author: Justice Ginsburg

text:
    FLORIDA v. NIXON
    No. 03-931.
    Argued November 2, 2004
    Decided December 13, 2004

      Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Rehnquist, C. J., who took no part in the decision of the case.

      George S. Lemieux, Deputy Attorney General of Florida, argued the cause for petitioner. With him on the briefs were Charles J. Crist, Jr., Attorney General, Carolyn M.

      Snurkowski, Assistant Deputy Attorney General, and Curtis M. French, Senior Assistant Attorney General.

      Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Olson, Assistant Attorney General Wray, Deputy Solicitor General Dreeben, and Sri Srinivasan.

      Edward H. Tillinghast III argued the cause for respondent. With him on the brief was Eric M. Freedman.

         Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.

   Justice Ginsburg

delivered the opinion of the Court.

This capital case concerns defense counsel’s strategic decision to concede, at the guilt phase of the trial, the defendant’s commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant’s life. Any concession of that order, the Florida Supreme Court held, made without the defendant’s express consent — however gruesome the crime and despite the strength of the evidence of guilt — automatically ranks as prejudicial ineffective assistance of counsel necessitating a new trial. We reverse the Florida Supreme Court’s judgment.

Defense counsel undoubtedly has a duty to discuss potential strategies with the defendant. See Strickland v. Washington, 466 U. S. 668, 688 (1984). But when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of death, counsel is not automatically barred from pursuing that course. The reasonableness of counsel’s performance, after consultation with the defendant yields no response, must be judged in accord with the inquiry generally applicable to ineffective-assistance-of-counsel claims: Did counsel’s representation “f[a]ll below an objective standard of reasonableness”? Id., at 688, 694. The Florida Supreme Court erred in applying, instead, a presumption of deficient performance, as well as a presumption of prejudice; that latter presumption, we have instructed, is reserved for cases in which counsel fails meaningfully to oppose the prosecution’s case. United States v. Cronic, 466 U. S. 648, 659 (1984). A presumption of prejudice is not in order based solely on a defendant’s failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with the defendant.

I

On Monday, August . 13,1984, near a dirt road in the environs of Tallahassee, Florida, a passing motorist discovered Jeanne Bickner’s charred body. Nixon v. State, 572 So. 2d 1336, 1337 (Fla. 1990) (Nixon I); 13 Record 2464-2466. Bickner had been tied to a tree and set on fire while still alive. Id., at 2475, 2483-2484. Her left leg and arm, and most of her hair and skin, had been burned away. Id., at 2475-2476. The next day, police found Bickner’s car, abandoned on a Tallahassee street corner, on fire. Id., at 2520. Police arrested 23-year-old Joe Elton Nixon later that morning, after Nixon’s brother informed the sheriff’s office that Nixon had confessed to the murder. Id., at 2559.

Questioned by the police, Nixon described in graphic detail how he had kidnaped Bickner, then killed her. He recounted that he had approached Bickner, a stranger, in a mall, and asked her to help him jump-start his car. 5 id., at 919-921. Bickner offered Nixon a ride home in her 1973 MG sports car. Id., at 922. Once on the road, Nixon directed Bickner to drive to a remote place; en route, he overpowered her and stopped the car. Id., at 924, 926-927. Nixon next put Bickner in the MG’s trunk, drove into a wooded area, removed Bickner from the car, and tied her to a tree with jumper cables. Id., at 930-931. Bickner pleaded with Nixon to release her, offering him money in exchange. Id., at 928. Concerned that Bickner might identify him, Nixón decided to kill her. Id., at 929. He set fire to Bickner’s personal belongings and ignited her with burning objects. Id., at 934-935. Nixon drove away in the MG, and later told his brother and girlfriend what he had done. Id., at 938, 961. He burned the MG on Tuesday, August 14, after reading in the newspaper that Bickner’s body had been discovered. Id., at 963, 982.

The State gathered overwhelming evidence establishing that Nixon had committed the murder in the manner he described. A witness saw Nixon approach Bickner in the mall’s parking lot on August 12, and observed Bickner taking jumper cables out of the trunk of her car and giving them to Nixon. 13 id., at 2447-2448, 2450. Several witnesses told police they saw Nixon driving around in the MG in the hours and days following Bickner’s death. See id., at 2456, 2487-2488, 2498, 2509. Nixon’s palm print was found on the trunk of the car. Id., at 2548-2549. Nixon’s girlfriend, Wanda Robinson, and his brother, John Nixon, both stated that Nixon told them he had killed someone and showed them two rings later identified as Bickner’s. 5 id., at 971, 987; 13 id., at 2565. According to Nixon’s brother, Nixon pawned the rings, 5 id., at 986, and attempted to sell the car, id., at 973. At a local pawnshop, police recovered the rings and a receipt for them bearing Nixon’s driver’s license number; the pawnshop owner identified Nixon as the person who sold the rings to him. 13 id., at 2568-2569.

In late August 1984, Nixon was indicted in Leon County, Florida, for first-degree murder, kidnaping, robbery, and arson. See App. 1, 55. Assistant public defender Michael Corin, assigned to represent Nixon, see id., at 232, filed a plea of not guilty, id., at 468-469, and deposed all of the State’s potential witnesses, id., at 53-58. Corin concluded, given the strength of the evidence, that Nixon’s guilt was not “subject to any reasonable dispute.” Id., at 490. Corin thereupon commenced plea negotiations, hoping to persuade the prosecution to drop the death penalty in exchange for Nixon’s guilty pleas to all charges. Id., at 336-338, 507. Negotiations broke down when the prosecutors indicated their unwillingness to recommend a sentence other than death. See id., at 339, 508.

Faced with the inevitability of going to trial on a capital charge, Corin turned his attention to the penalty phase, believing that the only way to save Nixon’s life would be to present extensive mitigation evidence centering on Nixon’s mental instability. Id., at 261, 473; see also id., at 102. Experienced in capital defense, see id., at 248-250, Corin feared that denying Nixon’s commission of the kidnaping and murder during the guilt phase would compromise Corin’s ability to persuade the jury, during the penalty phase, that Nixon’s conduct was the product of his mental illness. See id., at 473, 490, 505. Corin concluded that the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase. Id., at 458, 505.

Corin attempted to explain this strategy to Nixon at least three times. Id., at 254-255. Although Corin had represented Nixon previously on unrelated charges and the two had a good relationship in Corin’s estimation, see id., at 466-467, Nixon was generally unresponsive during their discussions, id., at 478-480. He never verbally approved or protested Corin’s proposed strategy. Id., at 234-238, 255, 501. Overall, Nixon gave Corin very little, if any, assistance or direction in preparing the case, id., at 478, and refused to attend pretrial dispositions of various motions, Nixon I, 572 So. 2d, at 1341; App. 478. Corin eventually exercised his professional judgment to pursue the concession strategy. As he explained: “There are many times lawyers make decisions because they have to make them because the client does nothing.” Id., at 486.

