a common-law action for false arrest and imprisonment is also available in an action under §1983. Monroe v. Pape distinguished.3. Though the officers were not required to predict this Court’s ruling in Thomas v. Mississippi that §2087.5 was unconstitutional as applied, and the defense of good faith and probable cause is available in an action under §1983, it does not follow that the count based thereon should be dismissed since the evidence was conflicting as to whether the police had acted in good faith and with probable cause in arresting the petitioners.4. Petitioners did not consent to their arrest by deliberately exercising their right to use the waiting room in a peaceful manner with the expectation that they would be illegally arrested.Affirmed in part, reversed in part, and remanded.MR. CHIEF JUSTICE WARREN delivered the opinion of Court.These cases present issues involving the liability of local police officers and judges under §1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. §1983.?Petitioners?in No. 79 were members of a group of 15 white and Negro Episcopal clergymen who attempted to use segregated facilities at an interstate bus terminal in Jackson. Mississippi, in 1961. They were arrested by respondents Ray, Griffith, and Nichols, policemen of the City of Jackson, and charged with violating §2087.5 of the Mississippi Code, which makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer.?Petitioners?waived a jury trial and were convicted of the offense by respondent Spencer, a municipal police justice. They were each given the maximum sentence of four months in jail and a fine of $200. On appeal petitioner Jones was accorded a trial de novo in the County Court, and after the city produced its evidence the court granted his motion for a directed verdict. The cases against the other petitioners were then dropped.Having been vindicated in the County Court, petitioners brought this action for damages in the United States District Court for the Southern District of Mississippi, Jackson Division, alleging that respondents had violated §1983 and that respondents were liable at common law for false arrest and imprisonment. A jury returned verdicts for respondents on both counts. On appeal, the Court of Appeals for the Fifth Circuit held that respondent Spencer was immune from liability under both §1983 and the common law of Mississippi for acts committed within his judicial jurisdiction. As to the police officers, the court noted that §2087.5 of the Mississippi Code was held unconstitutional as applied to similar facts in Thomas v. Mississippi,?380 U.S. 524?(1965).?Although Thomas was decided years after the arrest involved in this trial, the court held that the policemen would be liable in a suit under §1983 for an unconstitutional arrest even if they acted in good faith and with probable cause in making an arrest under a state statute not yet held invalid. The court believed that this stern result was required by Monroe v. Pape,?365 U.S. 167?(1961). Under the count based on the common law of Mississippi, however, it held that the policemen would not be liable if they had probable cause to believe that the statute had been violated, because Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not. Apparently dismissing the common-law claim,?the Court of Appeals reversed and remanded for a new trial on the §1983 claim against the police officers because defense counsel had been allowed to cross-examine the ministers on various irrelevant and prejudicial matters, particularly including an alleged convergence of their views on racial justice with those of the Communist Party. At the new trial, however, the court held that the ministers could not recover if it were proved that they went to Mississippi anticipating that they would be illegally arrested because such action would constitute consent to the arrest under the principle of volenti non fit injuria, he who consents to a wrong cannot be injured.We granted certiorari in No. 79 to consider whether a local judge is liable for damages under §1983 for an unconstitutional conviction and whether the ministers should be denied recovery against the police officers if they acted with the anticipation that they would be illegally arrested. We also granted the police officers’ petition in No. 94 to determine if the Court of Appeals correctly held that they could not assert the defense of?good faith and probable cause to an action under §1983 for unconstitutional arrest.The evidence at the federal trial showed that petitioners and other Negro and white Episcopal clergymen undertook a “prayer pilgrimage” in 1961 from New Orleans to Detroit. The purpose of the pilgrimage was to visit church institutions and other places in the North and South to promote racial equality and integration, and, finally, to report to a church convention in Detroit. Letters from the leader of the group to its members indicate that the clergymen intended from the beginning to go to Jackson and attempt to use segregated facilities at the bus terminal there, and that they fully expected to be arrested for doing so. The group made plans based on the assumption that they would be arrested if they attempted peacefully to exercise their right as interstate travelers to use the waiting rooms and other facilities at the bus terminal, and the letters discussed arrangements for bail and other matters relevant to arrests.The ministers stayed one night in Jackson, and went to the bus terminal the next morning to depart for Chattanooga, Tennessee. They entered the waiting room, disobeying a sign at the entrance that announced “White Waiting Room Only - By Order of the Police Department.” They then turned to enter the small terminal restaurant but were stopped by two Jackson police officers, respondents Griffith and Nichols, who had been awaiting their arrival and who ordered them to “move on.” The ministers replied that they wanted to eat,?and refused to move on. Respondent Ray, then a police captain and now the deputy chief of police, arrived a few minutes later. The ministers were placed under arrest and taken to the jail.All witnesses including the police officers agreed that the ministers entered the waiting room peacefully and engaged in no boisterous or objectionable conduct while in the “White Only” area. There was conflicting testimony on the number of bystanders present and their behavior. Petitioners testified that there was no crowd at the station, that no one followed them into the waiting room, and that no one uttered threatening words or made threatening gestures. The police testified that some 25 to 30 persons followed the ministers into the terminal, that persons in the crowd were in a very dissatisfied and ugly mood, and that they were mumbling and making unspecified threatening gestures. The police did not describe any specific threatening incidents, and testified that they took no action against any persons in the crowd who were threatening violence because they “had determined that the ministers was the cause of the violence if any might occur,”?although the ministers were concededly orderly and polite and the police did not claim that it was beyond their power to control the allegedly disorderly crowd. The arrests and convictions were followed by this lawsuit.We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court.?Few doctrines were more solidly?established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is 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.” (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His 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. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.We do not believe that this settled principle of law was abolished by §1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove,?341 U.S. 367?(1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and?we presume that Congress would have specifically so provided had it wished to abolish the doctrine.The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts 121 (1965); 1 Harper & James, The Law of Torts 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C. A. 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt,?the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.The Court of Appeals held that the officers had such a limited privilege under the common law of Mississippi,?and indicated that it would have recognized a similar privilege under §1983 except that it felt compelled to hold otherwise by our decision in Monroe v. Pape, 365 U.S.?167 (1961). Monroe v. Pape presented no question of immunity, however, and none was decided. The complaint in that case alleged that “13 Chicago police officers broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers. It further allege[d] that Mr. Monroe was then taken to the police station and detained on ‘open’ charges for 10 hours, while he was interrogated about a two-day-old murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call his family or attorney, that he was subsequently released without criminal charges being preferred against him.” The police officers did not choose to go to trial and defend the case on the hope that they could convince a jury that they believed in good faith that it was their duty to assault Monroe and his family in this manner. Instead, they sought dismissal of the complaint, contending principally that their activities were so plainly illegal under state law that they did not act “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory” as required by §1983. In rejecting this argument we in no way intimated that the defense of good faith and probable cause was foreclosed by the statute. We also held that the complaint should not be dismissed for failure to state that the officers had “a specific intent to deprive a person of a federal right,” but this holding, which related to requirements of pleading, carried no implications as to which defenses would be available to the police officers. As we went on to say in the same paragraph, §1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Part of the background of tort liability, in the?case of police officers making an arrest, is the defense of good faith and probable cause.We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under §1983. This holding does not, however, mean that the count based thereon should be dismissed. The Court of Appeals ordered dismissal of the common-law count on the theory that the police officers were not required to predict our decision in Thomas v. Mississippi,?380 U.S. 524. We agree that a police officer is not charged with predicting the future course of constitutional law. But the petitioners in this case did not simply argue that they were arrested under a statute later held unconstitutional. They claimed and attempted to prove that the police officers arrested them solely for attempting to use the “White Only” waiting room, that no crowd was present, and that no one threatened violence or seemed about to cause a disturbance. The officers did not defend on the theory that they believed in good faith that it was constitutional to arrest the ministers solely for using the waiting room. Rather, they claimed and attempted to prove that they did not arrest the ministers for the purpose of preserving the custom of segregation in Mississippi, but solely for the purpose of preventing violence. They testified, in contradiction to the ministers, that a crowd gathered and that imminent violence was likely. If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional. The jury did resolve the factual issues in favor of the officers but, for reasons previously stated,?its verdict was influenced by irrelevant and prejudicial evidence. Accordingly, the case must be remanded to the trial court for a new trial.It is necessary to decide what importance should be given at the new trial to the substantially undisputed fact that the petitioners went to Jackson expecting to be illegally arrested. We do not agree with the Court of Appeals that they somehow consented to the arrest because of their anticipation that they would be illegally arrested, even assuming that they went to the Jackson bus terminal for the sole purpose of testing their rights to unsegregated public accommodations. The case contains no proof or allegation that they in any way tricked or goaded the officers into arresting them. The petitioners had the right to use the waiting room of the Jackson bus terminal, and their deliberate exercise of that right in a peaceful, orderly, and inoffensive manner does not disqualify them from seeking damages under §1983.The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered.MR. JUSTICE DOUGLAS, dissenting.I do not think that all judges, under all circumstances, no matter how outrageous their conduct are immune?from suit under 17 Stat. 13, 42 U.S.C. §1983. The Court’s ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.The statute, which came on the books as §1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, provides that “every person” who under color of state law or custom “subjects, or causes to be subjected, any citizen...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To most, “every person” would mean every person, not every person except judges. Despite the plain import of those words, the Court decided in Tenney v. Brandhove,?341 U.S. 367?, that state legislators are immune from suit as long as the deprivation of civil rights which they caused a person occurred while the legislators “were acting in a field where legislators traditionally have power to act.” I dissented from the creation of that judicial exception as I do from the creation of the present one.The congressional purpose seems to me to be clear. A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that “[i]mmunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.” Cong. Globe, 42d Cong., 1st Sess., 374. Mr. Rainey of South Carolina noted that “[T]he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity.”?Congressman Beatty of Ohio claimed that it was the duty of Congress to listen to the appeals of those who “by reason of popular sentiment or secret organizations or prejudiced juries or bribed judges, [cannot] obtain the rights and privileges due an American citizen....” The members supporting the proposed measure were apprehensive that there had been a complete breakdown in the administration of justice in certain States and that laws nondiscriminatory on their face were being applied in a discriminatory manner, that the newly won civil rights of the Negro were being ignored, and that the Constitution was being defied. It was against this background that the section was passed, and it is against this background that it should be interpreted.It is said that, at the time of the statute’s enactment, the doctrine of judicial immunity was well settled and that Congress cannot be presumed to have intended to abrogate the doctrine since it did not clearly evince such a purpose. This view is beset by many difficulties. It assumes that Congress could and should specify in advance all the possible circumstances to which a remedial statute might apply and state which cases are within the scope of a statute.“Underlying [this] view is an atomistic conception of intention, coupled with what may be called a pointer theory of meaning. This view conceives the mind to be directed toward individual things, rather than toward general ideas, toward distinct situations of fact rather than toward some significance in human affairs that these situations may share. If this view were taken seriously, then we would have to regard the intention of the draftsman of a statute directed against ‘dangerous weapons’ as being directed toward an endless series of individual objects: revolvers,?automatic pistols, daggers, Bowie Knives, etc. If a court applies the statute to a weapon its draftsman had not thought of, then it would be ‘legislating,’ not ‘interpreting,’ as even more obviously it would be if it were to apply the statute to a weapon not yet invented when the statute was passed.” Fuller, The Morality of Law 84 (1964).Congress of course acts in the context of existing common-law rules, and in construing a statute a court considers the “common law before the making of the Act.” Heydon’s Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (Ex. 1584). But Congress enacts a statute to remedy the inadequacies of the pre-existing law, including the common law.?It cannot be presumed that the common law is the perfection of reason, is superior to statutory law (Sedgwick, Construction of Statutes 270 (1st ed. 1857); Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, (1908)), and that the legislature always changes law for the worse. Nor should the canon of construction “statutes in derogation of the common law are to be strictly construed” be applied so as to weaken a remedial statute whose purpose is to remedy the defects of the pre-existing law.The position that Congress did not intend to change the common-law rule of judicial immunity ignores the fact that every member of Congress who spoke to the issue assumed that the words of the statute meant what they said and that judges would be liable. Many members of Congress objected to the statute because it imposed?liability on members of the judiciary. Mr. Arthur of Kentucky opposed the measure because:“Hitherto...no judge or court has been held liable, civilly or criminally, for judicial acts.... Under the provisions of [Section 1] every judge in the State court...will enter upon and pursue the call of official duty with the sword of Damocles suspended over him....” Cong. Globe, 42d Cong., 1st Sess., 365-366.And Senator Thurman noted that:“There have been two or three instances already under the civil rights bill of State judges being taken into the United States District Court, sometimes upon indictment for the offense...of honestly and conscientiously deciding the law to be as they understood it to be....“Is [Section 1] intended to perpetuate that? Is it intended to enlarge it? Is it intended to extend it so that no longer a judge sitting on the bench to decide causes can decide them free from any fear except that of impeachment, which never lies in the absence of corrupt motive? Is that to be extended, so that every judge of a State may be liable to be dragged before some Federal judge to vindicate his opinion and to be mulcted in damages if that Federal judge shall think the opinion was erroneous? That is the language of this bill.” Cong. Globe, 42d Cong., 1st Sess., Appendix 217.Mr. Lewis of Kentucky expressed the fear that:“By the first section, in certain cases, the judge of a State court, though acting under oath of office, is made liable to a suit in the Federal court and subject to damages for his decision against a suitor....” Cong. Globe, 42d Cong., 1st Sess., 385.Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to “any person.”?There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.The section’s purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied. The parade of cases coming to this Court shows that a similar condition now obtains in some of the States. Some state courts have been instruments of suppression of civil rights. The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.Today’s decision is not dictated by our prior decisions. In Ex parte Virginia,?100 U.S. 339, the Court held that a judge who excluded Negroes from juries could be held liable under the Act of March 1, 1875 (18 Stat. 335), one of the Civil Rights Acts. The Court assumed that the judge was merely performing a ministerial function. But it went on to state that the judge would be liable under the statute even if his actions were judicial.?It is one thing to say that the common-law doctrine of?judicial immunity is a defense to a common-law cause of action. But it is quite another to say that the common-law immunity rule is a defense to liability which Congress has imposed upon “any officer or other person,” as in Ex parte Virginia, or upon “every person” as in these cases.The immunity which the Court today grants the judiciary is not necessary to preserve an independent judiciary. If the threat of civil action lies in the background of litigation, so the argument goes, judges will be reluctant to exercise the discretion and judgment inherent in their position and vital to the effective operation of the judiciary. We should, of course, not protect a member of the judiciary “who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good.” Gregoire v. Biddle, 177 F.2d 579. To deny recovery to a person injured by the ruling of a judge acting for personal gain or out of personal motives would be “monstrous.” But, it is argued that absolute immunity is necessary to prevent the chilling effects of a judicial inquiry, or the threat of such inquiry, into whether, in fact, a judge has been unfaithful to his oath of office. Thus, it is necessary to protect the guilty as well as the innocent.The doctrine of separation of powers is, of course, applicable only to the relations of coordinate branches of the same government, not to the relations between the?branches of the Federal Government and those of the States. See Baker v. Carr,?369 U.S. 186. Any argument that Congress could not impose liability on state judges for the deprivation of civil rights would thus have to be based upon the claim that doing so would violate the theory of division of powers between the Federal and State Governments. This claim has been foreclosed by the cases recognizing “that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State....” Monroe v. Pape,?365 U.S. 167. In terms of the power of Congress, I can see no difference between imposing liability on a state police officer (Monroe v. Pape) and on a state judge. The question presented is not of constitutional dimension; it is solely a question of statutory interpretation.The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying “The King can do no wrong.”?Chief Justice Cockburn long ago disposed of the argument that liability would deter judges:“I cannot believe that judges...would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences...from any fear of exposing themselves to actions at law. I am persuaded that the number of such actions would be infinitely small and would be easily disposed of.?While, on the other hand, I can easily conceive cases in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, on sound principles, the authors of such wrong ought to be responsible to the parties wronged.” Dawkins v. Lord Paulet, L.R. 5 Q.B. 94.This is not to say that a judge who makes an honest mistake should be subjected to civil liability. It is necessary to exempt judges from liability for the consequences of their honest mistakes. The judicial function involves an informed exercise of judgment. It is often necessary to choose between differing versions of fact, to reconcile opposing interests, and to decide closely contested issues. Decisions must often be made in the heat of trial. A vigorous and independent mind is needed to perform such delicate tasks. It would be unfair to require a judge to exercise his independent judgment and then to punish him for having exercised it in a manner which, in retrospect, was erroneous. Imposing liability for mistaken, though honest judicial acts, would curb the independent mind and spirit needed to perform judicial functions. Thus, a judge who sustains a conviction on what he forthrightly considers adequate evidence should not be subjected to liability when an appellate court decides that the evidence was not adequate. Nor should a judge who allows a conviction under what is later held an unconstitutional statute.But that is far different from saying that a judge shall be immune from the consequences of any of his judicial actions, and that he shall not be liable for the knowing and intentional deprivation of a person’s civil rights. What about the judge who conspires with local law enforcement officers to “railroad” a dissenter? What about the judge who knowingly turns a trial into a “kangaroo” court? Or one who intentionally flouts the?Constitution in order to obtain a conviction? Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights.The plight of the oppressed is indeed serious. Under City of Greenwood v. Peacock,?384 U.S. 808, the defendant cannot remove to a federal court to prevent a state court from depriving him of his civil rights. And under the rule announced today, the person cannot recover damages for the deprivation.Footnotes:1. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any?rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. §1983.2. “1. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: “(1) crowds or congregates with others in...any hotel, motel, store, restaurant, lunch counter, cafeteria, sandwich shop, ...or any other place of business engaged in selling or serving members of the public, or in or around any free entrance to any such place of business or public building, or to any building owned by another individual, or a corporation, or a partnership or an association, and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer of any municipality, or county, in which such act or acts are committed, or by any law enforcement officer of the State of Mississippi, or any other authorized person, ...shall be guilty of disorderly conduct, which is made a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than two hundred dollars ($200.00), or imprisonment in the county jail for not more than four (4) months, or by both such fine and imprisonment....”4. In Thomas various “Freedom Riders” were arrested and convicted under circumstances substantially similar to the facts of these cases. The police testified that they ordered the “Freedom Riders” to leave because they feared that onlookers might breach the peace. We reversed without argument or opinion, citing Boynton v. Virginia,?364 U.S. 454?(1960). Boynton held that racial discrimination in a bus terminal restaurant utilized as an integral part of the transportation of interstate passengers violates §216(d) of the Interstate Commerce Act. State enforcement of such discrimination is barred by the Supremacy Clause.6. Respondents did not challenge in their petition in No. 94 the holding of the Court of Appeals that a new trial is necessary because of the prejudicial cross-examination. Belatedly, they devoted a section of their brief to the contention that the cross-examination was proper. This argument is no more meritorious than it is timely. The views of the Communist Party on racial equality were not an issue in these cases.9. Since our decision in Tenney v. Brandhove the courts of appeals have consistently held that judicial immunity is a defense to an action under §1983. See Bauers v. Heisel, 361 F.2d 581 (C. A. 3d Cir. 1966), and cases cited therein.12. The petition for certiorari in No. 79 also presented the question whether the Court of Appeals correctly dismissed the count based on the common law of Mississippi. We do not ordinarily review the holding of a Court of Appeals on a matter of state law, and we find no reason for departing from that tradition in this case. The state common-law claim in this case is merely cumulative, and petitioners’ right to recover for an invasion of their civil rights, subject to the defense of good faith and probable cause, is adequately secured by §1983.1. “Remedial statutes are to be liberally construed.” See generally, Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950); Llewellyn, The Common Law Tradition, Appendix C (1960).2. As altered by the reviser who prepared the Revised Statutes of 1878, and as printed in 42 U.S.C. §1983, the statute refers to “every person” rather than to “any person.”4. Other justifications for the doctrine of absolute immunity have been advanced: (1) preventing threat of suit from influencing decision; (2) protecting judges from liability for honest mistakes; (3) relieving judges of the time and expense of defending suits; (4) removing an impediment to responsible men entering the judiciary; (5) necessity of finality; (6) appellate review is satisfactory remedy; (7) the judge’s duty is to the public and not to the individual; (8) judicial self-protection; (9) separation of powers. See generally Jennings, Tort Liability of Administrative Officers, 21 Minn. L. Rev. 263, 271-272 (1937).5. Historically judicial immunity was a corollary to that theory. Since the King could do no wrong, the judges, his delegates for dispensing justice, “ought not to be drawn into question for any supposed corruption [for this tends] to the slander of the justice of the King.” Floyd & Barker, 12 Co. Rep. 23, 77 Eng. Rep. 1305 (Star Chamber 1607). Because the judges were the personal delegates of the King they should be answerable to him alone. Randall v. Brigham, 7 Wall. 523.6. A judge is liable for injury caused by a ministerial act; to have immunity the judge must be performing a judicial function. See Ex parte Virginia,?100 U.S. 339; 2 Harper & James, The Law of Torts 1642-1643 (1956). The presence of malice and the intention to deprive a person of his civil rights is wholly incompatible with the judicial function. When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he exercises no discretion or individual judgment; he acts no longer as a judge, but as a “minister” of his own prejudices.WALLACE v. PERE MARQUETTE FIBERGLASS BOAT COMPANY, Inc., et al., 2 Mich.App. 605, 141 N.W.2d 383 (1966)BURNS, Judge.Counsel has right to state his theory of law the jury, but he does not have right to read law to jury or to usurp province of court.When counsel attempted to cite specific case to jury and discuss it he usurped function of court.Instructions must be viewed in their entirety.Unfortunately, only the preceding portion of the entire argument was transcribed. From the available record we do not know if counsel ever stated his theory of the law to the jury. The law in Michigan is clear. Counsel has a right to state his theory of the law, but he does not have the right to read law to the jury or to usurp the province of the court. See?Fosdick?v.?Van Arsdale, 74 Mich. 302(1889);?Pallas?v.?Crowley-Milner Co., 334 Mich. 282(1952).When the appellants’ counsel attempted to cite a specific case to the jury and discuss it, he was usurping the function of the court. The court did not refuse the appellants’ counsel the opportunity to discuss his theory of law. The court asked him to avoid a discussion of the details of the law during his argument. The court correctly upheld the objection of the attorney for the appellee.The Supreme Court of the State of Michigan has consistently held that instructions must be viewed in their entirety.?Cree Coach Company?v.?Wolverine Insurance Company, 366 Mich. 449(1962). The trial judge, on two separate occasions in his charge specifically covered the matter set forth by the appellants in their counterclaim, and told the jury in effect that if they found from the evidence that the appellants’ claims were correct, the jury should return a verdict for the appellants. Therefore, the appellants’ rights concerning their counterclaim were fully protected.The cause is remanded to the circuit court for entry of a judgment consistent with this opinion. Neither side prevailing in full, no costs are awarded.Footnotes:1. “Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” GCR 1963, 516.2.ALVAREZ v. MAUNEY, 175 So.2d 57 (1965)SILVERTOOTH, LYNN N., Associate Judge.Objection to questions concerning insurance asked during voir dire examination was waived by failure to object or move for mistrial until after jury was accepted.Matter of cross examining a witness to show bias rests largely trial court’s discretion, and its rulings will not be disturbed absent clear showing of abuse of this discretion.SHUTTLEWORTH, et al. V. CITY OF BIRMINGHAM, ALA. 373 U.S. 262, 83 S.Ct. 1130 (1963)MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.There can be no conviction for aiding and abetting someone to do and innocent act.Petitioners, two Negro ministers, were convicted in an Alabama State Court of aiding and abetting a violation of a criminal trespass ordinance of Birmingham, Ala. The only evidence against them was to the effect that they had incited ten Negro students to engage in a “sit-down demonstration” at a white lunch counter as a protest against racial segregation. In?Gober v. City of Birmingham, this Court today holds, on the authority of?Peterson v. City of Greenville, 373 U.S. 214, that the convictions of those ten students for criminal trespass were constitutionally invalid.Held:?since those convictions have been set aside, it follows that these petitioners did not incite or aid and abet any crime, and that, therefore, the convictions of these petitioners must also be set aside.On appeal to the Circuit Court, petitioners received a trial?de novo,?and were again convicted. Petitioner Shuttlesworth was sentenced to 180 days in jail at hard labor and a fine of $100. Petitioner Billups was sentenced to 30 days and a fine of $25. On further appeal to the Alabama Court of Appeals, the convictions were affirmed. 41 Ala.App. 318, 134 So.2d 213. The Alabama Supreme Court denied writs of certiorari. 273 Ala. 704, 134 So.2d 214. Because of the grave constitutional questions involved, we granted certiorari. 370 U.S. 934.TOWNSEND v. SAIN, 372 U.S. 293 (1963)MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.There was considerable testimony at the motion to suppress concerning the probable effects of hyoscine and phenobarbital. Dr. Mansfield, who had prescribed for petitioner on the evening when he had first confessed, testified for the prosecution. He stated that a full therapeutic dose of hyoscine was 1/100 of a grain; that he gave Townsend 1/230 of a grain; that “phenobarbital...reacts very well combined with [hyoscine when]...you want to quiet” a person; that the combination will “pacify,” because “it has an effect on the mind”; but that the dosage administered would not put a person to sleep, and would not cause amnesia or impairment of eyesight or of mental condition. The doctor denied that he had administered any “truth serum.” However, he did not disclose that hyoscine is the same as scopolamine, or that the latter is familiarly known as “truth serum.” Petitioner’s expert was a doctor of physiology, pharmacology and toxicology. He was formerly the senior toxicological chemist of Cook County, and, at the time of trial, was a professor of pharmacology, chemotherapy and toxicology at the Loyola University School of Medicine. He testified to the effect of the injection upon a hypothetical subject, obviously the petitioner. The expert stated that the effect of the prescribed dosage of hyoscine upon the subject, assumed to be a narcotic addict, “would be of such a nature that it could range between absolute sleep...and drowsiness, as one extreme, and the other extreme...would incorporate complete disorientation and excitation....”And, assuming that the subject took l/2 grain phenobarbital by injection and 1/2 grain orally at the same time, the expert stated that the depressive effect would be accentuated. The expert testified that the subject would suffer partial or total amnesia for five to eight hours, and loss of near vision for four to six hours.The trial judge summarily denied the motion to suppress, and later admitted the court reporter’s transcription of the confession into evidence. He made no findings of fact, and wrote no opinion stating the grounds of his decision.The theory of petitioner’s application for habeas corpus did not rest upon allegations of physical coercion. Rather, it relied upon the hitherto undisputed testimony, and alleged: (1) that petitioner vomited water and blood at the police station when he became ill from the withdrawal of narcotics; (2) that scopolamine is a “truth serum,” and that this fact was not brought out at the motion to suppress or at the trial; (3) that scopolamine, “either alone or combined with Phenobarbital, is not the proper medication for a narcotic addict, [and that]...[t]he effect of the intravenous injection of hyoscine and phenobarbital...is to produce a physiological and psychological condition adversely affecting the mind and will..., [and] a psychic effect which removes the subject thus injected from the scope of reality, so that the person so treated is removed from contact with his environment, he is not able to see and feel properly, he loses proper use of his eyesight, his hearing and his sense of perception, and his ability to withstand interrogation;” (4) that the police doctor willfully suppressed this information and information of the identity of hyoscine and scopolamine, of his knowledge of these things, and of his intention to inject the hyoscine for the purpose of producing in Townsend “a physiological and psychological state...susceptible to interrogation resulting in...confessions...”; (5) that the injection caused Townsend to confess; (6) that, on the evening of January 1, immediately after the injection of scopolamine, petitioner confessed to three murders and one robbery other than the murder of Boone and the robbery of Anagnost. Although there was some mention of other confessions at the trial, only the confession to the Anagnost robbery was specifically testified to.Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual’s “will was overborne,” or if his confession was not “the product of a rational intellect and a free will,” his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure, and, of course, are equally applicable to a drug-induced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a “truth serum.” It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine’s properties as a “truth serum,” if these properties exist. Any questioning by police officers which,?in fact,?produces a confession which is not the product of a free intellect renders that confession inadmissible. The Court has usually so stated the test.?See Stroble v. California,?343 U.S. 181: “If the confession which petitioner made...was, in fact, involuntary, the conviction cannot stand....” And in?Blackburn v. Alabama,?361 U.S. 199, we held irrelevant the absence of evidence of improper purpose on the part of the questioning officers. There, the evidence indicated that the interrogating officers thought the defendant sane when he confessed, but we judged the confession inadmissible because the probability was that the defendant was, in fact, insane at the time.BRABECK v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, 264 Minn. 160, 117 N.W.2d 921 (1962)OTIS, Justice.1. Plaintiff predicates liability on the alleged violation of defendant’s operating rule 7-B, which was introduced in evidence over defendant’s objection. The rule provides as follows:“When backing or shoving a train, engine or cars, the disappearance from view of employee or light, by which signals are given, must be construed as a stop signal.”Our own court has approved liability based on the violation of an operating rule in Jacobson v. Chicago & N.W. Ry. Co. 221 Minn. 454, 22 N.W.2d 455. We there stated:“…Rules and regulations governing the conduct of those employed in a business as complex and dangerous as switching operations in railroad yards are necessary to facilitate carrying on the business and to protect those employed therein. …The adoption of rules ‘admits the reasonable necessity for the conduct thereby prescribed.’ …Specific directions made part of rules constitute standards of care, presumably demanded by the exigencies of the business, to which all persons employed in the business are required to conform; and, because the employer ordinarily will discharge his duty of enforcing such rules and other employees presumptively will obey them, an employee reasonably may rely on observance of the rules by other employees until the contrary appears. …Where harm is caused to an employee by violating a rule adopted to secure safe conduct of the work, a finding of negligence is justified.”Defendant argues for reversal because of the use by plaintiff’s counsel in his final argument of placards showing the decedent’s age, life expectancy, income, the ages of his children, the amount claimed for the loss of services to each, the particular services the decedent rendered his family, and a computation of damages based on expectancy and income at various rates of interest. While we have condoned the use of a mathematical formula for purely illustrative purposes in arguing damages, we have never squarely passed on the use of previously prepared placards. A number of other jurisdictions have done so, however. A leading case on the subject is Four-County Elec. Power Assn. v. Clardy,?221 Miss. 403,?73 So.2d 144, 44 A.L.R. (2d) 1191. There the court delineated the boundaries within which placards may be used in opening statements or closing arguments, holding that there was no objection to such a device provided the information contained on the placards was supported by some evidence and the placards were not visible except during the opening statement or closing argument and were not made available to the jury during their deliberations. We concur in this view.PIRRUNG et vir v. T. & N.O. RAILROAD CO., et al., 350 S.W.2d 50 (1961)COLEMAN, Justice.The Court of Civil Appeals, Coleman, J., held that the trial judge’s statement to the plaintiff’s attorney, who in connection with objections have been stating the previous testimony of the witness, that the attorney should not “coach the witness” was not reversible error.The only objection to this action of the court in limiting the time for argument that is set out in the bill of exceptions is that plaintiff was not given as much time as the combined time given to the attorneys for the defendants. There is nothing in the bill of exceptions indicating that thirty minutes was not sufficient time for plaintiff to properly present his case, and to discuss all of the controverted issues. Neither of the attorneys for the defendants indicated to the trial court that the time allotted them was insufficient.No objection to the court’s remark appears in the record at this point. However, when the jury was excused for the day, plaintiff moved for a mistrial and the court denied the motion. Plaintiff failed to request that the jury be instructed to disregard the remark or that any explanatory instruction be given. Plaintiff contends that the remark of the court reflected upon the integrity of appellant’s counsel and the plaintiff, upon the credibility of the witness, and was a comment on the evidence. These grounds for objection or reasons for granting the motion were first raised in plaintiff’s motion for new trial.We approve this statement appearing in Texas Jurisprudence, 41-B, Sec. 54, p. 75:“A trial judge should refrain from making unnecessary comments which?might tend to prejudice a litigant. He should be careful not to say or do anything in the presence of the jury which is calculated to influence them in reaching a verdict. And the judge should not charge upon, or make remarks in the presence and hearing of the jurors which might reasonably be construed as a comment upon the weight of the evidence. As will be subsequently seen, a judge may not comment upon the credibility of witnesses or make remarks calculated to reflect upon an attorney to the prejudice of his client’s case. But it is not improper to make a remark in the nature of a ruling upon an objection, in stating the reasons for a ruling, or, when objections to testimony are being persistently made, in informing counsel what is or is not proper testimony upon an issue.”MONROE v. PAPE, 365 U.S. 167, 81 S.Ct. 473 (1961)MR. JUSTICE DOUGLAS delivered the opinion of the Court.Allegations of facts constituting a deprivation, under color of state authority, of right guaranteed by Fourteenth Amendment satisfy requirements of statute making any person who, under color of state statute, ordinance, etc., deprives any citizen of his constitutional rights liable to the party injured. U.S.C.A. Const. Amends. 4, 14; S.H.A.Ill. Const. Art. 2, §6; 42 U.S.C.A. §1983.Fourth Amendment’s guarantee against unreasonable searches and seizures is applicable to states by reason of Due Process Clause of Fourteenth Amendment. U.S.C.A. Const. Amends. 4, 14.Congresses power to enforce Fourteenth Amendment against those who carry badge of authority of a state and represent it in some capacity, whether they act in accordance with their authority or misuse it. U.S.C.A. Const. Amend. 14.One reason for passage of federal statute providing that every person who, under color of any state statute, ordinance, custom, etc., deprives any citizen of the United States of his constitutional rights is liable to party injured was to afford a federal right and federal courts where, because of passion, prejudice, neglect, intolerance or otherwise, state laws might not be enforced and claim of citizen to enjoyment of rights, privileges, and immunity guaranteed by Fourteenth Amendment might be denied by state agencies. 42 U.S.C.A. §1983; U.S.C.A. Const. Amend. 14.Under statute making every person who, under color of any state statute, ordinance, regulation, etc., deprives any citizen of the United States of his constitutional rights liable to party injured, federal remedy is supplementary to the state, and state remedy, if any, need not be first sought and refused before federal one is invoked. 42 U.S.C.A. §1983.Fact that Illinois by its Constitution and laws outlaws unreasonable searches and seizures did not bar suit by Illinois residents against police officers conducting an allegedly illegal search and seizure, under statute making every person who, acting under color of any state statute, ordinance, regulation, etc., deprives any citizen of his constitutional rights liable to injured party. 42 U.S.C.A. §1983; S.H.A.Ill. ch. 38, §§252, 449.1; S.H.A.Ill. Const. Art. 2, §6.Actions of city police officers in conducting allegedly illegal search and seizure were performed “under color of” state statute within meaning of federal statute making every person who, under color of any state statute, ordinance, regulation, etc., deprives any United States citizen of his constitutional rights liable to the party injured. 42 U.S.C.A. §plaint against city officer for allegedly unreasonable search and seizure, and for deprivation of other constitutional rights, was sufficient to state a cause of action under federal statute rendering every person who deprives any United States citizen, under color of any state statute, regulation, etc., of any constitutional right liable to party injured. 42 U.S.C.A. §1983.Municipal corporations are not within ambit of statute making every “person” who, under color of any state statute, ordinance, regulation, etc., deprives any United States citizen of his constitutional right liable to party injured. 42 U.S.C.A. §1983.This case presents important questions concerning the construction of R.S. §1979, 42 U.S.C. §1983, which reads as follows:“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any?citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”The complaint alleges that 13 Chicago police officers broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers. It further alleges that Mr. Monroe was then taken to the police station and detained on “open” charges for 10 hours, while he was interrogated about a two-day-old murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call his family or attorney, that he was subsequently released without criminal charges being preferred against him. It is alleged that the officers had no search warrant and no arrest warrant and that they acted “under color of the statutes, ordinances, regulations, customs and usages” of Illinois and of the City of Chicago. Federal jurisdiction was asserted under R.S. §1979, which we have set out above, and 28 U.S.C. §1343 and 28 U.S.C. §1331. The City of Chicago moved to dismiss the complaint on the ground that it is not liable under the Civil Rights Acts nor for acts committed in performance of its governmental functions. All defendants moved to dismiss, alleging that the complaint alleged no cause of action under those Acts or under the Federal Constitution. The District Court dismissed the complaint. The Court of Appeals affirmed, 272 F.2d 365, relying on its earlier decision, Stift v. Lynch, 267 F.2d 237. The case is here on a writ of certiorari which we granted because of a seeming conflict of that ruling with our prior cases.Petitioners claim that the invasion of their home and the subsequent search without a warrant and the arrest and detention of Mr. Monroe without a warrant and without arraignment constituted a deprivation of their “rights, privileges, or immunities secured by the Constitution” within the meaning of R.S. §1979. It has been said that when 18 U.S.C. §241 made criminal a conspiracy “to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution,” it embraced only rights that an individual has by reason of his relation to the central government, not to state governments. United States v. Williams,?341 U.S. 70. Cf. United States v. Cruikshank,?92 U.S. 542; Ex parte Yarbrough,?110 U.S. 651; Guinn v. United States,?238 U.S. 347. But the history of the section of the Civil Rights Act presently involved does not permit such a narrow interpretation.Section 1979 came onto the books as one of the Ku Klux Act of April 20, 1871. 17 Stat. 13. It was one of the means whereby Congress exercised the power vested in it by 5 of the Fourteenth Amendment to enforce the provisions of that Amendment. Senator Edmunds, Chairman of the Senate Committee on the Judiciary, said concerning this section:“The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which has since become a part of the Constitution,” viz., the Fourteenth Amendment.There can be no doubt at least since Ex parte Virginia,?100 U.S. 339, that Congress has the power to?enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. See Home Tel. & Tel. Co. v. Los Angeles,?227 U.S. 278. The question with which we now deal is the narrower one of whether Congress, in enacting §1979, meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position. Cf. Williams v. United States,?341 U.S. 97; Screws v. United States,?325 U.S. 91; United States v. Classic,?313 U.S. 299. We conclude that it did so intend.The Ku Klux Act grew out of a message sent to Congress by President Grant on March 23, 1871, reading:“A condition of affairs now exists in some States of the Union rendering life and property insecure and?the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States....”The legislation - in particular the section with which we are now concerned - had several purposes. There are threads of many thoughts running through the debates. One who reads them in their entirety sees that the present section had three main aims.First, it might, of course, override certain kinds of state laws. Mr. Sloss of Alabama, in opposition, spoke of that object and emphasized that it was irrelevant because there were no such laws: “The first section of this bill prohibits any invidious legislation by States against the rights or privileges of citizens of the United States. The object of this section is not very clear, as it is not pretended by its advocates on this floor that any State has passed any laws endangering the rights or privileges of the colored people.”Second, it provided a remedy where state law was inadequate. That aspect of the legislation was summed up as follows by Senator Sherman of Ohio:“...it is said the reason is that any offense may be committed upon a negro by a white man, and a?negro cannot testify in any case against a white man, so that the only way by which any conviction can be had in Kentucky in those cases is in the United States courts, because the United States courts enforce the United States laws by which negroes may testify.”But the purposes were much broader. The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. The opposition to the measure complained that “it overrides the reserved powers of the States,” just as they argued that the second section of the bill “absorb[ed] the entire jurisdiction of the States over their local and domestic affairs.”