author: Mr. Justice Rehnquist Mr. Justice Blackmun, Mr. Justice Marshall, Mr. Justice Stevens,

text:
    BAKER v. McCOLLAN
    No. 78-752.
    Argued April 23, 1979
    Decided June 26, 1979

      Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Blacic-mun, J., filed a concurring opinion, post, p. 147. Marshall, J., filed a dissenting opinion, post, p. 149. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 149.

      A. W. SoRelle III argued the cause for petitioner. With him on the briefs were Kerry Knorpp and John L. Owen.

      Douglas R. Larson argued the cause and filed a brief for respondent.

        Leon Friedman, Alan H. Levine, and Harold C. Hirshman filed a brief for the American Civil Liberties Union et al. as amici curiae.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

Last Term, in Procunier v. Navarette, 434 U. S. 555 (1978), we granted certiorari to consider the question whether negligent conduct can form the basis of an award of damages under 42 U. S. C. § 1983. The constitutional violation alleged in Procunier was interference on the part of prison officials with a prisoner’s outgoing mail. The complaint alleged that the prison officials had acted with every conceivable state of mind, from “knowingly” and in “bad faith” to “negligently and inadvertently.” We granted certiorari, however, only on the question “[w]hether negligent failure to mail certain of a prisoner’s outgoing letters states a cause of action under § 1983.” 434 U. S., at 559 n. 6.

Following oral argument and briefing on the merits, the Court held that since the constitutional right allegedly violated had not been authoritatively declared at the time the prison officials acted, the officials were entitled, as a matter of law, to prevail on their claim of qualified immunity. Quoting from Wood v. Strickland, 420 U. S. 308, 322 (1975), we observed: “Because [the prison officials] could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, [they] did not act with such disregard for the established law that their conduct 'cannot reasonably be characterized as being in good faith.’ ” 434 U. S., at 565. It was thus unnecessary to reach the question on which certiorari had been granted.

In the instant case, the Court of Appeals for the Fifth Circuit saw the focal issue as whether petitioner Baker, the sheriff of Potter County, Tex., had negligently failed to establish certain identification procedures which would have revealed that respondent was not the man wanted in connection with the drug charges on which he was arrested. Accordingly, it withheld decision until our opinion in Procunier was handed down. Finding no guidance in Procunier on the question whether an allegation of “simple negligence” states a claim for relief under § 1983, the Court of Appeals proceeded to answer that question affirmatively, holding that respondent was entitled to have his § 1983 claim presented to the jury even though the evidence supported no more than a finding of negligence on the part of Sheriff Baker. We granted certiorari. 439 U. S. 1114 (1979).

Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action. In any event, before the relationship between the defendant’s state of mind and his liability under § 1983 can be meaningfully explored, it is necessary to isolate the precise constitutional violation with which he is charged. For § 1983 imposes civil liability only upon one

“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

The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right “secured by the Constitution and laws.” If there has been no such deprivation, the state of mind of the defendant is wholly immaterial. We think that respondent has failed to satisfy this threshold requirement of § 1983 and thus defer once again consideration of the question whether simple negligence can give rise to § 1983 liability.

I

Leonard McCollan and respondent Linnie Carl McCollan are brothers. Leonard somehow procured a duplicate of Linnie’s driver’s license, identical to the original in every respect except that, as the Court of Appeals put it, “Leonard’s picture graced it instead of Linnie’s.” McCollan v. Tate, 575 F. 2d 509, 511 (CA5 1978). In October 1972, Leonard, masquerading as Linnie, was arrested in Potter County on narcotics charges. He was booked as Linnie Carl McCollan, signed various documents as Linnie Carl McCollan, and was released on bail as Linnie Carl McCollan. Leonard’s bondsman sought and received an order allowing him to surrender his principal and a warrant was issued for the arrest of “Linnie Carl McCollan.”

On December 26, 1972, Linnie was stopped in Dallas for running a red light. A routine warrant check revealed that Linnie Carl McCollan was wanted in Potter County, and respondent was taken into custody over his protests of mistaken identification. The Dallas Police Department contacted the Potter County Sheriff’s Department, compared the identifying information on respondent’s driver’s license with that contained in the Potter County arrest records, and understandably concluded that they had their man. On December 30, Potter County deputies took custody of respondent and placed him in the Potter County Jail in Amarillo. He remained there until January 2, 1973, when officials compared his appearance against a file photograph of the wanted man and, recognizing their error, released him.