When Nixon’s trial began on July 15, 1985, his unresponsiveness deepened into disruptive and violent behavior. On the second day of jury selection, Nixon pulled off his clothing, demanded a black judge and lawyer, refused to be escorted into the courtroom, and threatened to force the guards to shoot him. Nixon I, 572 So. 2d, at 1341; 10 Record 1934-1935. An extended on-the-record colloquy followed Nixon’s bizarre behavior, during which Corin urged the trial judge to explain Nixon’s rights to him and ascertain whether Nixon understood the significance of absenting himself from the trial. Corin also argued that restraining Nixon and compelling him to be present would prejudice him in the eyes of the jury. Id., at 1918-1920. When the judge examined Nixon on the record in a holding cell, Nixon stated he had no interest in the trial and threatened to misbehave if forced to attend. Id., at 1926-1931. The judge ruled that Nixon had intelligently and voluntarily waived his right to be present at trial. Id., at 1938; 11 id., at 2020.

The guilt phase of the trial thus began in Nixon’s absence. In his opening statement, Corin acknowledged Nixon’s guilt and urged the jury to focus on the penalty phase:

“In this case, there won’t be any question, none whatsoever, that my client, Joe Elton Nixon, caused Jeannie Bickner’s death. . . . [T]hat fact will be proved to your satisfaction beyond any doubt.
“This case is about the death of Joe Elton Nixon and whether it should occur within the next few years by electrocution or maybe its natural expiration after a lifetime of confinement.
“Now, in arriving at your verdict, in your penalty recommendation, for we will get that far, you are going to learn many facts . . . about Joe Elton Nixon. Some of those facts are going to be good. That may not seem clear to you at this time. But, and sadly, most of the things you learn of Joe Elton Nixon are not going to be good. But, I’m suggesting to you that when you have seen all the testimony, heard all the testimony and the evidence that has been shown, there are going to be reasons why you should recommend that his life be spared.” App. 71-72.

During its case in chief, the State introduced the tape of Nixon’s confession, expert testimony on the manner in which Bickner died, and witness testimony regarding Nixon’s confessions to his relatives and his possession of Bickner’s car and personal effects. Corin cross-examined these witnesses only when he felt their statements needed clarification, see, e. g., 13 Record 2504, and he did not present a defense case, 20 id., at 3741. Corin did object to the introduction of crime scene photographs as unduly prejudicial, 13 id., at 2470, and actively contested several aspects of the jury instructions during the charge conference, 11 id., at 2050-2058. In his closing argument, Corin again conceded Nixon’s guilt, App. 73, and reminded the jury of the importance of the penalty phase: “I will hope to ... argue to you and give you reasons not that Mr. Nixon’s life be spared one final and terminal confinement forever, but that he not be sentenced to die,” id., at 74. The jury found Nixon guilty on all counts.

At the start of the penalty phase, Corin argued to the jury that “Joe Elton Nixon is not normal organically, intellectually, emotionally or educationally or in any other way.” Id., at 102. Corin presented the testimony of eight witnesses. Relatives and friends described Nixon’s childhood emotional troubles and his erratic behavior in the days preceding the murder. See, e. g., id., at 108-120. A psychiatrist and a psychologist addressed Nixon’s antisocial personality, his history of emotional instability and psychiatric care, his low IQ, and the possibility that at some point he suffered brain damage. Id., at 143-147, 162-166. The State presented little evidence during the penalty phase, simply incorporating its guilt-phase evidence by reference, and introducing testimony, over Corin’s objection, that Nixon had removed Bick-ner’s underwear in order to terrorize her. Id., at 105-106.

In his closing argument, Corin emphasized Nixon’s youth, the psychiatric evidence, and the jury’s discretion to consider any mitigating circumstances, id., at 194-199; Corin urged that, if not sentenced to death, “Joe Elton Nixon would [n]ever be released from confinement,” id., at 207. The death penalty, Corin maintained, was appropriate only for “intact human being[s],” and “Joe Elton Nixon is not one of those. He’s never been one of those. He never will be one of those.” Id., at 209. Corin concluded: “You know, we’re not around here all that long. And it’s rare when we have the opportunity to give or take life. And you have that opportunity to give life. And I’m going to ask you to do that. Thank you.” Ibid. After deliberating for approximately three hours, the jury recommended that Nixon be sentenced to death. See 21 Record 4013.

In accord with the jury’s recommendation, the trial court imposed the death penalty. Nixon I, 572 So. 2d, at 1338. Notably, at the close of the penalty phase, the court commended Corin’s performance during the trial, stating that “the tactic employed by trial counsel . . . was an excellent analysis of [the] reality of his case.” 21 Record 4009. The evidence of guilt “would have persuaded any jury ... beyond all doubt,” and “[f]or trial counsel to have inferred that Mr. Nixon was not guilty . .. would have deprived [counsel] of any credibility during the penalty phase.” Id., at 4010.

On direct appeal to the Florida Supreme Court, Nixon, represented by new counsel, argued that Corin had rendered ineffective assistance by conceding Nixon’s guilt without obtaining Nixon’s express consent. Nixon I, 572 So. 2d, at 1338-1339. Relying on United States v. Cronic, 466 U. S. 648 (1984), new counsel urged that Corin’s concession should be presumed prejudicial because it left the prosecution’s case unexposed to “meaningful adversarial testing,” id., at 658-659. The Florida Supreme Court remanded for an eviden-tiary hearing on whether Nixon consented to the strategy, see App. 216-217, but ultimately declined to rule on the matter, finding the evidence of Corin’s interactions with Nixon inconclusive, Nixon I, 572 So. 2d, at 1340.

In a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (1999), Nixon renewed his CVomc-based “presumption of prejudice” ineffective-assistance-of-eounsel claim. After the trial court rejected the claim, State v. Nixon, Case No. 84-2324 (Cir. Ct., Oct. 22, 1997), App. 389-390, the Florida Supreme Court remanded for a further hearing on Nixon’s consent to defense counsel’s strategy. Nixon v. Singletary, 758 So. 2d 618, 625 (2000) (Nixon II). Corin’s concession, according to the Florida Supreme Court, was the “functional equivalent of a guilty plea” in that it allowed the prosecution’s guilt-phase case to proceed essentially without opposition. Id., at 622-624. Under Boykin v. Alabama, 395 U. S. 238, 242-243 (1969), a guilty plea cannot be inferred from silence; it must be based on express affirmations made intelligently and voluntarily. Similarly, the Florida Supreme Court stated, a concession of guilt at trial requires a defendant’s “affirmative, explicit acceptance,” without which counsel’s performance is presumptively inadequate. Nixon II, 758 So. 2d, at 624. The court acknowledged that Nixon was “very disruptive and uncooperative at trial,” and that “counsel’s strategy may have been in Nixon’s best interest.” Id., at 625. Nevertheless, the court firmly declared that “[s]ilent acquiescence is not enough,” id., at 624; counsel who concedes a defendant’s guilt is inevitably ineffective, the court ruled, if the defendant does not expressly approve counsel’s course, id., at 625.

On remand, Corin testified that he explained his. view of the case to Nixon several times, App. 479-480, and that at each consultation, Nixon “did nothing affirmative or negative,” id., at 481-482; see also id., at 486-487. Failing to elicit a definitive response from Nixon, Corin stated, he chose to pursue the concession strategy because, in his professional judgment, it appeared to be “the only way to save [Nixon’s] life.” Id., at 472. Nixon did not testify at the hearing. The trial court found that Nixon’s “natural pattern of communication” with Corin involved passively receiving information, and that Nixon consented to the strategy “through his behavior.” State v. Nixon, Case No. R84-2324AF (Fla. Cir. Ct., Sept. 20, 2001), p. 13; 2 Record 378.

