author: Mr. Justice Harlan, Mr. Chief Justice Burger, Me. Justice Black, Mr. Justice Blackmun,

text:
    BIVENS v. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS
   tional prohibition, but merely said to be in excess of the authority delegated to him by the Congress. Wheeldin v. Wheeler, 373 U. S. 647 (1963). Finally, we cannot accept respondents’ formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress. The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by' federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Cf. J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964); Jacobs v. United States, 290 U. S. 13, 16 (1933). “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, 163 (1803). Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment, supra, at 390-395, 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.

II

In addition to holding that petitioner’s complaint had failed to state facts making out a cause of action, the District Court ruled that in any event respondents were' immune from liability by virtue of their official position. 276 F. Supp., at 15. This question was not passed upon by the Court of Appeals, and accordingly we do not consider it here. The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

So ordered.

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 thé 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).

In so concluding, Chief Judge Lumbard’s opinion reasoned, in essence, that: (1) the framers of the Fourth Amendment did not appear to contemplate a “wholly new federal cause of action founded directly on the Fourth Amendment,” id., at 721, apd (2) while the federal courts had power , under a general grant of jurisdiction to imply a federal remedy for the enforcement of a constitutional right, they should do so only when the absence of alternative remedies renders the constitutional command a “mere ‘form of words.’ ” Id., at 723. The Government takes essentially the same position here. Brief for Respondents 4-5. And two members of the Court add the contention that we lack the constitutional power to accord Bivens a remedy for damages in the absence of congressional action creating “a federal cause of action for damages for an unreasonable search in violation of the Fourth Amendment.” Opinion of Mr. Justice Black, post, at 427; see also opinion of The Chief Justice, post, at 418, 422.

For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for violation of “constitutionally protected interests” and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment.

I

I turn first to the contention that the constitutional power of federal courts to accord Bivens damages for his claim depends on the passage of a statute creating a “federal cause of action.” Although the point is not entirely free of ambiguity, I do not understand either the Govérnment or my dissenting Brothers to maintain that Bivens’ contention that he is entitled to be free from the type of official conduct prohibited by the Fourth Amendment depends on a decision by the State in which ' hp resides to accord him a remedy. Such a position Would be incompatible with the presumed availability of federal equitable relief, if a proper showing can be made in terms of the ordinary principles governing equitable remedies. See Bell v. Hood, 327 U. S. 678, 684 (1946). However broad a federal court’s discretion concerning equitable remedies, it is absolutely clear — at least after Erie R. Co. v. Tompkins, 304 U. S. 64 (1938) — that in a nondiversity suit a federal court’s power to grant even equitable relief depends on the presence of a substantive right derived from federal law. Compare Guaranty Trust Co. v. York, 326 U. S. 99, 105-107 (1945), with Holmberg v. Armbrecht, 327 U. S. 392, 395 (1946). See also H. Hart & H. Wechsler, The Federal Courts and the Federal System 818-819 (1953).

Thus the interest which Bivens claims — to be free from official conduct in contravention of the Fourth Amendment — is a federally protected interest. See generally Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 33-34 (1968). Therefore, the question of-judicial power to grant Bivens damages is not a problem of the “source” of the “right”; instead, the question is whether the power to authorize damages as a judicial remedy for the vindication of a federal constitutional right is placed by the' Constitution itself exclusively in Congress’ hands.

II

The contention that the federal courts are powerless to accord a litigant damages for a claimed invasion of his federal constitutional rights until Congress explicitly authorizes the remedy cannot rest on the notion that the decision to grant compensatory relief involves a resolution of policy considerations not susceptible of judicial discernment. Thus, in suits for damages based on violations of federal statutes lacking any express authorization of a damage remedy, this Court has authorized such relief where, in its view, damages are necessary to effectuate the congressional policy, underpinning the substantive provisions of the statute. J. I. Case Co. v. Borak, 377 U. S. 426 (1964); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210, 213 (1944). Cf. Wyandotte Transportation Co. v. United States, 389 U. S. 191, 201-204 (1967).

If it is not the nature of the remedy which is thought to render a judgment as to the appropriateness of damages inherently “legislative,” then it must be the nature of the legal interest offered as an occasion for invoking otherwise appropriate judicial relief. But I do not think that the fact that the interest is protected by the Constitution rather than statute or common law justifies the assertion that federal courts are powerless to grant damages in the absence of explicit congressional action authorizing the remedy. Initially, I note'that it would be at least anomalous to conclude that the federal judiciary— while competent to choose among the range of traditional judicial remedies to implement statutory and common-law policies, and even to generate substantive rules governing primary behavior in furtherance of broadly formulated policies articulated by statute or Constitution, see Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957); United States v. Standard Oil Co., 332 U. S. 301, 304-311 (1947); Clearfield Trust Co. v. United States, 318 U. S. 363 (1943) — is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.