?This Act of April 20, 1871, sometimes called “the third ‘force bill,’” was passed by a Congress that had the Klan “particularly in mind.” The debates are replete with references to the lawless conditions existing in the South in 1871. There was available to the Congress during these debates a report, nearly 600 pages in length, dealing with the activities of the Klan and the inability of the state governments to cope with it. This report was drawn on by many of the speakers. It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished?the powerful momentum behind this “force bill.” Mr. Lowe of Kansas said:“While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.”Mr. Beatty of Ohio summarized in the House the case for the bill when he said:“...certain States have denied to persons within their jurisdiction the equal protection of the laws. The proof on this point is voluminous and unquestionable.... [M]en were murdered, houses were burned, women were outraged, men were scourged, and officers of the law shot down; and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State, from lack of power or inclination, practically denied the equal protection of the law to these persons.”While one main scourge of the evil - perhaps the leading one - was the Ku Klux Klan, the remedy created was?not a remedy against it or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law. Senator Osborn of Florida put the problem in these terms: “That the State courts in the several States have been unable to enforce the criminal laws of their respective States or to suppress the disorders existing, and in fact that the preservation of life and property in many sections of the country is beyond the power of the State government, is a sufficient reason why Congress should, so far as they have authority under the Constitution, enact the laws necessary for the protection of citizens of the United States. The question of the constitutional authority for the requisite legislation has been sufficiently discussed.”There was, it was said, no quarrel with the state laws on the books. It was their lack of enforcement that was the nub of the difficulty. Speaking of conditions in Virginia, Mr. Porter of that State said: “The outrages committed upon loyal men there are under the forms of law.”Mr. Burchard of Illinois pointed out that the statutes of a State may show no discrimination: “If the State Legislature pass a law discriminating against any portion of its citizens, of if it fails to enact provisions equally applicable to every class for the protection of their person and property, it will be admitted that the State does not afford the equal protection. But if the statutes show no discrimination, yet in its judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another, or if secret combinations of men are allowed by the Executive to band together to deprive one class of citizens of their legal rights without a proper effort to discover, detect, and punish the violations of law and order, the State has not afforded to all its citizens the equal protection of the laws.”Mr. Hoar of Massachusetts stated: “Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection. If the jurors of South Carolina constantly and as a rule refuse to do justice between man and man where the rights of a particular class of its citizens are concerned, and that State affords by its legislation no remedy, that is as much a denial to that class of citizens of the equal protection of the laws as if the State itself put on its statute-book a statute enacting that no verdict should be rendered in the courts of that State in favor of this class of citizens.”Senator Pratt of Indiana spoke of the discrimination against Union sympathizers and Negroes in the actual enforcement of the laws: “Plausibly and sophistically it is said the laws of North Carolina do not discriminate against them; that the provisions in favor of rights and liberties are general; that the courts are open to all; that juries, grand and petit, are commanded to hear and redress without distinction as to color, race, or political sentiment.“But it is a fact, asserted in the report, that of the hundreds of outrages committed upon loyal people through the agency of this Ku Klux organization not one has been punished. This defect in the administration of the laws does not extend to other cases. Vigorously enough are the laws enforced against Union people. They only fail in efficiency when a man of known Union sentiments, white or black, invokes their aid. Then Justice closes the door of her temples.”Senator Thurman of Ohio spoke in the same vein about the section we are now considering: “It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the?Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States.”…Proponents of the Act, on the other hand, were aware of the extension of federal power contemplated by every section of the Act. They found justification, however, for this extension in considerations such as those advanced by Mr. Hoar: “The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties. The question is not whether the majority of the people in every State are not likely to desire to secure their own rights. It is, whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own, as to insure that under no temptation of party spirit, under no political excitement, under?no jealousy of race or caste, will the majority either in numbers or strength in any State seek to deprive the remainder of the population of their civil rights.”Section 131(c) of the Act of September 9, 1957, 71 Stat. 634, 637, amended 42 U.S.C. §1971 by adding a new subsection which provides that no person “whether acting under color of law or otherwise” shall intimidate any other person in voting as he chooses for federal officials. A vigorous minority report was filed?attacking the wide scope of the new subsection by reason of the words “or otherwise.” It was said in that minority report that those words went far beyond what this Court had construed “under color of law” to mean. But there was not a word of criticism directed to the prior construction given by this Court to the words “under color of” law.The Act of May 6, 1960, 74 Stat. 86, uses “under color of” law in two contexts, once when 306 defines “officer of election” and next when 601(a) gives a judicial remedy on behalf of a qualified voter denied the opportunity to register. Once again there was a Committee report containing minority views. Once again no one challenged the scope given by our prior decisions to the phrase “under color of” law.In the Screws case we dealt with a statute that imposed criminal penalties for acts “willfully” done. We construed that word in its setting to mean the doing of an act with “a specific intent to deprive a person of a federal right.”?325 U.S., at 103. We do not think that gloss should be placed on §1979 which we have here. The word “willfully” does not appear in §1979. Moreover, §1979 provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the ground of vagueness. Section 1979 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.Much reliance is placed on the Act of February 25, 1871, 16 Stat. 431, entitled “An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and Rules for the Construction thereof.” Section 2 of this Act provides that “the word ‘person’ may extend and be applied to bodies politic and corporate.”?It should be noted, however, that this definition is merely an allowable, not a mandatory, one. It is said that doubts should be resolved in favor of municipal liability because private remedies against officers for illegal searches and seizures are conspicuously ineffective, and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level. We do not reach those policy considerations. Nor do we reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word “person” was used in this particular Act to include them. Accordingly we hold that the motion to dismiss the complaint against the City of Chicago was properly granted. But since the complaint should not have been dismissed against the officials the judgment must be and isReversed.MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, concurring.If the state remedy was considered adequate when the official’s unconstitutional act was unauthorized, why should it not be thought equally adequate when the unconstitutional act was authorized? For if one thing is very clear in the legislative history, it is that the Congress of 1871 was well aware that no action requiring state judicial enforcement could be taken in violation of the Fourteenth Amendment without that enforcement being declared void by this Court on direct review from the state courts. And presumably it must also have been understood that there would be Supreme Court review of the denial of a state damage remedy against an official on grounds of state authorization of the unconstitutional?action. It therefore seems to me that the same state remedies would, with ultimate aid of Supreme Court review, furnish identical relief in the two situations. This is the point Senator Blair made when, having stated that the object of the Fourteenth Amendment was to prevent any discrimination by the law of any State, he argued that:“This being forbidden by the Constitution of the United States, and all the judges, State and national, being sworn to support the Constitution of the United States, and the Supreme Court of the United States having power to supervise and correct the action of the State courts when they violated the Constitution of the United States, there could be no danger of the violation of the right of citizens under color of the laws of the States.” Cong. Globe, 42d Cong., 1st Sess., at App. 231.I think this limited interpretation of §1983 fares no better when viewed from the other possible premise for it, namely that state-approved constitutional deprivations were considered more offensive than those not so approved. For one thing, the enacting Congress was not unaware of the fact that there was a substantial overlap between the protections granted by state constitutional provisions and those granted by the Fourteenth Amendment. Indeed one opponent of the bill, Senator Trumbull, went so far as to state in a debate with Senators Carpenter and Edmunds that his research indicated a complete overlap in every State, at least as to the protections of the Due Process Clause. Thus, in one very significant sense, there was no ultimate state approval of a large portion of otherwise authorized actions depriving a person of due-process rights. I hesitate to assume that the proponents of the present statute, who regarded it as necessary even though they knew that the provisions of the Fourteenth Amendment were self-executing, would have thought the remedies unnecessary whenever there were self-executing provisions of state constitutions also forbidding what the Fourteenth Amendment forbids. The only alternative is?to disregard the possibility that a state court would find the action unauthorized on grounds of the state constitution. But if the defendant official is denied the right to defend in the federal court upon the ground that a state court would find his action unauthorized in the light of the state constitution, it is difficult to contend that it is the added harmfulness of state approval that justifies a different remedy for authorized than for unauthorized actions of state officers. Moreover, if indeed the Legislature meant to distinguish between authorized and unauthorized acts and yet did not mean the statute to be inapplicable whenever there was a state constitutional provision which, reasonably interpreted, gave protection similar to that of a provision of the Fourteenth Amendment, would there not have been some explanation of this exception to the general rule? The fact that there is none in the legislative history at least makes more difficult a contention that these legislators were in fact making a distinction between use and misuse of state power.There is a further basis for doubt that it was the additional force of state approval which justified a distinction between authorized and unauthorized actions. No one suggests that there is a difference in the showing the plaintiff must make to assert a claim under§1983 depending upon whether he is asserting a denial of rights secured by the Equal Protection Clause or a denial of rights secured by the Due Process Clause of the Fourteenth Amendment. If the same Congress which passed what is now §1983 also provided remedies against two or more nonofficials who conspire to prevent an official from granting equal protection of the laws, see 42 U.S.C. §1985, then it would seem almost untenable to insist that this Congress would have hesitated, on the grounds of lack of full state approval of the official’s act, to provide similar remedies against an official who, unauthorized, denied that equal protection of the laws on his own initiative. For?there would be no likely state approval of or even acquiescence in a conspiracy to coerce a state official to deny equal protection. Indeed it is difficult to attribute to a Congress which forbade two private citizens from hindering an official’s giving of equal protection an intent to leave that official free to deny equal protection of his own accord.Mr. Justice FRANKFURTER, dissenting except insofar as the Court holds that this action cannot be maintained against the City of Chicago.Petitioners base their claim to relief in the federal courts on what was enacted as 1 of the “Ku Klux Act” of April 20, 1871, “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.” 17 Stat. 13. It became, with insignificant rephrasing, §1979 of the Revised Statutes. As now set forth in 42 U.S.C. §1983, it is, in relevant part, as follows:“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State...subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”…If petitioners have alleged facts constituting a deprivation under color of state authority of a right assured them by the Fourteenth Amendment, they have brought themselves within §1979. Douglas v. Jeannette,?319 U.S. 157; Hague v. C.I.O.,?307 U.S. 496.To be sure, Screws v. United States, requires a finding of specific intent in order to sustain a conviction under the cognate penal provisions of 18 U.S.C. §242?5?- “an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.”?325 U.S., at 104. Petitioners’ complaint here alleges no such specific intent. But, for a number of reasons, this requirement of Screws should not be carried over and applied to civil actions under §1979. First, the word “willfully” in 18 U.S.C. §242 from which the requirement of intent was derived in Screws does not appear in §1979. Second, §1979, by the very fact that it is a civil provision, invites treatment different from that to be given its criminal analogue. The constitutional scruples concerning vagueness which were deemed to compel the Screws construction have less force in the context of a civil proceeding,?and §1979, insofar as it creates an action for damages, must be read in light of the familiar basis of tort liability that a man is responsible for the natural consequences of his acts. Third, even in the criminal area, the specific intent demanded by Screws has proved to be an abstraction serving the purposes of a constitutional need without impressing any actual restrictions upon the nature of the crime which the jury tries. The Screws opinion itself said that “The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.”?325 U.S., at 106. And lower courts in applying the statute have allowed inference of the requisite specific intent from evidence, it would appear, of malevolence alone. But if intent to infringe “specific” constitutional rights comes in practice to mean no more than intent without justification to bring about the circumstances which infringe those rights, then the consequences of introducing the specific intent issue into a litigation is, in effect, to require fictional pleading, needlessly burden jurors with abstruse instructions, and lessen the degree of control which federal courts have over jury vagaries.To show such violations, petitioners invoke primarily the Amendment’s Due Process Clause. The essence of their claim is that the police conduct here alleged offends those requirements of decency and fairness which, because they are “implicit in the concept of ordered liberty,” are imposed by the Due Process Clause upon the States. Palko v. Connecticut,?302 U.S. 319. When we apply to their complaint that standard of a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” which has been the touchstone for this Court’s enforcement of due process, the merit of this constitutional claim is evident. The conception expressed in Wolf v. Colorado,?338 U.S. 25, that “The security of one’s privacy against arbitrary intrusion by the police...is basic to a free society,” was not an innovation of Wolf. The tenet that there exists a realm of sanctuary surrounding every individual and in frangible, save in a very limited class of circumstances, by the agents of government, had informed the decision of the King’s Bench two centuries earlier in Entick v. Carrington, 2 Wils. 275, had been the basis of Otis’ contemporary speech against the Writ of?Assistance, see Gray’s notes in Quincy’s Massachusetts Reports, App. I, at 471; Tudor, Life of James Otis (1823) 63, and has in the intervening years found expression not only in the Fourth Amendment to the Constitution of the United States, but also in the fundamental law of every State. Modern totalitarianisms have been a stark reminder, but did not newly teach, that the kicked-in door is the symbol of a rule of fear and violence fatal to institutions founded on respect for the integrity of man.The essence of the liberty protected by the common law and by the American constitutions was “the right to shut the door on officials of the state unless their entry is under proper authority of law”; particularly, “the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual.” Frank v. Maryland,?359 U.S. 360. Searches of the dwelling house were the special object of this universal condemnation of official intrusion. Night-time search was the evil in its most obnoxious form. Few reported cases have presented all of the manifold aggravating circumstances which petitioners here allege-intrusion en masse, by dark, by force, unauthorized by warrant, into an occupied private home, without even the asserted justification of belief by the intruders that the inhabitants were presently committing some criminal act within; physical abuse and the calculated degradation of insult and forced nakedness; sacking and disordering of personal effects throughout the home; arrest and detention against the background terror of threatened criminal proceedings. Wherever similar conduct has appeared, the courts have unanimously condemned police entries as lawless.If the question whether due process forbids this kind of police invasion were before us in isolation, the answer would be quick. If, for example, petitioners had sought damages in the state courts of Illinois and if those courts had refused redress on the ground that the official character of the respondents clothed them with civil immunity, we would be faced with the sort of situation to which the language in the Wolf opinion was addressed: “we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.”?338 U.S., at page 28. If that issue is not reached in this case it is not because the conduct which the record here presents can be condoned. But by bringing their action in a Federal District Court petitioners cannot rest on the Fourteenth Amendment simpliciter. They invoke the protection of a specific statute by which Congress restricted federal judicial enforcement of its guarantees to particular enumerated circumstances. They must show not only that their constitutional rights have been infringed, but that they have been infringed “under color of [state] statute, ordinance, regulation, custom, or usage,” as that phrase is used in the relevant congressional enactment.“The rule of stare decisions, though one tending to consistency and uniformity of decision, is not inflexible.” Hertz v. Woodman,?218 U.S. 205. It is true, of course, that the reason for the rule is more compelling in cases involving inferior law, law capable of change by Congress, than in constitutional cases, where this Court-although even in such cases a wise consciousness of the limitations of individual vision has impelled it always to give great weight to prior decisions-nevertheless bears the ultimate obligation for the development of the law as institutions develop. See Smith v. All-wright,?321 U.S. 649. But the Court has not always declined to re-examine cases whose outcome Congress might have changed. See Mr. Justice Brandeis, dissenting, in Burnet v. Coronado Oil & Gas Co.,?285 U.S. 393. Decisions involving statutory construction, even decisions which Congress has persuasively declined to overrule, have been overruled here. See Girouard v. United States,?328 U.S. 61, overruling United States v. Schwimmer,?279 U.S. 644, United States v. Macintosh,?283 U.S. 605, and United States v. Bland,?283 U.S. 636; see also Commissioner v. Estate of Church,?335 U.S. 632, overruling May v. Heiner,?281 U.S. 238.And with regard to the Civil Rights Acts there are reasons of particular urgency which authorize the Court-indeed, which make it the Court’s responsibility-to reappraise in the hitherto skimpily considered context of R.S. §1979 what was decided in Classic, Screws and Williams. This is not an area of commercial law in which, presumably, individuals may have arranged their affairs in?reliance on the expected stability of decision. Compare National Bank of Genesee v. Whitney,?103 U.S. 99; Vail v. Arizona,?207 U.S. 201; Walling v. Halliburton Oil Well Cementing Co.,?331 U.S. 17; United States v. South Buffalo R. Co.,?333 U.S. 771. Nor is it merely a mine-run statutory question involving a narrow compass of individual rights and duties. The issue in the present case concerns directly a basic problem of American federalism: the relation of the Nation to the States in the critically important sphere of municipal law administration. In this aspect, it has significance approximating constitutional dimension. Necessarily, the construction of the Civil Rights Acts raises issues fundamental to our institutions. This imposes on this Court a corresponding obligation to exercise its power within the fair limits of its judicial discretion. “We recognize that stare decisions embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisions is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable....” Helvering v. Hallock,?309 U.S. 106.And Senator Trumbull, then Chairman of the Senate Judiciary Committee, in his remarks urging its passage over the veto, expressed the intendment of the second section as those who voted for it read it:“If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have anything to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against under color of State laws because he is colored, then it becomes necessary to interfere for his protection.”?The general understanding of the legislators unquestionably was that, as amended, the Ku Klux Act did “not undertake to furnish redress for wrongs done by one person upon another in any of the States...in violation of their laws, unless he also violated some law of the United States, nor to punish one person for an ordinary assault and battery....” Even those who-opposing the constitutional objectors-found sufficient congressional power in the Enforcement Clause of the Fourteenth Amendment to give this kind of redress, deemed inexpedient the exercise of any such power: “Convenience and courtesy to the States suggest a sparing use, and never so far as to supplant the State authorities except in cases of extreme necessity, and when the State governments criminally refuse or neglect those duties which are imposed?upon them.” Extreme Radicals, those who believed that the remedy for the oppressed Unionists in the South was a general expansion of federal judicial jurisdiction so that “loyal men could have the privilege of having their causes, civil and criminal, tried in the Federal courts.” were disappointed with the Act as passed.?The Court now says, however, that “It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this ‘force bill.’” Of course, if the notion of “unavailability” of remedy is limited to mean an absence of statutory, paper right, this is in large part true. Insofar as the Court undertakes to demonstrate-as the bulk of its opinion seems to do-that §1979 was meant to reach some instances of action not specifically authorized by the avowed, apparent, written law inscribed in the statute books of the States, the argument knocks at an open door. No one would or could deny this, for by its express terms the statute comprehends deprivations of federal rights under color of any “statute, ordinance, regulation, custom, or usage” of a State. The question is, what class of cases other than those involving state statute law were meant to be reached. And, with respect to this question, the Court’s conclusion is undermined by the very portions of the legislative debates which it cites. For surely the misconduct of individual municipal police officers, subject to the effective oversight of appropriate state administrative and judicial authorities, presents a situation which differs toto coelo from one in which “Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress,” or in which murder rages while a State makes?“no successful effort to bring the guilty to punishment or afford protection or redress,” or in which the “State courts...[are] unable to enforce the criminal laws...or to suppress the disorders existing,” or in which, in a State’s “judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another,” or “of...hundreds of outrages...not one [is] punished,” or “the courts of the...States fail and refuse to do their duty in the punishment of offenders against the law,” or in which a “class of officers charged under the laws with their administration permanently and as a rule refuse to extend [their] protection.” These statements indicate that Congress-made keenly aware by the post-bellum conditions in the South that States through their authorities could sanction offenses against the individual by settled practice which established state law as truly as written codes-designed §1979 to reach, as well, official conduct which, because engaged in “permanently and as a rule,” or “systematically,” came through acceptance by law-administering officers to constitute “custom, or usage” having the cast of law. See Nashville, C. & St. L. R. Co. v. Browning,?310 U.S. 362. They do not indicate an attempt to reach, nor does the statute by its terms include, instances of acts in defiance of state law and which no settled state practice, no systematic pattern of official action or inaction, no “custom, or usage, of any State,” insulates from effective and adequate reparation by the State’s authorities.But, of course, in the present case petitioners argue that the wrongs done them were committed not by individuals but by the police as state officials. There are two senses in which this might be true. It might be true if petitioners alleged that the redress which state courts offer them against the respondents is different than that which those courts would offer against other individuals, guilty of the same conduct, who were not the police. This is not alleged. It might also be true merely because the respondents are the police-because they are clothed with an appearance of official authority which is in itself a factor of significance in dealings between individuals. Certainly the night-time intrusion of the man with a star and a police revolver is a different phenomenon than the night-time intrusion of a burglar. The aura of power which a show of authority carries with it has been created by state government. For this reason the national Legislature, exercising its power to implement the Fourteenth Amendment, might well attribute responsibility for the intrusion to the State and legislate to protect against such intrusion. The pretense of authority alone might seem to Congress sufficient basis for creating an exception to the ordinary rule that it is to the state tribunals that individuals within a State must look for redress against other individuals within that State. The same pretense of authority might suffice to sustain congressional legislation creating the exception. See Ex parte Virginia,?100 U.S. 339. But until Congress has?declared its purpose to shift the ordinary distribution of judicial power for the determination of causes between co-citizens of a State, this Court should not make the shift. Congress has not in §1979 manifested that intention.The unwisdom of extending federal criminal jurisdiction into areas of conduct conventionally punished by state penal law is perhaps more obvious than that of extending federal civil jurisdiction into the traditional realm of state tort law. But the latter, too, presents its problems of policy appropriately left to Congress. Suppose that a state Legislature or the highest court of a State should determine that within its territorial limits no damages should be recovered in tort for pain and suffering, or for mental anguish, or that no punitive damages should be recoverable. Since the federal courts went out of the business of making “general law,” Erie R. Co. v. Tompkins,?304 U.S. 64, such decisions of local policy have admittedly been the exclusive province of state lawmakers. Should the civil liability for police conduct which can claim no authority under local law, which is actionable as common-law assault or trespass in the local courts, comport different rules? Should an unlawful intrusion by a policeman in Chicago entail different consequences than an unlawful intrusion by a hoodlum? These are matters of policy in its strictly legislative sense, not for determination by this Court. And if it be, as it is, a matter for congressional choice, the legislative evidence is overwhelming that §1979 is not expressive of that choice. Indeed, its precise limitation to acts “under color” of state statute, ordinance or other authority appears on its face designed to leave all questions of the nature and extent of liability of individuals to the laws of the several States except when a State seeks to shield those individuals under the special barrier of state authority. To extend Civil Rights Act liability beyond that point is?to interfere in areas of state policymaking where Congress has not determined to interfere.In concluding that police intrusion in violation of state law is not a wrong remediable under R.S. §1979, the pressures which urge an opposite result are duly felt. The difficulties which confront private citizens who seek to vindicate in traditional common-law actions their state-created rights against lawless invasion of their privacy by local policemen are obvious, and obvious is the need for more effective modes of redress. The answer to these urgings must be regard for our federal system which presupposes a wide range of regional autonomy in the kinds of protection local residents receive. If various common-law concepts make it possible for a policeman-but no more possible for a policeman than for any individual hoodlum intruder-to escape without liability when he has vandalized a home, that is an evil. But, surely, its remedy devolves, in the first instance, on the States. Of course, if the States afford less protection against the police, as police, than against the hoodlum-if under authority of state “statute, ordinance, regulation, custom, or usage” the police are specially shielded - §1979 provides a remedy which dismissal of petitioners’ complaint in the present case does not impair. Otherwise, the protection of the people from local delinquencies and shortcomings depends, as in general it must, upon the active consciences of state executives, legislators and judges. Federal intervention, which must at best be limited to securing those minimal guarantees afforded by the evolving concepts of due process and equal protection, may in the long run do the individual a disservice by deflecting responsibility from the state lawmakers, who hold the power of providing a far more comprehensive scope of protection. Local society, also, may well be the loser, by relaxing its sense of responsibility and, indeed, perhaps resenting what may appear to it to be outside interference where local authority is ample and more appropriate to supply needed remedies.This meaning, no doubt, poses difficulties for the case-by-case application of §1979. Manifestly the applicability of the section in an action for damages cannot be made to turn upon the actual availability or unavailability of a state-law remedy for each individual plaintiff’s situation. Prosecution to adverse judgment of a state-court damage claim cannot be made prerequisite to §1979 relief. In the first place, such a requirement would effectively nullify §1979 as a vehicle for recovering damages. In the second place, the conclusion that police activity which violates state law is not “under color” of state law does not turn upon the existence of a state tort remedy. Rather, it recognizes the freedom of the States to fashion their own laws of torts in their own way under no threat of federal intervention save where state law makes determinative of a plaintiff’s rights the particular circumstance that defendants are acting by state authority. Section 1979 was not designed to cure and level all the possible imperfections of local common-law doctrines, but to provide for the case of the defendant who can claim that some particular dispensation of state authority immunizes him from the ordinary processes of the law.My Brother HARLAN’S concurring opinion deserves separate consideration. It begins by asking what is its essential question: Why would the Forty-second Congress, which clearly provided tort relief in the federal courts for violations of constitutional rights by acts of a policeman acting pursuant to state authority, not also have provided the same relief for violations of constitutional rights by a policeman acting in violation of state authority? What, it inquires, would cause a Congress to distinguish between the two situations? Examining a first possible differentiating factor-the differing degrees of adequacy of protection of person and property already available in the state courts-it reasons that this could not have been significant in view of Congress’ purpose in 1871, for that purpose was not to enact a statute having “merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court to the lower courts and providing a federal tribunal for fact findings.”?Examining the other possible distinction-the difference between injuries to individuals from isolated acts of abuse of authority by state officers and injuries to individuals from acts sanctioned by the dignity of state law-it finds that this, too, could not have been important, especially to a Congress which was aware of the existence of state constitutional guarantees of protection to the individual, and which enacted the conspiracy statute which became R.S. §1980 and is now 42 U.S.C. §1985.To ask why a Congress which legislated to reach a state officer enforcing an unconstitutional law or sanctioned usage did not also legislate to reach the same officer acting unconstitutionally without authority is to abstract this statute from its historical context. The legislative process of the post-bellum Congresses which enacted the several Civil Rights Acts was one of struggle and compromise in which the power of the National Government was expanded piece by piece against bitter resistance; the Radicals of 1871 had to yield ground and bargain over detail in order to keep the moderate Republicans in line. This was not an endeavor for achieving legislative patterns of analytically satisfying symmetry. It was a contest of large sallies and small retreats in which as much ground was occupied, at any time, as the temporary coalescences of forces strong enough to enroll a prevailing vote could agree upon. To assume that if Congress reached one situation it would also have reached another situation involving not dissimilar problems-assuming, arguendo, that the problems, viewed in intellectual abstraction, are not dissimilar-ignores the temper of the times which produced the Ku Klux Act. This approach would be persuasive only if the two situations, that of a?state officer acting pursuant to state authority and that of a state officer acting without state authority, were so entirely similar that they would not, in 1871, have been perceived as two different situations at all. In view of the fierce debate which occupied the Forty-second Congress as to whether the Fourteenth Amendment had been intended to do more than invalidate state legislation offensive on its face, this supposition must be ruled out. Contrariwise, it is historically persuasive that the Forty-second Congress, which was not thinking in neat abstract categories, designed a statute to protect federal constitutional rights from an immediate evil perceived to be grave-the evil described by the statute’s sponsor, Mr. Shellabarger, “such wrongs...as are done under color of State laws which abridge these rights,”-but did not, by the same measure, seek to control unconstitutional action abusive of a state authority which did not, itself, “abridge these rights.”Again, an analysis which supposes that Congress, by 1 and 2?of the Ku Klux Act, was attempting to provide comprehensive coverage of a single problem and, therefore, may not be supposed to have left any aspect of the problem unprovided for, ignores that these two sections were in fact designed to cope with two wholly different problems-two wholly diverse evils. Section 2 was newly drafted in 1871, not, like 1, taken over from the 1866 Act. It was both civil and criminal, not, like 1, merely civil. It aimed exclusively at conspiracies, as 1 did not. And, most important, it sought to protect only the federal right of equal protection, not, like 1, all Fourteenth Amendment rights.?Because of its limited scope in this latter respect, those who drafted it and voted for it thought that it could constitutionally be made to reach instances of action having more tenuous connection with the lawfully asserted authority of the State than could a statute which also reached due process violations. For the same reason, it does not reach isolated?instances of misuse of state authority, but only such as possess the character of “purposeful discrimination”?which amounts to a denial of equal protection. The evil that 2 meant to stamp out was the evil of conspiracy-more particularly, the evil of the Klan, “a conspiracy, so far-flung and embracing such numbers, with a purpose to dominate and set at naught the ‘carpetbag’ and ‘scalawag’ governments of the day,” that it appeared “able effectively to deprive Negroes of their legal rights and to close all avenues of redress or vindication.” Collins v. Hardyman, 341 U.S. 651. The enormity and the power of this organization were what made it dangerous. Section 1 aimed at another evil, the evil not of combinations dedicated to purposeful and systematic discrimination, but of violation of any rights, privileges, or immunities secured by the Constitution through the authority, enhanced by the majesty and dignity, of the States. Here it was precisely this authorization, this assurance that behind a constitutional violation lay the whole power of the State, that was the danger. One can agree that these two statutory sections may overlap unevenly rather than?dovetail, but surely it is more plausible to regard this uneven overlap as a result of the diverse origins and purposes of the sections than to derive from it the justification for a construction of §1979 which distorts the section by stretching it to cover a class of cases presenting neither the evil with which 1, nor the evil with which 2, of the Ku Klux Act was designed to cope.The present case comes here from a judgment sustaining a motion to dismiss petitioners’ complaint. That complaint, insofar as it describes the police intrusion, makes no allegation that intrusion was authorized by state law other than the conclusory and unspecific claim that “During all times herein mentioned the individual defendants and each of them were acting under color of the statutes, ordinances, regulations, customs and usages of the State of Illinois, of the County of Cook and of the defendant City of Chicago.” In the face of Illinois decisions holding such intrusions unlawful and in the absence of more precise factual averments to support its conclusion, such a complaint fails to state a claim under §1979.However, the complaint does allege, as to the ten hour detention of Mr. Monroe, that “it was, and it is now, the custom or usage of the Police Department of the City of Chicago to arrest and confine individuals in the police stations and jail cells of the said department for long periods of time on ‘open’ charges.” These confinements, it is alleged, are for the purpose of interrogating and investigating the individuals arrested, in the aim of inducing incriminating statements, permitting possible identification of suspects in lineups, holding suspects incommunicado while police conduct field investigations of their associates and background, and punishing the arrested persons without trial. Such averments do present?facts which, admitted as true for purposes of a motion to dismiss, seem to sustain petitioners’ claim that Mr. Monroe’s detention-as contrasted with the night-time intrusion into the Monroe apartment-was “under color” of state authority. Under the few relevant Illinois decisions it is impossible to say with certainty that a detention incommunicado for ten hours is unlawful per se, or that the courts of that State would hold that the lawless circumstances surrounding Mr. Monroe’s arrest made his subsequent confinement illegal. On this record, then, petitioners’ complaint suffices to raise the narrow issue of whether the detention incommunicado, considered alone, violates due process.Footnotes:1. This section provides in material part:“The District Courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.”2. Subsection (a) provides:“The District Courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value?of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”In their complaint, petitioners also invoked R.S. §§1980, 1981, 42 U.S.C. §§1985, 1986. Before this Court, however, petitioners have limited their claim to recovery to the liability imposed by §1979. Accordingly, only that section is before us.6. Illinois Const., Art. II, 6, provides:“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.” Respondents also point to Ill. Rev. Stat., c. 38, 252, 449.1; Chicago, Illinois, Municipal Code, 11-40.7. Compare the statement of Representative Burchard:“If the refusal of a State officer, acting for the State, to accord equality of civil rights renders him amenable to punishment for the offense under United States law, conspirators who attempt to prevent such officers from performing such duty are also clearly liable.” Cong. Globe, 42d Cong., 1st Sess., App. 315.8. Section 2 as finally adopted was substantially as now provided in 42 U.S.C. §1985: “If two or more persons in any State...conspire...for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or 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; [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.”1. The complaint is in nine counts, and seeks to assert a claim in favor of Mr. Monroe, Mrs. Monroe, and their children, respectively, under each of R.S. §§1979, 1980 and 1981, 42 U.S.C. §§1983, 1985 and 1986. Petitioners have abandoned in this Court their claims under §1980 and §1981, and we are not now asked to determine the applicability of those sections to the facts alleged.6. Civil liability has always been drawn from such indefinite standards as reasonable care, a man of ordinary prudence, foreseeability, etc. And see Baltimore & Ohio R. Co. v. Groeger,?266 U.S. 521; Miller v. Strahl,?239 U.S. 426.32.The Act of September 9, 1957, 71 Stat. 634, 637, provides that “No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote” at any election held solely or in part for the purpose of selecting or electing candidates for designated federal offices. Such an enactment, of course, can in no conceivable manner be considered congressional “adoption” or approbation of this Court’s constructions of the “under color” clause in Classic, Screws and Williams, for the sufficient reason (among others) that the statute employs the clause only to go beyond it-manifesting a purpose, through the expression “under color” of law or otherwise,” to reach all individual conduct of the class described, whether or not “under color” of law, and whatever “under color” of law may mean. See H.R. Rep. No. 291, 85th Cong., 1st Sess. 12. The provisions of H.R. 627, 84th Cong., 2d Sess., as reported from the House Committee on the Judiciary and made the subject of H.R. Rep. No. 2187, 84th Cong., 2d Sess., are similar.The Civil Rights Act of 1960, 74 Stat. 86, 88-89, 90, does twice use the clause “under color of [law],” but in contexts wholly different from that of R.S. §1979. Section 301 of the 1960 Act requires every “officer of election” to retain and preserve during a specified period all records and papers which come into his possession relating to acts requisite to voting at an election wherein candidates for designated federal offices are voted for. Section 306 (which comprises the only use of “under color” language in the House bill that was the subject of H.R. Rep. No. 956, 86th Cong., 1st Sess.) defines an “officer of election” as “any person who, under color of any Federal, State, Commonwealth, or local law, statute, ordinance, regulation, authority, custom, or usage, performs or is authorized to perform any function, duty, or task in connection with any application, registration, payment of poll tax, or other act requisite to voting” in any election at which votes are cast for candidates for those designated federal offices. These provisions, like those of the 1957 Act, are of?very limited scope, reaching only certain conduct affecting federal elections. Section 601 of the 1960 Act provides that in any proceeding instituted by the Attorney General for preventive relief against the deprivation, on account of race or color, of certain voting rights, see R.S. §2004, as amended by the Act of September 9, 1957, 71 Stat. 634, 637, 42 U.S.C. §1971, the court shall, on proper request, make a finding whether such deprivation was or is pursuant to a pattern or practice. If the court finds such a pattern or practice, any person of that race or color resident within the affected area is entitled, during a specified period, to an order declaring him qualified to vote, “upon proof that at any election or elections (1) he is qualified under State law to vote, and (2) he has since such finding by the court been (a) deprived of or denied under color of law the opportunity to register to vote or otherwise to qualify to vote, or (b) found not qualified to vote by any person acting under color of law.” Whatever meaning “under color of law” may have as so employed, Congress’ use of the phrase in this narrowly limited context-applying to a situation in which voting rights have been infringed on grounds of race or color pursuant to a pattern or practice-cannot reasonably be taken as indicative of congressional attitude toward one or another possible construction of “under color” in the sweeping context of R.S. §1979.All this is said quite apart from the consideration of how little weight may properly be given to inferences drawn from the silence of minority reports of congressional committees, especially committees sitting almost a century after the enactment of the legislation in question.46. The impetus for the enactment of the Ku Klux Act was President Grant’s message to Congress asserting that a condition then existed in some States which rendered life and property insecure and which was beyond the power of state authorities to control. Throughout the debates on the bill the note was repeated: there was a need for federal action to supplant state administration which was failing to provide effective protection for private rights. Constitutional authority for such federal action was sought in the logic that “States” were ordered by the Fourteenth Amendment not to “deny” equal protection of the laws; that a “State” in effect denied such protection not only when its legislation was on its face unequal, but whenever its judicial or executive?authorities by a consistent course of practice, “permanently and as a rule” refused to enforce its laws for the protection of some class of persons. But what was deemed the prerequisite to validity of congressional action in implementation of the Amendment under this theory was no less than a State’s permitting “the rights of citizens to be systematically trampled upon without color of law.” “A systematic failure to make arrests, to put on trial, to convict, or to punish offenders.” The National Government was thought powerless to intervene to regulate “A mere assault and battery, or arson, or murder.... The law is believed to be sufficient to cover such cases, and the officers of justice amply able to arrest and punish the offenders.” See also Mr. Perry’s assertion, that the wrongs which Congress may remedy “are not injuries inflicted by mere individuals or upon ordinary rights of individuals,” but injuries inflicted “under color of State authority or by conspiracies and unlawful combinations with at least the tacit acquiescence of the State authorities.” Wrongs susceptible of adequate redress before the state courts evidently did not concern Congress, and Congress in 1871 did not attempt to reach those wrongs.48. Mr. Shellabarger proposed the amendment to 2, to meet the constitutional objections which the original form of that section had evoked. Numerous members of the majority party thereupon withdrew their opposition to the bill. The form of the second section as it was finally enacted is, in relevant part, substantially that of R.S. §1980, 42 U.S.C. §1985: “If two or more persons in any State...conspire...for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or 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; [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.” See 17 Stat. 13. Mr. Shellabarger emphasized that the purpose of the change was to make the gist of the offense a deprivation of equality of rights, not a deprivation of rights alone. Cong. Globe, 42d Cong., 1st Sess. 478.67. “The Fourteenth Amendment, itself a historical product, did not destroy history for the States....” Jackman v. Rosenbaum Co.,?260 U.S. 22.68. In the last twenty years the lower federal courts have encountered a volume of litigation seeking Civil Rights Act redress for a variety of wrongs ranging from arbitrary refusal by housing department officials to issue architect’s certificates, Burt v. New York, 156 F.2d 791, to allegedly malicious charges made by a state grand jury. Lyons v. Baker, 180 F.2d 893. Plaintiffs have sought redress against the signers of a mandamus petition, parties to a state mandamus proceeding to compel city commissioners to hold a local referendum, Lyons v. Dehon, 188 F.2d 534, against state officials administering a local WPA project for refusing to employ the plaintiff and instituting insanity proceedings against him, Love v. Chandler, 124 F.2d 785, against adversaries and judge in a state civil judicial proceeding where egregious error resulting in holding against plaintiffs was alleged, Bottone v. Lindsley, 170 F.2d 705; Campo v. Niemeyer, 182 F.2d 115; cf. Moffett v. Commerce Trust Co., 187 F.2d 242. Most courts have refused to convert what would otherwise be ordinary state-law claims for false imprisonment or malicious prosecution or assault and battery into civil rights cases on the basis of conclusory allegations of constitutional violation. Lyons v. Weltmer, 174 F.2d 473; McGuire v. Todd, 198 F.2d 60; Curry v. Ragan, 257 F.2d 449; Deloach v. Rogers, 268 F.2d 928; Agnew v. City of Compton, 239 F.2d 226.72. This is so not only because of the practical impediment to Civil Rights Act relief which would be posed by a two-suit requirement, but because the efficient process of judicial administration might well require that a plaintiff present his federal constitutional contention to the state courts along with his state-law contentions, that he there assert the federal unconstitutionality of maintaining the defense of state authorization to a state-law tort action. Cf. Angel v. Bullington,?330 U.S. 183. Of course, once that federal contention is properly presented to the state courts, plaintiff has open for review here an adverse state-court judgment; but if plaintiff were successful in this Court, the effect of our disposition would be to return plaintiff to the state courts for a state-law measure of relief.73. Cf. Civil Rights Cases,?109 U.S. 3. And see Nashville, C. & St. L. R. Co. v. Browning,?310 U.S. 362: “Here...all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years, and now questioned for the first time. It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law.... Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.”85. Section 2 of the Ku Klux Act attached civil and criminal liability to conspiracy “for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or 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....” 17 Stat. 13. The civil provisions of this section were carried forward, as amended, in R.S. §1980, and are now found in 42 U.S.C. §1985. The criminal provisions, carried forward in R.S. §5519, were declared unconstitutional in United States v. Harris, 106 U.S. 629, and Baldwin v. Franks,?120 U.S. 678.87. The Fourteenth Amendment provides that no State shall “deprive” any person of life, liberty, or property without due process of law, and that no State shall “deny” to any person within its jurisdiction the equal protection of the laws. It is clear that the Forty-second Congress believed that “denial” could be worked by non-action, while “deprivation” required ill-action; thus, that the?scope of federal enforcing power under the Equal Protection Clause reached further, in respect of situations in which there was no assertion of legitimate state authority, than did the equivalent scope of power under the Due Process and Privileges and Immunities Clauses. This appears to be why 2 was acceptable in its amended, while not in its original, form.UNITED STATES v. RAINES et al., 362 U.S. 17, 80 S.Ct. 519 (1960)Mr. Justice BRENNAN delivered the opinion of the court.The very foundation of power of federal courts to declare Acts of Congress unconstitutional lies in power and duty of those courts to decide cases and controversies properly before them.One to whom application of a statute is constitutional will not be heard to attack statute on ground that impliedly it may also be taken as applying to other persons or other situations in which its application may be unconstitutional.Where judgment of federal District Court awarded appellees all relief they requested despite rejecting most of their contentions except the central one, no cross appeal was necessary to bring such contentions before United States Supreme Court if they could be considered otherwise, and they would simply be alternative grounds on which judgment could be supported. 28 U.S.C.A. §1252.The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them. This was made patent in the first case here exercising that power - ‘the gravest and most delicate duty that this Court is called on to perform.’ Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60. This Court, as is the case with all federal courts, ‘has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U.S. 396; Heald v. District of Columbia, 259 U.S. 114; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217; Collins v. State of Texas, 223 U.S. 288; People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152. Cf. Voeller v. Neilston Warehouse Co., 311 U.S. 531; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495; Virginian R. Co. v. System Federation, 300 U.S. 515; Blackmer v. United States, 284 U.S. 421; Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571; Tyler v. Judges of the Court of Registration, 179 U.S. 405; Ashwander v. Tennessee Valley Authority, 297 U.S. 288. In Barrows v. Jackson, 346 U.S. 249, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it ‘would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.’ The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined. The Court further pointed to the fact that a limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were in fact concretely presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.…It is, however, established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments. See Cooper v. Aaron, 358 U.S. 1.…That there is the highest public interest in the due observance of all the constitutional guarantees, including those that there the most directly on private rights, and we think it perfectly competent for Congress to authorize United States to be the guardian of that public interest in a suit for injunctive relief. See United Steelworkers of America v. United States, 361 U.S. 39, and cases cited.COOPER, et al. v. AARON, et al., 358 U.S. 1, 78 S.Ct. 1401 (1958)Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER.The Supreme Court held that Governor and Legislature of state were bound by Federal Supreme Court’s prior decision that enforced racial segregation in public schools of state was an unconstitutional denial of equal protection of laws; and held that, from point of view of Fourteenth Amendment, members of school board and superintendent of schools stood as agents of state, and that their good faith would not constitute legal excuse for delay in implementing plan for desegregating schools where actions of other state officials were responsible for conditions alleged by such school officials to make prompt effectuation of desegregation plan impossible and it was conceded that difficulties could be brought under control by state action.Prohibitions of Fourteenth Amendment extend to all actions of state denying equal protection of the laws, whatever state agency takes the action or whatever the guise in which it is taken. U.S.C.A. Const. Art. 6; U.S.C.A. Const. Amend. 14.The Board’s petition for postponement in this proceeding states: “The effect of that action [of the Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore had reluctantly accepted the Plan to believe there was some power in the State of Arkansas which, when exerted, could nullify the Federal law and permit disobedience of the decree of this [District] Court, and, from that date, hostility to the Plan was increased, and criticism of the officials of the [School] District has become more bitter and unrestrained.” The Governor’s action caused the School Board to request the Negro students on September 2 not to attend the high school “until the legal dilemma was solved.” The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board’s request of the Negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities. The court determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it.The significance of these findings, however, is to be considered in light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court’s decision in the?Brown?case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: “The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.”The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: “It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.” Buchanan v. Warley,?245 U.S. 60. Thus, law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board’s difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of?Marbury v. Madison,?1 Cranch 137,?5 U.S. 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the Federal Judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the?Brown?case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State....” Ableman v. Booth,?21 How. 506,?62 U.S. 524.No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the Legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery....” United States v. Peters,?5 Cranch 115,?9 U.S. 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases....” Sterling v. Constantin,?287 U.S. 378.It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe,?347 U.S. 497. The basic decision in?Brown?was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first?Brown?opinion, three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.Concurring opinion of MR. JUSTICE FRANKFURTER.We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the consequences in disorder that it entrained, should be recognized as justification for undoing what the School Board had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness, and lawlessness, if not checked, is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signaled the breakdown of constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system, but of the presuppositions of a democratic society. The State “must...yield to an authority that is paramount to the State.” This language of command to a State is Mr. Justice Holmes’, speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Butler and Mr. Justice Stone.?Wisconsin v. Illinois,?281 U.S. 179.When defiance of law, judicially pronounced, was last sought to be justified before this Court, views were expressed which are now especially relevant: “The historic phrase ‘a government of laws, and not of men’ epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights, he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. ‘A government of laws, and not of men,’ was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.”“But, from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. ‘Civilization involves subjection of force to reason, and the agency of this subjection is law.’ (Pound, The Future of Law (1937) 47 Yale L.J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men who were to be the depositories of law, who, by their disciplined training and character and by withdrawal from the usual temptations of private interest, may reasonably be expected to be ‘as free, impartial, and independent as the lot of humanity will admit.’ So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for.” United States v. United Mine Workers,?330 U.S. 258.Lincoln’s appeal to “the better angels of our nature” failed to avert a fratricidal war. But the compassionate wisdom of Lincoln’s First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.CONLEY, et al. v. GIBSON, et al., 355 U.S. 41, 78 S.Ct. 99 (1957)Mr. Justice BLACK delivered the opinion of the Court.A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Fed. Rules Civ.Proc. Rule 12, 28 U.S.C.A.The respondents appeared and moved to dismiss the complaint on several grounds: (1) the National Railroad Adjustment Board had exclusive jurisdiction over the controversy; (2) the Texas and New Orleans Railroad, which had not been joined, was an indispensable party defendant; and (3) the complaint failed to state a claim upon which relief could be given. The District Court granted the motion to dismiss holding that Congress had given the Adjustment Board exclusive jurisdiction over the controversy. The Court of Appeals for the Fifth Circuit, apparently relying on the same ground, affirmed. 229 F.2d 436. Since the case raised an important question concerning the protection of employee rights under the Railway Labor Act we granted certiorari. 352 U.S. 818.As in the courts below, respondents contend that the Texas and New Orleans Railroad Company is an indispensable party which the petitioners have failed to join as a defendant. On the basis of the allegations made in the complaint and the relief demanded by petitioners we believe that contention is unjustifiable. We cannot see how the Railroad’s rights or interests will be affected by this action to enforce the duty of the bargaining representative to represent petitioners fairly. This is not a suit, directly or indirectly, against the Railroad. No relief is asked from it and there is no prospect that any will or can be granted which will bind it. If an issue does develop which necessitates joining the Railroad either it or the respondents will then have an adequate opportunity to request joinder.Turning to respondents’ final ground, we hold that under the general principles laid down in the Steele, Graham, and Howard cases the complaint adequately set forth a claim upon which relief could be granted. In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Here, the complaint alleged, in part, that petitioners were discharged wrongfully by the Railroad and that the Union, acting according to plan, refused to protect their jobs as it did those of white employees or to help them with their grievances all because they were Negroes. If these allegations are proven there has been a manifest breach of the Union’s statutory duty to represent fairly and without hostile discrimination all of the employees in the bargaining unit. This Court squarely held in Steele and subsequent cases that discrimination in representation because of race is prohibited by the Railway Labor Act. The bargaining representative’s duty not to draw ‘irrelevant and invidious’ distinctions among those it represents does not come to an abrupt end, as the respondents seem to contend, with the making of an agreement between union and employer. Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already secured by contract. The bargaining representative can no more unfairly discriminate in carrying out these functions than it can in negotiating a collective agreement. A contract may be fair and impartial on its face yet administered in such a way, with the active or tacit consent of the union, as to be flagrantly discriminatory against some members of the bargaining unit.The respondents also argue that the complaint failed to set forth specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Following the simple guide of Rule 8(f) that ‘all pleadings shall be so construed as to do substantial justice,’ we have no doubt that petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197.The judgment is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.It is so ordered.Reversed and remanded with direction.Footnotes:9. See Rule 12(e) (motion for a more definite statement); Rule 12(f) (motion to strike portions of the pleading); Rule 12(c) (motion for judgment on the pleadings); Rule 16 (pre-trial procedure and formulation of issue); Rules 26-37 (depositions and discovery); Rule 56 (motion for summary judgment): Rule 15 (right to amend).PETERS v. HOISINGTON, et al., 72 S.D. 542, 37 N.W.2d 410 (1949)ROBERTS, Judge.Contributory negligence is a question of law on the one court is impelled to say that from facts reasonable man could draw all but one conclusion pointing unerringly negligence of plaintiff contributing to his injury.Where minds of reasonable man might differ, disputed questions of fact as to contributory negligence are for jury, and it is province of Supreme Court to determine whether there is sufficient evidence in record to sustain finding of jury.A nonpaying passenger, when he enters an automobile, assumes risk of any injury resulting from lack of proficiency of driver, at least to extent that degree of proficiency is known to nonpaying passenger.The practice of counsel in addressing individual jurors by name or of singling out a particular juror and personally appealing to him is improper.The purpose of provision and rule authorizing admission of expert testimony, for reasonable notice to court and adverse party of name and address of expert witness to be called is to guard against surprise and to enable adversary to investigate professional standing of proposed expert witness. Rules of Supreme Court, rule governing admission of expert testimony adopted September 12, 1942.In a personal injury action arising out of an automobile accident, intoxication of driver of automobile is not negligence as a matter of law.When the sufficiency of the evidence to support a verdict is challenged the court must view the evidence in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every reasonable inference that can be drawn therefrom. The statement of the evidence will be made in the light of this basic rule.Plaintiff had a right to determine whether appellant had made prior statements conflicting with evidence given. Behseleck v. Andrus, 60 S.D. 204, 244 N.W. 268, 88 A.L.R. 596.ADKINS v. E.I. DuPONT DE NEMOURS & CO., Inc., 335 U.S. 331, 69 S.Ct. 85 (1948)Mr. Justice BLACK delivered the opinion of the Court.One need not the absolutely destitute in order to enjoy the benefit of statute providing for appeals in forma pauperis. Federal Rules of Civil Procedure, Rule 75(m), 28 U.S.C.A.; 28 U.S.C.A. §1915.An affidavit which states that affiant cannot because of his poverty pay or give security for the costs on appeal and still be able to provide himself and dependents with the necessities of life is sufficient. Federal Rules of Civil Procedure, Rule 75(m), 28 U.S.C.A.; 28 U.S.C.A. §1915.One claimant for overtime compensation, damages and attorneys’ fees under the Fair Labor Standards Act cannot be denied right of appeal in forma pauperis merely because other claimants will neither give security for costs nor sign an affidavit of poverty. Fair Labor Standards Act of 1938, §16(b), as amended by Portal-to-Portal Act of 1947, 29 U.S.C.A. §216(b); 28 U.S.C.A. §1915(a to e); Portal-to-Portal Act of 1947, §§1, 2, 29 U.S.C.A. §§251, 252; Federal Rules of Civil Procedure, Rule 75(m), 28 U.S.C.A.The questions presented chiefly involve the scope and application of the statute which authorizes a citizen to prosecute or defend actions in federal courts ‘without being required to prepay fees or costs or for the printing of the record in the appellate court…upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action or of such writ of error or appeal, or to give security for the same,….’This action was filed in the United States District Court for the Northern District of Oklahoma by P. V. Adkins. Mr. Adkins died while the litigation was pending and his wife having been appointed administratrix of his estate was substituted as plaintiff. The original complaint claimed overtime compensation, damages and attorneys’ fees on behalf of Mr. Adkins and twelve other employees of the respondent?’under and pursuant to the Fair Labor Standards Act of 1938 (Title 29, U.S.C.A. §§201-219) and Executive Order #9240 as amended (Title 40 U.S.C.A. following §326).’From a dismissal of her complaint in the District Court and the denial by that court of her motion to set the dismissal aside and grant a new trial, petitioner filed in the District Court a motion to appeal to the United States Court of Appeals for the Tenth Circuit. She also filed a motion that the appeal be allowed in forma pauperis. Her affidavit in support of this motion stated that petitioner was a widow 74 years of age; the estimated costs of the appeal record would be approximately $4,000; all she had was a home, inherited from her husband, appraised at $3,450; her only source of income was rent from parts of her home; and without such income she would not be able to purchase the necessities of life. No objection appears to have been filed to her motion to appeal in forma pauperis, but the motion was denied by the court. Apparently denial was for two reasons: (1) She could not proceed in forma pauperis where there were twelve other claimants involved who had no affidavits of poverty; (2) the court assumed that petitioner’s lawyers were employed on a contingent fee basis, and was of opinion that she therefore could not appeal in forma pauperis unless the lawyers either prepaid the costs, gave security for costs or filed an affidavit of their poverty along with petitioner and all other claimants.Petitioner then filed an application for appeal in forma pauperis in the United States Court of Appeals. This application was denied. The denial, so the record indicates, was on the ground that to appeal in forma pauperis, Mrs. Adkins, the twelve employees, and all the members of the law firm representing her would have to make affidavits of poverty.Petitioner then went back to the District Court. Ten of the twelve employees filed affidavits in each of which this statement appeared; ‘…because of my poverty I am unable to pay or give security for the costs ($4,000) of such appeal and still be able to provide myself and my dependents with the necessities of life.’ An affidavit with identical language was filed by one member of the firm of lawyers representing petitioner. The affidavit also stated that the firm’s interest in all fees from this litigation had been assigned to affiant. No affidavit of poverty were filed by the other members of the firm. An affidavit was filed for the firm, however, stating a belief that the claims were meritorious, that appeal costs had been estimated at about $4,000, and that the total liquid assets of the firm did not exceed $2,000. One of the twelve claimants could not be located and one refused to sign an affidavit of poverty.The district judge for the second time denied the motion to permit appeal without security for costs. His grounds seem to have been these. Two of the claimants had signed no affidavit of poverty; unless all signed, there could be no in forma pauperis appeal. The affidavits of petitioner, the ten claimants, and the attorneys were held insufficient in that they failed to show the precise financial condition of affiants, ‘whether they were or were not without property.’ The judge was not sure just what affiants would have to show as to property, but felt that each should prove a complete inability to pay at least a portion of the costs. All interested in the recovery, he thought, including the lawyers, ‘have at least got to chip in to the extent of their ability to pay; and whatever they have, they have got to put in the pot for the purpose of taking the appeal.’ The judge was ‘inclined to believe but not sure’ that before Mrs. Adkins could be permitted to appeal in forma pauperis she must mortgage her home and ‘chip in’ what she received on the mortgage loan. He construed all the affidavits as showing no more than that it would constitute a hardship to pay or give security for the payment of $4,000 to make the record. This statement as to ‘hardship’ he thought did not meet the statutory requirement for an affidavit of inability to pay or secure costs due to ‘poverty.’ Furthermore, the judge thought petitioner had designated more for the record than was needed to decide the dismissal question raised by the appeal. He therefore believed that a $4,000 record was ‘wholly unnecessary.’ Since the judge believed he was without power directly to limit the contents of the appellate record, he felt ‘persuaded to be more technical and more strict’ on the type of in forma pauperis affidavits he required.The Court of Appeals thereafter denied a second motion of petitioner to accept its appeal in forma pauperis. Petitioner then applied to this Court for certiorari to review the actions of the Court of Appeals and of the District Court in denying petitioner leave to appeal in forma pauperis. Petitioner further asked the court for leave to proceed here without giving security for costs. We set the motion down for argument. 68 S.Ct. 1340. The matter has now been submitted on briefs and oral argument. The affidavits of poverty filed to proceed here in forma pauperis are the same as the affidavits filed in the two courts below.If these affidavits are thought to be insufficient to support her motion, the petitioner urges that we give directions concerning additional requirements. While for our purposes the affidavits would have been more acceptable had they merely followed the language of the statute, our rules have provided no precise requirements. But the only questions presented here relate to the sufficiency of these affidavits in the two courts below. And to reach these questions, which are important, we must either accept the affidavits as sufficient or delay final consideration of the case. We accept the affidavits, grant the petition for certiorari, and the case having been fully argued, we proceed to pass on the questions presented so far as necessary. See Steffler v. United States, 319 U.S. 38.First. We do not think the court was without power to protect the public from having to pay heavy costs incident to the inclusion of ‘wholly unnecessary’ matters in an in forma pauperis appeal. Sections 1 and 4 of the statutes provide that a court may exercise a limited judicial discretion in the grant or denial of the right and this Court has so held. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43. Rule 75(m) of our present Rules of Civil Procedure, 28 U.S.C.A., reads as follows:‘APPEALS IN FORMA PAUPERIS. Upon leave to proceed in forma pauperis, the District Court may by order specify some different and more economical manner by which the record on appeal may be prepared and settled, to the end that the appellant may be enabled to present his case to the appellate court.’ (329 U.S. 870.)We know of few more appropriate occasions for use of a court’s discretion than one in which a litigant, asking that the public pay costs of his litigation, either carelessly or willfully and stubbornly endeavors to saddle the public with wholly uncalled-for expense. So here, the court was not required to grant the petitioner’s motion if she wrongfully persisted in including in the appeal record masses of matter plainly irrelevant to the issues raised on appeal. See Estabrook v. King, 119 F.2d 607. And, of course, under Rule 75(m) the court may save the costs of printing by providing for a typewritten record. If exercise of discretion by a District Court should result in an unfair and incomplete record to a litigant’s injury, the court’s error could be remedied. Its action would be subject to review by the appellate court. Moreover, if in obedience to court order a party should agree to a record inadequate for appellate court purposes, that court would have power, upon motion or sua sponte, to require addition of material necessary to enable the court fairly to decide the appeal questions presented.Second. The statute allowing in forma pauperis appeals provides language appropriate for incorporation in an affidavit. One who makes this affidavit exposes himself ‘to the pains of perjury in a case of bad faith.’ Pothier v. Rodman, 261 U.S. 307. This constitutes a sanction important in protection of the public against a false or fraudulent invocation of the statute’s benefits. Furthermore, the statute provides other sanctions to protect against false affidavits. Section 4 authorizes a court to dismiss actions brought on affidavit of poverty ‘if it be made to appear that the allegation of poverty is untrue.’ And §5 provides another safeguard against loss by the Government due to false affidavits in that a court is permitted, in its discretion, to render judgment for costs ‘at the conclusion of the suit as in other cases.’ Consequently, where the affidavits are written in the language of the statute it would seem that they should ordinarily be accepted, for trial purposes, particularly where unquestioned and where the judge does not perceive a flagrant misrepresentation.Here, the affidavits were not couched in the language of the statute. They went outside that language. Estimating that the costs would be $4,000, each affidavit stated that the affiant could not pay or secure $4,000. In other words, the affidavits here tied inability to pay to a fixed cost of $4,000. Under these circumstances, we think the court was justified in looking further to see if the cost really should have been $4,000 and if not, the judge was right in requiring affidavits made with an appreciation by affiants of the lesser amount of expense to which they might be subjected by the appeal.Third. We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty ‘pay or give security for the costs…and still be able to provide’ himself and dependents ‘with the necessities of life.’ To say that no persons are entitled to the statute’s benefits until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category of public charges. The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution. We think a construction of the statute achieving such consequences is an inadmissible one. See cases collected in 6 A.L.R. 1281-1287 for a discussion as to whether a showing of complete destitution should be made under this and similar statutes.Fourth. We do not think that this petitioner can be denied a right of appeal under the statute merely because other claimants will neither give security for costs nor sign an affidavit of poverty. This case illustrates that such a restrictive interpretation of this statute might wholly deprive one of several litigants of a right of appeal, even though he had a meritorious case and even though his poverty made it impossible for him to pay or give security for costs. Such a deprivation would frustrate the basic purpose of the statute. This does not mean that one of several claimants financially able but unwilling to pay his proportionate part of the costs, could demand the benefits of an appeal perfected by another claimant under the in forma pauperis statute. But it does mean in this case that the petitioner, upon making the required affidavit of poverty, was entitled to appellate review of the issues the District Court decided against her without regard to whether other claimants filed an affidavit of poverty, or paid or secured their fair part of the costs.Fifth. Petitioner’s appeal under the statute was denied in part because her attorneys, thought by the District Court to have been employed on a contingent fee basis, had not shown to the court’s satisfaction that they were unable on account of poverty to pay or give security for costs. We think the statute imposes no such burden on a lawyer who is to share in the recovery through contract by reason of his legal services. We are aware that some district and circuit courts of appeal have so construed the Act, and that some have even adopted rules which impose this requirement on lawyers.?Other district and circuit courts of appeal have declined to interpret the statute as imposing such a burden on lawyers who represent litigants too poor to pay or secure the costs.Many states, apparently including Oklahoma where this case was tried,?make it illegal for lawyers to sign a bond to secure costs for their clients in any civil or criminal action. It would have been an innovation had Congress in this statute expressly permitted lawyers trying cases in federal courts to contract with their clients to pay or secure costs in their clients’ cases. But it would have been a surprising legislative innovation for Congress to command that lawyers pay or secure such costs. That Congress did not do this seems to be strongly indicated by the basic statute itself.Section 1 of that statute is intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, ‘in any court of the United States’ solely because his poverty makes it impossible for him to pay or secure the costs. Not content with this safeguard for the poor in federal courts, Congress in §4 of the Act provided that ‘the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial,….’ Certainly a lawyer appointed under §4 could not be required to pay the costs of an appeal. Nor could such an appointed lawyer have a burden of this kind cast upon him if Congress had required payment of a fee for appointed counsel in an amount fixed as reasonable by the court, a requirement that some state laws have provided.?Yet, such a ‘reasonable fee’ fixed by a court would be a ‘contingent fee’ should we accept respondent’s argument in this case. For respondent contends that because the Fair Labor Standards Act authorizes a court to fix a reasonable fee for attorneys prosecuting overtime claims for employees, this petitioner’s lawyers are on a contingent fee basis. They therefore according to respondent have a financial interest in the recovery. Consequently, respondent argues, petitioner must abandon her appeal and her claim unless these lawyers pay costs, secure them, or make affidavits of poverty.No proof is needed that imposition of such onerous burdens on employees’ lawyers would put serious obstacles in the way of employees obtaining the kind of legal representation Congress intended to provide for them in the Fair Labor Standards Act. And since §4 of the in forma pauperis statute was plainly intended to assure legal representation to the poor, it is also obvious that the purpose of that Act could be frustrated in part by construing the statute as imposing a guarantee of appeal costs on all lawyers employed to represent the poor on a contingent basis. For if a person is too poor to pay the costs of a suit, sometimes very small in amount, how can it be imagined that he could possibly pay a fair fee except from the recovery he obtains?The statute here under consideration is not susceptible of a construction that would impose more burdens on lawyers employed by litigants unable to pay fees except on a contingent basis, than the burdens imposed on lawyers for those litigants who are able to employ counsel by the year or by payment of straight noncontingent fees. Section 3 of the statute specifically states that litigants who make affidavits of poverty shall be entitled to the same court processes, have the same right to the attendance of witnesses, and the same remedies as are provided by law in other cases. And as pointed out, §4 of the statute makes it abundantly clear that poor litigants shall have the same opportunity to be represented by counsel as litigants in more fortunate financial circumstances. The statutory construction urged by respondent here would result in restricting the opportunities of the poor litigant in getting a lawyer who would follow his case through the appellate courts. For as was said by the District Court in Clark v. United States, D.C., 57 F.2d 214: ‘The same poverty that compels a litigant to avail himself of this beneficent statute makes it impossible for him to hire counsel. He can procure counsel only by agreeing that out of the proceeds of his case, if there are proceeds, counsel shall be compensated. In practical effect he (a poor litigant) is denied counsel if his counsel must either himself guarantee the costs or file an affidavit that he also is penniless. The statute was intended for the benefit of those too poor to pay or give security for costs, and it was not intended that they should be compelled to employ only paupers to represent them.’It was error to deny petitioner’s motion for appeal under the statute on the ground that her lawyers had not made satisfactory affidavits of poverty. The statute requires no affidavit at all from them as a condition of appeal.What we have said makes it unnecessary for us to pass on the contention of respondent that an agreement for a contingent fee payable out of an employee’s recovery to prosecute claims under the Fair Labor Standards Act is invalid.The orders denying appeal in forma pauperis are vacated and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.It is so ordered.Vacated and remanded.Footnotes:2. Section 16(b) of the Fair Labor Standards Act, 52 Stat. 1069, 29 U.S.C. §216(b), 29 U.S.C.A. §216(b), authorized employees’ suits by agents. Here the agent was acting ‘for a consideration contingent upon recovery.’ An amendment of this section, the Portal-to-Portal Act, 61 Stat. 84, 29 U.S.C. Supp. I, §§251-252, 29 U.S.C.A. §§251, 252, limited the circumstances under which such representative actions could be maintained.4.We do not mean to indicate that the issues sought to be raised by this petitioner on her appeal could have been properly presented to the Court of Appeals with nothing other than the very limited record the trial court apparently thought would be adequate. The case was dismissed because the District Court thought it had been deprived of jurisdiction by the Portal-to-Portal Act. This Act purports to deprive federal courts of jurisdiction to enforce payment of overtime wages based on any activity except one compensable by either ‘(1) an express provision of a written or nonwritten contract…or (2) a custom or practice in effect, at the time of such activity,’ at the place of employment, and not inconsistent with a written or nonwritten contract governing such employment. Petitioner had contended that examination by the court of the entire record including evidence already taken by a special master would show that employees’ claims for compensation were supported by express contracts or by custom. He contended that the Portal-to-Portal Act was therefore inapplicable under the facts of this case and that consequently the dismissal under that Act was erroneous. Petitioner’s application to amend her complaint to conform to the evidence was denied by the court. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197; Hoiness v. United States, 335 U.S. 297. It would appear that the petitioner was entitled to have a record that was not so limited as to deprive the Court of Appeals of an opportunity to review these issues she raised.UNITED STATES v. UNITED MINE WORKERS OF AMERICA, 330 U.S. 258, 67 S.Ct. 677 (1947)Mr. Chief Justice VINSON delivered the opinion of the Court.In common usage, the term “person” does not include the sovereign and statutes employing it will ordinarily not be construed to do so.The United States in seizing and operating coal mines under the War Labor Disputes Act was exercising a sovereign function, and the resulting relationship between the United States and the miners was that of employer and employees. Executive Order No. 9728, May 21, 1946. U.S. Code Cong. Service, 1946, p. 1803; War Labor Disputes Act §§1-11, 50 U.S.C.A. Appendix, §§1501-1511. Where District Court issued restraining order to preserve existing conditions pending a decision of its authority to grant injunctive relief in government’s suit for declaratory judgment in respect to right of defendants, a labor union and its president, to terminate, by unilateral action, contract regarding terms and conditions of employment in respect to coal mines in government possession, defendants’ disobedience of the restraining order was punishable as criminal contempt. Norris-LaGuardia Act, §1 et seq., 29 U.S.C.A. §101 et seq.Violations of an order are punishable as criminal contempt even though the order is set aside on appeal or though the basic action has become moot.Where defendants, charged with contempt in violating restraining order issued in suit for declaratory judgment, were accorded all rights and privileges owing to defendants in criminal contempt cases, they could not complain because their trial included a proceeding in civil contempt and was carried on in the main equity suit.Sentences for criminal contempt are punitive in their nature and are imposed for purpose of vindicating the authority of the court.In imposing a fine for criminal contempt, the trial judge may properly consider the extent of the wilful and deliberate defiance of court’s order, seriousness of consequences of the contumacious behavior, necessity of effectively terminating defendants’ defiance as required by public interest and importance of deferring such acts in the future, and because of nature of such standards, great reliance must be placed on discretion of trial court.Judicial sanctions in criminal contempt proceedings may, in proper case, be employed to coerce defendants into compliance with court’s order or to compensate the complainant for losses sustained, or both.Where compensation is intended in civil contempt proceeding, a fine is imposed payable to complainant but fine must be based on evidence of complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy.Where purpose of exercise of judicial actions in civil contempt proceedings is to coerce compliance with court’s order, court must consider character and magnitude of harm threatened by continued contumacy and probable effectiveness of any suggested sanction in bringing about results desired.Where labor union and its president were found guilty of contempt in violating temporary restraining order issued in suit by government for declaratory judgment regarding defendants’ power unilaterally to terminate agreement regarding terms and conditions of employment in respect to mines in government possession, and defendants’ policy of defiance was germ center of economic paralysis which was rapidly extending itself from bituminous coal mines into practically every other major industry in the United States, a fine of $10,000 against individual defendant for criminal contempt was warranted but unconditional fine of $3,500,000 against defendant union was excessive and would be modified to require defendant union to pay fine of $700,000 and further to pay additional fine of $2,800,000 unless defendant union within five days after issuance of mandate showed that it had fully complied with the temporary restraining order and preliminary injunction.On the return day, defendants, by counsel, informed the court that no action had been taken concerning the November 15 notice, and denied the jurisdiction of the court to issue the restraining order and rule to show cause. Trial on the contempt charge was thereupon ordered to begin as scheduled on November 27. On November 26, the defendants filed a motion to discharge and vacate the rule to show cause. Their motion challenged the jurisdiction of the court, and raised the grave question of whether the Norris-LaGuardia Act prohibited the granting of the temporary restraining order at the instance of the United States.After extending the temporary restraining order on November 27, and after full argument on November 27 and November 29, the court, on the latter date, overruled the motion and held that its power to issue the restraining order in this case was not affected by either the Norris-LaGuardia Act or the Clayton Act. The defendants thereupon pleaded not guilty and waived an advisory jury. Trial on the contempt charge proceeded. The Government presented eight witnesses, the defendants none. At the conclusion of the trial on December 3, the court found that the defendants had permitted the November 15 notice to remain outstanding, had encouraged the miners to interfere by a strike with the operation of the mines and with the performance of governmental functions, and had interfered with the jurisdiction of the court. Both defendants were found guilty beyond reasonable doubt of both criminal and civil contempt dating from November 18. The court entered judgment on December 4, fining the defendant Lewis $10,000, and the defendant union $3,500,000. On the same day, a preliminary injunction, effective until a final determination of the case, was issued in terms similar to those of the restraining order.On December 5, the defendants filed notices of appeal from the judgments of contempt. The judgments were stayed pending the appeals. The United States, on December 6, filed a petition for certiorari in both cases. Section 240(a) of the Judicial Code authorizes a petition for certiorari by any party and the granting of certiorari prior to judgment in the Circuit Court of Appeals. Prompt settlement of this case being in the public interest, we granted certiorari on December 9, 329 U.S. 708, and subsequently, for similar reasons, granted petitions for certiorari filed by the defendants. The cases were consolidated for argument.Even if our examination of the Act stopped here, we could hardly assent to this conclusion. There is an old and well known rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect. It has been stated, in cases in which there were extraneous and affirmative reasons for believing that the sovereign should also be deemed subject to a restrictive statute, that this rule was a rule of construction only. Though that may be true, the rule has been invoked successfully in cases so closely similar to the present one, and the statement of the rule in those cases has been so explicit, that we are inclined to give it much weight here. Congress was not ignorant of the rule which those cases reiterated, and, with knowledge of that rule, Congress would not, in writing the Norris-LaGuardia Act, omit to use “clear and specific [language] to that effect” if it actually intended to reach the Government in all cases.In the case before us, the District Court had the power to preserve existing conditions while it was determining its own authority to grant injunctive relief. The defendants, in making their private determination of the law, acted at their peril. Their disobedience is punishable as criminal contempt.Although a different result would follow were the question of jurisdiction frivolous and not substantial, such contention would be idle here. The applicability of the Norris-LaGuardia Act to the United States in a case such as this had not previously received judicial consideration, and both the language of the Act and its legislative history indicated the substantial nature of the problem with which the District Court was faced.Violations of an order are punishable as criminal contempt even though the order is set aside on appeal,?Worden v. Searls,?121 U.S. 14?(1887), or though the basic action has become moot.?Gompers v. Bucks Stove & Range Co.,?221 U.S. 418 (1911).If the defendants were thus accorded all the rights and privileges owing to defendants in criminal contempt cases, they are put in no better position to complain because their trial included a proceeding in civil contempt and was carried on in the main equity suit. Common sense would recognize that conduct can amount to both civil and criminal contempt. The same acts may justify a court in resorting to coercive and to punitive measures. Disposing of both aspects of the contempt in a single proceeding would seem at least a convenient practice. Litigation in patent cases has frequently followed this course, and the same method can be noted in other situations in both federal and state courts. Rule 42(b), while demanding fair notice and recognition of the criminal aspects of the case, contains nothing precluding a simultaneous disposition of the remedial aspects of the contempt tried. Even if it be the better practice to try criminal contempt alone and so avoid obscuring the defendant’s privileges in any manner, a mingling of civil and criminal contempt proceedings must nevertheless be shown to result in substantial prejudice before a reversal will be required. That the contempt proceeding carried the number and name of the equity suit does not alter this conclusion, especially where, as here, the United States would have been the complaining party in whatever suit the contempt was tried. In so far as the criminal nature of the double proceeding dominates and in so far as the defendants’ rights in the criminal trial are not diluted by the mixing of civil with criminal contempt, to that extent is prejudice avoided. Here, as we have indicated, all rights and privileges of the defendants were fully respected, and there has been no showing of substantial prejudice flowing from the formal peculiarities of defendants’ trial.It is urged that, in any event, the amount of the fine of $10,000 imposed on the defendant Lewis and of the fine of $3,500,000 imposed on the defendant Union were arbitrary, excessive, and in no way related to the evidence adduced at the hearing.Sentences for criminal contempt are punitive in their nature, and are imposed for the purpose of vindicating the authority of the court.?Gompers v. Bucks Stove & Range Co.?at?221 U.S. 441. The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience does so at his peril. In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future. Because of the nature of these standards, great reliance must be placed upon the discretion of the trial judge.We well realize the serious proportions of the fines here imposed upon the defendant union. But a majority feels that the course taken by the union carried with it such a serious threat to orderly constitutional government, and to the economic and social welfare of the nation, that a fine of substantial size is required in order to emphasize the gravity of the offense of which the union was found guilty. The defendant Lewis, it is true, was the aggressive leader in the studied and deliberate noncompliance with the order of the District Court; but, as the record shows, he stated in open court, prior to imposition of the fines, that “the representatives of the United Mine Workers determined that the so-called Krug-Lewis agreement was breached,” and that it was the union’s “representatives” who “notified the Secretary of the Interior that the contract was terminated as of November 20th.” And certainly it was the members of the defendant union who executed the nationwide strike. Loyalty in responding to the orders of their leader may, in some minds, minimize the gravity of the miners’ conduct, but we cannot ignore the effect of their action upon the rights of other citizens, or the effect of their action upon our system of government. The gains, social and economic, which the miners and other citizens have realized in the past are ultimately due to the fact that they enjoy the rights of free men under our system of government. Upon the maintenance of that system depends all future progress to which they may justly aspire. In our complex society, there is a great variety of limited loyalties, but the overriding loyalty of all is to our country and to the institutions under which a particular interest may be pursued.We are aware that the defendants may have sincerely believed that the restraining order was ineffective, and would finally be vacated. However, the Government had sought a declaration of its contractual rights under the Krug-Lewis agreement, effective since May 29, 1946, and solemnly subscribed by the Government and the defendant union. The restraining order sought to preserve conditions until the cause could be determined, and obedience by the defendants would have secured this result. They had full opportunity to comply with the order of the District Court, but they deliberately refused obedience and determined for themselves the validity of the order. When the rule to show cause was issued, provision was made for a hearing as to whether or not the alleged contempt was sufficiently purged. At that hearing, the defendants stated to the court that their position remained then in the status which existed at the time of the issuance of the restraining order. Their conduct showed a total lack of respect for the judicial process. Punishment in this case is for that which the defendants had done prior to imposition of the judgment in the District Court, coupled with a coercive imposition upon the defendant union to compel obedience with the court’s outstanding order.MR. JUSTICE FRANKFURTER, concurring in the judgment.The historic phrase “a government of laws, and not of men,” epitomized the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights, he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. “A government of laws and not of men” was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.But, from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. “Civilization involves subjection of force to reason, and the agency of this subjection is law.” The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be “as free, impartial, and independent as the lot of humanity will admit.” So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for. And no type of controversy is more peculiarly fit for judicial determination than a controversy that calls into question the power of a court to decide. Controversies over “jurisdiction” are apt to raise difficult technical problems. They usually involve judicial presuppositions, textual doubts, confused legislative history, and like factors hardly fit for final determination by the self-interest of a party.The Government here invoked the aid of a Court of Equity in circumstances which certainly were not covered by the Act with inescapable clarity. Colloquially speaking, the Government was “running” the mines. But it was “running” them not as an employer, in the sense that the owners of the coal mines were the employers of the men the day before the Government seized the mines. Nor yet was the relation between the Government and the men like the relation of the Government to the civil service employees in the Department of the Interior. It would be naive or willful to assert that the scope of the Norris-LaGuardia Act in a situation like that presented by this bill raised a question so frivolous that any judge should have summarily thrown the Government out of court without day. Only when a court is so obviously traveling outside its orbit as to be merely usurping judicial forms and facilities may an order issued by a court be disobeyed and treated as though it were a letter to a newspaper. Short of an indisputable want of authority on the part of a court, the very existence of a court presupposes its power to entertain a controversy, if only to decide, after deliberation, that it has no power over the particular controversy. Whether a defendant may be brought to the bar of justice is not for the defendant himself to decide.In our country, law is not a body of technicalities in the keeping of specialists or in the service of any special interest. There can be no free society without law administered through an independent Judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process. For legal process is subject to democratic control by defined, orderly ways which themselves are part of law. In a democracy, power implies responsibility. The greater the power that defies law, the less tolerant can this Court be of defiance. As the Nation’s ultimate judicial tribunal, this Court, beyond any other organ of society, is the trustee of law and charged with the duty of securing obedience to it.The Norris-LaGuardia Act has specific origins and definite purposes, and should not be confined by an artificial canon of construction. The title of the Act gives its scope and purpose, and the terms of the Act justify its title. It is an Act “to define and limit the jurisdiction of courts sitting in equity.” It does not deal with the rights of parties, but with the power of the courts. Again and again the statute says “no court...shall have jurisdiction,” or an equivalent phrase. Congress was concerned with the withdrawal of power from the federal courts to issue injunctions in a defined class of cases. Nothing in the Act remotely hints that the withdrawal of this power turns on the character of the parties. The only reference to parties underscores their irrelevance to the issue of jurisdiction, for the power of the courts is withdrawn in a labor dispute “regardless of whether or not the disputants stand in the proximate relation of employer and employee.” The limitation on the jurisdiction of the court depends entirely on the subject matter of the controversy. Section 13(a) defines it:“A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees;...”Neither the context nor the content of the Act qualifies the terms of that section. Did not the suit brought by the Government against Lewis and the United Mine Workers “grow out of a labor dispute” within the terms of §13(a)?As already indicated, the Court now finds an exception to the limitation which the Norris-LaGuardia Act placed upon the equity jurisdiction of the District Court not in the Act, but outside it. It invokes a canon of construction that a sovereign is presumptively not intended to be bound by its own statute unless named in it. At best, this canon, like other generalities about statutory construction, is not a rule of law. Whatever persuasiveness it may have in construing a particular statute derives from the subject matter and the terms of the enactment in its total environment.