Observing that “no competent, substantial evidence . . . established] that Nixon affirmatively and explicitly agreed to counsel’s strategy,” the Florida Supreme Court reversed and remanded for a new trial. Nixon v. State, 857 So. 2d 172, 176 (2003) (Nixon III) (emphasis in original). Three justices disagreed with the majority’s determination that Corin’s concession rendered his representation inadequate. Id., at 183 (Lewis, J., concurring in result); id., at 189 (Wells, J., joined by Shaw, S. J., dissenting).

We granted certiorari, 540 U. S. 1217 (2004), to resolve an important question of constitutional law, i. e., whether counsel’s failure to obtain the defendant’s express consent to a strategy of conceding guilt in a capital trial automatically renders counsel’s performance deficient, and whether counsel’s effectiveness should be evaluated under Cronic or Strickland. We now reverse the judgment of the Florida Supreme Court.

II

An attorney undoubtedly has a duty to consult with the client regarding “important decisions,” including questions of overarching defense strategy. Strickland, 466 U. S., at 688. That obligation, however, does not require counsel to obtain the defendant’s consent to “every tactical decision.” Taylor v. Illinois, 484 U. S. 400, 417-418 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client’s approval). But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has “the ultimate authority” to determine “whether to plead guilty, waive a jury, testify in his' or her own behalf, or take an appeal.” Jones v. Barnes, 463 U. S. 745, 751 (1983); Wainwright v. Sykes, 433 U. S. 72, 93, n. 1 (1977) (Burger, C. J., concurring). Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.

A guilty plea, we recognized in Boykin v. Alabama, 395 U. S. 238 (1969), is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront one’s accusers. Id., at 243. While a guilty plea may be tactically advantageous for the defendant, id., at 240, the plea is not simply a strategic choice; it is “itself a conviction,” id., at 242, and the high stakes for the defendant require “the utmost solicitude,” id., at 243. Accordingly, counsel lacks authority to consent to a guilty plea on a client’s behalf, Brookhart v. Janis, 384 U. S. 1, 6-7 (1966); moreover, a defendant’s tacit acquiescence in the decision to plead is insufficient to render the plea valid, Boykin, 395 U. S., at 242.

The Florida Supreme Court, as just observed, see supra, at 185-186, required Nixon’s “affirmative, explicit acceptance” of Corin’s strategy because it deemed Corin’s statements to the jury “the functional equivalent of a guilty plea.” Nixon II, 758 So. 2d, at 624. We disagree with that assessment.

Despite Corin’s concession, Nixon retained the rights accorded a defendant in a criminal trial. Cf. Boykin, 395 U. S., at 242-243, and n. 4 (a guilty plea is “more than a confession which admits that the accused did various acts,” it is a “stipulation that no proof by the prosecution need be advanced” (internal quotation marks omitted)). The State was obliged to present during the guilt phase competent, admissible evidence establishing the essential elements of the crimes with which Nixon was charged. That aggressive evidence would thus be separated from the penalty phase, enabling the defense to concentrate that portion of the trial on mitigating factors. See supra, at 181, 183-184. Further, the defense reserved the right to cross-examine witnesses for the prosecution and could endeavor, as Corin did, to exclude prejudicial evidence. See supra, at 183. In addition, in the event of errors in the trial or jury instructions, a concession of guilt would not hinder the defendant’s right to appeal.

Nixon nevertheless urges, relying on Brookhart v. Janis, that this Court has already extended the requirement of “affirmative, explicit acceptance” to proceedings “surrender-ting] the right to contest the prosecution’s factual case on the issue of guilt or innocence.” Brief for Respondent 32. Defense counsel in Brookhart had agreed to a “prima facie” bench trial at which the State would be relieved of its obligation to put on “complete proof” of guilt or persuade a jury of the defendant’s guilt beyond a reasonable doubt. 384 U. S., at 5-6. In contrast to Brookhart, there was in Nixon’s case no “truncated” proceeding, id., at 6, shorn of the need to persuade the trier “beyond a reasonable doubt,” and of the defendant’s right to confront and cross-examine witnesses. While the “prima facie” trial in Brookhart was fairly characterized as “the equivalent of a guilty plea,” id., at 7, the full presentation to the jury in Nixon’s case does not resemble that severely abbreviated proceeding. Brookhart, in short, does not carry the weight Nixon would place on it.

Corin was obliged to, and in fact several times did, explain his proposed trial strategy to Nixon. See supra, at 181, 186. Given Nixon’s constant resistance to answering inquiries put to him by counsel and court, see Nixon III, 857 So. 2d, at 187-188 (Wells, J., dissenting), Corin was not additionally required to gain express consent before conceding Nixon’s guilt. The two evidentiary hearings conducted by the Florida trial court demonstrate beyond doubt that Corin fulfilled his duty of consultation by informing Nixon of counsel’s proposed strategy and its potential benefits. Nixon’s characteristic silence each time information was conveyed to him, in sum, did not suffice to render unreasonable Gorin’s decision to concede guilt and to home in, instead, on the life or death penalty issue.

The Florida Supreme Court’s erroneous equation of Cor-in’s concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel’s performance ranked as ineffective assistance. The court first presumed deficient performance, then applied the presumption of prejudice that United States v. Cronic, 466 U. S. 648 (1984), reserved for situations in which counsel has entirely failed to function as the client’s advocate. The Florida court therefore did not hold Nixon to the standard prescribed in Strickland v. Washington, 466 U. S. 668 (1984), which would have required Nixon to show that counsel’s concession strategy was unreasonable. As Florida Supreme Court Justice Lewis observed, that court’s majority misunderstood Cronic and failed to attend to the realities of defending against a capital charge. Nixon III, 857 So. 2d, at 180-183 (opinion concurring in result).

Cronic recognized a narrow exception to Strickland’s holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney’s performance was deficient, but also that the deficiency prejudiced the defense. Cronic instructed that a presumption of prejudice would be in order in “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 466 U. S., at 658. The Court elaborated: “[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Id., at 659; see Bell v. Cone, 535 U. S. 685, 696-697 (2002) (for Cronic’s presumed prejudice standard to apply, counsel’s “failure must be complete”). We illustrated just how infrequently the “surrounding circumstances [will] justify a presumption of ineffectiveness” in Cronic itself. In that case, we reversed a Court of Appeals ruling that ranked as prejudicially inadequate the performance of an inexperienced, underprepared attorney in a complex mail fraud trial. 466 U. S., at 662, 666.

On the record thus far developed, Gorin’s concession of Nixon’s guilt does not rank as a “fail[ure] to function in any meaningful sense as the Government’s adversary." Id., at 666. Although such a concession in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant’s guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 329 (1983). In such cases, “avoiding execution [may be] the best and only realistic result possible.” ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases §10.9.1, Commentary (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1040 (2003).