More importantly, the presumed availability of federal equitable relief against threatened invasions of constitutional interests appears entirely to negate the contention that the status of an interest as constitutionally protected divests federal courts of the power to grant damages absent express congressional authorization. Congress provided specially for the exercise of equitable remedial powers by federal courts, see Act of May 8, 1792, § 2, 1 Stat. 276; C. Wright, Law of Federal Courts 257 (2d ed., 1970), in part because of the limited availability of equitable remedies in state courts in the early days of the Republic. See Guaranty Trust Co. v. York, 326 U. S. 99, 104-105 (1945). And this Court's decisions make clear that, at least absent congressional restrictions, the scope of equitable remedial discretion is to be determined according to the distinctive- historical traditions of equity as an institution, Holmberg v. Armbrecht, 327 U. S. 392, 395-396 (1946); Sprague v. Ticonic National Bank, 307 U. S. 161, 165-166 (1939). The reach of a federal district court’s “inherent equitable powers,” Textile Workers v. Lincoln Mills, 353 U. S. 448, 460 (Burton, J., concurring in result), is broad indeed, e. g., Swann v. Charlotte-Mecklenburg Board of Education, 401 U. S. 1 (1971); nonetheless, the federal judiciary is nqt empowered to grant equitable relief in the absence of congressional action extending jurisdiction over the subject matter of the suit. See Textile Workers v. Lincoln Mills, supra, at 460 (Burton, J., concurring in result) ; Katz, 117 U. Pa. L. Rev., at 43.

If explicit congre? :onal 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.

Ill

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.” Brief for Respondents 19, 24. While this “essentiality” test is most clearly articulated with respect to damages remedies, apparently the Government believes the same test explains the exercise of equitable remedial powers. Id., at 17-18. 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 . . . .” Id., at 20-21 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, 432 (1964); United States v. Standard Oil Co., 332 U. S. 301, 307 (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. Brief for. Respondents 21-22.

These arguments for a more stringent test to govern the grant of damages in constitutional cases seem to be adequately answered by the point that the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment. To be sure, “it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas R. Co. v. May, 194 U. S. 267, 270 (1904). But it must also be.recog-, nized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities; at the very least, it strikes me as no more appropriate to await express congressional authorization of traditional judicial relief with regard to these legal interests than with respect'to interests protected by federal statutes.

The question then, is, as I see it, whether compensatory relief is “necessary” or “appropriate” to the vindication of the interest asserted. Cf. J. I. Case Co. v. Borak, supra, at 432; United States v. Standard Oil Co., supra, at 307; Hill, Constitutional Remedies, 69 Col. L. Rev. 1109, 1155 (1969); Katz, 117 U. Pa. L. Rev., at 72. . In resolving that question, it seems to me that the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy. In this regard I agree with the Court that the appropriateness of according Bivens compensatory relief does not turn simply on the deterrent effect liability will have on .federal official conduct. 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. Bivens, after all, has invoked judicial processes claiming entitlement to compensation for injuries resulting from allegedly lawless official behavior, if those injuries are properly compensable in money damages. I do not think a court of law — vested with the power to accord a remedy — should deny him his relief simply because he cannot show that-future lawless conduct will thereby be deterred.

And I think it is clear that Bivens advances a claim of the sort that, if proved, would be properly compensable in damages. The personal interests protected by the Fourth Amendment are those we attempt to capture by the notion of “privacy”; while the Court today properly points out that the type of harm which officials can inflict when they invade protected zones of an individual’s life are different from the types of harm private citizens inflict on one another, the experience of Judges in dealing with private trespass and false imprisonment claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of Fourth Amendment rights.

On the other hand, the limitations on state remedies for violation of common-law rights by private citizens argue in favor of a federal damages remedy. The injuries inflicted by officials acting uftder color of law, while no less compensable in damages than those inflicted by private parties, are substantially different in kind, as the Court’s opinion today discusses in detail. See Monroe v. Pape, 365 U. S. 167, 195 (1961) (Hablan, J., concurring). It seems to me entirely proper that these injuries be compensable according'to uniform rules of federal law, especially in light of the very large element of federal law which must in any event control the scope of official defenses to liability. See Wheeldin v. Wheeler, 373 U. S. 647, 652 (1963); Monroe v. Pape, supra, at 194-195 (Harlan, J., concurring); Howard v. Lyons, 360 U. S. 593 (1959). Certainly, there is very little to be gained from the standpoint of federalism by preserving different rules of liability for federal officers dependent on the State where the injury occurs. Cf. United States v. Standard Oil Co., 332 U. S. 301, 305-311 (1947).

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.

On the other hand, if — as I believe is the case with respect, at least, to the most flagrant abuses of official power — damages to some degree will be available when the option of litigation is chosen, then the question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies. See J. I. Case Co. v. Borak, supra. Judicial resources, I am well aware, are increasingly scarce these days. -Nonetheless, .when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles.