“This rule has its historical basis in the English doctrine that the Crown is unaffected by acts of Parliament not specifically directed against it.... The presumption is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated.”So wrote the late Chief Justice for the whole Court in?United States v. California,?297 U.S. 175, and this point of view was very recently applied in?United States v. Rice,?327 U.S. 742. It is one thing to read a statute so as not to bind the sovereign by restrictions, or to impose upon it duties, which are applicable to ordinary citizens. It is quite another to interpolate into a statute limiting the jurisdiction of a court, the qualification that such limitation does not apply when the Government invokes the jurisdiction. No decision of this Court gives countenance to such a doctrine of interpolation. The text, context, content, and historical setting of the Norris-LaGuardia Act all converge to indicate the unrestricted withdrawal by Congress from the federal District Courts of the power to issue injunctions in labor disputes, excepting only under circumstances explicitly defined and not here present. The meaning which a reading of the text conveys and which is confirmed by the history which led Congress to free the federal courts from entanglements in these industrial controversies through use of the injunction, ought not to be subordinated to an abstract canon of construction that carries the residual flavor of the days when a personal sovereign was the lawmaker.MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, concurring in part and dissenting in part.Since the Norris-LaGuardia Act is inapplicable, we agree that the District Court had power in these proceedings to enter orders necessary to protect the Government against an invasion of the rights it asserted, pending adjudication of the controversy its complaint presented to the court. It is therefore unnecessary for us to reach the question of whether the District Court also had power to enter these orders under the doctrine of?United States v. Shipp,?203 U.S. 563. We agree that the court had power summarily to coerce obedience to those orders and to subject defendants to such conditional sanctions as were necessary to compel obedience. And we agree that, in such civil contempt proceedings to compel obedience, it was not necessary for the court to abide by all the procedural safeguards which surround trials for crime. Without such coercive powers, courts could not settle the cases and controversies before them. Courts could not administer justice if persons were left free pending adjudication to engage in conduct which would either immediately interrupt the judicial proceedings or so change the?status quo?of the subject matter of a controversy that no effective judgment could be rendered. Disorder in the courtroom, or so near to it as to interrupt a trial, and disobedience of an affirmative court order, are typical examples of offenses which must necessarily be dealt with summarily. To remove such imminent interference with orderly judicial proceedings, courts must have power to act immediately. In recognition of this fact, the contempt power came into existence. This power is of ancient lineage, has always been exercised by our courts, and has the express recognition of Congress under the name of contempt. Rev.Stat. §725, 28 U.S.C. §385. Where the court exercises such coercive power, however, for the purpose of compelling future obedience, those imprisoned “carry the keys of their prison in their own pockets,”?In re Nevitt,?117 F. 448; by obedience to the court’s valid order, they can end their confinement; and the court’s coercive power in such a “civil contempt” proceeding ends when its order has been obeyed.?Gompers v. Bucks Stove & Range Co.,?221 U.S. 418.?See also Doyle v. London Guaranty & Accident Co.,?204 U.S. 599. The District Court did not enter a conditional decree here. But this Court has modified the District Court’s decree to provide as part of the judgment such a coercive sanction in the form of a conditional fine. We agree with the Court’s decision in this respect.?The?Gompers?decision and many others have pointed out that the object of such coercive contempt proceedings is not to punish for an offense against the public, but to compel obedience to valid court orders. Yet the decision of this Court also approves unconditional fines of criminal punishment for past disobedience. We cannot agree to this aspect of the Court’s judgment. At a very early date, this Court declared, and recently it has reiterated, that, in contempt proceedings, courts should never exercise more than “the least possible power adequate to the end proposed.”?Anderson v. Dunn,?6 Wheat. 204,?19 U.S. 231;?In re Michael,?326 U.S. 224.In determining whether criminal punishment or coercive sanction should be employed in these proceedings, the question of intent - the motivation of the contumacy - becomes relevant. Difficult questions of law were presented by this case. It is plain that the defendants acted willfully for they knew that they were disobeying the court’s order. But they appear to have believed in good faith, though erroneously, that they were acting within their legal rights. Many lawyers would have so advised them. This does not excuse their conduct; the whole situation emphasized the duty of testing the restraining order by orderly appeal, instead of disobedience and open defiance. However, as this Court said in?Cooke v. United States,?267 U.S. 517,?“the intention with which acts of contempt have been committed must necessarily and properly have an important bearing on the degree of guilt and the penalty which should be imposed.”We think it significant that the conduct which was prohibited by the restraining order for violation of which these defendants have been punished for contempt is also punishable under the War Labor Disputes Act. That Act provides a maximum punishment of $5,000 fine and one year imprisonment for those who interfere with the operation of mines taken over by the United States. Had the defendants been tried under that statute, their punishment would have been limited thereby, and, in their trial, they would have enjoyed all the constitutional safeguards of the Bill of Rights. Whatever constitutional safeguards are required in a summary contempt proceeding, whether it be for criminal punishment or for the imposition of coercive sanction, we must be ever mindful of the danger of permitting punishment by contempt to be imposed for conduct which is identical with an offense defined and made punishable by statute.?In re Michael,?326 U.S. 224.MR. JUSTICE MURPHY, dissenting.An objective reading of the Norris-LaGuardia Act removes any doubts as to its meaning and as to its applicability to the facts of this case. Section 4 provides in clear, unmistakable language that “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute....” That language, which is repeated in other sections of the Act, is sufficient by itself to dispose of this case, without further ado. But when proper recognition is given to the background and purpose of the Act, it becomes apparent that the implications of today’s decision cast a dark cloud over the future of labor relations in the United States.These arguments have a seductive attractiveness here. Ordinarily, of course, it is better policy to obey a void order than run the risk of a contempt citation. And, as a general proposition, individuals cannot be allowed to be the judges of the validity of court orders issued against them. But the problem raised by the violation of the restraining order in this case must be viewed against the background and language of the Norris-LaGuardia Act.MR. JUSTICE RUTLEDGE, dissenting.No man or group is above the law. Nor is any beyond its protection.?In re Yamashita, 327 U.S. 1. These truths apply equally to the Government. When its power is exerted against the citizen or another in the nation’s courts, those tribunals stand not as partisans, but as independent and impartial arbiters to see that the balance between power and right is held even. In discharging that high function, the courts themselves, like the parties, are subject to the law’s majestic limitations. We are not free to decide this case, or any, otherwise than as in conscience we are enabled to see what the law commands.This case, unlike the?Shipp?case, in no way involves interference with any of the legal proceedings or the due course of administering justice in any sense contemplated by §268 or by the?Shipp decision. No court, trial or appellate, was deprived by the defendant’s conduct of jurisdiction or power to take any action in any of the proceedings, collateral or in the main suit, which existed at the beginning of the controversy. The order therefore falls exclusively within the concluding clause of §268, and the power to punish for contempt on account of its violation depends by the command of that clause, upon the order’s lawful character.At times in our system, the way in which courts perform their function becomes as important as what they do in the result. In some respects, matters of procedure constitute the very essence of ordered liberty under the Constitution. For this reason, especially in the Bill of Rights, specific guaranties have been put around the manner in which various legal proceedings shall be conducted. They differentiate sharply between the procedures to be followed in criminal proceedings and in civil ones. These differences mark one of the great constitutional divides. They separate the zone of punishment for crime, with all its odious consequences, from that of giving civil relief, where no such consequences attend, not partially but completely.Not only must the punishments be kept separate and distinct. This must be done with the entire proceedings. Punishment and civil relief must be correlated with the character of the proceeding. Procedural rights not only in matters of practice, but in others “which involve substantial rights and constitutional privileges,” are so distinct, and in some instances contradictory, that “manifestly” they cannot be intermingled. Nor can those applicable in criminal proceedings be disregarded when criminal penalty is sought. Not only such matters as the privilege against self-incrimination, the presumption of innocence, the necessity for proof beyond a reasonable doubt, the allowance of costs, the appropriate mode of review, with attendant limitations of time and other differences, require this. What is most important, because the application and observance of all these rights and others depend upon it, is that the person charged is entitled to know from the beginning, not merely at the end or some intermediate stage, in which sort of proceeding he is involved.Hence, whatever may be true of indictment and jury trials, I see no compelling reason whatever for not applying the other limitations of the Sixth Amendment. None of them is inconsistent with the due and proper performance of the court’s function in criminal contempt. Some, at the least, are applicable by virtue of the due process guaranty of the Fifth Amendment. “Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.” Cooke v. United States,?267 U.S. 517. Only one case, apart from those involving indictment or jury trial, has held the Sixth Amendment inapplicable in such proceedings. Whether or not that case was a departure from our long established tradition that in criminal proceedings the defendant is entitled to be confronted with the witnesses against him, other departures should not be made.Surely the rights to a speedy and public trial, to have compulsory process for obtaining witness in his favor, to have the assistance of counsel for his defense, and, as the Gompers?case held, to be informed of the nature as well as the cause of the accusation, cannot be denied in our system to any person charged with crime, with the single exception of contempts committed in the immediate presence of the court by way of interference with the proceedings. Those guaranties are in no way inconsistent with the court’s proper and complete discharge of its function in contempt. And they would seem to be essential to any conception of a fair trial as the Fifth Amendment’s due process clause comprehends this.When the assertion and securing of all other rights depends upon one, that one is the core of all. Here, the right “to know that it was a charge, and not a suit” comprehended all other procedural rights in the trial and appellate courts. Without this, none could be asserted or maintained. The denial of that right, deferring it until the decision here is handed down, is, in my opinion, not only a denial of all. It is a violation both of the Constitution and of Rule 42(b).But we are told that this, and all that followed or may have followed from it, make no difference, because there was no prejudice. There are at least two answers. This Court has held that the denial of constitutional guaranties in trials for crime is, in itself, prejudice.?Kotteakos v. United States,?328 U.S. 750. The other, there was prejudice, and in the most important thing beyond knowing the nature of the proceeding in advance of trial - namely, in the penalty itself.These are the limitations the law has prescribed. They apply equally when the Government is complainant, and whether in one capacity or the other, or both, as when others are. They cannot be dispensed with, separately or by conglomerating all into a single indiscriminate lump, at the suit of the Government or another, in this case or for others. To permit this would be to throw overboard the limitations prescribed by law, and make the courts purely discretionary arbitrators of controversies. That cannot be done in our system.No right is absolute. Nor is any power, governmental or other, in our system. There can be no question that it provides power to meet the greatest crises. Equally certain is it that, under “a government of laws, and not of men,” such as we possess, power must be exercised according to law; and government, including the courts, as well as the governed, must move within its limitations.This means that the courts and all other divisions or agencies of authority must act within the limits of their respective functions. Specifically, it means in this case that we are bound to act in deference to the mandate of Congress concerning labor injunctions as in judgment and conscience we conceive it to have been made. The crisis here was grave. Nevertheless, as I view Congress’ action, I am unable to believe that it has acted to meet, or authorized the courts to meet, the situation which arose in the manner which has been employed.No man or group is above the law. All are subject to its valid commands. So are the government and the courts. If, as I think, Congress has forbidden the use of labor injunctions in this and like cases, that conclusion is the end of our function. And if modification of that policy is to be made for such cases, that problem is for Congress in the first instance, not for the courts.Footnotes:14. The grounds offered for the motion were:“1. The Temporary Restraining Order is void in that this case involves and grows out of a labor dispute. Under the provisions of the Norris-LaGuardia Act (47 Stat. 70) and the provisions of Section 20 of the Clayton Act, 38 U.S.Stat.C. 323, p. 730, this Honorable Court is without jurisdiction over the subject matter of this cause.”“2. Equity acts only where there is no plain, adequate, and complete remedy at law. The allegations of the Petition for the Rule purport to show a violation of the War Labor Disputes Act - a serious offense - in which field there is no place for equity intervention.”“3. Observance of all the strict rules of criminal procedure is required to establish criminal contempt. It is apparent that the alleged facts set out in the unverified Petition and in the affidavit of Captain Collisson, filed in support of the Rule, are based wholly upon hearsay, information and belief, and are not sufficient to sustain the Rule to Show Cause.”“4. The object of the Petition for the Rule is necessarily punitive, and not compensatory. Accordingly, it being for criminal contempt, the Petition should have been presented as an independent proceeding, and not as supplemental to the original cause.”“5. The Temporary Restraining Order is beyond the jurisdiction of this Honorable Court, and therefore void because it contravenes the First, Fifth, and Thirteenth Amendments to the Constitution of the United States.”23. “The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him (the sovereign) in the least if they may tend to restrain or diminish any of his rights or interests.” Dollar Savings Bank v. United States,?19 Wall. 227,?86 U.S. 239?(1873).“If such prohibition is intended to reach the government in the use of known rights and remedies, the language must be clear and specific to that effect.” United States v. Stevenson,?215 U.S. 190?(1909).In both these cases, the question, as in the present case, was whether the United States was divested of a certain remedy by a statute or a rule of law which, without express reference to the United States, made that remedy generally unavailable.73. We are not impressed with defendants’ attack on the pleadings as insufficient to support a judgment for civil contempt. The petition, affidavit, and rule to show cause did not expressly mention civil contempt or remedial relief, but the affidavit contained allegations of interference with the operation of the mines and with governmental functions. These claims do not negative remedial or coercive relief. More significantly, the affidavit charged disobedience of the restraining order by failing to withdraw the notice of Nov. 15. We will not assume that the defendants were not instantly aware that a usual remedy in such a situation is to impose coercive sanctions until the act is performed. This is a function of civil contempt.?Lamb v. Cramer,?285 U.S. 217 (1932);?Michaelson v. United States,?266 U.S. 42 (1924); Gompers v. Bucks Stove & Range Co.,?221 U.S. 418 (1911). Furthermore, defendants’ counsel, in argument on the motion to vacate, remarked that the United States was proceeding upon the theory of civil contempt, and attempted only to demonstrate the inability of the United States to seek this relief. And when the Government’s suggestions for fines were before the Court, defendants’ counsel argued the excessiveness of the fines for either civil or criminal contempt.74. Criminal contempt was apparently tried out in the equity suit in the patent cases.?And this was the practice followed in?Matter of Christensen Engineering Co., 194 U.S. 458?(1904);?Bessette v. W. B. Conkey Co.,?194 U.S. 324?(1904);?City of New Orleans v. Steamship Co.,?20 Wall. 387 (1874). In none of these cases in this Court, however, has there been an affirmative discussion of the propriety of proceeding in this manner.?Compare Gompers v. Bucks Stove & Range Co.,?221 U.S. 418 (1911);?United States ex rel. West Virginia-Pittsburgh Coal Co. v. Bittner,?11 F.2d 93 (1926),?with Nye v. United States,?313 U.S. 33?(1941).4. Compare Representative LaGuardia’s reply to a proposed amendment by Representative Beck which would have exempted from the operation of the Act disputes “where the welfare, health, or lives of a public are concerned who are not parties to such labor dispute, or where a labor dispute involves the obstruction of any instrumentality of interstate or foreign commerce.” Mr. LaGuardia claimed that the amendment was out of order because not germane to the purposes of the legislation. “The present bill refers only to disputes between employees and employer.... The public is fully protected by penal and other statutes....” 75 Cong. Rec. 5503.6. Hearings on S. 2054 before a Subcommittee of the Committee on the Judiciary, Senate, 77th Cong., 1st Sess., p. 14. The characterization was accepted by members of the Committee which approved the Bill. Senator Connally refers to the private employer who “will continue to operate it under the supervisions of the Government.” While at one point he referred to the United States as an employer, he did so in a special context for the purposes of a discussion about collective bargaining with reference to wages. As to wages, of course, the Government would stand?in loco?“employer” during its operation of the plant.The analogy of equity receivership is not inapt. In a limited sense, employees of plants in receivership in a federal court may be considered employees of the United States, since the operation of the plant is under the jurisdiction and control of a United States officer. But no one aware of the background of mischief which the Act was intended to remedy could find an intention in Congress to allow injunctions in labor disputes involving plants in receivership.?Trainmen v. Toledo, P. & W. R. Co.,?321 U.S. 50. No series of cases contributed more to the feeling that the federal courts abused their equity jurisdiction than those involving employees of railroads in equity receivership.?See?1 Gresham, Life of Walter Quintin Gresham, cc. XXIII to XXV; Gregory, Labor and the Law, 95-97; Nelles, A Strike and Its Legal Consequences - An Examination of the Receivership Precedent for the Labor Injunction (1931) 40 Yale L.J. 507,?passim.?If injunctions will not issue in disputes involving employees of railroads or other industries in receivership under operation by the federal courts, nothing relevant to the construction of the statute warrants the inference that Congress allowed the injunction to be available in disputes involving employees of plants in “receivership” under operation of the Secretary of the Interior.4. “As early as the time of Richard III, it was said that the chancellor of England compels a party against whom an order is issued by imprisonment; (2 R. III, 9, pl. 22) and, a little later, it was said in the chancery that” “a decree does not bind the right, but only binds the person to obedience, so that if the party will not obey, then the chancellor may commit him to prison till he obey, and that it is all the chancellor can do.”“(27 H. VIII, 15.) This imprisonment was by no means a punishment, but was merely to secure obedience to the writ of the king. Down to within a century, it was very doubtful if the chancellor could, under any circumstances, inflict punishment for disobedience of a decree. If the decree commanded the defendant to transfer property, the chancellor acquired power as early as the sixteenth century to sequester the property as security for performance; but if the decree were for the doing of any other act, or were a decree for an injunction, the chancellor was helpless if he could not compel obedience by imprisonment.... In any case, the contempt of a defendant who had violated a decree in chancery could be purged by doing the act commanded and paying costs; or, if his disobedience had been the violation of a negative injunction, he could purge himself of contempt by undoing what he had done and paying costs.”1. “Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Holmes, J., dissenting, in?Northern Securities Co. v. United States,?193 U.S. 197.24. The statement was made in response to counsel’s contention that the order allowing the appeal was void, and therefore would not support a conviction for contempt. The Court rejected the premise, not the conclusion. The basis of counsel’s contention was that the Circuit Court lacked jurisdiction, and therefore that this Court also lacked jurisdiction. His brief stated:“The only question, therefore, is whether Johnson’s proceeding in habeas corpus in the Circuit Court did or did not in fact constitute a ‘case that involves the construction or application of the Constitution of the United States.’ If it did, this Court had appellate jurisdiction of it, and should proceed to inquire whether its order has been disobeyed. If it did not, this Court had no jurisdiction of it,?and should now so hold for the purposes of this proceeding....”And elsewhere, the brief stated:“We assume that it will hardly be contended that the mere allowance of an appeal is sufficient to give the court jurisdiction of a case which from its nature is not appealable. Such action is?pro forma?only, and, as it is necessarily had in every such case, the jurisdiction of the court would always be established by an?ex parte?order.”In answer to these arguments, the Government’s brief said:“Certainly no one would challenge the jurisdiction of this Court if the Circuit Court had jurisdiction, and, accordingly, the defendants here deny the jurisdiction of this court simply as a corollary to their contention that the Circuit Court did not possess jurisdiction. But the jurisdiction of this court is not dependent upon contentions, and it has jurisdiction to take the case and retain it for final determination whether it turns out that the Circuit Court has jurisdiction or not.”26. It has been held that habeas corpus will not lie where the disobedience was to a lawful, but erroneous, order of a court.?Ex parte Kearney,?7 Wheat. 38.?See also Locke v. United States,?75 F.2d 157:“Error must be corrected by appeal, and cannot be tested by disobedience.... Willful disobedience of an injunction, however erroneous, issued by a court having jurisdiction while such injunction is in force unreversed, constitutes contempt of court.”And it has been said that if an injunction is reversed on appeal on grounds other than “jurisdiction,” the violator may nevertheless be punished for criminal, though not for civil, contempt.?Worden v. Searls,?121 U.S. 14;?Salvage Process Corporation v. Acme Tank Cleaning Process Corporation,?86 F.2d 727.30. Upon the authorities, the following procedural provisions of the Bill of Rights, at least, would seem to apply to criminal contempt: the provision against double jeopardy,?see In re Bradley,?318 U.S. 50; the provision against self-incrimination,?Gompers v. Bucks Stove & Range Co.,?221 U.S. 418; the provision for due process insofar as it necessitates “suitable notice and adequate opportunity to appear and to be heard,”?Blackmer v. United States,?284 U.S. 421; and, although the Sixth Amendment protections have been said not to apply as such to criminal contempts,?Myers v. United States,?264 U.S. 95;?Blackmer v. United States,?284 U.S. 440,?but see text,?doubtless at least the provisions for “a speedy and public trial,” for “compulsory process,” and for the assistance of counsel,?see Cooke v. United States,?267 U.S. 517, are implied in the due process provision of the Fifth Amendment. And it has been said that the protection against cruel and unusual punishments in the Eighth Amendment applies to criminal contempt,?United States ex rel. Brown v. Lederer,?140 F.2d 136, 139.There are also protections not expressly included in the Bill of Rights which apply in criminal contempt,?that the defendant is presumed to be innocent and must be proved guilty beyond a reasonable doubt.?Gompers v. Bucks Stove & Range Co.,?221 U.S. 418.?And see Ex parte Hudgings,?249 U.S. 378:“Existing within the limits of and sanctioned by the Constitution, the power to punish for contempt committed in the presence of the court is not controlled as to modes of accusation and methods of trial generally safeguarding the rights of the citizen. This, however, expresses no purpose to exempt judicial authority from constitutional limitations, since its great and only purpose is to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may be secured.”35. In civil cases under Rule 73, appeal is taken by filing notice thereof “within the time prescribed by law,” and generally, though there are exceptions, the time is three months. 28 U.S.C. §230;?Mosier v. Federal Reserve Bank,?132 F.2d 710. In criminal cases, the Federal Rules now allow taking an appeal by filing notice of appeal, as in civil cases. But an appeal must be taken by a defendant within 10 days after entry of judgment or after denial of motion for new trial. Rule 37(a)(2). In?Nye v. United States, 313 U.S. 33, it was held that 28 U.S.C. §230, rather than the Criminal Appeals Rules, governed timeliness in a criminal contempt appeal. But the new Criminal Rules would seem to apply to criminal contempts.?Moore v. United States,?150 F.2d 323.?See Rules 42 and 54; 55 Stat. 779, 18 U.S.C. §689. On certiorari, if the Rules of Criminal Procedure govern, there is also a difference. In civil cases, the time for petitioning for certiorari is three months. In criminal cases, the petition must be filed within thirty days after entry of judgment. Rule 37(b)(2).Compare Nye v. United States,?at?313 U.S. 42, as to the law prior to the new Criminal Rules.The largest present difference between appeals in civil and criminal contempts is that, “except in connection with an appeal from a final judgment or decree, a party to a suit may not review upon appeal an order fining or imprisoning him for the commission of a civil contempt.” Fox v. Capital Co.,?299 U.S. 105, and cases cited.?Compare Lamb v. Cramer,?285 U.S. 217. On the other hand, if the contempt is criminal, it may be directly reviewed.?Union Tool Co. v. Wilson,?259 U.S. 107. It has been held that where the contempt is both civil and criminal, the criminal procedure governs for purposes of review so that there may be immediate review of both the part that is civil and the part that is criminal.?Union Tool Co. v. Wilson,?at?259 U.S. 111;?Nye v. United States,?313 U.S. 42.37. Throughout the opinion, the Court insisted the two forms of relief are altogether incompatible, not only for interchangeability between the two types of proceeding, but necessarily for commingling in indistinguishable conglomeration. Imprisonment as penalty for criminal contempt could be imposed for fixed terms, but, in civil contempt, this could not be done, the court’s power being limited to remedial or coercive imprisonment - that is, until the person convicted should comply with the court’s order. So also with fines, which, in civil contempt, can be no more in amount than is commensurate with the injury inflicted or is necessary to secure compliance and must be contingent, whereas the limitation requiring correlation to the amount of injury does not apply to fines in criminal proceedings. 221 U.S. 442. The same distinction applies as to the payment of costs. 221 U.S. 447.As will appear, this distinction is of paramount importance in this case. And so it was in the?Gompers?case, for the main cause had been settled, and the Court held this required not only reversal, but dismissal of the contempt proceeding, which would not have been true in one for criminal contempt. 221 U.S. 451.38. As with the factor of relief, the opinion throughout uses alternative, not conjunctive, language concerning the two types of proceedings. Civil contempts, it said, “are between the original parties, and are instituted and tried as a part of the main cause. But, on the other hand, proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause.” 221 U.S. 445.40. “The question as to the character of such proceedings has generally been raised, in the appellate court, to determine whether the case could be reviewed by writ of error or on appeal.?Bessette v. W. B. Conkey Co.,?194 U.S. 324. But it may involve much more than mere matters of practice. For, notwithstanding the many elements of similarity in procedure and in punishment, there are some differences between the two classes of proceedings which involve substantial rights and constitutional privileges. Without deciding what may be the rule in civil contempt, it is certain that, in proceedings for criminal contempt, the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. Bond v. United States,?116 U.S. 616;?United States v. Jose,?63 F. 951;?State v. Davis, 50 W.Va. 100, 40 S.E. 331;?King v. Ohio Ry. Co.,?7 Biss. 529;?Sabin v. Fogarty,?70 F. 482;?Drakeford v. Adams,?98 Ga. 724, 25 S.E. 833.” 221 U.S. 444.49. Cf. In re Michael,?326 U.S. 224; dissenting opinion of Holmes, J., in Toledo Newspaper Publishing Co. v. United States,?247 U.S. 402; Michaelson v. United States,?266 U.S. 42:“The only substantial difference between such a proceeding as we have here [criminal contempt] and a criminal prosecution by indictment or information is that, in the latter, the act complained of is the violation of a law, and, in the former, the violation of a decree. In the case of the latter, the accused has a constitutional right of trial by jury, while, in the former, he has not.”52. Coercive relief is civil in character,?Gompers v. Bucks Stove & R. Co.,?221 U.S. 418, the decree being when imprisonment is imposed that the defendant stand committed unless and until he performs the act required by the court’s order. When this is done, the sentence is discharged, for the defendant carries the keys of his prison in his own pocket.?In re Nevitt,?117 F. 448, 461. The limitation is a corollary of the civil character of the remedy. This forbids imposition of fixed-term sentences for coercive purposes.?Gompers v. Bucks Stove & R. Co., although they have “incidental” coercive effects.The purpose and character of the relief, not its particular form, determine its limits.?Citing?Doyle v. London Guarantee & Accident Co.,?204 U.S. 599. Hence, when a fine is used in substitution for coercive imprisonment, it also must be contingent, giving opportunity for compurgation. Unless this is done, the fine takes on punitive character.KOTTEAKOS et al. v. UNITED STATES, 328 U.S. 750, 66 S.Ct. 1239 (1946)Mr. Justice RUTLEDGE delivered the opinion of the Court.The purpose of “harmless error” statute is to substitute judgment for automatic application of rules and to preserve review as a check upon arbitrary action and essential unfairness in trial, but at the same time to make the process perform that function without giving men fairly convicted multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, would engender and reflect in a printed record. Fed. Rules Crim.Proc., Rules 33, 52, 18 U.S.C.A.The burden cast by harmless error statute upon party seeking a new trial of showing that technical errors of which he complained have affected his substantial rights affects only technical errors so that if error is of such a character that its natural effect is to prejudice defendant’s substantial rights, burden of sustaining verdict rests upon prosecution.Determination as to whether error in a given case is harmless as respects substantial rights of defendant as a matter of judgment transcending confinement by formulae or precise rule and must be influenced by conviction resulting from examination of proceedings in their entirety, tempered, but not governed in any rigid sense of stare decisis, by what has been done in similar situations, and character of proceeding, what is at stake upon its outcome, relation of error asserted to casting the balance for decision on case as a whole are material factors to be considered. Fed. Rules Crim.Proc., Rules 33, 52(a), 18 U.S.C.A.…As the Government puts it, the pattern was ‘that separate spokes meeting at a common center,’ though we may add without the rim of the wheel to enclose the spokes.The proof therefore admittedly made out a case, not of a single conspiracy, but of several, notwithstanding only one was charged in the indictment. Cf. United States v. Falcone, 311 U.S. 205; United States v. Peoni, 100 F.2d 401; Tinsley v. United States, 43 F.2d 890. The Court of Appeals aptly drew analogy in the comment, ‘Thieves who dispose of their loot to a single receiver - a single ‘fence’ - do not by that fact alone become confederates: they may, but it takes more than knowledge that he is a ‘fence’ to make them such.’ 151 F.2d at page 173……This was shortly, as one trial judge put it after §269 had become law, that courts of review, ‘tower above the trials of criminal cases as impregnable citadels of technicality.’ So great was the threat of reversal, in many jurisdictions, that criminal trial became a game for sowing reversible error in the record, only to have repeated the same matching of wits when a new trial had been thus obtained.In the broad attack on the system great legal names were mobilized, among them Taft, Wigmore, Pound and Hadley, to mention only four. The general object was simple, to substitute judgment for automatic application of rules; to preserve review as a check upon arbitrary action and essential unfairness in trials, but at the same time to make the process perform that function without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record.The task was too big, too various in detail, for particularized treatment. Cf. Bruno v. United States, 308 U.S. 287. The effort at revision therefore took the form of the essentially simple command of §269. It comes down on its face to a very plain admonition: ‘Do not be technical, where technicality does not really hurt the party whose rights in the trial and in its outcome the technicality effects.’ It is also important to note that the purpose of the bill in its final form was stated authoritatively to be ‘to cast upon the party seeking a new trial the burden of showing that any technical errors that he may complain of have affected his substantial rights, otherwise they are to be disregarded.’ H.R. Rep. No. 913, 65th Cong., 3d Sess., 1. But that this burden does not extend to all errors appears from the statement which follows immediately. ‘The proposed legislation affects only technical errors. If the error is of such a character that its natural effect is to prejudice a litigant’s substantial rights, the burden of sustaining a verdict will, notwithstanding this legislation, rest upon the one who claims under it.’ Bruno v. United States, 308 U.S. at 294; Weiler v. United States, 323 U.S. 606.All this hardly needs to be said again. But it must be comprehended and administered every day. The task is not simple, although the admonition is. Neither is it impossible. By its very nature no standard of perfection can be attained. But one of fair approximation can be achieved. Essentially the matter is one for experience to work out. For, as with all lines which must be drawn between positive and negative fields of law, the precise border may be indistinct, but case by case determination of particular points adds up in time to discernible direction.…In criminal causes that outcome is conviction. This is different, or may be, from guilt in fact. It is guilt in law, established by the judgment of laymen. And the question is, nor were they right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, and the total setting. Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. at 239; Bollenbach v. United States, 326 U.S. 614.This view, specifically embodied throughout the instructions, obviously confuses the common purpose of a single enterprise with the several, though similar, purposes of numerous separate adventures of like character. It may be that, notwithstanding the misdirection, the jury actually understood correctly the purport of the evidence, as the Government now concedes it to have been; and came to the conclusion that the petitioners were guilty only of the separate conspiracies in which the proof shows they respectively participated. But, in the face of the misdirection and in the circumstances of this case, we cannot assume that the lay triers of fact were so well informed upon the law or that they disregarded the permission expressly given to ignore that vital difference. Bollenbach v. United States, 326 U.S. 613.Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. Nor does our system tolerate it. That way lies the drift toward totalitarian institutions. True, this may be inconvenient for prosecution. But our Government is not one of mere convenience or efficiency. It too has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal trials. About them we dare not become careless or complacent when that fashion has become rampant over the earth.YAKUS v. UNITED STATES, 321 U.S. 414, 64 S.Ct. 660 (1944)Mr. Chief Justice STONE delivered the opinion of the Court.Congress has constitutional authority to prescribe commodity prices as a war emergency measure, and the Emergency Price Control Act as amended by the Inflation Control Act was adopted in exercise of that power. Emergency Price Control Act of 1942, §1 et seq., 50 U.S.C.A.App. §901 et seq.; Inflation Control Act of 1942, §1 et seq., 50 U.S.C.A.App. §961 et seq.The Constitution does not require that Congress find for itself every fact upon which it desires to base legislative action, or that it make for itself detailed determinations which it has declared to be prerequisite to the application of legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate.The doctrine of separation of powers does not deny to Congress power to direct that an administrative officer properly designated for that purpose have ample latitude within which he is to ascertain conditions which Congress has made prerequisite to the operation of its legislative command.In passing on administrative regulations, the only concern of court is to ascertain whether will of Congress has been obeyed, and that depends, not on breadth of definition of facts or conditions which the administrative officer is to find, but upon determination whether definition sufficiently marks the field within which officer is to act so that it may be known whether he has kept within it in compliance with the legislative will.The Constitution does not deny to Congress the necessary resources of flexibility and practicality to perform its function.The restriction of judicial review of administrative determination to a single court does not offend against “due process of law” so long as it affords to those affected a reasonable opportunity to be heard and present evidence. U.S.C.A. Const. Amend. 5.The statutory prohibition of a temporary stay or injunction against the regulation of Price Administrator under Emergency Price Control Act does not deny “due process of law” in view of fact that no one is compelled to sell any commodity, and the Act provides an expeditious means of testing validity of any price regulation without necessarily incurring any of the penalties of the act. Emergency Price Control Act of 1942, §§4(d), 203(a), 204(c), 50 U.S.C.A.App., §§904(d), 923(a), 924(c); Rules of United States Emergency Court of Appeals, Rule 4(a). 50 U.S.C.A. Appendix following section 924; U.S.C.A. Const. Amend. 5.The denial of a right to a restraining order or interlocutory injunction to one who has failed to apply for available administrative relief, not shown to be inadequate, is not a denial of “due process of law.” U.S.C.A. Const. Amend. 5.The award of interlocutory injunction by courts of equity is not a matter of right, even though irreparable injury may otherwise result to plaintiff.In the exercise of the equity jurisdiction of the Emergency Court of Appeals to test the validity of a price regulation, a jury trial is not mandatory under the Seventh Amendment. Emergency Price Control Act of 1942, §204(a-d), 50 U.S.C.A.App., §924(a-d); U.S.C.A. Const. Amend. 7.Section 1(a) declares that the Act is ‘in the interest of the national defense and security and necessary to the effective prosecution of the present war’, and that its purposes are:‘to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents; to eliminate and prevent profiteering, hoarding, manipulation, speculation, and other disruptive practices resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency; to assure that defense appropriations are not dissipated by excessive prices; to protect persons with relatively fixed and limited incomes, consumers, wage earners, investors, and persons dependent on life insurance, annuities, and pensions, from undue impairment of their standard of living; to prevent hardships to persons engaged in business,...and to the Federal, State, and local governments, which would result from abnormal increases in prices; to assist in securing adequate production of commodities and facilities; to prevent a post emergency collapse of values;....’As we have said: ‘The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality...to perform its function.’ Currin v. Wallace, 306 U.S. at page 15. Hence it is irrelevant that Congress might itself have prescribed the maximum prices or have provided a more rigid standard by which they are to be fixed; for example, that all prices should be frozen at the levels obtaining during a certain period or on a certain date. See Union Bridge Co. v. United States,?204 U.S. 364. Congress is not confined?to that method of executing its policy which involves the least possible delegation of discretion to administrative officers. Compare McCulloch v. Maryland, 4 Wheat. 316, 413 et seq. It is free to avoid the rigidity of such a system, which might well result in serious hardship, and to choose instead the flexibility attainable by the use of less restrictive standards. Cf. Hampton v. United States, 276 U.S. pages 408. Only if we could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose of preventing inflation.We come to the question whether the provisions of the Act, so construed as to deprive petitioners of opportunity to attack the Regulation in a prosecution for its violation, deprive them of the due process of law guaranteed by the Fifth Amendment. At the trial, petitioners offered to prove that the Regulation would compel them to sell beef at such prices as would render it impossible for wholesalers such as they are, no matter how efficient, to conduct their business other than at a loss. Section 4(d) declares that ‘Nothing in this Act shall be construed to require any person to sell any commodity....’ Petitioners were therefore not required by the Act, nor so far as appears by any other rule of law, to continue selling meat at wholesale if they could not do so without loss. But they argue that to impose on them the choice either of refraining from sales of beef at wholesale or of running the risk of numerous criminal prosecutions and suits for treble damages authorized by §205(e), without the benefit of any temporary injunction or stay pending determination by the prescribed statutory procedure of the Regulation’s validity, is so harsh in its application to them as to deny them due process of law. In addition they urge the inadequacy of the administrative procedure and particularly of the sixty days period afforded by the Act within which to prepare and lodge a protest with the Administrator.Inflation is accelerated and its consequences aggravated by price disparities not based on geographic or other relevant differentials. The harm resulting from delayed or unequal price control is beyond repair. And one of the problems involved in the prevention of inflation by establishment of a nation-wide system of price control is the disorganization which would result if enforcement of price orders were delayed or sporadic or were unequal or conflicting in different parts of the country. These evils might well arise if regulations with respect to which there was full opportunity for administrative revision were to be made ineffective by injunction or stay of their enforcement in advance of such revision or of final determination of their validity.Congress, in enacting the Emergency Price Control Act, was familiar with the consistent history of delay in utility rate cases. It had in mind the dangers to price control as a preventive of inflation if the validity and effectiveness of prescribed maximum prices were to be subject to the exigencies and delays of litigation originating in eighty-five District Courts and continued by separate appeals through eleven separate courts of appeals to this Court, to say nothing of litigation conducted in state courts. See Sen. Rep. No. 931, 77th Cong., 2d Sess., pp. 23-5.Congress sought to avoid or minimize these difficulties by the establishment of a single procedure for review of the Administrator’s regulations, beginning with an appeal to the Administrator’s specialized knowledge and experience gained in the administration of the Act, and affording to him an opportunity to modify the regulations and orders complained of before resort to judicial determination of their validity. The organization of such an exclusive procedure especially adapted to the exigencies and requirements of a nation-wide scheme of price regulation is, as we have seen, within the constitutional power of Congress to create inferior federal courts and prescribe their jurisdiction. The considerations which led to its creation are similar to, and certainly no weaker than, those which led this Court in Texas & P.R. v. Abilene Cotton Oil Co.,?204 U.S. 426, and the long line of cases following it, to require resort to the Interstate Commerce Commission and the special statutory method provided for review of its decisions in certain types of cases involving railway rates. As with the present statute, it was thought desirable to preface all judicial action by resort to expert administrative knowledge and experience, and thus minimize the confusion that would result from inconsistent decisions of district and circuit courts rendered without the aid of an administrative interpretation. In addition the present Act seeks further to avoid that confusion by restricting judicial review of the administrative determination to a single court. Such a procedure, so long as it affords to those affected a reasonable opportunity to be heard and present evidence, does not offend against due process. Bradley v. City of Richmond,?227 U.S. 477; First Nat. Bank v. Board of Com’rs Weld County,?264 U.S. 450; Anniston Mfg. Co. v. Davis,?301 U.S. 337.Petitioners assert that they have been denied that opportunity because the sixty days period allowed for filing a protest is insufficient for that purpose; because the procedure before the Administrator is inadequate to ensure due process; because the statute precludes any interlocutory injunction staying enforcement of a price regulation before final adjudication of its validity; because the trial of the issue of validity of a regulation is excluded from the criminal trial for its violation; and because in any case there is nothing in the statute to prevent their conviction for violation of a regulation before they could secure a ruling on its validity. A sufficient answer to all these contentions is that petitioners have failed to seek the administrative remedy and the statutory review which were open to them and that they have not shown that had they done so any of the consequences which they apprehend would have ensued to any extent whatever, or if they should, that the statute withholds judicial remedies adequate to protect petitioners’ rights.For the purposes of this case, in passing upon the sufficiency of the procedure on protest to the Administrator and complaint to the Emergency Court, it is irrelevant to suggest that the Administrator or the Court has in the past or may in the future deny due process. Action taken by them is reviewable in this Court and if contrary to due process will be corrected here. Hence we have no occasion to pass upon determinations of the Administrator or the Emergency Court, said to violate due process, which have never been brought here for review, and obviously, we cannot pass upon action which might have been taken on a protest by petitioners, who have never made a protest or in any way sought the remedy Congress has provided. In the absence of any proceeding before the Administrator we cannot assume that he would fail in the performance of any duty imposed on him by the Constitution and laws of the United States, or that he would deny due process to petitioners by ‘loading the record against them’ or denying such hearing as the Constitution prescribes. Plymouth Coal Co. v. Commonwealth of Pennsylvania,?232 U.S. 531; Hall?v. Geiger-Jones Co.,?242 U.S. 539; State of Minnesota v. Probate Court,?309 U.S. 270, and cases cited. Only if we could say in advance of resort to the statutory procedure that it is incapable of affording due process to petitioners could we conclude that they have shown any legal excuse for their failure to resort to it or that their constitutional rights have been or will be infringed. Natural Gas Co. v. Slattery,?302 U.S. 300; Anniston Mfg. Co. v. Davis, 301 U.S. at page 356; State of Minnesota v. Probate Court, 309 U.S. at page 275. But upon a full examination of the provisions of the statute it is evident that the authorized procedure is not incapable of affording the protection to petitioners’ rights required by due process.The regulations, which are given the force of law, are published in the Federal Register, and constructive notice of their contents is thus given all persons affected by them. 44 U.S.C. §307, 44 U.S.C.A. §307. The penal provisions of the statute are applicable only to violations of a regulation which are willful. Petitioners have not contended that they were unaware of the Regulation and the jury found that they knowingly violated it within eight days after its issue.In the circumstances of this case we find no denial of due process in the statutory prohibition of a temporary stay or injunction. The present statute is not open to the objection that petitioners are compelled to serve the public as in the case of a public utility, or that the only method by which they can test the validity of the regulations promulgated under it is by violating the statute and thus subjecting themselves to the possible imposition of severe and cumulative penalties. See Ex parte Young,?209 U.S. 123; Wilcox v. Consolidated Gas Co.,?212 U.S. 19; Missouri Pac. R. Co. v. Tucker,?230 U.S. 340; Oklahoma Operating Co. v. Love,?252 U.S. 331. For as we have seen, 4(d) specifically provides that no one shall be compelled to sell any commodity, and the statute itself provides an expeditious means of testing the validity of any price regulation, without necessarily incurring any of the penalties of the Act. Compare Wadley Southern R. Co. v. State of Georgia,?235 U.S. 651.The petitioners are not confronted with the choice of abandoning their businesses or subjecting themselves to the penalties of the Act before they have sought and secured a determination of the Regulation’s validity. It is true that if the Administrator denies a protest no stay or injunction may become effective before the final decision of the Emergency Court or of this Court if review here is sought. It is also true that the process of reaching a final decision may be time-consuming. But while courts have no power to suspend or ameliorate the operation of a regulation during the pendency of proceedings to determine its validity, we cannot say that the Administrator has no such power or assume that he would not exercise it in an appropriate case.Under these sections the Administrator may not only alter or set aside the regulation, but he has wide scope for the exercise of his discretionary power to modify or suspend a regulation pending its administrative and judicial review. Hence we cannot assume that petitioners, had they applied to the Administrator, would not have secured all the relief to which they were entitled. The denial of a right to a restraining order or interlocutory injunction to one who has failed to apply for available administrative relief, not shown to be inadequate, is not a denial of due process. Natural Gas Co. v. Slattery, 302 U.S. at page 310.The analogy of such a procedure to the present, by which violation of a price regulation is made penal, unless the offender has established its unlawfulness by an independent statutory proceeding, is complete and obvious. As we have pointed out such a requirement is objectionable only if by statutory command or in operation it will deny, to those charged with violations, an adequate opportunity to be heard on the question of validity. And, as we have seen, petitioners fail to show that such is the necessary effect of the present statute, or that if so applied as to deprive them of an adequate opportunity to establish the invalidity of a regulation there would not be adequate means of securing appropriate judicial relief in the course either of the statutory proceeding or of the criminal trial. During the present term of court we have held that one charged with criminal violations of an order of his draft board may not challenge the validity of the order if he has failed to pursue to completion the exclusive administrative remedies provided by the Selective Training and Service Act of 1940. Falbo v. United States,?320 U.S. 549; and see Bowles v. United States,?319 U.S. 33. We perceive no tenable ground for distinguishing that case from this.We have no occasion to decide whether one charged with criminal violation of a duly promulgated price regulation?may defend on the ground that the regulation is unconstitutional on its face. Nor do we consider whether one who is forced to trial and convicted of violation of a regulation, while diligently seeking determination of its validity by the statutory procedure may thus be deprived of the defense that the regulation is invalid. There is no contention that the present regulation is void on its face, petitioners have taken no step to challenge its validity by the procedure which was open to them and it does not appear that they have been deprived of the opportunity to do so. Even though the statute should be deemed to require it, any ruling at the criminal trial which would preclude the accused from showing that he had had no opportunity to establish the invalidity of the regulation by resort to the statutory procedure, would be reviewable on appeal on constitutional grounds. It will be time enough to decide questions not involved in this case when they are brought to us for decision, as they may be, whether they arise in the Emergency Court of Appeals or in the District Court upon a criminal trial.Mr. Justice ROBERTS, dissenting opinion.I turn, therefore, to the stated purposes to ascertain what, if any, limits the statute places upon the Administrator’s exercise of his powers.Section 1(a), 50 U.S.C.A. Appendix, 901(a), 50 U.S.C.A. Appendix, 901(a), states seven purposes, which should be set forth separately as follows:‘to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents;’In order to exercise his power anent this purpose the Administrator will have to form a judgment as to what stabilization means, and what are speculative, unwarranted and abnormal increases in price. It hardly need be said that men may differ radically as to the connotation of these terms and that it would be very difficult to convict?anyone of error of judgment in so classifying a given economic phenomenon.‘to eliminate and prevent profiteering, hoarding, manipulation, speculation, and other disruptive practices resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency;’To accomplish this purpose the Administrator must form a judgment as to what constitutes profiteering, hoarding, manipulation or speculation. As if the administrative discretion were not sufficiently broad there is added the phrase ‘other disruptive practices’, which seems to leave the Administrator at large in the formation of opinion as to whether any practice is disruptive.‘to assure that defense appropriations are not dissipated by excessive prices;’Mr. Justice RUTLEDGE, dissenting.Congress sought to accomplish two procedural objectives. One was to afford a narrow but sufficient method for securing review and revision of the regulations. At the same time the Act created broad and ready methods for enforcement. The short effect of the procedure is to give the individual a single channel for questioning the validity of a regulation, through the protest procedure and the Emergency Court of Appeals, with review of its decisions here on certiorari. Section 204. On the other hand, the varied and widely available means for enforcement include criminal proceedings, suits in equity, and suits for recovery of civil penalties, in the federal District Courts and in the state courts. Sections 205(a), (b), (c). See also §§205(d), (e), (f). And in all these enforcement proceedings the mandate of §204(d) is that the court shall have no ‘jurisdiction or power to consider the validity of’ a regulation, order or price schedule. The statute thus affords the individual, to question a regulation’s validity, one route and that a very narrow one, open only briefly. The administrator and others, to enforce it, have many. And in the enforcement proceedings the issues are cut down so that, in a practical sense, little else than the fact whether a violation of the regulation as written has occurred or is threatened may be inquired into.Disparity in remedial and penal measures does not necessarily invalidate the procedure, though it has relevance to adequacy of the remedy allowed the individual. Congress has broad discretion to open and close the doors to litigation. In doing so it may take account of the necessities presented by such a situation as it was dealing with here. To follow the usual course of legislation and permit challenge by restraining orders, injunctions, stay orders and the normal processes of litigation would have been, in this case, to lock the barn door after the horse had been stolen. There was therefore compelling reason for Congress to balance the scales of litigation unevenly, if only it did not go too far. In no other way could it protect the paramount national interest. If the result, within the permissible limits, is harsh or inconvenient for?the individual, that is but part of the price he, with all others, must pay for living in a nation which ordinarily gives him so much of protection but in a world which has not been organized to give it security against events so disruptive of democratic procedures.This, too, it could do, though only if adequate proceedings, in the constitutional sense, were authorized. And I agree that the enforcing jurisdiction would not be made inadequate merely by the fact that no stay order or other relief could be had pending the outcome of litigation. Confronted as the nation was with the imminent danger of inflation and therefore the necessity that price controls should become effective at once and continue so without interruption at least until invalidated in particular instances, Congress could require individuals to sustain, in deference to the paramount public interest, whatever harm might ensue during the period of litigation and until each had demonstrated the invalidity of the regulation as it affected himself. Runaway inflation could not have been avoided in any other way. The lid had to go on, go on tight and stay tight. This necessity united with the general presumption of validity which attaches to legislation and Congress’ power to control the jurisdiction of the courts to sustain its denial of power to all courts, including the enforcing courts, the Emergency Court and this one, to suspend operation of the regulations pending final determination of validity.The prohibition is unqualified. It makes no distinction between regulations invalid on constitutional grounds and others merely departing in some respect from statutory limitations, which Congress might waive, or by the criterion whether invalidity appears on the face of the regulation or only by proof of facts. If the purpose and effect are to forbid the enforcing court to consider all questions of validity and thus to require it to enforce regulations which are or may be invalid for constitutional reasons, doubt arises in two respects. First, broad as is Congress’ power to confer or withhold jurisdiction, there has been none heretofore to confer it and at the same time deprive the parties affected of opportunity to call in question in a criminal trial whether the law, be it statute or?regulation, upon which the jurisdiction is exercised squares with the fundamental law. Nor has it been held that Congress can forbid a court invested with the judicial power under Article III to consider this question, when called upon to give effect to a statutory or other mandate.It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements or, what in some instances may be the same thing, without regard to them. Once it is held that Congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot do. There are limits to the judicial power. Congress may impose others. And in some matters Congress or the President has final say under the Constitution. But whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials.Clearly Congress could not require judicial enforcement of an unconstitutional statute. The same is true of an unconstitutional regulation. And it is conceded that Congress could not have compelled judicial enforcement of all price regulations, without regard to their validity, if it had not given opportunity for attack upon them through the Emergency Court or if that opportunity is inadequate. But because the opportunity is afforded and is deemed adequate in the unusual circumstances, at any rate for some of its purposes, and because it was not followed, the Court holds that criminal enforcement must be given and the enforcing court cannot consider the question of validity.A procedure so piecemeal, so chopped up, so disruptive of constitutional guaranties in relation to trials for crime, should not and, in my judgment, cannot be validated, as to such proceedings, under the Constitution. Even war does not suspend the protections which are inherently part and parcel of our criminal process. Such a dissection of the trial for crime could be supported, under our system, only upon some such notions as waiver and estoppel or res judicata, whether or not embodied in legislation. These too are strange and inadequate vehicles for trying whether the citizen has been guilty of criminal conduct. They bar defense, while keeping prosecution open, before it begins.?Res judicata, by virtue of a judgment in some prior civil proceeding, where different constitutional guaranties relating to the mode and course of trial have play, has not done duty heretofore to replace either proof of facts before a jury or decision of constitutional questions necessary to make up the sum of guilt in the criminal proceeding itself. Congress can invade the judicial function in criminal cases no more by compelling the court to dispense with proof, jury trial or other constitutionally required characteristics than it can by denying all effect of finality to judicial judgments. Cf. Schneiderman v. United States,?320 U.S. 118. And while, as noted above, notions of waiver and estoppel have had place in criminal proceedings to an extent not wholly defined, in some instances harshly and artificially, they have not had effect heretofore to enable Congress to force a waiver of defense upon the individual by offering a choice between two kinds of trial, neither of which satisfies constitutional requirements for criminal trials. Certainly when the consequences are so novel and far reaching as they may be under this procedure, both for the individual and for the judicial system, these conceptions should not be given legal establishment to bring them into being.For legislation not void on its face, a presumption of constitutionality attaches and remains until it is proven?invalid or so in operation. In such cases there is no unfairness, nor any invasion of the court’s paramount obligation, in requiring one who would avoid the regulations’ impact to show they are not what they appear to be or that they are made to operate otherwise than as they purport or were intended. But it is one thing to say that burden must be borne within the enforcement proceeding itself and another to say it must be carried entirely outside it. To require the defendant to prove invalidity in such a situation in the criminal trial itself, upon a showing of violation of the statute, is wholly permissible. But for the court to be unable to receive tendered evidence which might disclose the statute’s invalid character and effect, is quite different. Certainly, under the circumstances of this case, it would seem to be as much a violation of individual right and as much an invasion of the judicial function for Congress to command the court not to receive the evidence, regardless of its character or effect, as for it to direct the court to enforce a law or an order void on its face.War requires much of the citizen. He surrenders rights for the time being to secure their more permanent establishment. Most men do so freely. According to our plan others must do so also, as far as the nation’s safety requires. But the surrender is neither permanent nor total. The great liberties of speech and the press are curtailed but not denied. Religious freedom remains a?living thing. With these, in our system, rank the elemental protections thrown about the citizen charged with crime, more especially those forged on history’s anvil in great crises. They secure fair play to the guilty and vindication for the innocent. By one means only may they be suspended, even when chaos threatens. Whatever else seeks to dispense with them or materially impair their integrity should fail. Not yet has the war brought extremity that demands or permits them to be put aside. Nor does maintaining price control require this. The effect, though not intended, of the provision which forbids a criminal court to ‘consider the validity’ of the law on which the charge of crime is founded, in my opinion, would be greatly to impair these securities. Hence I cannot assent to that provision as valid.Footnotes:23. Commonly it is said that ‘jurisdictional’ questions, particularly concerning the court’s power to deal with the subject matter, may be raised at any stage or in a collateral attack. And this seems to be true also of some other constitutional issues through challenge to judgments by habeas corpus proceedings long after the judgment has become final. Cf. Ex parte Virginia,?100 U.S. 339; Ex parte Siebold,?100 U.S. 371; Johnson v. Zerbst,?304 U.S. 458; Mooney v. Hollohan,?294 U.S. 103. Compare Revised Rules of the Supreme Court of the United States 27, paragraph 6; cf. Weems v. United States,?217 U.S. 349; Columbia Heights Realty Co. v. Rudolph,?217 U.S. 547; Brasfield v. United States,?272 U.S. 448; Mahler v. Eby,?264 U.S. 32.MURDOCK v. COMMONWEALTH OF PENNSYLVANIA, 319 U.S. 105, 63 S.Ct. 870 (1943)Mr. Justice DOUGLAS delivered the opinion of the Court.The Fourteenth Amendment of the Federal Constitution makes the First Amendment applicable to the states. U.S.C.A. Const. Amends. 1, 14.Spreading one’s religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism which is entitled to protection under Constitution guaranteeing “freedom of speech”, “freedom of press” and “freedom of religion.” U.S.C.A. Const. Amends. 1, 14.The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. U.S.C.A. Const. Amends. 1, 14.A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution. U.S.C.A. Const. Amends. 1, 14.Jehovah’s Witnesses are not ‘above the law.’ But the present ordinance is not directed to the problems with which the police power of the state is free to deal. It does not cover, and petitioners are not charged with, breaches of the peace. They are pursuing their solicitations peacefully and quietly. Petitioners, moreover, are not charged with or prosecuted for the use of language which is obscene, abusive, or which incites retaliation. Cf. Chaplinsky v. New Hampshire. Nor do we have here, as we did in Cox v. New Hampshire, and Chaplinsky v. New Hampshire, state regulation of the streets to protect and insure the safety, comfort, or convenience of the public. Furthermore, the present ordinance is not narrowly drawn to safeguard the people of the community in their homes against the evils of solicitations. See Cantwell v. Connecticut,?310 U.S. at 306. As we have said, it is not merely a registration ordinance calling for an identification of the solicitors so as to give the authorities some basis for investigating strangers coming into the community. And the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors. See Cox v. New Hampshire,?312 U.S. at 576. Nor can the present ordinance strued to apply only to solicitation from survive if we assume that it has been con-house to house. The ordinance is not narrowly drawn to prevent or control abuses or evils arising from that activity. Rather, it sets aside the residential areas as a prohibited zone, entry of which is denied petitioners unless the tax is paid. That restraint and one which is city wide in scope (Jones v. Opelika) are different only in degree. Each is an abridgment of freedom of press and a restraint on the free exercise of religion. They stand or fall together.The judgment in Jones v. Opelika has this day been vacated. Freed from that controlling precedent, we can restore to their high, constitutional position the liberties of itinerant evangelists who disseminate their religious beliefs and the tenets of their faith through distribution of literature. The judgments are reversed and the causes are remanded to the Pennsylvania Superior Court for proceedings not inconsistent with this opinion.Reversed.THOMSON v. BOLES, 123 F.2d 487 (1941)NORDBYE, District Judge.On defendant’s appeal from the judgment on verdict for plaintiff, all inferences which reasonably might be drawn from evidence were to be determined in plaintiff’s favor.A brakeman’s departure, if any, from usual and customary practice of railroad employees with respect to leaning against guardrail on wooden walkway on railroad bridge, which walkway was maintained by railroad for use of trainmen, was not a complete defense to brakeman’s action against railroad under Federal Employers’ Liability Act for injuries sustained in falling from walkway, but merely constituted “contributory negligence.” Federal Employers’ Liability Act, 45 U.S.C.A §51 et seq.Whether the admission of testimony in a personal injury action respecting plaintiff’s family responsibilities is reversible error depends largely on whether such testimony has created passion and prejudice in minds of jury.Court should exercise great caution in setting aside judgments because of inadvertent remarks made by litigants or counsel during a hotly contested trial, even though improper, unless it clearly appears that remarks arouse sympathy or prejudice of jury and influenced verdict.The principal points relied upon for reversal are: (1) That the trial court refused to grant defendant a directed verdict; (2) that there is no substantial evidence of negligence on the part of the defendant; (3) that there is no substantial evidence that the negligence of the defendant, if any, was the proximate cause of the injury to the plaintiff; (4) that the verdict is not only contrary to, but is against the manifest weight of the evidence; (5) prejudicial and inflammatory statements to the jury in the opening statement of plaintiff’s counsel; (6) errors in ruling on the reception and rejection of evidence; (7) prejudicial, inflammatory and unwarranted statements by plaintiff’s counsel in his closing argument; and (8) errors in the court’s charge and in refusing to instruct the jury as the defendant requested. We will consider these contentions in the order stated.At the outset, it seems clear that we must commence with the premise that the jury found that the guardrail gave way while plaintiff, in the performance of his duties, was standing on the walkway and while he was leaning with some of his weight against the portion of the fencing which broke. That there was ample evidence to sustain such finding is free from doubt. Furthermore, the evidence fully warranted the jury in finding that the portion of the rail which yielded was unsafe and insecure by reason of its rotten, decayed and worn-out condition, and that therefore the defendant was negligent in failing to maintain a reasonably safe guard rail for the bridge. Woods v. Lindvall,?48 F. 62; Cawman v. Pennsylvania-Reading Seashore Lines,?110 F.2d 832; McDonald v. City of Duluth,?93 Minn. 206,?100 N.W. 1102; O’Brien v. American Bridge Co.,?110 Minn. 364,?125 N.W. 1012.UNITED STATES v. COOPER CORPORATION, et al., 312 U.S. 600, 61 S.Ct. 742 (1941)MR. JUSTICE ROBERTS delivered the opinion of the Court.The United States is a juristic “person” in the sense that it has capacity to sue upon contracts made with it or in vindication of its property rights.On the question of right to sue for treble damages, the Sherman Anti-Trust Act creates new rights and remedies which are available only to those on whom they are conferred by the Act. Sherman Anti-Trust Act §7, 15 U.S.C.A. §15 note.Since in common usage the term “person” does not include the sovereign, statutes employing that term are ordinarily construed to exclude it.The purpose, the subject matter, the context, the legislative history, and the executive interpretation of a statute are aids to construction which may indicate an intent, by the use of the term “person” to bring the state or nation within the scope of a statute.In determining whether the United States is a “person” within the Sherman Anti-Trust Act authorizing any person to maintain a civil action for treble damages for injuries resulting from violation of the Act, decision is not to be reached by a strict construction of the words of the Act, nor by the application of artificial canons of construction. Sherman Anti-Trust Act §7, 15 U.S.C.A. §15 note.The United States is not a “person” within the Sherman Anti-Trust Act authorizing any person to maintain a civil action for treble damages for injuries to business or property resulting from violation of the act, and the United States cannot maintain an action for treble damages allegedly sustained because of conspiracy to fix prices of articles purchased by the United States. Sherman Anti-Trust Act §7, 15 U.S.C.A. §15 note.In the Sherman Anti-Trust Act providing that any “person” who shall be injured in his business or property by any other “person” or corporation by reason of anything forbidden by the act may sue therefor, the natural inference is that the meaning of the word “person” was in both uses limited to what are usually known as natural and artificial persons, that is, individuals and corporations. Sherman Anti-Trust Act §7, 15 U.S.C.A. §15 note.Section 7 provides:“Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.”The Government admits that often the word “person” is used in such a sense as not to include the sovereign, but urges that, where, as in the present instance, its wider application is consistent with, and tends to effectuate, the public policy evidenced by the statute, the term should be held to embrace the Government. And it strongly urges that all the considerations which moved Congress to confer the right to recover damages upon individuals and corporations injured by violations of the Act apply with equal force to the United States, which, as a large procurer of goods and services, is as likely to be injured by the denounced combinations and monopolies as is a natural or corporate person. We are asked, in this view, so to construe the Act as not to deny to the Government what public policy is thought to require.MR. JUSTICE BLACK, dissenting.The principle of strict construction now adopted in this case, resulting as it does in denying to the government the benefit of section 7 of the Sherman Act, is a radical departure from a long established policy under which the courts have construed laws most liberally in order to declare the government entitled to their benefits. And certainly it can hardly be denied that the language of the Act, giving all persons a right of action, should if liberally construed be held to justify suit by the United States. For, in?Cotton v. United States,?11 How. 229,?52 U.S. 231, decided forty years before the Sherman Act was adopted, this Court said, in speaking of the United States: “Every sovereign State is of necessity a body politic, or artificial person, and as such capable of making contracts and holding property.... It would present a strange anomaly indeed if, having the power to make contracts and hold property as other persons, natural or artificial, they were not entitled to the same remedies for their protection.” And, speaking in similar vein in?Helvering v. Stockholms Enskilda Bank,?293 U.S. 84, after having cited Blackstone for the proposition that the sovereign is a “corporation” and after having gone even beyond this to hold that the statutory word “resident” included the United States, the Court said: “This may be in the nature of a legal fiction, but legal fictions have an appropriate place in the administration of the law when they are required by the demands of convenience and justice.”These particular cases are but facets of a general rule that has long been accepted - the United States can exercise all of the legal remedies which other persons, bodies or associations can exercise, both at common law and under statutes, unless there is something in a statute or in its history to indicate an intent to deprive the United States of that right. In this case, nothing in the Sherman Act itself and nothing in its legislative history makes necessary the conclusion that Congress intended to withhold from the United States a remedy given to all other purchasers. Under these circumstances, it is my opinion that the judgment below should be reversed.Footnotes:5. It is argued that, if the government can sue for damages, it may also be sued for damages. That question is not before us, and need not be decided. Other principles will be material if such a question ever should be presented.?See United States v. Sherwood,?312 U.S. 584;?Nardone v. United States,?302 U.S. 379;?United States v. Knight,?14 Pet. 301,?39 U.S. 315. Among these principles, the most important is that of sovereign immunity. “The sovereignty of the United States raises a presumption against its suability unless it is clearly shown; nor should a court enlarge its liability to suit conferred beyond what the language [of the statute in question] requires.” Eastern Transportation Co. v. United States,?272 U.S. 675;?Price v. United States,?174 U.S. 373.UNITED STATES FIDELITY & GUARANTY CO. v. CONTINENTAL BAKING CO., 172 Md. 24, 190 A. 768 (1937)SLOAN, Judge.Mere violation of statute or rule of road is not evidence of negligence unless such violation is the proximate cause of injury suit for.STATE ex rel. LANDIS, Atty. Gen., v. PREVATT, 110 Fla. 29, 148 So. 578 (1933)LOVE, Circuit Judge.Persons asserting unconstitutionality of statute have burden of establishing such fact beyond reasonable doubt.Every law on statute books is presumptively valid.Constitution and statutes are judicially recognized by state courts, and such judicial notice includes authoritative decisions construing them.Decision of Supreme Court settling question of law invoked in subsequent case will be judicially mon-law writ of “quo warranto” was directed against one who usurped or obtained office, franchise, or liberty of crown, and also lay in case of nonuser or long neglect of franchise or misuser or abuse thereof.Where action in nature of quo warranto is against corporation, and conviction follows for nonuser, misuser, or long neglect of liberty, franchise, or privilege, judgment of ouster and dissolution should be rendered which is equivalent to judgment of seizure at common law.MAXCY, Inc., et al. v. Mayo, Commissioner of Agriculture, et al., 103 Fla. 552, 139 So. 121 (1932)PER CURIAMExercise of legislative power and discretion must not infringe upon or impair fundamental rights of property.Exercise of legislative power and discretion must not infringe upon or impair fundamental rights of pursuit of happiness.Legislative acts must accord with guarantee that no man shall be deprived of life, liberty, or property without “due process of law.”U.S.C.A. Const. Amend. 14.Laws enacted under police power are entitled to every reasonable presumption in favor of validity.Laws enacted under police power may be shown to be so arbitrary and unreasonable in their application is to deprive particular person of property without due process of law. U.S.C.A. Const. Amend. 14.In American system of constitutional law giving rise to exercise of police power, vox populi, vox dei, is not equivalent of salus populi suprema lex esto.Legislature may, under police power, suppress evil by prohibiting stated practice out of which evil largely grows, even though innocent acts may thereby be forbidden and long-established customs made unlawful.Exercise of legislative power and discretion was not infringe upon or impair fundamental rights of life and liberty.Legislative determinations that certain practices are evil, and that they should be entirely forbidden, are entitled to great weight. But it is always open to interested parties to show that the Legislature has transgressed the limits of its authority, even in the field of police regulations and acted under guise of the police power. Invalidity of legislative acts may be shown by things that are judicially noticed, or by facts established by allegations and proof; the burden being always on the attacking party to establish the invalidating facts claimed to exist.Power and discretion, however exerted in by whomsoever exercised, must be used in such manner as not to infringe upon or impair the fundamental rights of life, liberty, property, and the pursuit of happiness. Laws passed by the Legislature must accord with the American guarantee that no man shall be deprived of life, liberty, or property without due process of law, which means process of law within the power to prescribe law.Vox populi, vox dei, is not the equivalent of salus populi suprema lex esto as recognized by the Judiciary in our American system of constitutional law which gives rise to the exercise of police power by the government.Put to the choice by the practical necessities of the case, the Legislature may exercise its power to suppress an evil by prohibiting entirely a stated practice out of which that evil largely grows, even though by doing so, innocent acts may be forbidden and long-established customs of the people thenceforth made unlawful.They contend that a legislative fiat which undertakes not merely to regulate, but to entirely prohibit, the use of arsenic and sprays, however small an amount it may be, is purely arbitrary and unreasonable, beyond the constitutional limits of the state’s police power, and is in violation of both the federal and state constitutions as being in effect a deprivation of property without due process of law, and the denial of the equal protection of the laws. Weaver v. Palmer Bros. Co., 270 U.S. 402.Here the consumer is easily deceived and defrauded by the fruits appearance is good, when it is intrinsically bad.This court takes judicial notice of the fact that the citrus industry of Florida is one of its greatest assets. Its promotion and protection is of the greatest value to the state, and its advancement redounds greatly to the general welfare of the Commonwealth. For this reason the Legislature necessarily has a wide field of police power within which to pass laws to foster, promote, and protect the citrus fruit industry of Florida from injurious practices which may tend to injure or destroy either the reputation or value of Florida citrus products in the world’s markets. Sligh v. Kirkwood, 65 Fla. 123, 61 So. 185.…From the time pagan Emperors burned Christian martyrs in the imperial amphitheatre at Rome to the date of the rendition of this opinion, the justification under our constitutional system for an acting laws interfering with property rights in individual freedom must be shown to rest upon considerations greater than the alleged promotion of the general welfare alone. Such laws must accord with the American guarantee that no man shall be deprived of life, liberty, or property without due process of law, as this court has so frequently declared. This means process of law within the power to prescribe law. State ex rel. Davis v. City of Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307; Cawthon v. Town of DeFuniak Springs, 88 Fla. 324, 102 So. 250.Hence the Legislature has adopted an absolute prohibition of all use of arsenic as a spray, evidently on the theory that balancing the good against evil in the practice, the evil far outweighs the good. It therefore appears that in order to render the statute reasonably certain benefit, it is necessary that all use whatsoever of arsenic sprays be prohibited, in order to preserve the general welfare of Florida citrus industry, and the thousands of people who depend upon it for the livelihood and well-being.A Virginia statute providing for the compulsory cutting down on her cedar trees within 2 miles of any apple orchard, and that this be required to be done by the owner without compensation to him therefore, has been upheld as constitutional by the Supreme Court of United States, because of the demonstrated tendency of red cedar trees to become a host for disease is destructive to apple trees, as there shown. Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246.When appealed to in a proper case, the Judiciary can render no greater service toward the perpetuation of free government than to accord to an individual litigant before it, however, humble his station in society may be, the just protection of our fundamental law, when that protection is sought as a means to forestall aggressive combinations bent on employing the power of statutes to penalize the citizen for his rugged individuality in refusing to surrender his constitutional rights to what may be a contrary minded political majority….FRYE v. UNITED STATES, 293 F. 1013 (D.C. Cir. 1923)VAN ORSDEL, Associate JusticeA single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.The judgment is affirmed.FIRE ASS’N OF PHILADELPHIA v. FARMERS’ GIN CO., 39 Okla. 162, 134 P. 443 (1913)ROBERTSON, C.Witnesses are not incompetent to testify as to the value of a ginhouse and machinery used therein simply because they do not know the market value of the same, especially where it is shown that they live in the same neighborhood, are well acquainted with both house and machinery, have worked therein, have had several years’ experience in handling such machinery, and have a good general knowledge of values, and claim to know the cash value of the particular building and machinery. Their competency is a question for the court, while the value of their testimony is for the jury to determine.The opinions of experts are not controlling, and it is for the jury to determine the weight and sufficiency of such testimony.This was an action by the Farmers’ Gin Company to recover on a fire insurance policy issued by the Fire Association of Philadelphia. The jury returned a verdict for the plaintiff in the sum of $3,500, upon which judgment was entered, and the insurance company appeals. Many errors are assigned in the petition in error; but all may be considered under the following heads: (1) The trial court erred in refusing defendant a continuance. (2) The verdict of the jury and the judgment of the court are not warranted by the evidence and are contrary to law. (3) The trial court erred in permitting the attorneys for plaintiff to make a second argument to the jury, when defendant had waived its right to argue the case.The petition in this case was filed in the lower court on April 4, 1910, and amended answer on October 24th thereafter, and the reply on the next day, after which time the defendant applied for a continuance, which was granted by the court over the objections of plaintiff. The cause was thereafter set for trial on February 13, 1911, when both parties appeared in open court, and announced ready, and proceeded to impanel a jury, and after the jury had been sworn the defendant made application for another continuance on the ground of an absent witness. This witness was named Neale; there is nothing in the application to show his whereabouts at the time the same was filed, nor is there anything therein to indicate that his whereabouts would be ascertained at a reasonable time in the future, or that there is any reasonable probability that he could be produced, or his testimony taken; the application does not show that this testimony was not cumulative. When we consider, in this connection, the fact that the former continuance in this case had been granted on a similar application in which the absent witness was one Williams, and whose supposed testimony was along the same line that Neale was expected to testify, we are convinced that the testimony was cumulative, and are of opinion that no error was committed in denying the application. It has been held repeatedly that the question of granting a continuance in the trial of a cause is a matter that rests at all times in the sound judicial discretion of the court, and that, unless it affirmatively appears that the court has abused its discretion in the matter, its decision will not be reviewed when the case reaches this court on appeal. Kelley v. Wood, 32 Okla. 104, 120 P. 1110; St. L. & S. F. Co. v. Cox, 26 Okla. 331, 109 P. 511; Heatley v. Territory, 15 Okla. 72, 78 P. 79; Welty v. U.S., 14 Okla. 7, 76 P. 121; Garrison v. Territory, 13 Okla. 690, 76 P. 182; Murphy v. Hood, 12 Okla. 593, 73 P. 261.It is next argued that there was no competent evidence introduced on the question of the value of the property destroyed by fire, that none of the witnesses offered by plaintiff were competent to testify as to the value, and that therefore the court erred in refusing to sustain a demurrer to the evidence, and in refusing to give a peremptory instruction requiring the jury to return a verdict for defendant. There were but three witnesses offered by plaintiff to sustain the allegations of its petition; the defendant did not offer any at all, but confined its efforts to the cross-examination of the plaintiff’s witnesses.Counsel for the defendant objected to all the testimony given by these two witnesses, on the ground that they were not qualified to speak with reference to the value of the property destroyed. They rely mainly on this point for a reversal of the judgment, and cite many cases in support of these assignments; but an examination of these authorities show that they are, in most instances, applicable to a wholly different class of cases from the one under consideration. We have no doubt but that the correct rule in determining the value of live stock and other personal property, where values are unstable and fluctuate daily, a witness must show that he is familiar with the current price in the market where the property is offered for sale, and this is the rule enunciated by the authorities cited, but with the class of property, covered by the insurance policy, in the case at bar the rule is, and should be, different. In this case the cotton gin, both building and machinery, partakes of the nature of real estate, and these witnesses were familiar with the same, and are therefore competent to testify; the value of their testimony is, of course, at all times a question for the jury, but its competency is for the trial court, and while the court, in the exercise of a sound judicial discretion, might have rejected it without error, yet, having admitted it, we shall not hold that there was an abuse of discretion in so doing.?Values of property, such as that involved in this case, are not always easy to prove; it may be and frequently is, in the locality where it is situated, of no “market” value, and yet have in fact a true cash value. If it had no such thing as a “market value,” as that term is ordinarily used and accepted, and especially as used in the cases cited by defendant in its brief, it would follow that proof of value, such as demanded by the test insisted on, would be little short of impossible. To be sure, the plaintiff was bound to furnish the best class of proof of which the case was susceptible; but how are we to say, in the absence of a showing to the contrary, that this rule was not followed? In 2 Lewis, Eminent Domain (3d Ed.) §656, it is said: “This is a question the determination of which is left mostly to the trial judge. …It is not necessary that the witnesses should have been engaged in the real estate business. Intelligent men who have resided a long time in the place, and who are acquainted with the land in question, and say they know its value, are competent, although they are merchants or farmers, and have never bought or sold land in the place. …The value of such opinions depends upon the intelligence of the witness and the knowledge and experience which he possesses in such matters, and is in all cases a question for the jury.” While in Jones v. Erie & W. V. R. Co., 151 Pa. 30, 25 A. 134, 17 L.R.A. 758, 31 Am. St. Rep. 722, it is said: “The value of a house or a piece of ground is a subject upon which all persons familiar with the property who have formed an opinion are competent to speak. The value of their opinions will depend on the extent of their familiarity with the surrounding property and the prices asked and paid for it; but this is for the jury to determine.”In Cooley’s brief on Insurance, vol. 4, p. 3081, is found the following rule, which we think applicable to this case; i.e., “if the property destroyed is a building, the measure of damages is not the market value of the building at the time of the loss, nor what someone would have paid for the building, but the actual value of the property at the time of the loss.” The same rule would also apply to the machinery in, and forming part of, the building. Measured by this rule, the witnesses being competent, the value of their testimony was for the jury to determine, and, without doubt, there is sufficient competent testimony to make at least a prima facie case, and, weighed by the well-established rule of this court, when the weight of the evidence is challenged by demurrer or by motion to direct a verdict, we will consider only that part of the evidence which tends to support the verdict, and will disregard all that against it, and, if all the evidence supporting the verdict, taken together and given all the presumptions and deductions of which it is reasonably susceptible, is sufficient, this court will not go behind the finding, and weigh the countervailing