Counsel therefore may reasonably decide to focus on the trial’s penalty phase, at which time counsel’s mission is to persuade the trier that his client’s life should be spared. Unable to negotiate a guilty plea in exchange for a life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course. See Lyon, Defending the Death Penalty Case: What Makes Death Different? 42 Mercer L. Rev. 695, 708 (1991) (“It is not good to put on a ‘he didn’t do it’ defense and a ‘he is sorry he did it’ mitigation. This just does not work. The jury will give the death penalty to the client and, in essence, the attorney.”); Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557, 1589-1591 (1998) (interviews of jurors in capital trials indicate that juries approach the sentencing phase “cynically” where counsel’s sentencing-phase presentation is logically inconsistent with the guilt-phase defense); id., at 1597 (in capital cases, a “run-of-the-mill strategy of challenging the prosecution’s case for failing to prove guilt beyond a reasonable doubt” can have dire implications for the sentencing phase). In this light, counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in “a useless charade.” See Cronic, 466 U. S., at 656-657, n. 19. Renowned advocate Clarence Darrow, we note, famously 'employed a similar strategy as counsel for the youthful, cold-blooded killers Richard Loeb and Nathan Leopold. Imploring the judge to spare the boys’ lives, Darrow declared: “I do not know how much salvage there is in these two boys.... I will be honest with this court as I have tried to be from the beginning. I know that these boys are not fit to be at large.” Attorney for the Damned: Clarence Darrow in the Courtroom 84 (A. Weinberg ed. 1989); see Tr. of Oral Arg. 40-41 (Darrow’s clients “did not expressly consent to what he did. But he saved their lives.”); cf. Yarborough v. Gentry, 540 U. S. 1, 9-10 (2003) (per curiam).

To summarize, in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.

* * *

For the reasons stated, the judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

The Chief Justice took no part in the decision of this case.

       Although Nixon initially stated that he kidnaped Bickner on August 11, the kidnaping and murder in fact occurred on Sunday, August 12, 1984. 20 Record 3768-3770.

       Every court to consider this case, including the judge who presided over Nixon’s trial, agreed with Corin’s assessment of the evidence. See, e. g., Nixon v. Singletary, 758 So. 2d 618, 625 (Fla. 2000) (per curiam) (evidence of guilt was “overwhelming”); State v. Nixon, Case No. 84-2324 (Fla. Cir. Ct., Oct. 22, 1997), App. 385; 21 Record 4009-4010.

       Except for a brief period during the second day of the trial, Nixon remained absent throughout the proceedings. See Nixon I, 572 So. 2d 1336, 1341-1342 (Fla. 1990); Brief for Petitioner 6, n. 8.

       Nixon contended in the alternative that Corin’s decision to concede guilt was unreasonable and prejudicial under the generally applicable standard set out in Strickland v. Washington, 466 U. S. 668 (1984). App. 385, 389; see supra, at 178. Nixon also raised several other challenges to his conviction and sentence. See App. 378-384, 390-392.

       In his brief before this Court, Nixon describes inconsistencies in the State’s evidence at the guilt phase of the trial. See Brief for Respondent 13-22. Corin’s failure to explore these inconsistencies, measured against the Strickland standard, 466 U. S., at 690, Nixon maintains, constituted ineffective assistance of counsel. The Florida Supreme Court did not address the alleged inconsistencies and we decline to consider the matter in the first instance.

       As Corin determined here, pleading guilty without a guarantee that the prosecution will recommend a life sentence holds little if any benefit for the defendant. See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.9.2, Commentary (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1045 (2003) (“If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiver of the client’s trial rights.”). Pleading guilty not only relinquishes trial rights, it increases the likelihood that the State will introduce aggressive evidence of guilt during the sentencing phase, so that the gruesome details of the crime are fresh in the jurors’ minds as they deliberate on the sentence. See Goodpaster, 58 N. Y. U. L. Rev., at 331; supra, at 184, 188.


source: Caselaw Access Project

author: Per Curiam. Justice Breyer, Justice Stevens,

license: Public Domain

text:
    BROSSEAU v. HAUGEN
    No. 03-1261.
    Decided December 13, 2004
   Per Curiam.

Officer Rochelle Brosseau, a member of the Puyallup, Washington, Police Department, shot Kenneth Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action in the United States District Court for the Western District of Washington pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983. He alleged that the shot fired by Brosseau constituted excessive force and violated his federal constitutional rights. The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed. 339 F. 3d 857 (2003). Following the two-step process set out in Saucier v. Katz, 533 U. S. 194 (2001), the Court of Appeals found, first, that Brosseau had violated Haugen’s Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. Brosseau then petitioned for writ of certiorari, requesting that we review both of the Court of Appeals’ determinations. We grant the petition on the second, qualified immunity question and reverse.

The material facts, construed in a light most favorable to Haugen, are as follows. On the day before the fracas, Glen Tamburello went to the police station and reported to Bros-seau that Haugen, a former crime partner of his, had stolen tools from his shop. Brosseau later learned that there was a felony no-bail warrant out for Haugen’s arrest on drug and other offenses. The next morning, Haugen was spray painting his Jeep Cherokee in his mother’s driveway. Tambur-ello learned of Haugen’s whereabouts, and he and cohort Matt Atwood drove a pickup truck to Haugen’s mother’s house to pay Haugen a visit. A fight ensued, which was witnessed by a neighbor who called 911.

Brosseau heard a report that the men were fighting in Haugen’s mother’s yard and responded. When she arrived, Tamburello and Atwood were attempting to get Haugen into Tamburello’s pickup. Brosseau’s arrival created a distraction, which provided Haugen the opportunity to get away. Haugen ran through his mother’s yard and hid in the neighborhood. Brosseau requested assistance, and, shortly thereafter, two officers arrived with a K-9 to help track Haugen down. During the search, which lasted about 30 to 45 minutes, officers instructed Tamburello and Atwood to remain in Tamburello’s pickup. They instructed Deanna Nocera, Haugen’s girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburello’s pickup was parked in the street in front of the driveway; Nocera’s small car was parked in the driveway in front of and facing the Jeep; and the Jeep was in the driveway facing Nocera’s car and angled somewhat to the left. The Jeep was parked about 4 feet away from Nocera’s car and 20 to 30 feet away from Tamburello’s pickup.

An officer radioed from down the street that a neighbor had seen a man in her backyard. Brosseau ran in that direction, and Haugen appeared. He ran past the front of his mother’s house and then turned and ran into the driveway. With Brosseau still in pursuit, he jumped into the driver’s side of the Jeep and closed and locked the door. Brosseau believed that he was running to the Jeep to retrieve a weapon.

Brosseau arrived at the Jeep, pointed her gun at Haugen, and ordered him to get out of the vehicle. Haugen ignored her command and continued to look for the keys so he could get the Jeep started. Brosseau repeated her commands and hit the driver’s side window several times with her handgun, which failed to deter Haugen. On the third or fourth try, the window shattered. Brosseau unsuccessfully attempted to grab the keys and struck Haugen on the head with the barrel and butt of her gun. Haugen, still undeterred, succeeded in starting the Jeep. As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver’s side window at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was “‘fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen’s] path and for any other citizens who might be in the area.’ ” 339 F. 3d, at 865.

Despite being hit, Haugen, in his words, “ ‘st[ood] on the gas’ navigated the “ ‘small, tight space’ ” to avoid the other vehicles; swerved across the neighbor’s lawn; and continued down the street. Id., at 882. After about a half block, Haugen realized that he had been shot and brought the Jeep to a halt. He suffered a collapsed lung and was airlifted to a hospital. He survived the shooting and subsequently pleaded guilty to the felony of “eluding.” Wash. Rev. Code §46.61.024 (1994). By so pleading, he admitted that he drove his Jeep in a manner indicating “a wanton or wilful disregard for the lives ... of others.” Ibid. He subsequently brought this § 1983 action against Brosseau.