Of course, for a variety of reasons, the remedy may not often be sought. See generally Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 493 (1955). And the countervailing interests in efficient law enforcement of course argue for a protective zone with respect to many types of Fourth Amendment violations. Cf. Barr v. Matteo, 360 U. S. 564 (1959) (opinion of Harlan, J.). But, while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy would be available for the most flagrant and patently unjustified sorts of police conduct. Although litigants may not often choose to seek relief, it is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy in these circumstances. It goes without saying that I intimate no view on the merits of petitioner’s underlying claim.

For these reasons, I concur in the judgment of the Court.

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, 633 (1886) (dictum). 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, 21, 23-24, 150 N. E. 585, 587, 588 (1926).

The plurality opinion in Irvine v. California, 347 U. S. 128, 136 (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, 469, 471 (1928) (dissenting opinions); see Terry v. Ohio, 392 U. S. 1, 13 (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, supra, at 633 (dictum); Wolf v. Colorado, 338 U. S. 25, 47, 48 (1949) (Rutledge, J., dissenting); Mapp v. Ohio, supra, at 661-666 (Black, J., concurring).

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, 221-223 (1967); Schmerber v. California, 384 U. S. 757, 764 and n. 8 (1966), it seems clear that the Self-Incrimination Clause does not protect a pérson 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, 458 (1913).

It is clear, however, that neither of these theories under-girds 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 thé suppression doctrine. Id., at 710. 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 exainple, the dissenters in Wolf v. Colorado, supra, 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(Emphasis added.)

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. Oaks, supra, at 720-724.

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, 309-310 (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, post, p. 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 the^e 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 escapé 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 § SS 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 packaging 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, supra. 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 nonexempt 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 sustainéd by any person aggrieved by conduct of governmental agents in violation of the Fourth Amendment or statutes regulating official condúce-
te) the creation of a tribunal, quasi-judicial 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 fór 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.

APPENDIX TO OPINION OF BURGER, C. J., DISSENTING

It is interesting to note that studies over a period of years led the American Law Institute to propose the following in its tentative draft of a model pre-arraignment code:

“(2) Determination. Unless otherwise required by the Constitution of the United Stated or of this State, a motion to suppress evidence based upon a violation of any of the provisions of this code shall be granted only if the court -finds that such violation was substantial. In determining whether a violation is substantial the court shall consider all the circumstances, including:
“(a) the importance of the particular interest violated;
“(b) the extent of deviation from lawful conduct;
“(c) the extent to which the violation was willful;
“(d) the extent to which privacy was invaded;
“(e) the extent to which exclusion will tend to prevent violations of this Code;
“(f) whether, but for the violation, the things seized would have been discovered; and
“(g) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceeding in- which the things seized are sought to be offered in evidence against him.
“(3) Fruits of Prior Unlawful Search. If a search or seizure is carried out in such a manner that things seized in the course of the search would be subject to a motion to suppress under subsection (1), and if as a result of such search or seizure other evidence is discovered subsequently and offered against a defendant, such evidence shall be subject to a motion to suppress unless the prosecution establishes that such evidence would probably have been discovered by law enforcement authorities irrespective of such search or seizure, and the court finds that exclusion of such evidence is not necessary to deter violations of this Code.”

ALI, Model Code of Pre-Arraignment Procedure §§ SS 8.02 (2), (3), pp. 23-24 (Tent. Draft No. 4, 1971) (emphasis supplied).

The Reporters’ views on the exclusionary rule are also reflected in their comment on the proposed section:

“The Reporters wish to emphasize that they are not, as a matter of policy, wedded to the exclusionary rule as the sole or best means of enforcing the Fourth Amendment. See Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. of Chi. L. Rev. 665 (1970). Paragraph (2) embodies what the Reporters hope is a more flexible approach to the problem, subject of course to constitutional requirements.” Id., comment, at 26-27.

This is but one of many expressions of disenchantment with the exclusionary rule; see also:

1. Barrett, Exclusion of Evidence Obtained by Illegal Searches — A Comment on People vs. Cahan, 43 Calif. L. Rev. 565 (1955).
2. Burns, Mapp v. Ohio: An All-American Mistake, 19 DePaul L. Rev. 80 (1969).
3. Friendly, The Bill of Rights ás a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 951-954 (1965).
4. F. Inbau, J. Thompson, & C. Sowle, Cases and Comments on Criminal Justice: Criminal Law Administration 1-84 (3d ed. 1968).
5. LaFave, Improving Police Performance Through the Exclusionary Rule (pts. 1 & 2), 30 Mo. L. Rev. 391, 566 (1965).
6. LaFave & Remington, Controlling the Police: The Judge’s Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987 (1965).
7. N. Morris & G. Hawkins, The Honest Politician’s Guide to Crime Control 101 (1970).
8. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970).
9. Plumb, Illegal Enforcement of the Law; 24 Cornell L. Q. 337 (1939).
10. Schaefer, The Fourteenth Amendment and Sanctity of the Person, 64 Nw. U. L. Rev. 1 (1969).
11. Waite, Judges and the Crime Burden, 54 Mich. L. Rev. 169 (1955).
12. Waite, Evidence — Police Regulation by Rules of Evidence, 42 Mich. L. Rev. 679 (1944)'.
13. Wigmore, Using Evidence Obtained by Illegal Search and Seizure, 8 A. B. A. J. 479 (1922).
14. 8 J. Wigmore, Evidence § 2184a (McNaughton rev. 1961).