evidence, even though the same, had it been accepted by the court or jury, would have justified a different result. So, too, in cases where there is a conflict in the testimony, the jury’s verdict will not be disturbed, if there be any testimony in the record reasonably tending to support the same. The state of the record in this case, as far as the evidence goes, satisfies the foregoing rules. We think the witnesses were competent, and the testimony sufficient to sustain the verdict.When the case was ready for argument to the jury, one of the plaintiff’s attorneys, Mr. Davis, proceeded to argue and concluded, whereupon counsel for defendant waived argument; Mr. Mounts, another of plaintiff’s attorneys, thereupon rose and proceeded to make a second argument, at which counsel for defendant objected, on the ground that a second argument was not permissible. This objection was overruled by the court. The record is silent as to the other facts and circumstances connected with this phase of the case. We cannot say whether the ruling was, or was not, error. The presumption obtains that it was not, that it was the exercise of a sound judicial discretion of the trial court, and this is especially true in the absence of a showing to the contrary. In A., T. & S. F. Ry. Co. v. Lambert, 32 Okla. 665, 123 P. 428, it is said by Ames, C., in the syllabus: “The party bearing the burden of proof has the right to open and close the argument. His opening argument should be a complete and fair presentation of his theory of the case. When such an argument is made, if the opposing party elects not to reply, this should close the argument. If the party upon whom rests the burden makes an incomplete or inadequate opening statement, and the opposing party does not reply, no further argument should be allowed, unless the court, in the exercise of its sound discretion and in the interest of justice, thinks the party upon whom the burden rests should be allowed to make a further opening. In that event the opposing party should be allowed to answer, if he desires, and the party upon whom the burden rests should be allowed to close.” The record fails to disclose whether the attorney for defendant asked leave to argue the case, after plaintiff’s attorney had concluded. It is presumed he made no such application. Having made none, it is likewise assumed that he waived argument, and therefore no error was committed.From a careful review of the entire record, we fail to see where defendant has any right to complain, and the judgment should be affirmed.COLORADO & S. RY. CO. v. CHILES, 50 Colo. 191, 114 P. 661 (1911)MUSSER, J.There is no fixed standard in the law by which a court is enabled arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms “ordinary care,” “reasonable prudence,” and such like terms, as applied to the conduct and affairs of men, and the relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent man under a similar state of affairs. When a given state of facts is such the reasonable man may fairly differ upon the question as to whether there was negligence or not, the determination of the matters for the jury. It is only where the facts are such that all reasonable man must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court. The care to be exercised increases with the danger.EX PARTE: EDWARD T. YOUNG, Petitioner, 209 U.S. 123, 28 S.Ct. 441 (1908)MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.We recognize and appreciate to the fullest extent the very great importance of this case not only to the parties now before the court, but also to the great mass of the citizens of this country, all of whom are interested in the practical working of the courts of justice throughout the land, both Federal and State, and in the proper exercise of the jurisdiction of the Federal courts, as limited and controlled by the Federal Constitution and the laws of Congress.We have, therefore, upon this record, the case of an unconstitutional act of the state Legislature and an intention by the Attorney General of the State to endeavor to enforce its provisions, to the injury of the company, in compelling it, at great expense, to defend legal proceedings of a complicated and unusual character, and involving questions of vast importance to all employees and officers of the company, as well as to the company itself. The question that arises is whether there is a remedy that the parties interested may resort to, by going into a Federal Court of Equity, in a case involving a violation of the Federal Constitution, and obtaining a judicial investigation of the problem, and, pending its solution, obtain freedom from suits, civil or criminal, by a temporary injunction, and, if the question be finally decided favorably to the contention of the company, a permanent injunction restraining all such actions or proceedings.The various authorities we have referred to furnish ample justification for the assertion that individuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal Court of Equity from such action.We do not think such contention is well founded. The doctrine of?Smyth v. Ames?was neither overruled nor doubted in the?Fitts?case. In that case, the Alabama Legislature, by the act of 1895, fixed the tolls to be charged for crossing the bridge. The penalties for disobeying that act by demanding and receiving higher tolls were to be collected by the persons paying them. No officer of the State had any official connection with the recovery of such penalties. The indictments mentioned were found under another State statute, set forth at page?172 U.S. 520?of the report of the case, which provided a fine against an officer of a company for taking any greater rate of toll than was authorized by its charter, or, if the charter did not specify the amount, then the fine was imposed for charging any unreasonable toll, to be determined by a jury. This act was not claimed to be unconstitutional, and the indictments found under it were not necessarily connected with the alleged unconstitutional act fixing the tolls. As no state officer who was made a party bore any close official connection with the act fixing the tolls, the making of such officer a party defendant was a simple effort to test the constitutionality of such act in that way, and there is no principle upon which it could be done. A state superintendent of schools might as well have been made a party. In the light of this fact it was said in the opinion:“In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute by an injunction suit brought against them, then the constitutionality of every act passed by the Legislature could be tested by a suit against the Governor and the Attorney General, based upon the theory that the former, as the executive of the State, was, in a general sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.”In the course of the opinion in the?Fitts?case, the?Reagan?and Smyth?cases were referred to (with others) as instances of state officers specially charged with the execution of a State enactment alleged to be unconstitutional, and who commit, under its authority, some specific wrong or trespass to the injury of plaintiff’s rights. In those cases, the only wrong or injury or trespass involved was the threatened commencement of suits to enforce the statute as to rates, and the threat of such commencement was, in each case, regarded as sufficient to authorize the issuing of an injunction to prevent the same. The threat to commence those suits under such circumstances was therefore necessarily held to be equivalent to any other threatened wrong or injury to the property of a plaintiff which had theretofore been held sufficient to authorize the suit against the officer. The being specially charged with the duty to enforce the statute is sufficiently apparent when such duty exists under the general authority of some law, even though such authority is not to be found in the particular act. It might exist by reason of the general duties of the officer to enforce it as a law of the State.The answer to all this is the same as made in every case where an official claims to be acting under the authority of the State. The act to be enforced is alleged to be unconstitutional, and, if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a State official in attempting, by the use of the name of the State, to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is, in that case, stripped of his official or representative character, and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.?See In re Ayers,?123 U.S. 507. It would be an injury to complainant to harass it with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment, and to prevent it ought to be within the jurisdiction of a Court of Equity. If the question of unconstitutionality, with reference, at least, to the Federal Constitution, be first raised in a Federal court, that court, as we think is shown by the authorities cited hereafter, has the right to decide it, to the exclusion of all other courts.It is further objected (and the objection really forms part of the contention that the State cannot be sued) that a Court of Equity has no jurisdiction to enjoin criminal proceedings, by indictment or otherwise, under the state law. This, as a general rule, is true. But there are exceptions. When such indictment or proceeding is brought to enforce an alleged unconstitutional statute which is the subject matter of inquiry in a suit already pending in a Federal court, the latter court, having first obtained jurisdiction over the subject matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed.?Prout v. Starr,?188 U.S. 537. But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court.?Taylor v. Taintor,?16 Wall. 366, 83 U.S. 370;?Harkrader v. Wadley,?172 U.S. 148.It is further objected that there is a plain and adequate remedy at law open to the complainants, and that a Court of Equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it at least once, after which the company might obey the act pending subsequent proceedings to test its validity. But, in the event of a single violation, the prosecutor might not avail himself of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If, however, he should do so while the company was thereafter obeying the law, several years might elapse before there was a final determination of the question, and, if it should be determined that the law was invalid, the property of the company would have been taken during that time without due process of law, and there would be no possibility of its recovery.Another obstacle to making the test on the part of the company might be to find an agent or employee who would disobey the law, with a possible fine and imprisonment staring him in the face if the act should be held valid. Take the passenger rate act, for instance: a sale of a single ticket above the price mentioned in that act might subject the ticket agent to a charge of felony, and, upon conviction, to a fine of $5,000 and imprisonment for five years. It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. It would not be wonderful if, under such circumstances, there would not be a crowd of agents offering to disobey the law. The wonder would be that a single agent should be found ready to take the risk.This supreme authority, which arises from the specific provisions of the Constitution itself, is nowhere more fully illustrated than in the series of decisions under the Federal habeas corpus statute (§753, Rev.Stat.), in some of which cases persons in the custody of state officers for alleged crimes against the State have been taken from that custody and discharged by a Federal court or judge because the imprisonment was adjudged to be in violation of the Federal Constitution. The right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the State by reason of serving the writ upon one of the officers of the State in whose custody the person was found. In some of the cases, the writ has been refused as matter of discretion, but, in others, it has been granted, while the power has been fully recognized in all.?Ex parte Royall,?117 U.S. 241;?In re Loney,?134 U.S. 372;?In re Neagle,?135 U.S. 1;?Baker v. Grice,?169 U.S. 284;?Ohio v. Thomas,?173 U.S. 276; Minnesota v. Brundage,?180 U.S. 499;?Reid v. Jones,?187 U.S. 153; United States v. Lewis,?200 U.S. 1;?In re Lincoln,?202 U.S. 178.It is somewhat difficult to appreciate the distinction which, while admitting that the taking of such a person from the custody of the State by virtue of service of the writ on the state officer in whose custody he is found is not a suit against the State, and yet service of a writ on the Attorney General, to prevent his enforcing an unconstitutional enactment of a State Legislature, is a suit against the State.There is nothing in the case before us that ought properly to breed hostility to the customary operation of Federal courts of justice in cases of this character.The rule to show cause is discharged and the petition for writs of habeas corpus and certiorari is dismissed.So ordered.MR. JUSTICE HARLAN, dissenting.The fact that the Federal Circuit Court had, prior to the institution of the mandamus suit in the state court, preliminarily (but not finally) held the statutes of Minnesota and the orders of its railroad and warehouse commission in question to be in violation of the Constitution of the United States was no reason why that court should have laid violent hands upon the Attorney General of Minnesota and, by its orders, have deprived the State of the services of its constitutional law officer in its own courts. Yet that is what was done by the Federal Circuit Court; for the intangible thing called a State, however extensive its powers, can never appear or be represented or known in any court in a litigated case except by and through its officers. When, therefore, the Federal court forbade the defendant Young, as Attorney General of Minnesota, from taking any action, suit, step, or proceeding whatever looking to the enforcement of the statutes in question, it said in effect to the State of Minnesota: “It is true that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to its people, and it is true that, under the Constitution, the judicial power of the United States does not extend to any suit brought against a State by a citizen of another State or by a citizen or subject of a foreign state, yet the Federal court adjudges that you, the State, although a sovereign for many important governmental purposes, shall not appear in your own courts, by your law officer, with the view of enforcing, or even for determining the validity of, the state enactments which the Federal court has, upon a preliminary hearing, declared to be in violation of the Constitution of the United States.”This principle, if firmly established, would work a radical change in our governmental system. It would inaugurate a new era in the American judicial system and in the relations of the national and state governments. It would enable the subordinate Federal courts to supervise and control the official action of the States as if they were “dependencies” or provinces. It would place the States of the Union in a condition of inferiority never dreamed of when the Constitution was adopted or when the Eleventh Amendment was made a part of the supreme law of the land. I cannot suppose that the great men who framed the Constitution ever thought the time would come when a subordinate Federal court, having no power to compel a State, in its corporate capacity, to appear before it as a litigant, would yet assume to deprive a State of the right to be represented in its own courts by its regular law officer. That is what the court below did, as to Minnesota, when it adjudged that the appearance of the defendant Young?in the state court,?as the Attorney General of Minnesota, representing his State as its chief law officer, was in contempt of the authority of the Federal court, punishable by fine and imprisonment. Too little consequence has been attached to the fact that the courts of the States are under an obligation equally strong with that resting upon the courts of the Union to respect and enforce the provisions of the Federal Constitution as the supreme law of the land, and to guard rights secured or guaranteed by that instrument. We must assume - a decent respect for the States requires us to assume - that the state courts will enforce every right secured by the Constitution. If they fail to do so, the party complaining has a clear remedy for the protection of his rights, for he can come by writ of error, in an orderly, judicial way, from the highest court of the State to this tribunal for redress in respect of every right granted or secured by that instrument and denied by the state court. The state courts, it should be remembered, have jurisdiction concurrent with the courts of the United States of all suits of a civil nature, at common law or equity, involving a prescribed amount, arising under the Constitution or laws of the United States. 25 Stat. 434. And this court has said: “A state court of original jurisdiction, having the parties before it, may, consistently with existing Federal legislation, determine cases at law or in equity arising under the Constitution or laws of the United States or involving rights dependent upon such Constitution or laws. Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them; for the judges of the state courts are required to take an oath to support that Constitution, and they are bound by it, and the laws of the United States made in pursuance thereof, and all treaties made under their authority, as the supreme law of the land, ‘anything in the Constitution or laws of any State to the contrary notwithstanding.’ If they fail therein, and withhold or deny rights, privileges, or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determination.” Robb v. Connolly,?111 U.S. 624. So that an order of the Federal court preventing the State from having the services of its Attorney General in one of its own courts, except at the risk of his being fined and arrested, cannot be justified upon the ground that the question of constitutional law, involved in the enforcement of the statutes in question, was beyond the competency of a State court to consider and determine, primarily, as between the parties before it in a suit brought by the State itself.Whether the Minnesota statutes are or are not violative of the Constitution is not, as already suggested, a question in this habeas corpus proceeding. I do not, therefore, stop to consider whether those statutes are repugnant to the Constitution upon the ground that, by their necessary operation, when enforced, they will prevent the railway company from contesting their validity, or upon the ground that they are confiscatory, and therefore obnoxious to the requirement of due process of law. While the argument at the bar in support of each of these propositions was confessedly of great force and persuasiveness, those points need not be now examined. I express no opinion about them. Their soundness may, however, be conceded for the purposes of this discussion. Indeed, it may be assumed for the purposes of this discussion that these state enactments are harsh and intemperate and, in some of their features, invalid. But those questions are wholly apart from the present proceeding. If we now consider them, we must go out of our way in order to do so. We have no evidence in this proceeding as to the effect which the statutes, if enforced, would have upon the value either of the railway property or of the bonds or stocks of the railway company. The question of their validity has not been finally decided by the Circuit Court, and we have not before us even the evidence upon which its preliminary injunction was based. The essential and only question now before us or that need be decided is whether an order by the Federal court which prevents the State from being represented in its own courts, by its chief law officer, upon an issue involving the constitutional validity of certain state enactments, does not make a suit against the State within the meaning of the Eleventh Amendment. If it be a suit of that kind, then, it is conceded, the Circuit Court was without jurisdiction to fine and imprison the petitioner, and he must be discharged whatever our views may be as to the validity of those state enactments. This must necessarily be so unless the Amendment has less force and a more restricted meaning now than it had at the time of its adoption, and unless a suit against the Attorney General of a State, in his official capacity, is not one against a State under the Eleventh Amendment when its determination depends upon a question of constitutional power or right under the Fourteenth Amendment. In that view, I cannot concur. In my opinion, the Eleventh Amendment has not been modified in the slightest degree as to its scope or meaning by the Fourteenth Amendment, and a suit which, in its essence, is one against the State remains one of that character, and is forbidden even when brought to strike down a state statute alleged to be in violation of that clause of the Fourteenth Amendment, forbidding the deprivation by a State of life, liberty, or property without due process of law. If a suit be commenced in a state court, and involves a right secured by the Federal Constitution, the way is open under our incomparable judicial system to protect that right, first by the judgment of the state court, and ultimately by the judgment of this court, upon writ of error. But such right cannot be protected by means of a suit which, at the outset, is, directly or in legal effect, one against the State whose action is alleged to be illegal. That mode of redress is absolutely forbidden by the Eleventh Amendment, and cannot be made legal by mere construction, or by any consideration of the consequences that may follow from the operation of the statute. Parties cannot, in any case, obtain redress by a suit against the State. Such has been the uniform ruling in this court, and it is most unfortunate that it is now declared to be competent for a Federal Circuit Court, by exerting its authority over the chief law officer of the State, without the consent of the State, to exclude the State, in its sovereign capacity, from its own courts when seeking to have the ruling of those courts as to its powers under its own statutes. Surely the right of a State to invoke the jurisdiction of its own courts is not less than the right of individuals to invoke the jurisdiction of a Federal court. The preservation of the dignity and sovereignty of the States, within the limits of their constitutional powers, is of the last importance, and vital to the preservation of our system of government. The courts should not permit themselves to be driven by the hardships, real or supposed, of particular cases, to accomplish results, even if they be just results, in a mode forbidden by the fundamental law. The country should never be allowed to think that the Constitution can, in any case, be evaded or amended by mere judicial interpretation, or that its behests may be nullified by an ingenious construction of its provisions.In?Hagood v. Southern,?117 U.S. 52, which involved the validity of certain scrip alleged to have been issued by the State of South Carolina, it appeared that, the State having denied its obligation to pay, the plaintiff sought relief by simply suing certain state officers as such, without making the State a formal party. The court said: “These suits are accurately described as bills for the specific performance of a contract between the complainants and the State of South Carolina, who are the only parties to it. But to these bills the State is not, in name, made a party defendant, though leave is given to it to become such if it chooses; and, except with that consent, it could not be brought before the court and be made to appear and defend. And yet it is the actual party to the alleged contract the performance of which is decreed, the one required to perform the decree, and the only party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject matter of the suit and defending?only as representing the State.?And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the State. The State is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is, therefore, substantially within the prohibition of the Eleventh Amendment to the Constitution of the United States, which declares that “the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.” Again: “If this case is not within the class of those forbidden by the constitutional guaranty to the states of immunity from suits in Federal tribunals, it is difficult to conceive the frame of one which would be. If the State is named as a defendant, it can only be reached either by mesne or final process through its officers and agents, and a judgment against it could neither be obtained nor enforced except as the public conduct and government of the ideal political body called a State could be reached and affected through its official Representatives. A judgment against these latter, in their official and representative capacity, commanding them to perform official functions on behalf of the State according to the dictates and decrees of the court, is, if anything can be, a judicial proceeding against the State itself. If not, it may well be asked, what would constitute such a proceeding? In the present cases, the decrees were not only against the defendants?in their official capacity,?but, that there might be no mistake as to the nature and extent of the duty to be performed, also against their successors in office.” Is it to be said that an order requiring the Attorney General of a State to perform certain official functions on behalf of the State is a suit against the State, while an order forbidding him, as?Attorney General,?not to perform an official function on behalf of the State, is not a suit against the State?The leading case upon the general subject, and one very similar in many important particulars to the present one, is?In re Ayers,?123 U.S. 443. The facts in that case were briefly these: the Legislature of Virginia, in 1887, passed an act which holders of sundry bonds and tax-receivable coupons of that Commonwealth alleged to be in violation of their rights under the Constitution of the United States. They instituted a suit in equity in the Circuit Court of the United States against the Attorney General and auditor of Virginia, and against the treasurers and Commonwealth Attorneys of counties, cities, and towns in Virginia, the relief asked being a decree enjoining and restraining the said state officers, and each of them, from bringing or commencing any suit provided for by the above act of 1887, or from doing anything to put that act into operation. The Circuit Court entered an order enjoining the Attorney General of Virginia and each and all the state officers named “from bringing or commencing any suit against any person who has tendered the State of Virginia’s tax-receivable coupons in payment of taxes due to said State, as provided for and directed by the act of the Legislature of Virginia, approved May 12th, 1887.” Subsequently, the Circuit Court of the United States was informed that the Attorney General of Virginia had disobeyed its order of injunction. Thereupon that officer was ruled to show cause why he should not be fined and imprisoned. He responded to the rule, admitting that, after being served with the injunction, he had instituted a suit, in the state Circuit Court, against the Baltimore & Ohio Railroad Company, to recover taxes due the State, and alleging “that he instituted the said suit because he was thereunto required by the act of the General Assembly of Virginia, aforesaid, and because he believed this court had no jurisdiction whatever to award the injunction violated.” He disclaimed any intention to treat the court with disrespect, and stated that he had been actuated alone by the desire to have the law properly administered. He was, nevertheless, adjudged guilty of contempt, was required forthwith to dismiss the suit he had brought, was fined $500 for contempt of court, and committed?to the custody of the marshal?until the fine was paid, and until he purged himself of his contempt?by dismissing the suit in the state court.?The Attorney General then applied directly to this court for a writ of habeas corpus, which was granted, and, upon hearing, he was released by this court from custody. The order for his discharge recited that the suit in which the injunctions were granted was “in substance and in law a suit against the State of Virginia” and “within the prohibition of the Eleventh Amendment to the Constitution;” that it was one “to which the judicial power of the United States does not extend;” that the Circuit Court was without jurisdiction to entertain it; that all its proceedings in the exercise of jurisdiction were null and void; that it had no authority or power to adjudge the Attorney General in contempt; and that his imprisonment was without authority of law. In the opinion in the?Ayers?case, the court said: “It follows, therefore, in the present case, that the personal act of the petitioners sought to be restrained by the order of the Circuit Court,?reduced to the mere bringing of an action in the name of and for the State against taxpayers,?who, although they may have tendered tax-receivable coupons, are charged as delinquents, cannot be alleged against them as an individual act in violation of any legal or contract rights of such taxpayers.” Again: “The relief sought is against the defendants, not in their individual,?but in their representative, capacity as officers of the State of Virginia.?The acts sought to be restrained are the bringing of suits by the State of Virginia in its own name and for its own use. If the State had been made a defendant to this bill by name, charged according to the allegations it now contains - supposing that such a suit could be maintained - it would have been subjected to the jurisdiction of the court by process served upon its Governor and Attorney General, according to the precedents in such cases.?New Jersey v. New York,?5 Pet. 284, 30 U.S. 288;?Kentucky v. Dennison,?24 How. 66,?65 U.S. 96; Rule 5 of 1884, 108 U.S. 574. If a decree could have been rendered enjoining the State from bringing suits against its taxpayers, it would have operated upon the State only through the officers who by law were required to represent it in bringing such suits, viz., the present defendants, its Attorney General, and the commonwealth’s attorneys for the several counties.?For a breach of such an injunction, these officers would be amenable to the court as proceeding in contempt of its authority, and would be liable to punishment therefor by attachment and imprisonment. The nature of the case, as supposed, is identical with that of the case as actually presented in the bill, with the single exception that the State is not named as a defendant. How else?can the State be forbidden by judicial process to bring actions in its name except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys, and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the State itself is not subjected to the jurisdiction of the court as an actual and real defendant?” Further: “The very object and purpose of the Eleventh Amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether citizens of other states or aliens, or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the members of judicial tribunals without their consent, and in favor of individual interests. To secure the manifest purposes of the constitutional exemption guaranteed by the Eleventh Amendment requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit, it must be held to cover not only suits brought against a State by name, but?those also against its officers, agents, and Representatives where the State, though not named as such, is nevertheless the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates.?But this is not intended in any way to impinge upon the principle which justifies suits against individual defendants, who, under color of the authority of unconstitutional legislation by the State, are guilty of?personal trespasses and wrongs,?nor to forbid suits against officers in their official capacity either to arrest or direct their official action by injunction or mandamus, where such suits are authorized by law,?and the act to be done or omitted is purely ministerial,?in the performance or omission of which the plaintiff has a legal interest.”After stating the principles settled in the?Ayers?case and in other cases, this court said: “If these principles be applied in the present case, there is no escape from the conclusion that, although the State of Alabama was dismissed as a party defendant, this suit against its officers is really one against the State.?As a State can act only by its officers, an order restraining those officers from taking any steps, by means of judicial proceedings,?in execution of the statute of February 9, 1895,?is one which restrains the State itself, and the suit is consequently as much against the State as if the State were named as a party defendant on the record.?If the individual defendants held possession or were about to take possession of, or to commit any trespass upon, any property belonging to or under the control of the plaintiffs, in violation of the latter’s constitutional rights, they could not resist the judicial determination, in a suit against them, of the question of the right to such possession by simply asserting that they held or were entitled to hold the property in their capacity as officers of the State. In the case supposed, they would be compelled to make good the State’s claim to the property, and could not shield themselves against suit because of their official character.?Tindal v. Wesley,?167 U.S. 204. No such case is before us.” Again, in the same case: “It is to be observed that neither the Attorney General of Alabama nor the Solicitor of the Eleventh Judicial Circuit of the State appear to have been charged by law with any special duty in connection with the act of February 9, 1895. In support of the contention that the present suit is not one against the State, reference was made by counsel to several cases, among which were?Poindexter v. Greenhow,?114 U.S. 270; Allen v. Baltimore & Ohio Railroad,?114 U.S. 311;?Pennoyer v. McConnaughy,?140 U.S. 1;?In re Tyler,?149 U.S. 164;?Reagan v. Farmers’ Loan & Trust Co.,?154 U.S. 362;?Scott v. Donald,?165 U.S. 58; and?Smyth v. Ames,?169 U.S. 466. Upon examination, it will be found that the defendants in each of those cases were officers of the State, especially charged with the execution of a State enactment alleged to be unconstitutional, but under the authority of which, it was averred, they were committing or were about to commit?some specific wrong or trespass,?to the injury of the plaintiff’s rights. There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing, by some positive act, a wrong or trespass, and a?suit against officers of a State merely to test the constitutionality of a State statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State.?In the present case, as we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the Legislature could be tested by a suit against the Governor and Attorney General, based upon the theory that the former, as the executive of the State, was, in a general sense, charged with the execution of all its laws, and the latter, as Attorney General, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong. Under the view we take of the question, the citizen is not without effective remedy when proceeded against under a legislative enactment void for repugnancy to the supreme law of the land; for, whatever the form of proceeding against him, he can make his defense upon the ground that the statute is unconstitutional and void. And that question can be ultimately brought to this court for final determination.” I am unable to distinguish that case, in principle, from the one now before us. The?Fitts case is not overruled, but is, I fear, frittered away or put out of sight by unwarranted distinctions.Some reference has been made to?Ex parte Royall,?117 U.S. 241, and other cases, that affirm the authority of a Federal court, under existing statutes, to discharge upon habeas corpus, from the custody of a State officer, one who is held in violation of the Federal Constitution for an alleged crime against a State. Those cases are not at all in point in the present discussion. Such a habeas corpus proceeding is?ex parte,?having for its object only to inquire whether the applicant for the writ is illegally restrained of his liberty. If he is, then the state officer holding him in custody is a trespasser, and cannot defend the wrong or tort committed by him, by pleading his official character. The power in a Federal court to discharge a person from the custody of a trespasser may well exist, and yet the court have no power in a suit before it, by an order directed against the Attorney General of a State, as such, to prevent the State from being represented by that officer as a litigant in one of its own courts. The former cases, it may be argued, come within the decisions which hold that a suit which only seeks to prevent or restrain a trespass upon property or person by one who happens to be a state officer, but is proceeding in violation of the Constitution of the United States, is not a suit against a State within the meaning of the Eleventh Amendment, but a suit against the trespasser or wrongdoer. But the authority of the Federal court to protect one against a trespass committed or about to be committed by a state officer, in violation of the Constitution of the United States, is very different from the power now asserted, and recognized by this court as existing, to shut out a sovereign State from its own courts by the device of forbidding its Attorney General, under the penalty of fine and imprisonment from appearing in such courts in its behalf.?The mere bringing of a suit on behalf of a State by its Attorney General?cannot (this court has decided in the Ayers?case) make that officer a trespasser and individually liable to the party sued. To enjoin him from representing the State in such suit is therefore, for every practical or legal purpose, to enjoin the State itself. This court, in?In re Debs,?158 U.S. 564, said: “Every government, intrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court. This proposition in some of its relations has heretofore received the sanction of this court.” If there be one power that a State possesses which ought to be deemed beyond the control, in any mode, of the national government or of any of its courts, it is the power, by judicial proceedings,?to appear in its own courts, by its law officer or by attorneys, and seek the guidance of those courts in respect of matters of a justiciable nature. If the state court, by its judgment, in such a suit, should disregard the injunctions of the Federal Constitution, that judgment would be subject to review by this court upon writ of error or appeal.It will be well now to look at the course of decisions in other Federal courts.Attention is first directed to?Arbuckle v. Blackburn,?113 Fed.Rep. 616, which was a suit in equity, one of the principal objects of which was to restrain the enforcement of an act of the Ohio Legislature relating to food products, particularly of a named coffee in which the plaintiffs were interested. The Circuit Court of Appeals held that the bill was properly dismissed, saying, among other things: “What, then, is the object of the injunction sought in this case? It is no more or less than to restrain the officer of the State from bringing prosecutions for violations of an act which such officer is expressly charged to enforce in the only way he is authorized to proceed - by bringing criminal prosecutions in the name of the State. This is virtually to enjoin the State from proceeding through its duly qualified and acting officers. If the food commissioner may be enjoined from instituting such prosecutions, why may not the prosecuting attorney, or any officer of the State, charged with the execution of the criminal laws of the State? While the State may not be sued, if the bill can be sustained against its officers, it is as effectually prevented from proceeding to enforce its laws as it would be by an action directly against the State. This view of the case, in our judgment, is amply sustained by the cases above cited, and by the later case of?Fitts v. McGhee,?172 U.S. 516.... Insofar as this action seeks an injunction against the respondent from proceeding to enforce by prosecution the provisions of the statutes of Ohio above cited, the courts of the United States are deprived of jurisdiction by the Eleventh Amendment to the Constitution.”HOLT, et al. v. INDIANA MANUFACTURING COMPANY. 176 U.S. 68, 20 S.Ct. 272 (1900)The rights for the deprivation of which suits may be brought in a circuit court of the United States under Rev.St. U.S. §629, cl. 18, 28 U.S.C.A. §1343, for the protection of rights secured by the Constitution of United States or by any law providing for equal rights of citizens, including civil rights only, as the provisions of that section were brought forward from the act of Congress of April 20, 1871, to enforce the provisions of the Fourteenth Amendment.The 16th clause of §620 reads thus: “of all suits authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any state, of any right, privilege, or immunity secured by the Constitution of the United States, or of any right secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.”Section 1979 of the revised statutes provides: “every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”FERGUSON v. MOORE, 98 Tenn. 342, 39 S.W. 341 (1897)WILKES, J.The conduct of counsel in argument in applying harsh epithets to the adverse party is not a ground for reversal where not objected to.A judgment against defendant in an action for seduction under promise of marriage, will not be reversed because plaintiff’s counsel in his closing argument shed tears in the midst of an eloquent and impassioned appeal to the jury.Damages cannot be recovered in an action for seduction under promise of marriage, for abortion and attendant indignities, unless special damages therefor are claimed in the pleadings.Charges or imputations made during a trial against the character or impeaching the virtue of plaintiff, if untrue, are presumed to have been wantonly made, and may properly be considered by the jury as an element of damages.The awarding of vindictive damages in a proper case is discretionary with the jury, and an instruction that it is their duty to award such damages in case they find for the plaintiff is erroneous.An instruction which tells the jury that they are the judges of the law as delivered to them by the court is misleading.The shedding of tears by an attorney in the course of an argument to a jury is not grounds for reversal.An instruction that the jury are the judges of the law, as delivered to them by the Court, is misleading in a civil action, as the jury must take the law as given by the Court.It is assigned as error, first, that the court permitted plaintiff, over the defendant’s objection, to prove that she was a member of the church, and had been for nine years. In this there was no error. It was a circumstance bearing upon the standing and reputation of plaintiff, and entirely competent. UNITED STATES v. TEXAS, 143 U.S. 621, 12 S.Ct.488 (1892)Mr. Justice HARLAN delivered the opinion of the court.A suit by the United States against a state to determine a controversy as to the boundaries between the state and a territory of the United States is properly brought in equity, and not at law.The state of Texas appeared and filed a demurrer, and also an answer denying the material allegations of the bill. The case is now before the Court only upon the demurrer, the principal grounds of which are that the question presented is political in its nature and character, and not susceptible of judicial determination by this Court in the exercise of its jurisdiction as conferred by the Constitution and laws of the United States, that it is not competent for the general government to bring suit against a state of the Union in one of its own courts, especially when the right to be maintained is mutually asserted by the United States and the state, namely, the ownership of certain designated territory; and that the plaintiff’s cause of action, being a suit to recover real property, is legal, and not equitable and consequently so much of the act of May 2, 1890, as authorizes and directs the prosecution of a suit in equity to determine the rights of the United States to the territory in question is unconstitutional and void.In U.S. v. Arredondo the court, referring to Foster v. Neilson, said: ‘This Court did not deem the settlement of boundaries a judicial, but a political, question; that it was not is duty to lead, but to follow, the action of the other departments of the government.’ The same principles were recognized in Cherokee Nation v. Georgia and Garcia v. Lee.…In all cases affecting ambassadors, or other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction….That a circuit court of the United States has no jurisdiction, under existing statutes, of a suit by the United States against a state, is clear; for by the Revised Statutes it is declared - as was done by the Judiciary Act of 1789 - that ‘the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states, of aliens, in which latter cases it shall have original, but not exclusive, jurisdiction.’ Rev. St. §687; Act Sept. 24, 1789, c. 20, §13; 1 St.p. 80.Mr. Justice BRADLEY, speaking for the court in Hans v. Louisiana, 134 U.S. 1, referred to what had been said by certain statesmen at the time the Constitution was under submission to the people, and said:‘The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a state. The truth is that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between states as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn v. Lord Baltimore, 1 Ves. Sr. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colonial times; and several cases of the same general character arose under the articles of confederation, and were brought before the tribunal provided for that purpose in those articles. 131 U.S. Append. 50. The establishment of this new branch of jurisdiction seemed to be necessary from the extinguishment of diplomatic relations between the states.’ That case, and others in this court relating to the suability of states, proceeded upon the broad ground that ‘it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.’HANS v. LOUISIANA, 134 U.S. 1, 10 S.Ct. 504 (1890)BRADLEY, J.…This Amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all Legislatures and all courts, actually reversed the decision of the Supreme Court….…It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent….YICK WO v. HOPKINS, et al., WO LEE v. SAME, 118 U.S. 356, 6 S.Ct. 1064 (1886)Mr. JUSTICE MATTHEWS delivered the opinion of the court.The effect of the execution of this ordinance in the manner indicated in the record would seem to be necessarily to close up the many Chinese laundries now existing, or compel their owners to pull down their present buildings and reconstruct of brick or stone, or to drive them outside the city and county of San Francisco to the adjoining counties, beyond the convenient reach of customers, either of which results would be little short of absolute confiscation of the large amount of property shown to be now, and to have been for a long time, invested in these occupations. If this would not be depriving such parties of their property without due process of law, it would be difficult to say what would effect that prohibited result. The necessary tendency, if not the specific purpose, of this ordinance, and of enforcing it in the manner indicated in the record, is to drive out of business all the numerous small laundries, especially those owned by Chinese, and give a monopoly of the business to the large institutions established and carried on by means of large associated Caucasian capital. If the facts appearing on the face of the ordinance, on the petition and return, and admitted in the case and shown by the notorious public and municipal history of the times indicate a purpose to drive out the Chinese laundrymen, and not merely to regulate the business for the public safety, does it not disclose a case of violation of the provisions of the Fourteenth Amendment to the National Constitution, and of the treaty between the United States and China, in more than one particular? ...If this means prohibition of the occupation and destruction of the business and property of the Chinese laundrymen in San Francisco-and it seems to us this must be the effect of executing the ordinance-and not merely the proper regulation of the business, then there is discrimination and a violation of other highly important rights secured by the Fourteenth Amendment and the treaty. That it does mean prohibition as to the Chinese it seems to us must be apparent to every citizen of San Francisco who has been here long enough to be familiar with the cause of an active and aggressive branch of public opinion and of public notorious events. Can a court be blind to what must be necessarily known to every intelligent person in the State??See Ah Kow v. Nunan,?5 Sawyer, 552;?Sparrow v. Strong,?3 Wall. 97,?70 U.S. 104;?Brown v. Piper,?91 U.S. 37.HURTADO v. PEOPLE OF THE STATE OF CALIFORNIA, 110 U.S. 516, 4 S.Ct. 111 (1884)MR. JUSTICE MATTHEWS delivered the opinion of the court.The language of Lord Coke applies only to forfeitures of life and liberty at the suit of the King, and hence appeals of murder, which were prosecutions by private persons, were never regarded as contrary to Magna Charta. On the contrary, the appeal of death was by Lord Holt “esteemed a noble remedy and a badge of the rights and liberties of an Englishman.”?Rex v. Toler,?1 Ld. Raymond, 555-557; 12 Mod. 375; Holt, 483. We are told that, in the early part of the last century, in England, persons who had been acquitted on indictments for murder were often tried, convicted and executed on appeals. Kendall on Trial by Battel (3d Ed.) 447. An appeal of murder was brought in England as lately as 1817, but defeated by the appellant’s declining to accept the wager of battel.?Ashford v. Thornton,?1 B. & Ald. 405. The English statutes concerning appeals of murder were in force in the Provinces of Pennsylvania and Maryland.?Report of Judges,?3 Binn. 599-604; Kilty on Maryland Statutes, 141, 143, 158. It is said that no such appeal was ever brought in Pennsylvania; but in Maryland, in 1765, a negro was convicted and executed upon such an appeal.?Soper v. Tom,?1 Har. & McHen. 227.?See note to?Paxton’s Case,?Quincy’s Mass.Rep. 53, by Mr. Justice Gray.Mr. Reeve, in 2 History of Eng. Law, 43, translates the phrase,?nisi per legale judicium parium suorum vel per legem terrae, “But by the judgment of his peers, or by some other legal process or proceeding adapted by the law to the nature of the case.” Chancellor Kent, 2 Com. 13, adopts this mode of construing the phrase. Quoting the language of Magna Charta, and referring to Lord Coke’s comment upon it, he says: “The better and larger definition of due process of law is that it means law in its regular course of administration through courts of justice.” This accords with what is said in?Westervelt v. Gregg,?1 N.Y. 202, by Denio, J., p. 212: “The provision was designed to protect the citizen against all mere acts of power, whether flowing from the Legislative or Executive Branches of the government.” The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in?Bank of Columbia v. Okely,?4 Wheat. 