* * *

When confronted with a claim of qualified immunity, a court must ask first the following question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U. S., at 201. As the Court of Appeals recognized, the constitutional question in this case is governed by the principles enunciated in Tennessee v. Garner, 471 U. S. 1 (1985), and Graham v. Connor, 490 U. S. 386 (1989). These cases establish that claims of excessive force are to be judged under the Fourth Amendment’s “‘objective reasonableness’” standard. Id., at 388. Specifically with regard to deadly force, we explained in Garner that it is unreasonable for an officer to “seize an unarmed, nondangerous suspect by shooting him dead.” 471 U. S., at 11. But “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Ibid.

We express no view as to the correctness of the Court of Appeals’ decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.

Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Saucier v. Katz, 533 U. S., at 206 (qualified immunity operates “to protect officers from the sometimes 'hazy border between excessive and acceptable force’”). Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.

It is important to emphasize that this inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id., at 201. As we previously said in this very context:

“[T]here is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson [v. Creighton] ‘that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ 483 U. S. [635,] 640 [(1987)]. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id., at 201-202.

The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and Garner. 339 F. 3d, at 873-874. In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment’s text, are cast at a high level of generality. See Graham v. Connor, supra, at 396 (“'[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application’ ”). Of course, in an obvious case, these standards can “clearly establish” the answer, even without a body of relevant case law. See Hope v. Pelzer, 536 U. S. 730, 738 (2002) (noting in a case where the Eighth Amendment violation was “obvious” that there need not be a materially similar case for the right to be clearly established). See also Pace v. Capobianco, 283 F. 3d 1275, 1283 (CA11 2002) (explaining in a Fourth Amendment case involving an officer shooting a fleeing suspect in a vehicle that, “when we look at decisions such as Garner and Graham, we see some tests to guide us in determining the law in many different kinds of circumstances; but we do not see the kind of clear law (clear answers) that would apply” to the situation at hand). The present case is far from the obvious one where Graham and Garner alone offer a basis for decision.

We therefore turn to ask whether, at the time of Bros-seau’s actions, it was “ ‘ “clearly established” ’ ” in this more “‘particularized’” sense that she was violating Haugen’s Fourth Amendment right. Saucier v. Katz, 533 U. S., at 202. The parties point us to only a handful of cases relevant to the “situation [Brosseau] confronted”: whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight. Ibid. Specifically, Brosseau points us to Cole v. Bone, 993 F. 2d 1328 (CA8 1993), and Smith v. Freland, 954 F. 2d 343 (CA6 1992).

In these cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others. Cole v. Bone, supra, at 1333 (holding the officer “had probable cause to believe that the truck posed an imminent threat of serious physical harm to innocent motorists as well as to the officers themselves”); Smith v. Freland, 954 F. 2d, at 347 (noting “a car can be a deadly weapon” and holding the officer’s decision to stop the car from possibly injuring others was reasonable). Smith is closer to this case. There, the officer and suspect engaged in a car chase, which appeared to be at an end when the officer cornered the suspect at the back of a dead-end residential street. The suspect, however, freed his car and began speeding down the street. At this point, the officer fired a shot, which killed the suspect. The court held the officer’s decision was reasonable and thus did not violate the Fourth Amendment. It noted that the suspect, like Haugen here, “had proven he would do almost anything to avoid capture” and that he posed a major threat to, among others, the officers at the end of. the street. Ibid.

Haugen points us to Estate of Starks v. Enyart, 5 F. 3d 230 (CA7 1993), where the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect. There, the court concluded that the threat created by the fleeing suspect’s failure to brake when an officer suddenly stepped in front of his just-started car was not a sufficiently grave threat to justify the use of deadly force. Id., at 234.

These three cases taken together undoubtedly show that this area is one in which the result depends very much on the facts of each case. None of them squarely governs the case here; they do suggest that Brosseau’s actions fell in the “‘hazy border between excessive and acceptable force.’” Saucier v. Katz, supra, at 206. The cases by no means “clearly establish” that Brosseau’s conduct violated the Fourth Amendment.

The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Breyer,

with whom Justice Scalia and Justice Ginsburg join,

concurring.

I join the Court’s opinion but write separately to express my concern about the matter to which the Court refers in footnote 3, namely, the way in which lower courts are required to evaluate claims of qualified immunity under the Court’s decision in Saucier v. Katz, 533 U. S. 194, 201 (2001). As the Court notes, ante, at 198, n. 3, Saucier requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question. I am concerned that the current rule rigidly requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e. g., qualified immunity) that will satisfactorily resolve the case before the court. Indeed when courts’ dockets are crowded, a rigid “order of battle” makes little administrative sense and can sometimes lead to a constitutional decision that is effectively insulated from review, see Bunting v. Mellen, 541 U. S. 1019, 1025 (2004) (Scalia, J., dissenting from denial of certiorari). For these reasons, I think we should reconsider this issue.

Justice Stevens,

dissenting.

In my judgment, the answer to the constitutional question presented by this case is clear: Under the Fourth Amendment, it was objectively unreasonable for Officer Brosseau to use deadly force against Kenneth Haugen in an attempt to prevent his escape. What is not clear is whether Brosseau is nonetheless entitled to qualified immunity because it, might not have been apparent to a reasonably well-trained officer in Brosseau’s shoes that killing Haugen to prevent his escape was unconstitutional. In my opinion that question should be answered by a jury.

I

Law enforcement officers should never be subject to damages liability for failing to anticipate novel developments in constitutional law. Accordingly, whenever a suit against an officer is based on the alleged violation of a constitutional right that has not been clearly established, the qualified immunity defense is available. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Prompt dismissal of such actions protects officers from unnecessary litigation and accords with this Court’s wise “policy of avoiding the unnecessary adjudication of constitutional questions.” County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (STEVENS, J., concurring in judgment). When, however, the applicable constitutional rule is well settled, “we should address the constitutional question at the outset.” Ibid.; see also Siegert v. Gilley, 500 U. S. 226 (1991). The constitutional limits on the use of deadly force have been clearly established for almost two decades.

In 1985, we held that the killing of an unarmed burglar to prevent his escape was ah unconstitutional seizure. Tennessee v. Garner, 471 U. S. 1. We considered, and rejected, the State’s contention that the Fourth Amendment’s prohibition against unreasonable seizures should be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effectuate the arrest of a fleeing felon. Id., at 12-13. We recognized that the common-law rule had been fashioned “when virtually all felonies were punishable by death” and long before guns were available to the police, and noted that modern police departments in a majority of large cities allowed the firing of a weapon only when a felon presented a threat of death or serious bodily harm. Id., at 13-19. We concluded that “changes in the legal and technological context” had made the old rule obsolete. Id., at 15.

Unlike most “excessive force” cases in which the degree of permissible force varies widely from case to case, the only issue in a “deadly force” case is whether the facts apparent to the officer justify a decision to kill a suspect in order to prevent his escape.

In Garner we stated the governing rule:

“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... A police officer may not seize an unarmed, nondangerous suspect by shooting him dead....
“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Id., at 11-12.