Me. 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 óf 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 modehof 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, ¿t is the Congress and not this Court that should act.

       Petitioner also asserted federal jurisdiction under 42 U. S. C. § 1983 and 28 U. S. C. § 1343 (3), and 28 U. S. C. § 1343 (4). Neither will support federal jurisdiction over the claim. See Bivens v. Six Unknown Named Agents, 409 F. 2d 718, 720 n. 1 (CA2 1969).

       See n. 3, infra.

       The Government appears not quite ready to concede this point. Certain points in the Government’s argument seem to suggest that the “state-created right — federal defense” model reaches’not only the question of the power to accord a federal damages remedy, but also the claim to any judicial remedy in any court. Thus, we are pointed to Lasson’s observation concerning Madison's version of the Fourth . Amendment as introduced into the House:
      . “The observation may be made that the language of the proposal did not purport to create the right to be secure from unreasonable search and seizures but merely stated it as a right which already existed.”
      N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 100 n. 77 (1937), quoted in Brief for Respondents 11 n. 7. And, on the problem of federal eqúitable vindication of constitutional rights without regard to the presence of a “state-created right,” see Hart, The Relations Between State and Federal Law, 54 Col. L. Rev. 489, 523-524 (1954), quoted in Brief for Respondents 17.
      On this point, the choice of phraseology in the Fourth Amend- • ment itself is singularly unpersuasive. The leading argument against a “Bill of Rights” was the fear that individual liberties not specified expressly would be taken as excluded. See generally, Lasson, supra, at 79-105. This circumstance alone might well explain why the authors of the Bill of Rights, would opt for language which presumes the existence of a fundamental interest in liberty, albeit originally derived from the common law. See Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (1765).
      In truth, the legislative record as a whole behind the Bill of Rights is silent on the rather refined doctrinal question whether the framers considered the rights therein enumerated as dependent in the first instance on the decision of a State to accord legal status to the personal interests at stake. That is understandable since the Government itself points out that general federal-question jurisdiction was not extended to the federal district courts until 1875. Act of March 3, 1875, § 1, 18 Stat. 470. The most that can be drawn from this historical fact is that the authors of the Bill of Rights assumed the adequacy of common-law remedies to-vindicate the federally protected interest. One must first combine this assumption with contemporary modes of jurisprudential thought which appeared to link “rights” and “remedies” in a 1:1 correlation, cf. Marbury v. Madison, 1 Cranch 137, 163 (1803), before reaching the conclusion that the framers are to be understood today as having created no federally protected interests. And, of course, that would simply require the conclusion that federal equitable relief would not lie to protect those interests guarded by the Fourth Amendment.
      Professor Hart’s observations concerning the “imperceptible steps” between In re Ayers, 123 U. S. 443 (1887), and Ex parte Young, 209 U. S. 123 (1908), see Hart, supra, fail to persuade me that the source of the legal interest asserted here is other than the Federal Constitution itself. In re Ayers concerned the precise question whether the Eleventh Amendment barred suit in a federal court for an injunction compelling a state officer to perform a contract to which the State was a party. Having concluded that the suit was inescapably a suit against the State under the Eleventh Amendment, the Court spoke of the presence of state-created rights as a distinguishing factor supporting the exercise of federal jurisdiction in other contract clause cases. The. absence of a state-created right in In re Ayers served to distinguish that case from the perspective of the State’s immunity to suit; Ayers simply does not speak to the analytically distinct question whether the Constitution is in the relevant sense a source of legal protection for the “rights” enumerated therein.

       The Borák case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a ’federal cause of action. There we “implied” — from what can only be characterized as an “exclusively procedural provision” affording access to a federal forum, cf. Textile Workers v. Lincoln Mills, 353 U. S. 448, 462-463 (1957) (Frankfurter, J., dissenting) — a private cause of action for damages for violation of § 14 (a) of the Securities Exchange Act of 1934, 48 Stat. 895, 15 U. S. C. § 78n (a). See § 27, 48 Stat. 902, 15 U. S. C. § 78aa. We did so in an area where federal regulation has been singularly comprehensive and elaborate administrative enforcement machinery had been provided. The exercise of judicial power involved in Borak simply cannot be justified in terms of statutory construction, see Hill, Constitutional Remedies, 69 Col. L. Rev. 1109, 1120-1121 (1969); nor did the Borak Court purport to do so. See Borak, supra, at 432-434. The notion of “implying” a remedy, therefore, as applied to cases like Borak, can only refer to a process whereby the federal judiciary exercises a choice among traditionally available judicial remedies according to reasons related to the substantive social policy embodied in an act ■ of positive law. See ibid., and Bell v. Hood, supra, at 684.