Respondent brought this damages action “pursuant to the Fourteenth Amendment to the United States Constitution and ...[§] 1983.” App. 6. After each party had rested his case, the United States District Court for the Northern District of Texas directed a verdict in favor of Sheriff Baker and his surety, Transamerica Insurance Co., without articulating its reasons. The Court of Appeals for the Fifth Circuit reversed. Characterizing respondent’s cause of action as a “ [§] 1983 false imprisonment action,” the Court of Appeals determined that respondent had made out a prima facie case by showing (1) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. The question in the court’s view thus became whether Sheriff Baker was entitled to the defense of qualified immunity, which in turn depended on the reasonableness of his failure to institute an identification procedure that would have disclosed the error. Noting that the error would have been discovered if Potter County officials had sent identifying material to Dallas or had immediately upon respondent’s arrival in Amarillo compared him with the file photograph and fingerprints of the wanted man, the Court of Appeals determined that a jury could reasonably conclude that the sheriff had behaved unreasonably in failing to institute such measures. Accordingly, the case was remanded to the District Court for a new trial.

II

Respondent’s claim is that his detention in the Potter County jail was wrongful. Under a tort-law analysis it may well have been. The question here, however, is whether his detention was unconstitutional. For, as the Court of Appeals recognized, a public official is liable under § 1983 only “if he causes the plaintiff to be subjected to deprivation of his constitutional rights.” 575 F. 2d, at 512 (emphasis in original). Despite this recognition, the Court of Appeals analyzed respondent’s so-called “[§] 1983 false imprisonment action” exclusively in terms of traditional tort-law concepts, relying heavily on the Restatement (Second) of Torts (1965). Indeed, nowhere in its opinion does the Court of Appeals specifically identify the constitutional right allegedly infringed in this case. Because respondent’s claim and the Court of Appeals’ decision focus exclusively on respondent’s prolonged detention caused by petitioner’s failure to institute adequate identification procedures, the constitutional provision allegedly violated by petitioner’s action is presumably the Fourteenth Amendment’s protection against deprivations of liberty without due process of law.

By virtue of its “incorporation” into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty. Ger stein v. Pugh, 420 U. S. 103 (1975). The probable-cause determination “must be made by a judicial officer either before or promptly after arrest.” Id., at 125. Since an adversary hearing is not required, and since the probable-cause standard for pretrial detention is the same as that for arrest, a person arrested pursuant to a warrant issued by a magistrate on a showing of probable cause is not constitutionally entitled to a separate judicial determination that there is probable cause to detain him pending trial.

In this case, respondent was arrested pursuant to a facially valid warrant, and the Court of Appeals made no suggestion that respondent's arrest was constitutionally deficient. Indeed, respondent makes clear that his § 1983 claim was based solely on Sheriff Baker’s actions after respondent was incarcerated:

“McCollan’s § 1983 claim against the sheriff is not for the wrong name being placed in the warrant or the failure to discover and change same or even the initial arrest of the respondent, but rather for the intentional failure to investigate and determine that the wrong man was imprisoned.” Brief for Respondent 12.

For purposes of analysis, then, this case can be parsed with relative ease. Absent an attack on the validity of the warrant under which he was arrested, respondent’s complaint is simply that despite his protests of mistaken identity, he was detained in the Potter County jail from December 30, when Potter County deputies retrieved him from Dallas, until January 2, when the validity of his protests was ascertained. Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United States Constitution: Respondent was indeed deprived of his liberty for a period of days, but it was pursuant to a warrant conforming, for purposes of our decision, to the requirements of the Fourth Amendment. Obviously, one in respondent’s position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. For the Constitution likewise guarantees an accused the right to a speedy trial, and invocation of the speedy trial right need not await indictment or other formal charge; arrest pursuant to probable cause is itself sufficient. United States v. Marion, 404 U. S. 307 (1971). We may even assume, arguendo, that, depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of “liberty . . . without due process of law.” But we are quite certain that a detention of three days over a New Year’s weekend does not and could not amount to such a deprivation.

Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law. The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights “without limits.” Patterson v. New York, 432 U. S. 197, 208 (1977). “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Ibid.

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished “without due process of law.” A reasonable division of functions between law enforcement officers, committing magistrates, and judicial officers — all of whom may be potential defendants in a § 1983 action — is entirely consistent with “due process of law.” Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury.

Ill

The Court of Appeals closed its opinion with the following summary of its holding:

“We are saying that the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name. See Restatement (2d) Torts § 125, comment (d) (1965).” 575 F. 2d, at 513.

Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles. Just as “[mjedical malpractice does not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U. S. 97, 106 (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.

Having been deprived of no rights secured under the United States Constitution, respondent had no claim cognizable under § 1983. The judgment of the Court of Appeals for the Fifth Circuit is therefore

Reversed.

Mr. Justice Blackmun,

concurring.

The Court long has struggled to define the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. The Court today looks to the provisions of the Bill of Rights that have been “incorporated” into the Due Process Clause, including the right to be free from unreasonable seizures, the right to bail, and the right to a speedy trial, and, finding that none of those specifically incorporated rights apply here, concludes that petitioner did not deny respondent due process in holding him in jail during a holiday weekend. Ante, at 144 — 145.

The Court’s cases upon occasion have defined “liberty” without specific guidance from the Bill of Rights. For example, it has found police conduct that “shocks the conscience” to be a denial of due process. Rochin v. California, 342 U. S. 165, 172 (1952). Mr. Justice Harlan once wrote: “This 'liberty’ is not a series of isolated points pricked out in terms of [the Bill of Rights]. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” Poe v. Ullman, 367 U. S. 497, 543 (1961) (dissenting opinion). See also Roe v. Wade, 410 U. S. 113, 152-156 (1973).

The Court today does not consider whether petitioner’s conduct “shocks the conscience” or is so otherwise offensive to the “concept of ordered liberty,” Palko v. Connecticut, 302 U. S. 319, 325 (1937), as to warrant a finding that petitioner denied respondent due process of law. Nothing in petitioner’s conduct suggests outrageousness. He had been sheriff for only 40 days when this incident occurred, and, viewing the facts in the light most favorable to respondent, petitioner’s error lay solely in failing to supervise the conduct of the deputies who transferred respondent to the Potter County jail and kept him there over the weekend. The Court of Appeals’ finding that petitioner “intended to confine” respondent rested solely on petitioner’s knowledge of the office procedures, not on any knowledge of respondent or even on an awareness at the time this incident occurred that the procedures might be ineffective. In contrast to the deputies who, as Me. Justice Stevens and Me. Justice Marshall point out, post, at 151-152 and 149, turned a deaf ear to respondent’s protests, petitioner checked the files and released respondent as soon as petitioner became aware of respondent’s claim. The deputies are not parties to this lawsuit. While I concluded in Rizzo v. Goode, 423 U. S. 362, 384-387 (1976) (dissenting opinion), that the reckless failure of a police official to stop a pattern of clearly unconstitutional conduct by his subordinates could be enjoined under § 1983, here there is no indication that petitioner was aware, or should have been aware, either of the likelihood of misidentification or of his subordinates’ action in this case.

I do not understand the Court’s opinion to speak to the possibility that Rochin might be applied to this type of case or otherwise to foreclose the possibility that a prisoner in respondent’s predicament might prove a due process violation by a sheriff who deliberately and repeatedly refused to check the identity of a complaining prisoner against readily available mug shots and fingerprints. Such conduct would be far more “shocking” than anything this petitioner has done. The Court notes that intent is relevant to the existence of a constitutional violation, ante, at 140 n. 1, it reserves judgment as to whether a more lengthy incarceration might deny due process, ante, at 144, and it concludes only that “every” claim of innocence need not be investigated independently, ante, at 145-146. I therefore do not agree with MR. Justice Stevens’ suggestion, post, at 154 n. 14, that a prisoner in respondent’s predicament would be foreclosed from seeking a writ of habeas corpus. Because this is my understanding, and because I agree that the rights surveyed by the Court do not here provide a basis for the damages award respondent seeks, I concur in the judgment of the Court and join its opinion.