The most common justifications for the use of deadly force are plainly inapplicable to this case. Respondent Haugen had not threatened anyone with a weapon, and petitioner Brosseau did not shoot in order to defend herself. Haugen was not a person who had committed a violent crime; nor was there any reason to believe he would do so if permitted to escape. Indeed, there is nothing in the record to suggest he intended to harm anyone. The “threat of serious physical harm, either to the officer or to others,” id., at 11, that provides the sole justification for Brosseau’s use of deadly force was the risk that while fleeing in his vehicle Haugen would accidentally collide with a pedestrian or another vehicle. Whether Brosseau’s shot enhanced or minimized that risk is debatable, but the risk of such an accident surely did not justify an attempt to kill the fugitive. Thus, I have no difficulty in endorsing the Court’s assumption that Bros-seau’s conduct violated the Constitution.

I — ( I — (

An officer is entitled to qualified immunity, despite having engaged in constitutionally deficient conduct, if, in doing so, she did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U. S., at 818. The requirement that the law be clearly established is designed to ensure that officers have fair notice of what conduct is proscribed. See Hope v. Pelzer, 536 U. S. 730, 739 (2002). Accordingly, we have recognized that “general statements of the law are not inherently incapable of giving fair and clear warning,” United States v. Lanier, 520 U. S. 259, 271 (1997), and have firmly rejected the notion that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful,” Anderson v. Creighton, 483 U. S. 635, 640 (1987).

Thus, the Court’s search for relevant case law applying the Garner standard to materially similar facts is both unnecessary and ill advised. See Hope, 536 U. S., at 741 (“Although earlier cases involving 'fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding”); see also Lanier, 520 U. S., at 269. Indeed, the cases the majority relies on are inapposite and, in fact, only serve to illuminate the patent unreasonableness of Brosseau’s actions.

Rather than uncertainty about the law, it is uncertainty about the likely consequences of Haugen’s flight — or, more precisely, uncertainty about how a reasonable officer making the split-second decision to use deadly force would have assessed the foreseeability of a serious accident — that prevents me from answering the question of qualified immunity that this case presents. This is a quintessentially “fact-specific” question, not a question that judges should try to answer “as a matter of law.” Cf. Anderson, 483 U. S., at 641. Although it is preferable to resolve the qualified immunity question at the earliest possible stage of litigation, this preference does not give judges license to take inherently factual questions away from the jury. See Hunter v. Bryant, 502 U. S. 224, 229 (1991) (per curiam) (Scalia, J., concurring in judgment); id., at 233 (Stevens, J., dissenting) (“ ‘Whether a reasonable officer could have believed he had probable cause is a question for the triei of fact, and summary judgment or a directed verdict in a § 1988 action based on [the] lack of probable cause is proper only if there is only one reasonable conclusion a jury could reach’ ” (quoting Bryant v. U. S. Treasury Dept., Secret Service, 903 F. 2d 717, 721 (CA9 1990))). The bizarre scenario described in the record of this case convinces me that reasonable jurors eould well disagree about the answer to the qualified immunity issue. My conclusion is strongly reinforced by the differing opinions ex-' pressed by the Circuit Judges who have reviewed the record.

III

The Court’s attempt to justify its decision to reverse the Court of Appeals without giving the parties an opportunity to provide full briefing and oral argument is woefully unpersuasive. If Brosseau had deliberately shot Haugen in the head and killed him, the legal issues would have been the same as those resulting from the nonfatal wound. I seriously doubt that my colleagues would be so confident about the result as to decide the case without the benefit of briefs or argument on such facts. At a minimum, the Ninth Circuit’s decision was not clearly erroneous, and the extraordinary remedy of summary reversal is not warranted on these facts. See R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 281 (6th ed. 1986).

In sum, the constitutional limits on an officer’s use of deadly force have been well settled in this Court’s jurisprudence for nearly two decades, and, in this case, Officer Brosseau acted outside of those clearly delineated bounds. Nonetheless, in my judgment, there is a genuine factual question as to whether a reasonably well-trained officer standing in Brosseau’s shoes could have concluded otherwise, and that question plainly falls with the purview of the jury.

For these reasons, I respectfully dissent.

         Haugen also asserted pendent state-law claims and claims against the city and police department. These claims are not presently before us.

       Because this case arises in the posture of a motion for summary judgment, we are required to view all facts and draw all reasonable inferences in favor of the nonmoving party, Haugen. See Saucier v. Katz, 533 U. S. 194, 201 (2001).

       We have no occasion in this case to reconsider our instruction in Saucier v. Katz, supra, that lower courts decide the constitutional question prior to deciding the qualified immunity question. We exercise our summary reversal procedure here simply to correct a clear misapprehension of the qualified immunity standard.

       The parties point us to a number of other cases in this vein that postdate the conduct in question, i. e., Brosseau’s February 21, 1999, shooting of Haugen. See Cowan ex rel. Estate of Cooper v. Breen, 352 F. 3d 756, 763 (CA2 2003); Pace v. Capobianco, 283 F. 3d 1275, 1281-1282 (CA11 2002); Scott v. Clay County, 205 F. 3d 867, 877 (CA6 2000); McCaslin v. Wilkins, 183 F. 3d 775, 778-779 (CA8 1999); Abraham v. Raso, 183 F. 3d 279, 288-296 (CA3 1999). These decisions, of course, could not have given fair notice to Brosseau and are of no use in the clearly established inquiry.

       Although Brosseau attested that she believed Haugen may have been attempting to retrieve a weapon from the floorboard of his vehicle sometime during the struggle, a fact which Haugen hotly contests, there is no evidence in the record to suggest that, at the time the shot was fired, Brosseau believed, or any reasonable officer would have thought, that Haugen had access to a weapon at that moment.

       At the time of the shooting, Brosseau had the following facts at her disposal. Haugen had a felony no-bail warrant for a nonviolent drug offense, was suspected in a nonviolent burglary, and had been fleeing from law enforcement on foot for approximately 30 to 45 minutes without incident. At the behest of Brosseau, the private individuals on the scene were inside their respective vehicles. Haugen’s girlfriend and her daughter were in a small car approximately four feet in front and slightly to the right of Haugen’s Jeep; Glen Tamburello and Matt Atwood were inside a pickup truck on the street blocking the driveway, approximately 20 to 30 feet from Haugen’s Jeep. The only two police officers on foot at the scene were last seen in a neighbor’s backyard, two houses down and to the right of the driveway.

       The evidence supporting Haugen’s allegation that Brosseau did “willfully fire her weapon with the intent to murder me,” 1 Record, Doc. No. 1, includes a statement by a defense expert that Brosseau had “clearly articulated her intention to use deadly force,” id., Doc. No. 24. Moreover, the report of the Puyallup, Washington, Police Department Firearms Review Board stated that Brosseau “chose to use deadly force to stop Haugen.” 2 id., Doc. No. 27, Exh. H.

         In Cole v. Bone, 993 F. 2d 1328 (CA8 1993), an 18-wheel tractor-trailer sped through a tollbooth and engaged the police in a high-speed pursuit in excess of 90 miles per hour on a high-traffic interstate during the holiday season. During the course of the pursuit, the driver passed traffic on both shoulders of the interstate, repeatedly attempted to ram several police cars, drove more than 100 passenger vehicles off the road, ran through several roadblocks, and continued driving after the officer shot out the wheels of the fugitive’s truck. Id., at 1330-1331. Only then did the officer finally resort to deadly force to disable the driver. Similarly, in Smith v. Freland, 954 F. 2d 343 (CA6 1992), the suspect led a police officer on a high-speed chase, reaching speeds in excess of 90 miles per hour. When the officer initially cornered the suspect in a field, the driver repeatedly swerved directly toward the police car, forcing the officer to move out of the way and allowing the suspect to continue the chase. Id., at 344. Only after additional officers cornered the suspect for a second time, and after the suspect smashed directly into an unoccupied police car and began to flee again, did the officer finally shoot the driver. Ibid.