       With regard to a court’s authority to grant'an equitable remedy, the line between “subject matter” jurisdiction and remedial powers-has undoubtedly been obscured by the fact that historically the “system of .equity ‘derived its doctrines, as well as its powers, from its mode of giving relief.’ ” See Guaranty Trust Co. v. York, supra, at. 105, quoting C. Langdell, Summary of Equity Pleading xxvii (1877). Perhaps this fact alone accounts for the suggestion sometimes made that a court’s power to enjoin invasion of constitutionally protected interests derives directly from the Constitution. See Bell v. Hood, 71 F. Supp. 813, 819 (SD Cal. 1947).

       Chief Judge Lumbard’s opinion for the Court of Appeals in the instant case is, as I have noted, in accord with this conclusion:
      “Thus, even if the Constitution itself does not give rise to an inherent injunctive power to prevent its violation by governmental officials there are strong reasons for inferring the existence of this power under any general grant of jurisdiction to the federal courts by Congress.” 409 F. 2d, at 723.
      The description of the remedy as “inferred” cannot, of course, be intended to assimilate the judicial decision to accord such , a remedy to any process of statutory construction. Rather, as with the cases concerning remedies, implied from statutory schemes, see n. 4, supra, the description of the remedy as “inferred” can only bear on the reasons offered to explain a judicial decision to accord or not to accord a particular remedy.

       I express no view on the Government’s suggestion that congressional authority to simply discard the remedy the Court today authorizes might be in doubt; nor do I understand the Court’s opinion today to express any view on that particular question.

       And I think it follows from this point that today’s decision has little, if indeed any, bearing on the question whether a federal court may properly devise remedies — other than traditionally available forms of judicial relief — for- the purpose of enforcing substantive social policies embodied in constitutional or statutory policies. Compare today’s decision with Mapp v. Ohio, 367 U. S. 643 (1961), and Weeks v. United States, 232 U. S. 383 (1914). The~Court today simply recognizes what has long been implicit in. our decisions concerning equitable relief and remedies implied from statutory schemes; i.'e., that a court of law vested with jurisdiction over the subject matter of a suit has the power — and therefore the duty — to make principled choices among traditional judicial remedies. Whether special prophylactic measures — which at least arguably the exclusionary rule exemplifies, see Hill, The Bill of Rights and the Supervisory Power, 69 Col. L. Rev. 181, 182-185 (1969) — are supportable on grounds other than a court’s competence to select among traditional j idicial remedies to make good the wrong done, cf. Bell v. Hood, supra, at 684, is a separate question.

       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 w;ell vary with the nature of the personal interest asserted. See Monroe v. Pape, 365 U. S. 167. 196 n. 5 (Harlan, J., concurring).

       J. Thayer, O. Holmes, & F. Frankfurter, John Marshall 88 (Phoenix ed. 1967).

       The Court reached the issue of applying the Weeks doctrine to the States sua sponte.

       What Cardozo suggested as an example of the potentially far-reaching consequences of the suppression doctrine was almost realized in Killough v. United States, 114 U. S. App. D. C. 305, 315 F. 2d 241 (1962).

       For example, in a case arising under Mapp, supra, 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.

       Damage verdicts for such acts are often sufficient in size to provide an effective deterrent and stimulate employers to corrective action.

       Electronic eavesdropping presents special problems. See 18 U. S. C. §§ 2510-2520 (1964 ed., Supp. V).

       Any such legislation should emphasize the interdependence between the waiver of sovereign'immunity and the elimination of the judicially created exclusionary rule so that if the legislative determination to repudiate the exclusionary rule falls, the entire statutory scheme would fall.

       “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.” Rev. Stat. § 1979, 42 U. S. C. § 1983.


source: Caselaw Access Project

author: Mr. Justice Stewart

license: Public Domain

text:
    JENNESS et al. v. FORTSON, SECRETARY OF STATE OF GEORGIA
    No. 5714.
    Argued March 1, 1971
    Decided June 21, 1971
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, BreNnan, White, Marshall, and Blackmun, .JJ., joined. Black and Harlan, JJ., concurred in the result.

      Peter E. Rindskopf argued the cause for appellants. With him on the brief was Howard Moore, Jr.

      Robert J. Castellani, Assistant Attorney General of Georgia, argued the cause for appellee. With him on the brief were Arthur K. Bolton, Attorney General, and Harold N. Hill, Jr., Executive Assistant Attorney Generali
   Mr. Justice Stewart

delivered the opinion of the Court.