235: “As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.” And the conclusion rightly deduced is, as stated by Mr. Cooley, Constitutional Limitations, 36: “The principles, then, upon which the process is based are to determine whether it is ‘due process’ or not, and not any considerations of mere form. Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen.”It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error is supported by the decision of this court in?Murray’s Lessee v. Hoboken Land & Improvement Company,?18 How. 272. There, Mr. Justice Curtis delivering the opinion of the court after showing, 59 U.S. 276, that due process of law must mean something more than the actual existing law of the land, for otherwise it would be no restraint upon legislative power, proceeds as follows: “To what principle, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be two-fold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” This, it is argued, furnishes an indispensable test of what constitutes “due process of law” - that any proceeding otherwise authorized by law which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law. But this inference is unwarranted. The real syllabus of the passage quoted is that a process of law which is not otherwise forbidden must be taken to be due process of law if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account as not due process of law. The answer was: however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and therefore is due process of law. But to hold that such a characteristic is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.This would be all the more singular and surprising, in this quick and active age, when we consider that, owing to the progressive development of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American colonies from what they represented originally. For, at first, the words?nisi per legale judicium parium?had no reference to a jury; they applied only to the?pares regni,?who were the constitutional judges in the Court of Exchequer and coram rege.?Bac.Abr. Juries, 7th Ed., Lond., note, Reeve, H.L. 41. And as to the grand jury itself, we learn of its constitution and functions from the Assize of Clarendon, A.D. 1164, and that of Northampton, A.D. 1176, Stubbs’ Charters, 143-150. By the latter of these, which was a republication of the former, it was provided that, “if anyone is accused before the justices of our Lord the King of murder, or theft, or robbery, or of harbouring persons committing those crimes, or of forgery or arson, by the oath of twelve knights of the hundred, or, if there are no knights, by the oath of twelve free and lawful men, and by the oath of four men from each township of the hundred, let him go to the ordeal of water, and, if he fails, let him lose one foot. And at Northampton it was added, for greater strictness of justice (pro rigore justitiae), that he shall lose his right hand at the same time with his foot, and abjure the realm and exile himself from the realm within forty days. And if he is acquitted by the ordeal, let him find pledges and remain in the kingdom, unless he is accused of murder or other base felony by the body of the country and the lawful knights of the country; but if he is so accused as aforesaid, although he is acquitted by the ordeal of water, nevertheless he must leave the kingdom in forty days and take his chattels with him, subject to the rights of his lords, and he must abjure the kingdom at the mercy of our Lord the King.” “The system thus established,” says Mr. Justice Stephens, 1 Hist. Crim. Law of England, 252, “is simple. The body of the country are the accusers. Their accusation is practically equivalent to a conviction, subject to the chance of a favorable termination of the ordeal by water. If the ordeal fails, the accused person loses his foot and his hand. If it succeeds, he is nevertheless to be banished. Accusation, therefore, was equivalent to banishment, at least.” When we add to this that the primitive grand jury heard no witnesses in support of the truth of the charges to be preferred, but presented upon their own knowledge, or indicted upon common fame and general suspicion, we shall be ready to acknowledge that it is better not to go too far back into antiquity for the best securities for our “ancient liberties.” It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right which they embodied was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; so that bills of attainder,?ex post facto?laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history were never regarded as inconsistent with the law of the land, for, notwithstanding what was attributed to Lord Coke in?Bonham’s Case,?8 Rep. 115, 118a,?the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons. In this country, written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into Bills of Rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that, as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty, and property. Restraints that could be fastened upon executive authority with precision and detail might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power; and while, in every instance, laws that violated express and specific injunctions and prohibitions might, without embarrassment, be judicially declared to be void, yet any general principle or maxim, founded on the essential nature of law as a just and reasonable expression of the public will and of government as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke’s, “may alter the mode and application, but have no power over the substance of original justice.” Tract on the Popery Laws, 6 Burke’s Works, ed. Little & Brown, 323.Such is the often-repeated doctrine of this court. In?Munn v. Illinois,?94 U.S. 113, the Chief Justice, delivering the opinion of the court, said: “A person has no property, no vested interest, in any rule of the common law. That is only one of the form of municipal law, and is no more sacred than any other. Right of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the Legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.” And in?Walker v. Sauvinet,?92 U.S. 90, the court said: “A trial by jury in suits at common law pending in State courts is not, therefore, a privilege or immunity of national citizenship which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process according to the law of the land. This process in the States is regulated by the law of State.” In?Kennard v. Louisiana ex rel. Morgan,?92 U.S. 480, the question was whether a mode of trying the title to an office, in which was no provision for a jury, was due process of law. Its validity was affirmed. The Chief Justice, after reciting the various steps in the proceeding, said: “From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defence; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the State, and for hearing and judgment there. A mere statement of the facts carries with it a complete answer to all the constitutional objections urged against the validity of the act.” And Mr. Justice Miller, in?Davidson v. New Orleans,?96 U.S. 97, after showing the difficulty, if not the impossibility, of framing a definition of this constitutional phrase, which should be “at once perspicuous, comprehensive, and satisfactory,” and thence deducing the wisdom “in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require,” says, however, that: “It is not possible to hold that a party has, without due process of law, been deprived of his property when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.” See also Missouri v. Lewis,?101 U.S. 22;?Ex parte Wall,?107 U.S. 288.We are to construe this phrase in the Fourteenth Amendment by the?usus loquendi?of the Constitution itself. The same words are contained in the Fifth Amendment. That article makes specific and express provision for perpetuating the institution of the grand jury so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares that: “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be witness against himself. [It then immediately adds:] or be deprived of life, liberty, or property, without due process of law.” According to a recognized canon of interpretation especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important Amendment is superfluous. The natural and obvious inference is that, in the sense of the Constitution, “due process of law” was not meant or intended to include,?ex vi termini,?the institution and procedure of a grand jury in any case. The conclusion is equally irresistible that, when the same phrase was employed in the Fourteenth Amendment to restrain the action of the States, it was used in the same sense and with no greater extent, and that, if in the adoption of that Amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the States, it would have embodied, as did the Fifth Amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed and interpreted according to the principles of the common law. In the Fourteenth Amendment, by parity of reason, it refers to that law of the land in each State which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. “The Fourteenth Amendment [as was said by Mr. Justice Bradley in?Missouri v. Lewis, 101 U.S. 22] does not profess to secure to all persons in the United States the benefit of the same law and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line, there may be a right of trial by jury, and, on the other side, no such right. Each State prescribe its own mode of judicial proceeding.”But it is not to be supposed that these legislative powers are absolute and despotic, and that the Amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, “the general law, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial,” so “that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society,” and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.This court, speaking by Mr. Justice Miller in?Loan Association v. Topeka,?20 Wall. 655, said: “It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is, after all, but a despotism. It is true, it is a despotism of the many, of the majority, if you choose to call it so, but it is nevertheless a despotism. It may be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.”The Constitution of Connecticut, adopted in 1818 and in force when the Fourteenth Amendment took effect, requires an indictment or presentment of a grand jury only in cases where the punishment of the crime charged is death or imprisonment for life, and yet it also declares that no person shall “be deprived of life, liberty, or property but by due course of law.” It falls short, therefore, of that measure of protection which it is claimed is guaranteed by Magna Charta to the right of personal liberty, notwithstanding which it is no doubt justly said in Swift’s Digest 17, that “This sacred and inestimable right, without which all others are of little value, is enjoyed by the people of this State in as full extent as in any country on the globe, and in as high a degree as is consistent with the nature of civil government. No individual or body of men has a discretionary or arbitrary power to commit any person to prison; no man can be restrained of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in any way imprisoned or confined unless by virtue of the express laws of the land.”BRADLEY v. FISHER, 80 U.S. 335, 20 L.Ed. 646 (1871)Mr. Justice FIELD delivered the opinion of the court.Judges of courts of record 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. A distinction as to their liability made between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject-matter.The obligation which attorneys assume when they are admitted to the bar is not simply to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from insulting language and offensive conduct towards the judges personally for their judicial acts. A threat of personal chastisement, made by an attorney to a judge out of court for his conduct during the trial of a cause pending, is good ground for striking the name of the attorney from the rolls of attorneys practicing in the court. Such an order is a judicial act for which the judge is not liable to the attorney in a civil action.…For 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 consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no Judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility.The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well ordered system of jurisprudence. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country. It has, as Chancellor Kent observes, “a deep root in the common law.”…If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action.If upon such allegations a judge could be compelled to answer in a civil action for his judicial acts, not only would his office be degraded and his usefulness destroyed, but he would be subjected for his protection to the necessity of preserving a complete record of all the evidence produced before him in every litigated case, and of the authorities cited and arguments presented, in order that he might be able to show to the judge before whom he might be summoned by the losing party - and that judge perhaps one of an inferior jurisdiction - that he had decided as he did with judicial integrity; and the second judge would be subjected to a similar burden, as he in his turn might also be held amenable by the losing party.Some just observations on this head by the late Chief Justice Shaw, will be found in Pratt v. Gardner,?and the point here was adjudged in the recent case of Fray v. Blackburn, by the Queen’s Bench of England. One of the judges of that bench was sued for a judicial act, and on demurrer one of the objections taken to the declaration was that it was bad in not alleging malice. Judgment on the demurrer having passed for the defendant, the plaintiff applied for leave to amend his declaration by introducing an allegation of malice and corruption; but Mr. Justice Compton replied:“It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which indeed exists for their benefit and was established in order to secure the independence of the judges and prevent them being harassed by vexatious actions”-and the leave was refused.In this country, the judges of the superior courts of record are only responsible to the people or the authorities constituted by the people, from whom they receive their commissions, for the manner in which they discharge the great trusts of their office. If in the exercise of the powers with which they are clothed as ministers of justice they act with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by impeachment and suspended or removed from office. In some states, they may be thus suspended or removed without impeachment, by a vote of the two houses of the Legislature.In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used 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. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. 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 where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in 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. Thus, 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 liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And 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.The distinction here made between acts done in excess of jurisdiction and acts where no jurisdiction whatever over the subject matter exists, was taken by the Court of King’s Bench, in?Ackerley v. Parkinson. In that case an action was brought against the vicar-general of the Bishop of Chester and his surrogate, who held the consistorial and episcopal court of the bishop, for excommunicating the plaintiff with the greater excommunication for contumacy, in not taking upon himself the administration of an intestate’s effects, to whom the plaintiff was next of kin, the citation issued to him being void, and having been so adjudged. The question presented was, whether under these circumstances the action would lie. The citation being void, the plaintiff had not been legally brought before the court, and the subsequent proceedings were set aside, on appeal, on that ground. Lord Ellenborough observed that it was his opinion that the action was not maintainable if the ecclesiastical court had a general jurisdiction over the subject matter, although the citation was a nullity, and said, that “no authority had been cited to show that the judge would be liable to an action where he has jurisdiction, but has proceeded erroneously, or, as it is termed,?inverso ordine.” Mr. Justice Blanc said there was “a material distinction between a case where a party comes to an erroneous conclusion in a matter over which he has jurisdiction and a case where he acts wholly without jurisdiction,” and held that where the subject matter was within the jurisdiction of the judge and the conclusion was erroneous, although the party should by reason of the error be entitled to have the conclusion set aside and to be restored to his former rights, yet he was not entitled to claim compensation in damages for the injury done by such erroneous conclusion, as if the court had proceeded without any jurisdiction.The exemption of judges of the superior courts of record from liability to civil suit for their judicial acts existing when there is jurisdiction of the subject matter, though irregularity and error attend the exercise of the jurisdiction, the exemption cannot be affected by any consideration of the motives with which the acts are done. The allegation of malicious or corrupt motives could always be made, and if the motives could be inquired into judges would be subjected to the same vexatious litigation upon such allegations, whether the motives had or had not any real existence. Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort. But for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction, the judges of these courts can only be reached by public prosecution in the form of impeachment, or in such other form as may be specially prescribed.If, now, we apply the principle thus stated, the question presented in this case is one of easy solution. The Criminal Court of the District, as a court of general criminal jurisdiction, possessed the power to strike the name of the plaintiff from its rolls as a practicing attorney. This power of removal from the bar is possessed by all courts which have authority to admit attorneys to practice. It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practice incompatible with a proper respect of the court for itself, or a proper regard for the integrity of the profession. And, except where matters occurring in open court, in presence of the judges, constitute the grounds of its action, the power of the court should never be exercised without notice to the offending party of the grounds of complaint against him, and affording him ample opportunity of explanation and defense. This is a rule of natural justice, and is as applicable to cases where a proceeding is taken to reach the right of an attorney to practice his profession as it is when the proceeding is taken to reach his real or personal property. And even where the matters constituting the grounds of complaint have occurred in open court, under the personal observation of the judges, the attorney should ordinarily be heard before the order of removal is made, for those matters may not be inconsistent with the absence of improper motives on his part, or may be susceptible of such explanation as would mitigate their offensive character, or he may be ready to make all proper reparation and apology. Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most persons who enter the profession, it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should therefore never be decreed where any punishment less severe - such as reprimand, temporary suspension, or fine - would accomplish the end desired.But on the other hand the obligation which attorneys impliedly assume, if they do not by express declaration take upon themselves, when they are admitted to the bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but it includes abstaining out of court from all insulting language and offensive conduct toward the judges personally for their judicial acts. “In matters collateral to official duty,” said Chief Justice Gibson in the case of Austin and others, “the judge is on a level with the members of the bar as he is with his fellow citizens, his title to distinction and respect resting on no other foundation than his virtues and qualities as a man. But it is nevertheless evident that professional fidelity may be violated by acts which fall without the lines of professional functions, and which may have been performed out of the pale of the court. Such would be the consequences of beating or insulting a judge in the street for a judgment in court. No one would pretend that an attempt to control the deliberation of the bench, by the apprehension of violence, and subject the judges to the power of those who are, or ought to be, subordinate to them, is compatible with professional duty, or the judicial independence so indispensable to the administration of justice. And an enormity of the sort, practiced but on a single judge, would be an offense as much against the court, which is bound to protect all its members, as if it had been repeated on the person of each of them, because the consequences to suitors and the public would be the same; and whatever may be thought in such a case of the power to punish for contempt, there can be no doubt of the existence of a power to strike the offending attorney from the roll.”Judgment affirmed.PADELFORD, FAY & Co. v. THE MAYOR AND ALDERMAN OF THE CITY OF SAVANNAH, 14 Ga. 438, 1854 WL 1492 (Ga.) (1854)By the Court-BENNING J., delivering the opinion.In my opinion, the following propositions are true: 1. The decision in Brown vs. Maryland, has been overruled by the Supreme Court of the U.S. itself. 2. The Constitution is to be construed in the sense in which it was understood by the makers of it at the time when they made it. 3. According to this sense, the Supreme Court of the U.S. has no appellate or other jurisdiction over this Court, and cannot, therefore, make a precedent for it. 4. According to this sense, Brown vs. Maryland, ought to be overruled, if it has not been. 5. And according to this sense, the decision of the Court below, in this case, ought to be affirmed. These are propositions of some import. I shall, therefore, hold myself excused, if I go somewhat at large, into the proofs by which I think they are established. I, alone, am responsible for them, and for all that may be said in their support. What the other members of the Court may think of them, or of anything I may say in their support, I know not.Now this case is similar to that of Brown vs. Maryland, in every material respect, except that the article sold in it, was not an import from a foreign nation, but from a neighboring State. But the decision in Brown vs. Maryland, was declared to be equally applicable to the case of importations from a sister State. (12 Wheat. 449.)It follows from this notion of an import, that the right of sale is not an incident of an import.This, indeed, is the necessary conclusion from what was the actual decision of the whole Court, but it is not expressed by any of the Judges, except Mr. Justice Daniel and Mr. Justice Woodbury. They express it, each for himself. (5 How. 615.) The latter uses this strong language-“It is manifest, also, whether as an abstract proposition or practical measure, that a prohibition to import is one thing, while a prohibition to sell without a license, is another and entirely different.”Mr. Justice McLean and Mr. Justice Grier, also put their decisions upon this ground, in part, and in part upon the ground that the States retain a “police” power, and that these Laws of Massachusetts and R. Island, as well as those of N. Hampshire, were made in the exercise of that power.The position, then, of the majority is, that the passenger, as long as he remains on shipboard, continues to be an import and an article of foreign commerce, not taxable by a State; but as soon as he steps on land and mingles with the citizens, he ceases to be an import, and ceases to belong to foreign commerce, and becomes taxable by the State on whose shores he steps. Now, in the case of this “import,” there can be no “breaking of bulk,’ no opening of “package,” no “sale by retail or by wholesale,” after it enters the country, to effect this change. The passenger-import-steps from ship to shore; that makes the transformation. And why not? There is but one step from the sublime to the ridiculous. But according to Brown vs. Maryland, something has to be done, after the import gets on shore, before it ceases to be an import. It does not cease to be one the instant it enters the country. Marshall, C. J. says: “But while we admit that there must be a point of time when the prohibition ceases, and the power of the State to tax commences, we cannot admit that this point of time is the instant that the articles enter the country.” The decision of the majority, in these passenger cases being, that the instant the import-the passenger-enters the country, he becomes taxable by the State, that decision necessarily overrules the decision in Brown vs. Maryland.Whether it is or not, is therefore a question which I now proceed to discuss. In discussing it, I shall assume one proposition to be true, that the Constitution, like every other instrument made by men, is to be construed in the sense in which it was understood by the makers of it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them.It will appear, I think, from the evidence which I shall produce that the sense in which the makers of the Constitution understood it, when they made it, is expressed in the following propositions: 1. That the Constitution delegated to the General Government or any department thereof, no power by implication, but only delegated such powers as it expressly enumerated. 2. That it delegated no exclusive power, unless the delegation was said to be exclusive. 3. That it laid no prohibition upon the States, except such as it specified. 4. That the words used in it, if susceptible of more meanings than one, were used in the meaning which was least favorable to the delegation of power, and most favorable to its retention.The paragraph which provides “That the writ of habeas corpus shall not be suspended, unless in cases of rebellion or invasion” “Was read, when, after a question by Gen. Thompson, Hon. Mr. Adams, in answer to an inquiry of the Hon. Mr. Taylor, said, that this power, given to the General Government, to suspend this privilege in cases of rebellion and invasion, did not take away the power of the several States, to suspend if they shall see fit.” (2 Ell. Deb. 108.)He prefaced his motion with a speech, in which these words are to be found: “Mr. President, I feel myself happy in contemplating the idea that many benefits will result from your Excellency’s conciliatory proposition to this Commonwealth and to the United States; and I think it ought to precede the motion made by the gentleman from Newberryport, (Parsons, the motion being to ratify the Constitution) and to be at this time considered by the Convention. I have said that I have had my doubts of this Constitution. I could not digest every part of it as readily as some gentlemen; but this sir, is my misfortune- not my fault. Other gentlemen have had their doubts; but in my opinion, the proposition will have a tendency to remove such doubts, and to conciliate the minds of the Convention and the people without doors.” “I have observed the sentiments of gentlemen on this subject, as far as Virginia; and I have found that the objections were similar in the newspapers, and in some of the Conventions.” (2 Ell. Deb. 123-4.)The friends of adoption urged, in respect to the great power of taxation, that it would be concurrent. To this, Williams, an opposer of adoption, answered, “Suppose, however, that the States have concurrent jurisdiction with Congress, in taxation, it is evident, as the Laws of Congress are the Supreme Laws of the land, that their taxes, whenever they interfere with the taxes laid by the States, must and will claim a priority as to the collection; in fact, that they may, in order to pass the Laws necessary for the end, abolish the State taxes.”This touch of State rights was displayed, it is to be remembered, however, before the Constitution was adopted; and in order to make it palatable to the States, and so get them to swallow it. (2 Ell. Deb. 355, 6.)Now, the question is, did the New York Convention, in agreeing to the Constitution, think it was giving away to the General Government more of the power of New York State than Alexander Hamilton told them they were giving- more, in a word, than they were asked to give? They were told by Hamilton that it is an “Obvious and important principle in confederated governments, that whatever is not expressly given to the Federal head, is reserved to the members.” The Convention then was only requested to give such powers as were expressed and no others. This was the extent of the request. Is it to be presumed that the Convention, exceedingly suspicious as they were of the Constitution, at first gave more than they were requested to give?McKean, who was afterwards Chief Justice of the State, made a speech or two. One of his speeches was elaborate and careful. I shall quote from him and Wilson to show what meaning they told the Convention the Constitution had when persuading the Convention to agree to it.The Convention said, “We, the delegates, etc. do declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted, thereby remains with them and at their will. That, therefore, no right, of any denomination, can be cancelled, abridged, restrained or modified, by the Congress; by the Senate or House of Representatives, acting in any capacity; by the President; or any department, or officer of the United States, except in those INSTANCES in which power is given, by the Constitution, for those purposes, etc. With these impressions, etc. we do assent to and ratify the Constitution.”Now, the word “instances” means here, specified cases-enumerated cases. This is too plain to admit of a doubt. The Convention so understood it. Madison certainly did.In these cases, Worcester and Butler were indicted, convicted and put in the penitentiary, for violating the Laws of Georgia, which forbade white persons to reside within the Cherokee Nation of Indians without permission from the Governor, and without having taken an oath to support and defend the Constitution and Laws of Georgia, and uprightly demean themselves as citizens thereof. The case occurred in the Superior Court of Gwinnett County. A writ of error was issued from the Supreme Court of the U.S. on the application of the defendants, to the Judges of the Superior Court, for the county of Gwinnett. The Clerk of that Court returned a transcript of the cases to the Supreme Court of the U.S. But the Judge of the Court had nothing to do with this act of the Clerk. He did not recognize the right of the Supreme Court to issue the writ.Two modes of ratification were proposed to the Convention, one by Wythe and one by Henry. Wythe’s contained a preamble to the words of ratification, in which was the declaration, that “The powers granted under the proposed Constitution, are the gift of the people; and every power not granted thereby, remains with them and at their will; no right, therefore, of any denomination can be cancelled, etc., by the Congress, etc., except in those instances in which power is given by the Constitution for those purposes,” etc.It is to be remembered, too, that at this time Mr. Madison was not the man that he became afterwards. He was the man that a year or two before, in the Convention for drafting the Constitution, used this language: “The States at present are only great corporations, having the power of making by-laws, and these are effectual only, if they are not contradictory to the General Confederation. The States OUGHT to be placed under the control of the General Government - at least as much as they formerly were, under the King and British Parliament.”And it must be admitted that after the adoption of the Constitution, no better ways remained to give the General Government this control, than to make a new instrument of the Constitution, by construction. (Yate’s Min. 1 Ell. Deb. 461.)Now, it is true that the omission of the one word, and the addition of the four, are really small matters. They do not change the sense. That, as we have seen, was as full without as with any such amendments, and was so understood to be by the makers of the Constitution, at the time they made it. But then, as to the motives which actuate men, a small thing may tell, as much as a great one. Treachery, infinite, may be exhibited by a mere kiss.1. The people of the States loved their State Governments, and distrusted any Central or General Government. This is a fact as well authenticated as any in history. See Madison (3 Ell. Deb. 258.) They would, therefore, take as little power as possible from these Governments, to give to a Central one. And to diminish the gift as much as possible, it has to be construed strictly. 2. The people of the States who made the Constitution, considered themselves as the sovereign, and the Government as the subject. They were the principal- it the agent. That this is also true, none will dispute.4. Why did they make provision for amending the Constitution? Mainly to furnish an easy way to give the Government more power if experience should prove it to need more. It is easy to give power-hard to get it back-knowing this, is it not to be supposed that the makers of the Constitution intended their grants of power to be taken strictly?Now here is a construction which the makers of the instrument themselves put upon their own work in respect to one most important power. The words to be construed were these: “The Judicial power shall extend” “to controversies” “between a State and citizens of another State” “and between a State or the citizens thereof, and foreign States, citizens or subjects.” The Supreme Court of the United States, in the case of Chisholm, Executor vs. Georgia, had held that the former of these grants authorized a State to be sued as defendant. That Court maintained that the words themselves plainly said that the State might be sued-as plainly as they said “a citizen” might be. But two-thirds of both branches of Congress, and the entire people of all the States said no. They said that even such words should not be so construed. They said that the words were susceptible of a narrower meaning, one in favor of the States-a meaning which would let States sue, but not be sued; and that, therefore, the words should be construed to have that meaning. This was all said and done soon after the making of the Constitution-from 1793 to 1798- when the whole idea of the Constitution was fresh in the minds of them -its makers. This was a remedial power too. Yet as against the States even, it must give up its prerogative, and be construed strictly. 6. But the makers of the Constitution were deceived. Congress and the Supreme Court, notwithstanding this rebuke, went on in their old course of construction. They found a warrant in the Constitution for Jay’s treaty; for the Alien Act; for the Sedition Act. So the makers of the Constitution thought they would try another remedy than amendment of that instrument. They concluded to smite the construers. This they did. Wherever they could reach an offender, they hurled him against the ground, and put their foot on him, and kept him there till he died or repented. The Supreme Court offenders were beyond their reach. They had in their offices a tenure for life; and as all the offenders in this case were such as not to be affected by anything but punishment, those who could not be punished contemned their courses. But the other departments of the Government underwent a change. They construed the Constitution according to the Virginia and Kentucky Resolutions of 1798 and 1799. These prescribed the strict rule. This was the rule of Jefferson and the Republican Party. This was the rule that put down the Federal party which had had possession of the Government from its origin under the Constitution. The offence of that party was that, in the opinion of the makers of the Constitution, the people of the States had put a false construction on that instrument. Hence it was hurled from power-from respectability. Its name became a word of reproach. This great revolution in government was made for the sake of a rule of construing the Constitution-this same strict rule. And from the year 1800, 1801, when the revolution took place, no party has professed any other rule, although it must be admitted that the practice of parties has not, in this respect, always corresponded with their professions. The voice of the makers of the Constitution then -the people of the States- by this Amendment of the Constitution, and by this condemnation of the early administrators of it, proclaims the strict rule.But the question for the present is, not what the Supreme Court consider the rule of construction to be, or whether what they consider it to be is to be conclusive upon the rest of the world, but it is, what was the sense in which the makers of the Constitution understood it, at the time when they made it. And I now insist that I have established all of my four propositions on that subject, viz:1. The makers of the Constitution understood that it delegated to the General Government, or any department thereof, no power by implication, but only delegated such powers as it expressly enumerated. 2. That it delegated no exclusive power, unless the delegation was said to be exclusive. 3. That it laid no prohibition upon the States, except such as it specified. 4. That the words used in it, if susceptible of more meanings than one, were used in the meaning which was least favorable to the delegation of power, and most favorable to its retention. I have assumed that the Constitution is to be construed in the sense in which its makers understood it when they made it. Who will dispute this?In what sense did those makers understand it? I have endeavored to show. Have I succeeded? What is there against my conclusions? Nothing, except some decisions of the Supreme Court of the United States. Are not these decisions, per se, evidence of what was the sense which the makers of the Constitution had, of the meaning of that instrument? I say by no means. What that sense was, is a question of fact, which has to be solved by going into the domain of facts-the domain in which I have been laboring so long. It is a question which evidence, not ipse dixit, must determine.This means that among measures for executing, “the Constitutional powers of Government”, Congress may, at discretion, choose one as well as another. And this is giving Congress power to make a dictator. The appointment of a dictator would be a measure by which all the powers of the Government could be executed most promptly and most efficiently. It is by far the simplest of all modes.The argument will stand thus: Congress has power to select any measure for executing the Constitutional powers of the Government.The appointment of a dictator would be a prompt, efficient and simple measure to execute any of its powers.Therefore, Congress has power to appoint a dictator.The premises are amply large enough to hold this conclusion.To support the second conclusion, the Court lays down this proposition: “We find, then, on just theory, a total failure of this original right to tax the means employed by the Government of the Union, for the execution of its powers.” And this-“That the power to tax involves the power to destroy.” And these - “If we apply the principle for which the State of Maryland contends, to the Constitution, generally, we shall find it capable of changing, totally, the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States. If the States may tax one instrument employed by the Government, in the execution of its powers, they may tax any and every other. They may tax the mail; they may tax the mint; they may tax all the means employed by the Government, to an excess which would defeat all the ends of Government-this was not intended by the American people.”The principle comes to this: that the States, in making the Constitution, intended to give up the power of self-preservation.The disregard of this Court to the known will of the makers of the Constitution, as to the rule of construction, is equally exhibited in a number of other cases; especially in the cases of Cohen vs. Virginia and Worcester & Butler vs. Georgia, in which it held that a State might be sued, notwithstanding the clear manifestation of the will of the makers of the Constitution, in the amendment of it, to which I have heretofore referred, that the Constitution was not to be so construed as to make a State suable.Now, if the General Government, by its Judiciary, can come out of its sphere, into the sphere of a State Government, and ravish a case thence out of the hands of the State Judiciary, the two Governments are not equally supreme within their respective spheres. But they are, by admission of Hamilton and Marshall, equally supreme in their respective spheres; therefore, the former Government cannot do this, with respect to the latter. As well might it be said that England could order a case out of France, from a French into an English Court; or that a State Court could order a case out of the Supreme Court of the United States into it. None but a superior can give an order; none but an inferior is bound to obey one.Not only is this sort of jurisdiction not expressly given; but there is another sort expressly given, which necessarily excludes the idea that this was intended to be given. That is done in the third article for organizing the Judiciary. This will appear by simply inserting in that article the words which are necessarily implied. Let us do this. The section will then read as follows, the supplied words being in brackets:The (whole) judicial power (except as herein excepted) of the United States, shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may, from time to time, ordain and establish. The Judges, both of the Supreme and Inferior Courts, (who are to exercise this whole judicial power, except as herein excepted) shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. The (whole) judicial power (except as before excepted) (thus vested in one Supreme Court and in such Inferior Courts as the Congress may, from time to time establish, to be exercised by Judges who are to hold their offices during good behavior) shall extend to all cases in Law and Equity, arising under this Constitution, the Laws of the United States, and treaties made, or which shall be made under their authority, to all cases affecting Ambassadors, other public Ministers and Consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between a State or the citizens thereof, and foreign States, citizens or subjects. In all (those) cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, (in respect to which the whole judicial power of the U.S. is thus vested in one Supreme Court, and in such Inferior Courts as the Congress may, from time to time ordain and establish with Judges for life,) the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, (in respect to which the whole judicial power of the U.S. is thus vested in one Supreme Court, and in such Inferior Courts as the Congress may, from time to time ordain and establish, with Judges for life,) the Supreme Court shall have appellate jurisdiction, (as to such Inferior Courts) both as to Law and fact, with such exceptions, and under such regulations, as the Congress shall make, (and such Inferior Courts shall, as to these other cases, have original jurisdiction as to such Supreme Court.)The mere supply of these necessarily understood words, makes it as clear as day, that the appellate jurisdiction delegated to the Supreme Court, applies only to the Inferior Courts of the United States, ordained and established by Congress, with Judges for life, and not to State Courts, which are not United States Courts, which are not ordained and established by Congress, and which are presided over by Judges who do not hold their offices for life.But again: if this sort of appellate jurisdiction exists, then it exists equally with respect to a State Court of one grade, as to a State Court of another. It exists as to all Courts ‘inferior’ to the Supreme Court; and if the highest State Courts are inferior to that Court, still more so are the less high. If this sort of jurisdiction exists, then there may, as far as this State is concerned, be an appeal to the Supreme Court of the U.S., from the Supreme Court of the State, from the Inferior Courts, from the Ordinary, from the Justice’s Courts, from Corporation Courts, and perhaps from Court’s Martial. This appellate jurisdiction, then, if it exists, extends to every State Court alike.Born in 1755, he was a Lieutenant in 1775; a first Lieutenant in 1776; a Captain in 1777, 1779 and 1780. He read Law in 1780. After Cornwallis’s surrender, the Courts being again opened, he commenced practice. In 1782, he was elected to the Legislature of Virginia; in the same year, was made a member of the Executive Council. In 1784, he resigned his seat in the Council. Immediately afterwards, he was again elected to the Legislature. In 1787, he was elected from Henrico. In 1788, he was a member of the Virginia Convention for ratifying the Constitution. In the same year, he was elected to the Legislature. “With considerable reluctance, he yielded to the public wishes, being principally influenced, in his acceptance of the station, by the increasing hostility manifested in the State, against the National Government, and his own anxious desire to give the latter his decided and public support.” He continued a member for Richmond during 1789, 1790 and 1791. Then he retired from politics. He was again drawn forth by the French question. Here, “the decided taken by Mr. Marshall, could not long remain unnoticed. He was attacked with great asperity, in the newspapers and pamphlets of the day, and designated, by way of significant reproach, as the co-adjutor and friend of Alexander Hamilton.” In 1795, he was elected to the Legislature, in which body he signalized himself by the defence of Jay’s treaty, the great political question of the day. In consequence, he was offered, by the President, the place of Attorney General; solicited to go Minister to France, but declined both offers. Within a year, he was offered this place of Minister, by the next President, Adams. This time he accepted, went abroad and returned in 1798. The next year, after an “ardent contest”, he was elected to Congress. He took his seat in December, 1799; distinguished himself in the “ever memorable” Congress of 1799, 1800, and in May, 1800, was made Secretary of War, and soon afterwards, Secretary of State. In 1799, while a candidate for Congress, he was offered a place on the bench of the Supreme Court of the United States; but this he then refused, preferring, no doubt, the more dazzling honors of the mere politician. A year afterwards, he thought better of the Judgship. It was offered him again, and on the 31st of January, 1801, he took it-became Chief Justice. By this time, it was seen that his party was struck with death, and that, therefore, further political offices were hopeless. Whilst upon the bench, he lost no occasion to inculcate his politics. Hence, the number of his elaborate obiter dicta discourses. As in Marbury vs. Madison, where, although admitting his Court had no jurisdiction in the case, he argued at length, to show what was the Law of it, and what the Court would do, if it had jurisdiction, namely: issue a mandamus to a co-ordinate department of the Government, the Secretary of State, requiring that department to commission to office certain of his party friends, who had been appointed to office at midnight of the night when the appointing power itself, John Adams, went out of office. As in Cohens against The State of Virginia, a case in which his Court decides that it has no jurisdiction upon the merits; and yet, in a motion, not on the merits, he lays down the doctrine that a State may be sued, and sued by one of its own citizens, in the Supreme Court of the United States, notwithstanding he, himself, had told the Convention of that very Virginia, when persuading it to adopt the Constitution, that a State could not be sued, and was not intended to be sued, by virtue of the Judiciary Article of the Constitution. His language to the Convention is most unequivocal. He said, “I hope that no gentlemen will think that a State will be called at the bar of the Federal Court. It is not rational to suppose that the Sovereign power should be dragged before a Court. The intent is, to enable States to recover claims of individuals residing in other States. I contend this construction is warranted by the words. But, say they, there will be partiality in it, if a State cannot be defendant; if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided.” It is charity to set down these opposite representations of the meaning of the Constitution, to the inconsistencies of the mere politician. It was not only on the bench that he taught politics. He entered the fields of history and biography for the same purpose. For what is his Life of Washington and History of the Colonies, but a labored defence of his party, and an effort to raise its desperate fortunes, by forcing the name of Washington on the list of its patrons. No; it was not the death of Washington, but the death of the Federal Party, that set that work on foot. This is but thinly disguised, in the preface of the work. He says, “Deep impressions were then made, respecting the subjects themselves, and the persons by whom the various important propositions, then discussed, were supported or opposed, which are not yet entirely effaced. Justice to the patriot statesmen, who then devoted their time and talent to the public service, requires that the reasons on which they acted should be known.” Marshall, then, was a partisan, if there was ever one. Whilst thus a partisan, holding all the opinions of his party, he is, by a party-President, in the last hour of the party, when its death-warrant has already been signed, to save him from the general doom, and as the only reward left for party services, Presidencies being out of the question, offered a Judgship. This time he accepts it, although he had refused it a year before, when it had not become apparent that the last hour of the party was at hand, and when, therefore, higher offices might not be looked for, from it, than that of Judge. What was the course for any partisan to pursue, under such circumstances? That which he pursued. He took sanctuary, for life, in the Supreme Court. But there he was the same man that he had been before he got there. The only effect was, to make him more bold in the avowal of his old principles. He no longer had to answer for them at the ballot-box. He and his Court, with respect to the Constitution, took one road-the other departments of the Government, and the vast majority of the American people, took another. There they have been respectively travelling, the greater part of the time since. The opinions of neither have had the least influence upon the action of the other. As to Judge