      In stark contrast, at the time Brosseau shot Haugen, the Jeep was immobile, or at best, had just started moving. Haugen had not driven at excess speeds; nor had he rammed, or attempted to ram, nearby police cars or passenger vehicles. In sum, there was no ongoing or prior high-speed car chase to inform the probable-cause analysis.

       The Court’s recitation of the facts that led up to the shooting obscures the undisputed point that no one contends Haugen was the kind of dangerous person — perhaps a terrorist or an escaped convict on a crime spree— who would have been a danger to the community if he had been allowed to escape. The factual issues relate only to the danger that he posed while in the act of escaping.


author: Justice O’Connor

text:
    WHITFIELD v. UNITED STATES
    No. 03-1293.
    Argued November 30, 2004
    Decided January 11, 2005

      O’Connor, J., delivered the opinion for a unanimous Court.

      Sharon C. Samek, by appointment of the Court, post, p. 985, argued the cause for petitioners in both cases. With her on the briefs were Thomas C. Goldstein, Amy Howe, Pamela S. Karlan, and Richard Ware Levitt.

      Jonathan L. Marcus argued the cause for the United States in both cases. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Wray, Deputy Solicitor General Dreeben, and Kirby A. Heller.

      Together with No. 03-1294, Hall v. United States, also on certiorari to the same court.

        Richard A. Greenberg and Joshua L. Dratel filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal in both cases.

   Justice O’Connor

delivered the opinion of the Court.

These cases present the question whether conviction for conspiracy to commit money laundering, in violation of 18 Ü. S. C. § 1956(h), requires proof of an overt act in furtherance of the conspiracy. We hold that it does not.

I

In March 1999, a federal grand jury returned a 20-count indictment against petitioners and five codefendants. As relevant here, Count II of the indictment charged petitioners with conspiracy to launder money, in violation of § 1956(h). The indictment described, in general terms, the “manner and means” used to accomplish the objects of the money laundering conspiracy, but it did not charge the defendants with the commission of any overt act in furtherance thereof.

At trial, the Government presented evidence that petitioners were members of the executive board of an entity known as Greater Ministries International Church (GMIC). GMIC operated a “gifting” program that took in more than $400 million between 1996 and 1999. Under that program, petitioners and others induced unwary investors to give money to GMIC with promises that investors would receive double their money back within a year and a half. Petitioners marketed the program throughout the country, claiming that GMIC would generate returns on investors’ “gifts” through overseas investments in gold and diamond mining, commodities, and offshore banks. Investors were told that GMIC would use some of the profits for philanthropic purposes. Most of these claims were false. GMIC made none of the promised investments, had no assets, and gave virtually nothing to charity. Many participants in GMIC’s program received little or no return on their money, and their investments indeed largely turned out to be “gifts” to GMIC representatives. Petitioners together allegedly received more than $1.2 million in commissions on the money they solicited.

At the close of the evidence, petitioners asked the District Court to instruct the jury that the Government was required to prove beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act in furtherance of the money laundering conspiracy. The court denied that request, and the jury returned a verdict of guilty on the money laundering conspiracy charge.

The Eleventh Circuit affirmed petitioners’ convictions, holding, in relevant part, that the jury instructions approved by the District Court were proper because § 1956(h) does not require proof of an overt act. 349 F. 3d 1320, 1324 (2003). The Court of Appeals noted that some of its sister Circuits had taken the opposite position. Id., at 1323 (citing United States v. Wilson, 249 F. 3d 366, 379 (CA5 2001); United States v. Hildebrand, 152 F. 3d 756, 762 (CA8 1998)). It concluded, however, that those decisions were erroneously based on case law interpreting the general conspiracy statute, 18 U. S. C. § 371, which, unlike § 1956(h), expressly includes an overt-act requirement. 349 F. 3d, at 1323. The Eleventh Circuit instead relied upon United States v. Shabani, 513 U. S. 10 (1994), where we held that the drug conspiracy statute, 21 U. S. C. § 846, does not require proof of an overt act. Because the language of 18 U. S. C. § 1956(h) and 21 U. S. C. § 846 is “nearly identical,” the Eleventh Circuit found itself compelled to follow the reasoning of Shabani in holding that § 1956(h), too, requires no proof of an overt act. 349 F. 3d, at 1323-1324. We granted certiorari to resolve the conflict among the Circuits on the question presented, 542 U. S. 918 (2004), and we now affirm the decision below.

II

Congress enacted 18 U. S. C. §§ 1956 and 1957 (2000 ed. and Supp. II) as part of the Money Laundering Control Act of 1986, Pub. L. 99-570, 100 Stat. 3207-18. Section 1956 penalizes the knowing and intentional transportation or transfer of monetary proceeds from specified unlawful activities, while § 1957 addresses transactions involving criminally derived property exceeding $10,000 in value. As originally enacted, neither section included a conspiracy provision. Accordingly, the Government relied on the general conspiracy statute, 18 U. S. C. §371, to prosecute conspiracies to commit the offenses set forth in §§ 1956 and 1957. In 1992, however, Congress enacted the money laundering conspiracy provision at issue in these cases, now codified at 18 U. S. C. § 1956(h). See Annunzio-Wylie Anti-Money Laundering Act, Pub. L. 102-550, § 1530, 106 Stat. 4066. Section 1956(h) provides: “Any person who conspires to commit any offense defined in [§1956] or section 1957 shall be subject to the same penalties as those prescribed for the offense thé commission of which was the object of the conspiracy.”

In Shabani, we addressed whether the nearly identical language of the drug conspiracy statute, 21 U. S. C. § 846, requires proof of an overt act. See ibid. (“Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy”). We held that it does not, relying principally upon our earlier decisions in Nash v. United States, 229 U. S. 373 (1913), and Singer v. United States, 323 U. S. 338 (1945). See Shabani, supra, at 13-14. In each of those cases, the Court held that, where Congress had omitted from the relevant conspiracy provision any language expressly requiring an overt act, the Court would not read such a requirement into the statute. See Singer, supra, at 340 (Selective Training and Service Act of 1940); Nash, supra, at 378 (Sherman Act).

As we explained in Shabani, these decisions “follow the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. See Molzof v. United States, 502 U. S. 301, 307-308 (1992). We have consistently held that the common law understanding of conspiracy ‘does not make the doing of any act other than the act of conspiring a condition of liability.’ ” 513 U. S., at 13-14 (quoting Nash, supra, at 378). In concluding that the drug conspiracy statute in Shabani did not require proof of an overt act, we found instructive the distinction between that statute and the general conspiracy statute, § 371, which supersedes the common law rule by expressly including an overt-act requirement. 513 U. S., at 14. See 18 U. S. C. § 371 (“If. two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both” (emphasis added)).