Under Georgia law a candidate for elective public office who does not enter and win a political party’s primary election can have his name printed on the ballot at the general election only if he has filed a nominating petition signed by at least 5% of the number of registered voters at the last general election for the office in question. Georgia law also provides that a candidate for elective public office must pay a filing fee equal to 5% of the annual salary of the office he is seeking. This litigation arose when the appellants, who were prospective candidates and registered voters, filed a class action in the United States District Court for the Northern District of Georgia, attacking the constitutionality of these provisions of the Georgia Election Code, and seeking declaratory and injunctive relief.

A three-judge court was convened pursuant to 28 U. S. C. §§ 2281 and 2284. Thereafter the appellants filed a motion for summary judgment based upon a stipulation as to the relevant facts. The District Court granted the motion and entered an injunction with respect to the filing-fee requirement, holding that this requirement operates to deny equal protection of the laws as applied to those prospective candidates who cannot afford to pay the fees. No appeal was taken from that injunctive order. With respect to the nominating-petition requirement, the District Court -denied the motion and refused to enter an injunction, holding that this statutory provision is constitutionally valid. From that refusal a direct appeal was brought here under 28 U. S. C. § 1253, and we noted probable jurisdiction.

The basic structure of the pertinent provisions of the Georgia Election Code is relatively uncomplicated. Any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a “political party.” Any other political organization is a “political body.” “Political parties” conduct primary elections, regulated in detail by state law, and only the name of the candidate for each office who wins this primary election is printed on the ballot at the subsequent general election, as his party’s nominee for the office in question. A nominee of a “political body” or an independent candidate, on the other hand, may have his name printed on the ballot at the general election by filing a nominating petition. This petition must be signed by “a number of electors of not less than five per cent, of the total number of electors eligible to vote in the last election for the filling of the office the candidate is seeking . . . .” The total time allowed for circulating a nominating petition is 180 days, and it must be filed on the second Wednesday in June, the same deadline that a candidate filing in a party primary must meet.

It is to be noted that these procedures relate only to the right to have the name of a candidate or the nominee of a “political body” printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted.

In this litigation the appellants have mounted their attack upon Georgia’s nominating-petition requirement on two different but rélated constitutional fronts. First, they say that to require a nonparty candidate to secure the signatures of a certain number of voters before his name may be printed on the ballot is to abridge the freedoms of speech and association guaranteed to that candidate and his supporters by the First and Fourteenth Amendments. Secondly, they say that when Georgia requires a nonparty candidate to secure the signatures of 5% of the voters before printing his name on the ballot, yet prints the names of those candidates who have won nomination in party primaries, it violates the Fourteenth Amendment by denying the nonparty candidate the equal protection of the laws. Since both arguments are primarily based upon this Court’s decision in Williams v. Rhodes, 393 U. S. 23, it becomes necessary to examine that case in some detail.

In the Williams case the Court was confronted with a state electoral structure that favored “two particular parties — the Republicans and the Democrats — and in effect tend[ed] to give them a complete monopoly.” Id., at 32. The Court held unconstitutional the election laws of Ohio insofar as in combination they made it “virtually impossible for a new political party, even though it ha[d] hundreds of thousands of members, or an old party, which ha[d] a very small number of members, to be placed on the state ballot” in the 1968 presidential election. Id., at 24. The state laws made “no provision for ballot position for independent. candidates as distinguished from political parties,” id., at 26, and a new political party, in order to be placed on the ballot, had “to obtain petitions signed by qualified electors totaling 15% of the number of ballots cast in the last preceding gubernatorial election.” Id., at 24-25. But this requirement was only a preliminary. For, although the Ohio American Independent Party in the first six months of 1968 had obtained more than 450,000 signature^ — well' over the 15% requirement — Ohio had nonetheless denied the party a place on the ballot, by reason of other statutory “burdensome procedures, requiring extensive organization and other election activities by a very early date,” id., at .33 — “including the early deadline for filing petitions [February 7, 1968] and the requirement of a primary election conforming to detailed and rigorous standards . . . ” Id., at 27.

In a separate opinion Me. Justice Douglas described the then structure of Ohio’s network of election laws in accurate detail:

“Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes so as to restrict candidacy to names on the ballot; it has eliminated all independent candidates through a requirement that nominees enjoy the endorsement of a political party; it has defined ‘political party’ in such a way as to exclude virtually all but the two major parties.
“A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary, of State in February. That is not all: having compiled those signatures, the candidate must further show that he has received the nomination of a group which qualifies as a ‘political party’ within the meaning of Ohio law. It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.
“To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county central committee; two of its members from each congressional district to a state central committee; and some of its members as delegates and alternates to. a national convention. Moreover, those of its members who seek a place on the primary ballot as candidates for positions as central committeemen and national convention delegates must demonstrate that they did not vote in any other party primary during the preceding four years; and must present petitions of endorsement on their behalf ■by anywhere from five to 1,000 voters who likewise failed to vote for any other party in the last preceding primary. Thus, to qualify as a third party, a group must first erect elaborate political machinery, and then rest it upon the ranks of those who have proved both unwilling and unable to vote.” 393 U. S., at 35-37.