Mr. Justice Marshall,

dissenting.

While I join the dissenting opinion of my Brother Stevens, I would add one or two additional words. As I view this case, neither "negligence” nor “mere negligence” is involved. Respondent was arrested and not released. This constituted intentional action and not, under these circumstances, negligence. For despite respondent’s repeated protests of misiden-tification, as well as information possessed by the Potter County sheriff suggesting that the name in the arrest warrant was incorrect, see post, at 151 (Stevens, J., dissenting), petitioner and his deputies made absolutely no effort for eight days to determine whether they were holding an innocent man in violation of his constitutionally protected rights.

Mr. Justice Stevens,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

When a State deprives a person of his liberty after his arrest, the Constitution requires that it be prepared to justify not only the initial arrest, but the continued detention as well. Respondent’s arrest on December 26, 1972, was authorized by a valid warrant, and no claim is raised that it violated his Fourth Amendment rights. The question is whether the deprivation of his liberty during the next eight days — despite his protests of mistaken identity — was “without due process of law” within the meaning of the Fourteenth Amendment. The record in this case makes clear that the procedures employed by the sheriff of Potter County, Tex., at the time were not reasonably calculated to establish that a person being detained for the alleged commission of a crime was in fact the person believed to be guilty of the offense. In my judgment, such procedures are required by the Due Process Clause, and the deprivation of respondent’s liberty occasioned by their absence is a violation of his Fourteenth Amendment rights.

I

Respondent’s brother Leonard was arrested by a member of the City of Amarillo Police Force on September 11, 1972; city police officers photographed and fingerprinted him. On October 6, 1972, he was transferred to the custody of the sheriff of Potter County. At that time, contrary to normal practice, the Potter County sheriff’s office took possession of the driver’s license the brother was carrying. They did so because it was apparent that the license had been altered. The sheriff testified that an alteration of that kind established a likelihood that the arrestee was using an alias.

A professional surety posted bond and respondent’s brother was released. On November 3, 1972,, for reasons that do not appear in the record, the bondsman sought and received an order allowing him to surrender respondent’s brother. A warrant for his re-arrest was therefore issued. Since the brother had been masquerading as respondent, the warrant was issued in respondent’s name. Although respondent has not questioned the validity of the warrant — presumably because it issued before petitioner became sheriff — he has emphasized the fact that the altered driver’s license in the file gave the sheriff’s deputies reason to believe that the wanted person was using an alias.

On December 26, 1972, respondent was stopped for a traffic violation in Dallas. The Dallas patrolman made a routine radio check and learned that the Potter County warrant was outstanding. Over respondent’s repeated protests that he was not the right man, the officer placed him under arrest and took him to a Dallas police station. The desk sergeant telephoned the Potter County sheriff’s office and apparently learned that respondent’s name, sex, race, and date of birth corresponded with the information provided by the sheriff. No mention appears to have been made of the fact that the sheriff’s files contained an altered driver’s license issued in respondent’s name, even though respondent was obviously carrying a license when he was ticketed for the traffic offense. In short, the fact that the sheriff’s office had reason to believe that the name in the warrant was’ an alias did not motivate any special effort to verify the arrestee’s identification.

The sheriff’s deputies allowed respondent to remain in the Dallas lockup for four days before they picked him up. At the time they did so, they failed to follow an identification procedure used by comparable sheriff’s offices. They did not take the pictures and fingerprints in the file with them to Dallas to be sure that they had the man they wanted. Nor, when they returned to the Potter County jail, did they refer to the pictures or the prints notwithstanding respondent’s continued protests of misidentification and the ready availability of the information.

The ensuing four days included a holiday weekend when the sheriff was apparently away from his office. It was nevertheless a busy period for his staff since about 150 prisoners were being detained in a jail designed to house only 88.' In all, there was no procedure in effect that led any of the sheriff’s deputies to pull out the file and compare the pictures and fingerprints with respondent. Of course, as soon as the sheriff did so on January 2, he recognized the mistake that had been made and immediately released respondent.