Shabani distilled the governing rule for conspiracy statutes as follows: “ ‘Nash and Singer give Congress a formu-lary: by choosing a text modeled on § 371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 U. S. C. § 1 [which, like 21 U. S. C. § 846, omits any express overt-act requirement], it dispenses with such a requirement.’” 513 U. S., at 14 (quoting United States v. Sassi, 966 F. 2d 283, 284 (CA7 1992)). This rule dictates the outcome in the instant cases as well: Because the text of § 1956(h) does not expressly make the commission of an overt act an element of the conspiracy offense, the Government need not prove an overt act to obtain a conviction.

III

Petitioners argue that the rule that governed Shabani is inapplicable here, because § 1956(h) does not establish a new conspiracy offense; rather, they say, it merely increases the penalty for conviction of a money laundering conspiracy under § 371. In other words, as we understand their argument, petitioners contend that the Government must continue to prosecute money laundering conspiracies under § 371, but that § 1956(h) now provides enhanced penalties for conviction. Since §371 contains an overt act requirement, the argument goes, the Government must prove an overt act in prosecutions ostensibly brought under § 1956(h). This reading of § 1956(h) is untenable for two principal reasons. First, petitioners concede — as they must — that §1956(h)’s text is sufficient to establish an offense. Indeed, its language is nearly identical to the drug conspiracy statute at issue in Shabani, which indisputably created an offense. Second, petitioners apparently read § 1956(h) to supply an enhanced penalty for violation of §371 in cases where the object of the conspiracy is to violate the substantive money laundering offenses in §§ 1956(a) and 1957. But the text of § 1956(h) fails to provide any cross-reference to § 371. Mere use of the word “conspires” surely is not enough to establish the necessary link between these two separate statutes. In short, if Congress had intended to create the scheme petitioners envision, it would have done so in clearer terms.

Petitioners seek support for their construction of § 1956(h) in the provision’s legislative history. They contend that this, history contains no indication that Congress meant to create a new offense or to eliminate the pre-existing overt-act requirement for money laundering conspiracy prosecutions that hitherto had been brought under § 371. They say that the history instead shows that § 1956(h) was intended only to raise the penalty for money laundering conspiracy from the 5-year maximum sentence under §371 to the greater máximums available for substantive money laundering offenses under §§ 1956(a) and 1957. Petitioners also point out that, when Congress enacted § 1956(h), it did so under the title “Penalty for Money Laundering Conspiracies,” 106 Stat., at 4066 (emphasis added). Had Congress wanted to enact an “offense” provision, they argue, it would have titled it accordingly.

Because the meaning of § 1956(h)’s text is plain and unambiguous, we need not accept petitioners’ invitation to consider the legislative history. But even were we to do so, we would reach the same conclusion. It is undisputed that Congress intended § 1956(h) to increase the penalties for money laundering conspiracies. The provision’s text makes clear that Congress did so precisely by establishing a new offense. Given the clarity of the text, mere silence in the legislative history cannot justify reading an overt-act requirement, or a cross-reference to § 371, into § 1956(h). See, e. g., United States v. Wells, 519 U. S. 482, 496-497 (1997) (refusing to read a materiality element into the statute at issue based on silence in the legislative history); Harrison v. PPG Industries, Inc., 446 U. S. 578, 692 (1980) (“[I]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute”). Nor do we find it significant that Congress chose to label § 1956(h) a “penalty” rather than an “offense” provision. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“ ‘[T]he title of a statute . . . cannot limit the plain meaning of the text’”); Castillo v. United States, 530 U. S. 120, 125 (2000) (although “[t]he title of the entirety of §924 is ‘Penalties’ ... at least some portion of §924 . . . creates, not penalty enhancements, but entirely new crimes”).

Petitioners’ legislative history argument is particularly inapt here, we might add, because Congress is presumed to have knowledge of the governing rule described in Shabani. While Shabani was decided two years after § 1956(h) was enacted, the rule it articulated was established decades earlier in Nash and Singer. These decisions establish a “for-mulary” that provides clear and predictable guidance to Congress. As the Government points out, Congress has included an express overt-act requirement in at least 22 other current conspiracy statutes, clearly demonstrating that it knows how to impose such a requirement when it. wishes to do so. See Brief for United States 11, and n. 5 (citing statutes). Where Congress has chosen not to do so, we will not override that choice based on vague and ambiguous signals from legislative history.

We conclude by addressing two arguments raised by petitioners relating to the text and structure of § 1956 as a whole. First, petitioners note that Congress placed each of the three substantive money laundering offenses in § 1956 under subsection (a). Had the drafters intended § 1956(h) to create a new offense, petitioners contend, they would have placed it with the other offenses in subsection (a) instead of in its own separate subsection. We fail to see why that should be so. The three offenses placed in subsection (a) share a common feature: All are substantive money laundering crimes. We find nothing remarkable in Congress' decision to place a qualitatively different conspiracy offense provision in a separate subsection.

Petitioners' second textual argument is based on § 1956(i) (2000 ed., Supp. II), a venue provision added to'the statute in 2001. See USA PATRIOT ACT, Pub. L. 107-56, §1004, 115 Stat. 392. Section 1956(i)(2) (2000 ed., Supp. II) provides that “[a] prosecution for an attempt or conspiracy offense under [§ 1956 or § 1957] may be brought in the district where venue would lie for the completed offense under [§ 1956(i)(l)], or in any other district where an act in furtherance of the attempt or conspiracy took place.” Petitioners contend that, by setting venue in the district where an overt act took place, Congress confirmed what (petitioners say) was the majority view of the Courts of Appeals at the time of § 1956(i)’s enactment: that proof of ah overt act was required under § 1956(h). Moreover, petitioners argue, setting venue where an overt act took place makes little sense if such an act is not an element of the offense.

This argument fails for several reasons. As a preliminary matter, petitioners assume that § 1956(i) is the sole provision setting venue in money laundering conspiracy prosecutions. Although we need not definitively construe that provision here, we note that its language appears permissive rather than exclusive — § 1956(i) says a conspiracy prosecution “may be brought” in a district meeting the specified criteria. (Emphasis added.) This suggests that the provision serves to supplement, rather than supplant, the default venue rule: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed. Rule Crim. Proc. 18. For a conspiracy prosecution under the common law rule, the district in which the unlawful agreement was reached would satisfy this default venue rule. See Hyde v. Shine, 199 U. S. 62, 76 (1905).

But even if we assume, for the sake of argument, that §1956(i) is an exclusive venue provision, petitioners’ argument still fails. The provision authorizes two alternative venues for money laundering conspiracy prosecutions: (1) the district in which venue would lie if the completed substantive money laundering offense had been accomplished, or (2) any district in which an overt act in furtherance of the conspiracy was committed. The first venue option clearly does not require that any overt act have been committed, and the Government therefore need not allege or prove such an act for venue to be properly established under this portion of § 1956(i). As to the second venue option, this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 252 (1940); United States v. Trenton Potteries Co., 273 U. S. 392, 402-404 (1927). In light of this longstanding rule, § 1956(i)(2)’s authorization of venue in a district where an overt act took place cannot be taken to indicate that Congress deemed such an act necessary for conviction under § 1956(h). Instead, Congress appears merely to have confirmed the availability of this alternative venue option in money laundering conspiracy cases.

* * *

For the reasons set forth above, we hold that conviction for conspiracy to commit money laundering, in violation of 18 U. S. C. § 1956(h), does not require proof of an overt act in furtherance of the conspiracy. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.