The Court’s decision with respect to this “entangling web of election laws” was unambiguous and positive. It held that “the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.” Id., at 34.

But the Williams case, it is clear, presented a statutory-scheme vastly different from .the one before us here. Unlike Ohio, Georgia freely provides for write-in votes. Unlike Ohio, Georgia does not require every candidate to be the nominee of a political party, but fully recognizes independent candidacies. Unlike Ohio, Georgia does not fix an unreasonably early filing deadline for candidates not endorsed by established parties. Unlike Ohio, Georgia does not impose upon a small party or a new party the Procrustean requirement of establishing elaborate primary election machinery. Finally, and in sum, Georgia’s election laws, unlike Ohio’s, do not operate to freeze the political status quo. In this setting we cannot say that Georgia’s 5% petition requirement violates the Constitution.

Anyone who wishes, and who is otherwise eligible, may be an independent candidate for any office in Georgia. Any political organization, however new or however small, is free to endorse any otherwise eligible person as its candidate for whatever elective public office it chooses. So far as the Georgia election laws are concerned, independent candidates and members of small or newly formed political organizations are wholly free to associate, to proselytize, to speak, to write, and to organize campaigns for any school of thought they wish. They may confine themselves to an appeal for write-in votes. : Or they may seek, over a six months’ period, the signatures of 5% of the eligible electorate for the office in question. If they choose the latter' course, the way is open. For Georgia imposes no suffocating restrictions whatever upon the free circulation of nominating petitions. A voter may sign a petition even though he has signed others, and a voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. The signer of a petition is not required to state that he intends to vote for that candidate at the election. A person who has previously .voted in a party primary is fully .eligible to sign a petition, and so, on’ the other hand, is a person who was not even registered at the time of the previous election. No signature on a nominating petition need be notarized.

The open quality of the Georgia system is far from merely theoretical. For the stipulation of facts in this record informs us that a candidate for Governor in 1966 and a candidate for President in 1968, gained ballot designation by nominating petitions, and each went on to win a plurality of the votes cast at the general election.

In a word, Georgia in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life. Thus, any political body that wins as much as 20% support at an election becomes a “political party” with its attendant ballot position rights and primary election' obligations, and any “political party” whose support at the polls falls below that figure reverts to the status of a “political body” with its attendant nominating petition responsibilities and freedom from primary election duties. We can find in' this system nothing that abridges the rights of free speeqh and association secured by the First and Fourteenth Amendments.

The appellants’, claim under the Equal Protection Clause of the Fourteenth Amendment fares no better. ' This claim is necessarily bottomed upon the premise that it is inherently more burdensome for a candidate to gather the signatures of 5% of the'total eligible electorate than it is to win the votes of a majority in a party primary. That is a premise that cannot be uncritically accepted. Although the number of candidates in a party primary election for any particular office will, of course, vary from election to election, the appellee’s brief advises us that in the most recent election year there were 12 candidates for the nomination for the office of Governor in the two party primaries. Only two of these 12, of course, won their party primaries and had their names printed on the ballot at the general election. Surely an argument could as well be made on behalf of the 10 who lost, that it is they who were denied equal protection vis-á-vis a candidate who could have had his name printed on the ballot simply by filing a nominating petition signed by 5% of the total electorate.

The fact is, of course, that from the point of view of one who aspires to elective public office in Georgia, alternative routes are available to getting his .name printed on the ballot. He may eriter the primary of a political party, or he may circulate nominating petitions either as an independent candidate or under the sponsorship of ;a political organization. We cannot see how Georgia has violated the Equal Protection Clause of the Fourteenth Amendment by making available these two alternative paths, neither of which can be assumed to be inherently more burdensome than the other.

Insofar as we deal’here with the claims of a “political body,” as contrasted with those of an individual aspirant for public office or an individual voter, the situation is somewhat different. For it is true that a “political party” in Georgia is assured of having the name of its nominee — the primary election winner — printed on the ballot, whereas the name of the nominee of a “political body” will be printed only if nominating petitions have been filed that contain the requisite number of signatures. But we can hardly suppose that a small or a new political organization could seriously urge that its interests would be advanced if it were forced by the State to establish all of the elaborate statewide, county-by-county, organizational paraphernalia required of a “political party” as a condition for conducting a primary election. Indeed, a large reason for the Court's invalidation of the Ohio election laws in Williams v. Rhodes, supra, was precisely that Ohio did impose just such requirements on small and new political organizations.

The fact is that there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. Georgia has not been guilty of invidious discrimination in recognizing these differences and providing different routes to the printed ballot. Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra.

There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot — the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election. The 5% figure is, to be sure, apparently somewhat higher than the percentage of support required to be shown in many States as a condition for ballot position, but this is balanced by the fact that Georgia has imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many nominating petitions as he wishes. Georgia in this case has insulated not a single potential voter from the appeal of new political voices within its borders.

The judgment is affirmed.

Mr. Justice Black and Mr. Justice Harlan concur in the result.