Story, he is understood to have distinguished himself, somewhat, as a Republican partisan, before the war of 1812, in Massachusetts, where Republicans were then rather scarce. Being a young lawyer of some promise, and about the only lawyer of that party, there, of much note, he was selected, by Mr. Madison, for the bench of the Supreme Court of the United States. But once on the bench, he forsook his party and became the humble interpreter of Marshall-the Dumont to Bentham. He made it his business to illustrate and to embody the political doctrines of his chief. And this he did, in what he styles his “Commentaries on the Constitution.” This is a work of as rank partisan character, on one side, as the Virginia and Kentucky Resolutions, and Mr. Madison’s Report of 1798 and 1799, are on the other. Indeed, these Commentaries, and most, if not all of Marshall’s Constitutional decisions, are only so much talk at those resolutions and that report, although the resolutions and report are seldom mentioned.It is true, the liberal rule of construction makes commerce mean “intercourse” and mean “navigation”-but the word has no such meaning by dictionaries; by the Common Law; or by common usage. And if this rule allows you to step beyond the meaning of the word thus defined, to “intercourse” and to “navigation” it may perhaps equally allow you to step to “sales.” The strict rule, however, allows nothing of the kind. It requires words susceptible of more meanings than one, to be taken in that which must favor the States.The evil which this prohibition was intended to remedy, was this very evil of one State’s taxing the imports of another, as they passed through it, to reach that other. The Atlantic States taxed all imports. The consequence was, that the interior States had to pay the tax upon all such articles of import as they consumed. It was for the benefit of these interior States, that this prohibition was put in the Constitution. The reason of the prohibition, then, does not extend to a tax upon the consumption of imports consumed within the State itself, which imposes the tax. (5 Ell. Deb. 112.)Supposing this not to be a tax for inspection purposes, has Congress consented to its being laid? It is certain that Congress has not expressly consented. But is express consent necessary? There is nothing in the Constitution which says so. There is nothing in the practice of men, or in the Municipal Law of men, or in the practice of nations, or the Law of nations that says so. Silence gives consent, is the rule of business life. A tender of bank bills is as good as one of coin, unless the bills are objected to. To stand by, in silence, and see another sell your property, binds you. These are mere instances of the use of the maxim in the Municipal Law. In the Law of Nations, it is equally potent. Silent acquiescence in the breach of a treaty binds a Nation. (Vattel, ch. 16, §199, book 1. See book 2, §142, et seq. as to usucaption and prescription, and §208 as to ratification.But let it be granted that the ordinance is void, does it follow that the decision of the Court below ought to be reversed? By no means. If the Law is void, and yet is enforced, who is injured by it? The seller of the import? Not at all. He is paid the tax by the purchaser from him before he pays it to the City. The tax is ultimately paid by the consumer of the article. The price or sale of which is taxed. The merchant puts the amount of the tax, as he does every other item of the cost of the goods, in the price which he fixes upon them-and when he sells, he gets from the purchaser that amount with the rest. If the tax injures any private person at all, therefore, that person is the consumer of the taxed article, and not the seller of it. To apply this more directly to the case. Padelford, Fay & Co. sold imports, and got the money for them. These imports had a tax on them. The amount of that entered into the price at which they sold the imports. Therefore, when they sold them at that price, they received the amount of this tax. They have it in hand. The City wants to get it out of their hands. They object, and insist upon keeping it, saying the Law under which it is claimed is void. Can this objection be allowed to be in their mouth? The consumer is the injured man; and he, by buying the taxed article and paying the tax included in the price, waives his objection to the tax. He is willing, for his money thus paid, to go to the City. In fact, he pays it for the use of the City. He might give it to the City, if he choose to do so; and if he did and should deliver it to Padelford, Fay & Co. to deliver to the City, would they be allowed to retain it? Certainly not. Neither should they be allowed to retain this tax, so paid them by the consumer, for the use of the City. It is a universal maxim, that Quilibet potest renunciare juri pro se introducto. The consumer, therefore, can waive his right to object to this ordinance, on the score of its being void; and he does this when he pays the tax it imposes on him. It is time enough to hold a Law, made under the authority of the State, to be a violation of the Constitution, when it is complained of by somebody that it injures. It is too soon to do this, when the complaint is made by one that it does not injure, and one, who, if the complaint be allowed, will be enabled to keep what, in justice and equity, he has no right to. But, indeed, no private person has a right to complain, by suit in Court, on the ground of a breach of the Constitution. The Constitution, it is true, is a compact, but he is not a party to it. The States are the parties to it. And they may complain. If they do, they are entitled to redress. Or they may waive the right to complain. If they do, the right stands waived. Could not the States, in their sovereign capacities, or Congress (if it has the power) as their agent, forgive such a breach of the Constitution, on the part of a State, as that of imposing a tax on imports, or accept reparation for it? In case this were done, what would become of the claims of private persons, for damages for such breach? To let such claims be set up against the forgiven party, would be to do away with the forgiveness. No, if there existed such claimants, they would have to appeal, each to his own sovereign for redress. It was that sovereign’s business to get enough from the offending sovereign, to cover all private losses of his own citizens-and if he did not get enough to do that, those citizens must look to him, alone for indemnity.KENDALL v. U.S. ex rel. STOKES, 37 U.S. 524, 12 Pet. 524 (1838)TANEY, C.J., Dissenting OpinionThe power to issue the writ of mandamus to an officer of the government commanding him to do a ministerial act does not, by the common law of England or by the laws of Maryland as they existed at the time of the cession, belong to any court whose jurisdiction was limited to a particular section of country, and was not coextensive with the sovereignty which established the court. It may, without doubt, be conferred on such courts by statute, as was done in Maryland in 1806, after the cession of the District. But, by the principles of the common law and the laws of Maryland as they existed at the time of the cession, no court had a right to issue the prerogative writ of mandamus unless it was a court in which the judicial sovereignty was supposed to reside, and which exercised a general superintendence over the inferior tribunals and persons throughout the Nation or State.In England, this writ can be issued by the King’s Bench only. It cannot be issued by the Court of Common Pleas, or any other court known to the English law, except the court of King’s Bench. And the peculiar character and Constitution of that court, from which it derives this high power, are so well-known and familiar to every lawyer that it is scarcely necessary to cite authorities on the subject. Its peculiar powers are clearly stated in 3 . 42, in the following words: The jurisdiction of this court is very high and transcendant. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here or prohibit their progress below. It superintends all civil corporations in the Kingdom. It commands magistrates and others to do what their duty requires in every case where there is no other specific remedy. It protects the liberty of the subject by speedy and summary interposition, etc. It is from this “high and transcendant” jurisdiction that the court of King’s Bench derives the power to issue the writ of mandamus, as appears from the same volume of Blackstone’s Commentaries, p. 110. “The writ of mandamus,” says the learned commentator, is in general a command issuing in the King’s name from the court of King’s Bench, and directed to any person, corporation or inferior court of judicature within the King’s dominions requiring them to do some particular thing therein specified which appertains to their office and duty and which the court of King’s Bench has previously determined, or?at least supposes to be consonant to right and justice. It is a high prerogative writ of a most extensively remedial nature. And Mr. Justice Butler, in his introduction to the law relative to trials at?nisi prius,?also places the right to issue this writ upon the peculiar and high powers of the court of King’s Bench. In page 195, he says: The writ of mandamus is a prerogative writ issuing out of the court of King’s Bench (as that court has a general superintendency over all inferior jurisdictions and persons), and is the proper remedy to enforce obedience to acts of Parliament, and to the King’s charter, and in such a case is demandable of right. Indeed, in all of the authorities, it is uniformly called a “prerogative writ” in order to distinguish it from the ordinary process which belongs to courts of justice, and it was not originally considered as a judicial proceeding, but was exercised as a prerogative power. In the case of?Audley v. Jay,?Popham 176, Doddridge, Justice, said: This court hath power not only in judicial things, but also in some things which are extrajudicial. The maior and comminalty of Coventry displaced one of the aldermen and he was restored, and this thing is peculiar to this court, and is one of the flowers of it.These peculiar powers were possessed by the court of King’s Bench because the King originally sat there in person and aided in the administration of justice. According to the theory of the English Constitution, the King is the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain his right by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law. And although the King has long since ceased to sit there in person, yet the sovereign is still there in construction of law so far as to enable the court to exercise its prerogative powers in his name, and hence its powers to issue the writ of mandamus, the nature of which Justice Doddridge so forcibly describes by calling it extrajudicial, and one of the flowers of the King’s Bench. It is therefore evident that, by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the court of King’s Bench, in which the sovereignty might by construction of law be supposed to sit and to exert there its prerogative powers in aid of the court in order that a right might not be without a remedy.The English common law was adopted in the colony of Maryland, and the courts of the province formed on the same principles. The proprietary government established what was called the provincial court, in which it appears that, in imitation of what had been done in England, the lord proprietary, in an early period of the colony, sat in person. This court possessed the same powers in the province that belonged to the court of King’s Bench in England. Its jurisdiction was coextensive with the dominions of the lord proprietary, and it exercised a general superintendence over all inferior tribunals and persons in the province, and consequently possessed the exclusive power of issuing the writ of mandamus.The cases of?Wood v. M’Intire?and?M’Cluny v. Silliman,?hereinbefore mentioned, appear to me to be decisive against this proposition. These cases decided that the Circuit Courts out of this District have not the power now in question. It is true that the eleventh section of the Act of 1789, ch. 20, which prescribes the jurisdiction of the Circuit Courts out of this District, does not use the very same words that are used in the fifth section of the act now under consideration. The eleventh section of the Act of 1789 declares that the Circuit Courts shall have cognizance of “all suits of a civil nature at common law, or in equity,” etc. But these words “all suits of a civil nature at common law” mean the same thing as the words “all cases at law,” which are used in the Act of February 27th, 1801, and Mr. Justice Story, in his Commentaries on the Constitution, Abr. 608, 609, in commenting on the meaning of the words “cases at law and equity,” as used in the Constitution, says: A case, then, in the sense of this clause of the Constitution, arises where some subject touching the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the?form prescribed by law. In other words, a case is a suit in law or equity instituted according to the regular course of judicial proceedings, and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union. Now if a case at law means the same thing as a suit at law, and the latter words do not give jurisdiction to the Circuit Courts out of this District to issue the writ of mandamus to an officer of the General Government, how can words which are admitted to mean the same thing give the power to the Circuit Court within this District? How can the cognizance of “cases at law” in the act of Congress before us be construed to confer this jurisdiction when it has been settled by two decisions of this Court that words of the same meaning do not give it to the other Circuit Courts? We cannot give this construction to the Act of February 27th, 1801, without giving a judgment inconsistent with the decisions of this Court in the two cases above-mentioned, and I cannot agree either to overrule these cases or to give a judgment inconsistent with them.It is certainly error in a Circuit Court to assume a jurisdiction which has not been conferred on it by law. And it would seem to be a strange limitation on the appellate powers of this Court if it were restrained from correcting the judgment of a Circuit Court when it committed this error. If such were the case, then an error committed by a Circuit Court in relation to the legal rights of the parties before it could not be examined into and corrected in this Court if it happened to be associated with the additional error of having assumed a jurisdiction which the law had not given. Such, I think, cannot be the legitimate construction of the section above quoted. And if the Circuit Court mistakes its jurisdiction either in respect to the persons, or the subject matter, or the process, or the mode of proceeding, the mistake may be corrected here by a writ of error from its final judgment, or by appeal in cases of equity or admiralty jurisdiction. And whether the final judgment is pronounced in a summary or other proceeding, if it be in a case in which the Circuit Court had no jurisdiction, its judgment may be reexamined here, and the error corrected by this Court. The decision of this Court, therefore, in the case of?The Columbian Insurance Company v. Wheelwright,?that a writ of error would lie from the judgment of the Circuit Court of the District of Columbia awarding a peremptory mandamus is by no means a decision that the court below had jurisdiction to issue it.In fine, every view which I have been able to take of this subject leads me to conclude that the Circuit Court had not the power to issue a writ of mandamus in the case before us. And, although I am ready to acknowledge the respect and confidence which is justly due to the decision of the majority of this Court, and am fully sensible of the learning and force with which their judgment is sustained by the learned judge who delivered the opinion of the Court, I must yet, for the reasons above stated, dissent from it. I think that the Circuit Court had not by law the right to issue this mandamus, and that the judgment they have given ought to be reversed.BARBOUR, J., Separate Opinion.From these quotations, it is apparent that no restriction can have been imposed upon the jurisdiction of the Circuit Courts of the United States by words which make it concurrent with that of the courts of the States when it is admitted that there is no question which can arise before them, in a civil case, which they are not competent, and indeed bound, to decide according to the laws applicable to the question, whether they be the Constitution, laws and treaties of the United States, the laws of Japan, or any other foreign country on the face of the earth.The same number of the Federalist already referred to furnishes the obvious reason why these words were inserted. It is there said that, amongst other questions which had arisen in relation to the Constitution, one was whether the jurisdiction of the federal courts was to be exclusive, or whether the State courts would possess a concurrent jurisdiction? The author reasons upon the subject, quotes the terms in which the judicial power of the United States is vested by the Constitution, states that these terms might be construed as importing one or the other of two different significations, and then concludes thus: The first excludes, the last admits, the concurrent jurisdiction of the State tribunals, and as the first would?amount to an alienation of State power, by implication, the last appears to me the most defensible construction. The reason, then, why these words were inserted in the 11th Section of the Judiciary Act was to remove the doubt here expressed, to obviate all difficulty upon the question whether the grant of judicial power to the federal courts, without saying more, might not possibly be construed to exclude the jurisdiction of the State courts. Its sole object was, as is sometimes said in the law books, to exclude a conclusion.The difference in the phraseology of the two sections has been adverted to. It has been said that the words in the 11th Section of the Judiciary Act of 1789, are all suits of a civil nature, at common law, or in equity, and those in the 5th Section of the Act of 1801, giving jurisdiction to the Circuit Court of this District, are “all cases in law and equity.” Now it is impossible to maintain that there is any difference in legal effect between these two modes of expression. What is a case in law or equity? I give the answer in the language of the late Chief Justice of this Court: “To come within this description, a question must assume a legal form for forensic litigation and judicial decision.” And what is a suit? I give the answer also in the language of the late Chief Justice, who, in 2d Peters 464, says, in delivering the opinion of the Court, “if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit.” It is then unquestionably true that the court, which has jurisdiction over all?suits in law and equity, has as much judicial power by those terms as a court has by the terms, “all cases in law and equity.” The only difference between the two sections under consideration, in relation to the question before us, consists in the two limitations contained in the 11th Section of the Judiciary Act, the one as to the character of the parties, the other as to the value of the matter in dispute.In the next place, we not only find that in some sections the term “cognizance” or “jurisdiction” (which are synonymous) is used, whilst, in others, the term “power” is made use of, but in the very same section - that is, the thirteenth, in relation to the Supreme Court, both terms are used thus: “The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except,” etc., and in the same section, “and shall have power to issue writs of prohibition to the District Courts,” etc.But it seems to me that there is an argument to be derived from the nature and character of the writ of mandamus, and the legislation of Congress in relation to it, which is, of itself, decisive against the power of the Circuit Court to issue it. It is declared by all the English authorities, from which in general our legal principles are drawn, to be a high prerogative writ. Accordingly, it issues in England only from the King’s Bench, in which the King did formerly actually sit in person, and in which, in contemplation of law, by his judges, he is still supposed to sit. It never issues but to command the performance of some public duty. Upon this principle, 5 Barn. & Ald. 899, the court of King’s Bench refused a mandamus to a private trading corporation to permit a transfer of stock to be made in their books, declaring that it was confined to cases of a public nature, and that, although the company was incorporated by a royal charter, it was a mere private partnership. Upon the same principle, I believe that it may be affirmed without exception, unless where a statutory provision has been made that in every State of the Union where the common law prevails, this writ issues only from the court possessing the highest original common law jurisdiction. The Congress of the United States adopted the same principle, and, by the 13th Section of the Judiciary Act of 1789, gave to the Supreme Court of the United States power in express terms to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office under the authority of the United States, thus covering the whole ground of this high prerogative writ. If, then, there ever were a case in which the?maxim that expressio unius est exclusio alterius?applied, this seems to me to be emphatically that case. It is of the nature of the writ, to be issued by the highest court of the government, the Supreme?Court is the highest, and accordingly, to that Court, the power to issue it is given. It is given in express words to that Court, and is not given in terms to any other court. It is given to that Court in express terms, in the thirteenth Section, and although not given in terms in the fourteenth Section, immediately following, the power to issue it is attempted to be derived by implication from that section. And last, but not least, where it is given, it is subject to no limitation but that it is to issue “in cases warranted by the principles and usages of law,” and may be issued to “any courts appointed by, or persons holding office under the authority of the United States,” whereas, in the fourteenth Section, all the courts of the United States are empowered to issue certain writs, naming them, and then others, not naming them, and not mentioning the writ of mandamus, which may be necessary for the exercise of their respective jurisdictions. Nor is the force of this argument at all weakened by the circumstance that this Court, in the case of?Marbury v. Madison,?1 Cranch 137, declared that part of the Judiciary Act which empowered the Supreme Court to issue the writ of mandamus to be unconstitutional so far as it operated as an act of original jurisdiction. Because this case was decided nearly fourteen years after the law was passed, and we must construe the act as if it were all constitutional, because Congress certainly so considered it, and we are now inquiring into what was their intention, in its various provisions, which can only be known by construing the act as a whole, embracing its several parts, of which the power in question was one. But if the other Circuit Courts of the United States, under the powers given to them, cannot, as has been decided by this Court, issue the writ of mandamus, then the Circuit Court of this District cannot do it under the powers given to it, because its powers are the same with those of the others. For, by the third Section of the act establishing it, it and its judges, are declared to have all the powers by law vested in the Circuit Courts, and the judges of the Circuit Courts of the United States, and even supposing that to refer to the powers of the Circuit Courts, as organized by the Act of 1801, that does not vary them, because, by the tenth Section of that act, those courts are invested with all the powers heretofore granted by law to the Circuit Courts of the United States - that is, those by the Judiciary Act, unless where otherwise provided by that act, and there is no pretence that there is any power given in that act which affects this question. If then, the jurisdiction and the powers of the Circuit Court of this?District are the same with the jurisdiction and powers of the other Circuit Courts of the United States, and if, as has been solemnly decided by this Court, that jurisdiction and those powers do not authorize the other Circuit Courts to issue the writ of mandamus, it would seem to follow as an inevitable consequence that neither can the Circuit Court of this District issue that writ.Finally, it was argued that, if all the other sources of power failed, there is a sufficient one to be found in that section of the Act of 1801 establishing the Circuit Court of this District by which it is enacted that the laws of Maryland as they now exist shall be and continue in force in that part of the District which was ceded by that State to the United States, etc. The argument founded upon this section is in substance this: the laws of Maryland are declared to be in force in this part of the District; the common law of England constitutes a part of those laws; by the common law, in such a case as this, a writ of mandamus would lie; therefore, the Circuit Court of this District can issue a mandamus in this case. This part of the argument proceeds upon the principle that the adoption of the common law,?per se, authorizes the issuing of the writ. But it must be remembered that the adoption of the common law here cannot give any greater power than the same common law would give to the courts of Maryland, from which State it is adopted. Now, in?M’Cluny v. Silliman,?it was decided that a State court could not issue a mandamus to an officer of the United States; consequently, it follows that no court in Maryland could have issued the writ in this case; and yet the argument which I am now considering seeks to maintain the position that, whilst it is conceded that a Maryland court, with the common law in full force there, could not have issued this writ, the Circuit Court of this District has the authority to do so by reason of the adoption of that very law which would not give the authority to do it there.It does seem to me that to state this proposition is to refute it. The object of this provision appears to me to have been plainly this: that the citizens of that part of this District which formerly belonged to Maryland should, notwithstanding the cession, continue to enjoy the benefit of the same laws to which they had been accustomed, and that, in the administration of justice in their courts, there should be the same rules of decision, thus placing the citizens of this District substantially in the same situation in this respect as the citizens of the several States, with this difference only, that,?whilst in the States there are Federal and State courts, in the one or the other of which justice is administered according to the character of the parties and other circumstances, in this District, by its judicial organization, the same justice which in the States is administered by the two classes of courts is here dispensed by the instrumentality of one court,?viz.,?the Circuit Court of this District. But that, as in the states, the Federal Circuit Court cannot issue the writ of mandamus, because the jurisdiction and powers given to them by Congress do not authorize it, so here, the Circuit Court of this District cannot issue it, by virtue of the jurisdiction and powers given to it by Congress, (exclusively of the adoption of the laws of Maryland) because, exclusively of those laws, its jurisdiction and powers, as I think I have shown, are neither more nor less, in reference to this subject, than those of the other Circuit Courts of the United States. And as in the States, the State courts cannot issue it, although the common law is in force there, so the Circuit Court of this District cannot issue it, although the common law, by the adoption of the laws of Maryland, is in force here, it being, in my opinion, impossible to maintain the proposition that the adoption of the common law here can impart a greater authority than it does to the courts of the very State from which it was adopted.A.L.R. LibraryFailure of State Prosecutor to Disclose Pretrial Statement Made by Crime Victim as Violating Due Process, 102 A.L.R. 6th 1.42 §1983, PUBLIC HEALTH AND WELFARE, Ch. 21, CIVIL RIGHTS, Note 2892, page 784Inmate stated claim for violation of his procedural due process rights by alleging that prison officials repeatedly and systematically filed and approved false and unjustified disciplinary charges, which resulted in segregation and loss of good time. Black v. Lane, 22 F.3d 1395, rehearing and suggestion for rehearing en banc denied, C.A.7 (Ill.) 1994.Filing of disciplinary charge against inmate, although otherwise not actionable under §1983, is actionable under §1983 is done in retaliation for his having filed a grievance pursuant to established procedures; prison officials cannot properly bring a disciplinary action against an inmate for filing a grievance that is determined by those officials to be without merit any more than they can properly bring a disciplinary action against an inmate for filing a lawsuit that is judicially determined to be without merit. Sprouse v. Babcock, 870 F.2d 450, C.A.8 (Iowa) 1989.Prisoner has no general constitutional right to be free from being falsely accused in this behavior report, unless report is filed in response to undertaking constitutionally protected activity. Hameed v. Pundt, 964 F.Supp. 836, S.D.N.Y. 1997.If false disciplinary ticket is issued against inmate in retaliation for inmate’s exercise of rights protected under First Amendment, claim under §1983 may exist. Husbands v. McClennan, 957 F.Supp. 403, motion to amend denied 990 F.Supp. 214, W.D.N.Y. 1997.Allegations by former jail inmate that correctional officer of made up charges which resulted in inmate being placed in disciplinary segregation were sufficient to state federal civil rights claim based on violation of inmate’s liberty interest in avoiding term in segregation. Marshall v. Fairman, 1951 F.Supp. 128, N.D.Ill. 1997.Allegedly false charges against inmate did not give rise to per se constitutional violation actionable under §1983, were inmate was provided a hearing and was given opportunity to rebut charges against him. Hodges v. Jones, 873 F.Supp. 737, N.D.N.Y. 1995.Though filing of false charges against prisoners normally not actionable under civil rights statute, prisoner stated claim by alleging that guard filed false weapon possession claim against him in retaliation for reporting incident in which fire was allegedly set by another correction officer. Payne v. Axelrod, 871 F.Supp. 1551, N.D.N.Y. 1995.2867. Hearing, transfer of prisonersPrison official’s violation of prison rule requiring inmate be afforded post rants for hearing within seven working days after her transfer violated inmate’s due process rights. Maldonado Santiago v. Velazquez Garcia, 821 F.2d a 22, C.A.1 (Puerto Rico) 1987.A prisoner does not have a right to a hearing before being transferred and he can be transferred for no reason at all, but he may nevertheless establish a claim under this section’s decision to transfer him was made by reason of his exercise of constitutionally protected freedoms under U.S.C.A. Const. Amend. 1. McDonald v. Hall, 610 F.2d 16, C.A.1 (Mass.) 1979.2891. Disciplinary proceedings in prison generallyPrison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights do a defendant in such a prosecution does not apply; rather, there must be a mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. Wolff v. McDonnell, 418 U.S. 539.A prisoner alleging retaliatory punishment in a §1983 action against prison officials bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials’ decision to discipline the prisoner; the burden then shifts to the officials to show that the prisoner would have received the same punishment even absent the retaliatory motivation. Gayle v. Gonyea, 313 F.3d 677, C.A.2 (N.Y.) 2002.Procedure whereby penitentiary inmate, prior to imposition of confinement in segregation, is taken before disciplinary captain for hearing and determination of guilt or innocence, and if found guilty to have Capt. designate punishment satisfies concept of procedural due process. Adams v. Pate, 445 F.2d 105, C.A.7 (Ill.) 1971.When prisoner faces disciplinary charges, prison officials must provide prisoner (1) a written statement at least 24 hours before the disciplinary hearing which includes the charges, a description of the evidence against prisoner, and an explanation for the disciplinary action taken; (2) an opportunity to present document Terry evidence and call witnesses, unless calling witnesses would interfere with institutional security; and (3) legal assistance when the charges are complex or prisoner is illiterate. Wolff v. Hood, 242 F.Supp.2d 811, D.Or. 2002.Prisoner’s later success in administrative appeal following disciplinary hearing conviction does not bar §1983 claim. Porter v. Novak, 898 F.Supp. 79, N.D.N.Y. 1995.Prison’s failure to follow its own rules and disciplinary proceedings violates inmate’s civil rights. Duckett v. Ward, 458 F.Supp. 624, S.D.N.Y. 1978.Although no consensus may have been reached as to what procedural safeguards must precede the imposition of prison discipline, there is no serious doubt that due process applies, and that suits alleging it senile or valid sources of judicial inquiry under the section. Crafton v. Luttrell, 378 F.Supp. 521, M.D.Tenn. 1973.2894. Overturned judgment requirement, disciplinary proceedings in prisonThe favorable termination will, under which a §1983 plaintiff cannot seek damages for harm caused by actions the unlawfulness of which would necessarily render the factor length of his confinement invalid, unless he can prove that the conviction, sentence, or prison disciplinary sanction that resulted from those actions has been reversed, invalidated, or called into question by a grant to federal habeas corpus relief, did not bar §1983 claim the former prisoner, who was no longer in custody, challenging the procedures by which he was sentenced to disciplinary detention in administrative segregation; the sanctions imposed implicated only the conditions, and not the…2913. Appeal, disciplinary proceedings in prisonState prison official could not be liable, under §1983, for allegedly violating inmate’s due process rights by denying inmate’s appeal of disciplinary sanction, where the inmate’s due process claim against the prison official who initially imposed the 90 – day disciplinary confinement was itself groundless. Durran v. Selsky, W.D.N.Y. 2003, 2003 WL 1398610.Prisoner’s allegations of retaliatory conduct by prison officials were sufficient, under liberal pleading standard, the state a First Amendment retaliation claim under §1983, despite prisoner’s failure to present chronology of events; prisoner allege that after he filed grievances against them, officers retaliated by withholding his legal documents and destroying exhibits and personal photographs, and that remaining defendants participated in the ongoing retaliation by falsely telling his sister that her name was not on the visitor’s list, denying him his state pay, preventing him from having his yearly interview, and otherwise unnecessarily harassing him. Hunter v. Welborn, C.A.7 (Ill.) 2002, 52 Fed.Appx. 277, 2002 WL 31688934, unreported.The state had granted prison inmates a protected liberty interest in remaining free from administrative segregation, as required in order for an inmate to maintain a civil rights action claiming that his due process rights were violated when he was placed in administrative segregation; there were regulations recognizing that administrative segregation was a real hardship, limiting the power to impose the hardship to cases in which the inmate’s presence in the general prison population was a threat to safety and security, and setting forth a procedural mechanism to determine if the inmate met the substantial is standards for imposition of the hardship. McClary v. Kelly W.D.N.Y. 1998, 4 F.Supp.2d 195.Prisoner cannot be placed in punitive confinement area to punish him for disciplinary infraction unless procedures employed by prison officials comport with minimum due process standards set out in applicable case. Maxton v. Johnson, D.C.S.C. 1980, 488 F.Supp 1030.Decision of United States Supreme Court outlining certain procedural requirements that prison administrators must afford a prisoner before they can deprive him of accumulated “good time” credits or confined him to “solitary” for serious misconduct was inapplicable in situation where imposition of a much lesser penalty than “solitary” or deprivation of “good time” credits was involved. Knott v. Kerkhoff, W.D.Va. 1976, 410 F.Supp 1236.Although solitary confinement does not of itself violate Constitution, it must be imposed for proper disciplinary purposes. Stinson v. Sheriff’s Dept. of Sullivan County, S.D.N.Y. 1980, 499 F.Supp 259.Even though state prisoner was incarcerated in isolation cell, or prisoner was not subjected to isolation status but Capt. detention because of violation of institutional rules and had all his personal belongings, including writing materials, was fed three meals daily and was kept in warm cell and where prisoner’s hearing on charges was postponed for four days because prisoner wish to employ private attorney to represent them at hearing, prisoner was not entitled to recover damages from prison officials because of such isolation. Cradle v. Superintendent, Correctional Field Unit No. 7, W.D.Va. 1973, 374 F.Supp 435.Remand of inmate’s §1983 action, alleging cruel and unusual punishment claim for conditions of confinement in prison’s most restrictive segregation unit, was required for District Court to enter more precise findings on contested issues about allegedly inhumane conditions as to temperature, sanitation, and ventilation; although District Court results claim on lack of culpable state of mind by prison officials, if conditions were truly as dreadful as inmate claimed, then defendants would in all probability have had requisite state of mind to satisfy subjective component of Eighth Amendment claim. Isby v. Clark, C.A.7 (Ind.) 1996, 100 F.3d 502, on remand 1997 WL 471833.Alleged denial of exercise opportunities or denial of the more liberal commissary and visitation privileges for the general prison population did not state claims for denial of civil rights of prisoners in segregation unit. Back v. Lynaugh, C.A.5 (Tex.) 1988, 842 F.2d 759.Despite allegations of toilets close to beds, low – calorie food, poor ventilation, and denial of meaningful exercise, inmates did not show that they were denied food or exercise, the ventilation was so poor as to pose risk of serious harm, or that prison officials acted with deliberate indifference, as would support claim the confinement to Administrative Segregation and Detention Area (ASDA) constituted cruel and unusual punishment. Blizzard v. Watson, D.Del. 1995, 892 F.Supp 587.Conditions which might constitute infringements of civil rights of prisoners and special housing unit included excessive and unnecessary use of force by correctional officers, grossly inadequate provision for exercise, denial of access to psychological and mental health care specialists, unsanitary food utensils, including cigarette burns and here on food trays, portions of food smaller than those provided inmates in general population and destruction and/or loss of mail sent to superintendent. Griffin v. Smith, W.D.N.Y. 1980, 493 F.Supp 129.2958. – Assistance by other inmates, access to courts, solitary confinement or segregation of prisonersForbidding inmate in administrative segregation or punitive housing from receiving assistance of another inmate in preparation of legal draft challenging conditions of confinement did not violate inmate’s constitutional right to counsel for purposes of civil rights statute [42 U.S.C.A. §1983], where inmate had limited access to a law library, court officials, and inmate assistance known as “writ writers.” Little v. Norris, C.A.8 (Ark.) 1986, 787 F.2d 1241.2959. – Library or legal publications, access to courts, solitary confinement or segregation of prisonersPrison’s policy of banning prisoners who were confined in protective custody from library did not prejudice inmate; there was no showing the policy prevented inmate from obtaining caselaw. Jenkins v. Lane, C.A.7 (Ill.) 1992, 977 F.2d 266.Evidence in prisoner’s action against prison administrators, on account of deprivation of legal materials, and advice during period of disciplinary isolation, supported finding of good – faith application of rule to all inmates with honest belief in its constitutionality. Knell v. Bensinger, C.A.7 (Ill.) 1975, 522 F.2d 720.Inmates of administrative segregation unit in detention facility could be restricted from keeping more than five nonlegal books at one time in their cells; such restriction could not, however, apply to law books, legal periodicals or other legal materials. Giampetruzzi v. Malcolm, S.D.N.Y. 1975, 406 F.Supp 836.Prison policy of permitting inmates held in segregation to receive visits from clergymen of their faith but not to attend religious services was reasonable. U.S. ex rel. Wolfish v. Levi, S.D.N.Y. 1977, 439 F.Supp 114, affirmed 573 F.2d 118, certiorari granted 99 S.Ct. 76, 439 U.S. 816, reversed on other grounds 99 S.Ct. 1861, 441 U.S. 520.Restricting prisoner’s attendance at general religious services did not violate prisoner’s civil rights; prisoner was prevented from attending communal religious services because he was not permitted to mix with general inmate population, and prisoner was ministered to each week and private and attended Bible study classes conducted on maximum-security tier. Bellamy v. McMickens, S.D.N.Y. 1988, 692 F.Supp 205.2971. Hygienic conditions, solitary confinement or segregation of prisonersCivil rights complaint alleging that prison inmate was denied deodorant, soap, and shampoo while he was in special housing unit failed to show a constitutional deprivation. Thomas v. Smith, W.D.N.Y. 1983, 559 F.Supp 223.2975. Assault by other prisoners, solitary confinement or segregation of prisonersPrison guards’ failure to prevent and protect prisoner from beatings by fellow inmates that not violate the section, especially where prisoner could have requested to be put in segregation for his own protection but did not. Schyska v. Shiflett, N.D.Ill. 1973, 364 F.Supp 116.2977. Lockups, solitary confinement or segregation of prisonersComplaint wherein three inmates of Louisiana State Penitentiary alleged that they had been deprived of due process of law and a prison disciplinary hearing which resulted in their being sentenced to a “lockdown” stated a claim upon which relief could be granted. Mitchell v. Beaubouef, C.A.5 (La.) 1978, 581 F.2d 412, rehearing denied 586 F.2d 842, certiorari denied 99 S.Ct. 2416, 441 U.S. 966.2906. –If a police officer can perform his duties without use of force at all, then even use of minimal force is actionable. Donaldson v. Hovanec, E.D.Pa. 1979, 473 F.Supp. 602.2097. – Unreasonable seizure, excessive force, police activitiesForce used during arrest may be so excessive as to support cause of action under §1983 and Fourth and Fourteenth Amendments. Brown v. Borough of Chambersburg, C.A.3 (Pa.) 1990, 93 F.2d 274.Fourth Amendment rights, rather than due process rights, were implicated in arrestee’s §1983 claim that Sheriff’s officers violated her constitutional rights by making unlawful arrest and using excessive force; all claims that officers use excessive force and course of “seizure” are properly analyzed under Fourth Amendment’s “reasonableness standard,” rather than under substandard due process standard. Myers v. Becker County, D.Minn. 1993, 833 F.Supp 1424.2098. – Cruel and unusual punishment, excessive force, police activitiesWhere light blows are administered by a police officer, they may be considered a mere tort under state law and not subject to suit under this section; however, conduct and manner of administering blows may constitute “cruel and unusual punishment.” Com. of Pa. v. Porter, W.D.Pa. 1979, 480 F.Supp 686, affirmed in part, reversed in part on other grounds 659 F.2d 306, certiorari denied 102 S.Ct. 3509, 458 U.S. 1121.2099. – Due process, excessive force, police activitiesAbuse of a suspect in police custody is a clear violation of due process guarantees of U.S.C.A. Const. Amend. 14, and thus such conduct is actionable under the section. Classon v. Krautkramer, E.D.Wis 1977, 451 F.Supp 12. 2100. – Racial discrimination, excessive force, police activitiesInquiry whether police officer’s use of force in making arrest is reasonable is an objective one, i.e., whether officer’s actions are objectively reasonable in light of facts and circumstances confronting him without regard to his underlying intent or motivation. House v. New Castle County, D.Del. 1993, 824 F.Supp 477.2105. – Injury, excessive force, police activitiesAlthough arrestee was not required to show that he suffered significant injury before he could prevail in civil rights action for alleged use of excessive force, arrestee was required to prove that he suffered some injury, even if insignificant. Knight v. Caldwell, C.A.5 (Tex.) 1992, 970 F.2d 1430, certiorari denied 113 S.Ct. 1298, 507 U.S. 926.Allegations that minor child was handcuffed, thrown to the floor, and threatened by police officers when they took child and custody after arresting his mother and the child suffered psychological injuries as a result failed to state civil rights claim for excessive use of force. Thompson v. City of Galveston, S.D.Tex. 1997, 979 F.Supp 504, affirmed 158 F.3d 583.To successfully state excessive force claim under Fourth Amendment, plaintiff must establish that he or she suffered significant injury or that defendant’s actions were sufficiently reprehensible. Pride v. Kansas Highway Patrol, D.Kan. 1992, 793 F.Supp to 79, affirmed 997 F.2d plaint alleging that plaintiff suffered a punch to stomach, swollen and bleeding wrists from tight handcuffs, and faintly detectable scar unrest alleged sufficient injury to state a §1983 civil rights claim based on claim of excessive force in connection with the rest. Simpson v. Suroff, S.D.N.Y. 1990, 741 F.Supp 1073.Plaintiff seeking to impose civil rights liability on police officers because of the use of excessive force must show that the injury inflicted rose to the level of a constitutional tort, i.e., that it was so egregious as to exceed the boundaries of wrongful injuries redressability under tort law and that it deprived the victim of a liberty interest without due process of law. Skevofilax v. Quigley, D.C.N.J. 1984, 586 F.Supp 532.2106. – Malice requirement, excessive force, police activitiesin order for arrestee to state §1983 action pursuant to the Fourteenth Amendment based upon alleged excessive force used by police officer in detention of arrestee after lawful arrest, action by officer must be not only grossly disproportionate under circumstances, this must of been inspired by malice, so as to amount to abuse of official power that shocks conscience. Stevens v. Corbell, C.A.5 (Tex.) 1987, 832 F.2d 884, rehearing denied 838 F.2d 1214, certiorari denied 108 S.Ct. 2018, 486 U.S. 1033.Civil rights plaintiff was not required to show malice to prevail on claim of excessive force in connection with arrest. Palmer v. Williamson, W.D.Tex. 1989, 717 F.Supp. 1218.2125. – Self-defense, excessive force, police activitiesIf a police officer attacked by a prisoner uses more force than reasonably necessary in defending himself, officer can be subject to liability for the use of excessive force. Williams v. Liberty, C.A.7 (Ill.) 1972, 461 F.2d 325.2190. – City’s failure to provide more training to police officers in prisoner rights law or regulation of jail correspondence was inadequate to support civil rights liability of city under failure to train theory after police officer allowed mailing of prisoner’s letter identifying informant and murder investigation, where release could not be shown to have resulted in informant’s death, and informant’s death, absent special relationship or state created danger, did not give rise to violation of constitutional rights. Gatlin ex rel. Gatlin v. Green, D.Minn. 2002, 227 F.Supp.2d 1064.City was liable under §1983 for violations of plaintiff’s constitutional rights arising from her false arrest enclosure of bar and seizure of its liquor inventory based on its failure to properly train its officers regarding laws relating to display of liquor licenses and proper procedures associated with closing a premises and seizure of inventory; given that photocopying of liquor licenses was a frequent practice of New York bar owners, the failure of police to properly train officers with regard to laws related to the forgery of liquor licenses was evidence of city’s deliberate indifference to the rights of licensees and bar employees, such as plaintiff, who initially presented a photocopy of a liquor license and subsequently produced a valid original license. Sulkowska v. City of New York, S.D.N.Y. 2001, 129 F.Supp.2d 274.2977. –Even if state prisoner, who was in maximum security classification, accurately characterize prison officials’ action in locking him up for five days in “hole” for throwing hot coffee on another inmate as overreaction to “harmless horseplay,” such overreaction did not represent violation of prisoner’s rights under Constitution, but, rather, lockup, at most, represented air by prison officials in exercise of discretion placed in them to maintain discipline and security that was required within walls of maximum-security prison. Maxton v. Johnson, D.C.S.C. 1980, 488 F.Supp 1030.State prisoner’s complaint alleging that prison regulation set out the only reasons for which prisoners may be placed in close management status, that plaintiff was transferred to close management without notice or hearing and that failure to provide notice or hearing violated plaintiff’s due process rights was sufficient to state claim for relief. Mitchell v. Hicks, C.A.5 (Fla.) 1980, 614 F.2d 1016.Once prisoner asserting §1983 claim based on segregated confinement proves existence of state – created liberty interest protected by Due Process Clause, the court must determine whether prison officials adequately protected that interest by granting prisoner: 24 hours notice of charges against him; written statement of evidence relied on by fact – finder at hearing; reasons for disciplinary action taken by hearing officer; meaningful assistance from prison employee presenting defense; and fair and impartial hearing officer. Cespedes v. Coughlin, S.D.N.Y. 1997, 956 F.Supp. 454, a reconsideration 969 F.Supp. 254.2979. Necessity of hearing, solitary confinement or segregation of prisonersDistrict Court’s findings that prison official violated prisoner’s procedural due process rights by placing him in administrative segregation without a hearing, and that official acted maliciously, arbitrarily and with punitive intent, was supported by sufficient evidence; issue of credibility was crucial because prisoner in official presented sharply conflicting evidence. Stevens v. McHan, C.A.8 (Ark.) 1993, 3 F.Supp. 1204. ................
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