       Ga. Code Ann. § 34-1010 (1970).

       Ga. Code Ann. § 34 — 1013.

       One of the appeu*ints was the nominee of the Georgia Socialist Workers Party for Governor in 1970, two others were nominees of that organization for the House of Representatives, and two others were registered voters who sued on behalf of themselves, and “all other registered voters in the State of Georgia desirous of having an opportunity to consider persons on the ballot other than nominees of the Democratic and Republican parties.”

        Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035.

       400 U. S. 877.

       Ga. Code Ann. § 34-103 (u).

       Ga. Code Ann. § 34-103 (s).

       See, e. g., Ga. Code Ann. §§ 34-1004 to 34-1006, 34-1008, 34-1009, 34-1014, 34-1015, 34-1102, 34-1301 to 34-1303; 34-1308, 34-1507, 34-1513.

       Ga. Code Ann. § 34-1001.

       Ga. Code Ann. § 34-1010 (b).

       Ga. Code Ann. § 34-1010 (e).'

       Compare Ga. Code Ann. § 34-1002 (b) with Ga. Code Ann. § 34-1005 (b).

       In describing these burdens, the Court quoted the description contained in the dissenting opinion of a member of the three-judge District Court from, which the appeal in the Williams case had come:
      “Judge Kinneary describes, in his dissenting opinion below, the legal obstacles placed before a would-be third party even after the .15% signature requirement has béen fulfilled:

        “ ‘First, at the primary election, the new party, or any political party, is required to elect a state central committee consisting of two members from each congressional district and county central committees for each county in Ohio. [Ohio Rev. Code §§ 3517.02-3517.04.] Second, at the primary election the new party must elect -delegates and alternates to a national convention. [Ohio Rev. Code § 3505.10.] Since Section 3513.19.1, Ohio Rev. Code, prohibits a candidate from seeking the office of delegate to the national convention or committeeman if he voted as a member of a different party at a primary election in the preceding four year period, the new party would be required to have over twelve hundred members who had not previously voted in another party’s primary, and who would be willing to serve as committeemen and delegates. Third,, the candidates for nomination in the primary would have to file petitions signed by qualified electors. [Ohio Rev. Code § 3513.05.] The term “qualified electors” is not adequately defined in the Ohio Revised Code -[§ 3501.01 (H)], but a. related section [§3513.19], provides that a qualified elector at a primary election of a political party is one who, (1) voted for a majority of that party’s candidates at the last election, or, (2) has never voted in any election before. Since neither of the political party plaintiffs had any candidates at the last preceding regular state election, they would, of necessity, have to seek out members who had never voted before to sign the nominating petitions, and it would be only these persons who could vote in the primary election of the new party.’” 393 U. S., at 25 n. 1.

       Mr. Justice Douglas, while joining the opinion of the Court, filed a separate opinion giving emphasis to the First Amendment values involved. Id., at 35. Mr. Justice HarlaN filed an opinion concurring in the judgment, explaining why he would have rested decision “entirely on the proposition that Ohio’s statutory scheme violates the basic right of' political association assured by the First Amendment which is protected against state infringement under the Due Process Clause of the Fourteenth Amendment.” Id., at 41.

       Contrast, e. g., La. Rev. Stat. Ann. § 18:624 (A) (1969); N. Y. Election Law § 138 (6) (1964).

       Contrast, e. g., R. I. Gen. Laws Ann. § 17-16-8 (1969).

      -Contrast, e. g., N. Y. Election Law § 138 (2) (1964).

       Contrast, e. g., Cal. Elections Code § 6830 (c) (1961); Colo. Rev. Stat. Ann. § 49-7-1 (4) (Supp. 1967).

       Contrast, e. g., N. Y. Election Law § 138 (2) (1964).

       Contrast, e. g., Colo. Rev. Stat. Ann. § 49-7-1 (4) (Supp. 1967).

       See Fortson v. Morris, 385 U. S. 231.

       This was the candidate whose party Ohio had kept off the bállot in Williams v. Rhodes, 393 U. S. 23.

       As a result, the political bodies that endorsed these two candidates have now presumably acquired the status of political parties.

       Georgia provides for a second “run-off” primary election in the •event no candidate receives a majority of the votes cast at the original primary election. See Ga. Code Ann. § 34-1513 (a).

       The argument that the first alternative route is not realistically open to a candidate with unorthodox or “radical” views is hardly valid in the light of American political history. Time after time established political parties, at local, state, and national levels, have, while retaining their old labels, changed their ideological direction because of the influence and leadership of those with unorthodox or “radical” views.

       The Georgia Socialist Workers Party was one of the plaintiffs in the District Court, but is not an appellant here. We may assume, however, without deciding, that the individual appellants can properly assert the interests of that “political body.”

       See, e. g., Ga. Code Ann. § 34-1004.

       See Williams v. Rhodes, 393 U. S., at 47 n. 10 (Harlan, J., concurring in result).