It is evident that respondent’s 8-day imprisonment would have been at least cut in half if any one of several different procedures had been followed by the sheriff’s office. If his brother’s file had been marked to indicate that he was probably using an alias, a more thorough and prompt identification check would surely have been made; if he had been transferred from Dallas to Potter County promptly, he apparently would have arrived before the sheriff left for the holiday weekend. If a prompt pickup was not feasible, a prompt mailing of the fingerprints and photographs would have revealed the error; if the deputies who picked him up had taken the fingerprints and photographs with them, he would have been released in Dallas; if the file had been checked when he arrived at the Potter County jail, or if the sheriff had delegated authority to review complaints of mis-identification during his absence, respondent would not have spent four days in the Potter County jail. In short, almost any regular procedures for verifying an arrestee’s identification would have resulted in the prompt release of respondent.

II

The Due Process Clause clearly protects an individual from conviction based on identification procedures which are improperly suggestive. In a criminal trial, that Clause requires the exclusion of evidence obtained through procedures presenting “a very substantial likelihood of . . . misidentification.” Simmons v. United States, 390 U. S. 377, 384. Fair procedures must be used, to prevent an “irreparable misidenti-fication” and the resulting deprivation of liberty attaching to conviction. Ibid. In my judgment, the Due Process Clause equally requires that fair procedures be employed to ensure that the wrong individual is not subject to the deprivations of liberty attaching to pretrial detention.

Pretrial detention unquestionably involves a serious deprivation of individual liberty. “The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.” Gerstein v. Pugh, 420 U. S. 103, 114. The burdens of pretrial detention are substantial ones to impose on a presumptively innocent man, even when there is probable cause to believe he has committed a crime. To impose such burdens on the wrong man — on a man who has been mistakenly identified as a suspect because of inadequate identification procedures — seems to me clearly unconstitutional. It is wholly at odds with the constitutional restraints imposed on police officers in the performance of investigative stops, the establishment of probable cause to detain as well as to arrest, and the questioning of suspects taken into custody. In each of these activities, police officers must conform to procedures mandated by the Constitution which serve to minimize the risk of wrongful and unjustified deprivations of personal liberty. It surely makes little sense to enforce limits on the police officer seeking out and detaining those whom he believes to have committed crimes without at the same time requiring adherence to procedures designed to ensure that the subject of the police action and detention is in fact the individual the officer believes he is.

In rejecting respondent’s claim that his mistaken detention violated his constitutional rights, the Court today relies on two alternative rationales. First, it seems to hold that the constitutional right to a speedy trial provides adequate assurance against unconstitutional detentions, so long as the initial arrest is valid. I cannot agree. A speedy trial within the meaning of the Constitution may take place weeks or months — if not years — after the initial arrest. And many arrested persons — as many as 49% of those arrested in the District of Columbia — are never tried at all, with charges being dropped at some point prior to trial.

Alternatively, the majority relies on the fact that the last three days of respondent’s detention occurred over a holiday weekend to establish that the deprivation of his liberty was so minimal as not to require procedural protections. Whatever relevance the holiday might have to the sheriff’s good-faith defense — an issue not presented here — it is clear to me that the coincidence of a holiday weekend hardly reduces the deprivation of liberty from respondent’s point of view; indeed, one might regard the deprivation of liberty as particularly serious over a holiday weekend, and require a higher standard of care at such a time. No claim is made that respondent’s deprivation was due to the failure to follow otherwise applicable procedures during a holiday weekend; and no such claim could be made, since the respondent was detained for five days before the holiday weekend, and since he was brought to Potter County before the weekend without confirming his identity according to procedures which are customary in comparable police departments.

Certainly, occasional mistakes may be made by conscientious police officers operating under the strictest procedures. But this is hardly such a case. Here, there were no identification procedures. And the problems of mistaken identification are not, in my judgment, so insubstantial that the absence of such procedures, and the deprivation of individual liberty which results from their absence, should be lightly dismissed as of no constitutional significance. The practice of making a radio check with a centralized data bank is now a routine policy, followed not only in every traffic stop in Potter County, but also in literally hundreds of thousands of cases per day nationwide. The risk of misidentification based on coincidental similarity of names, birthdays, and descriptions is unquestionably substantial; it is reflected not only in cases processed by this Court, but also in the emphasis placed on securing fingerprint identification by those responsible for the national computer system. The societal interests in apprehending the guilty as well as the interests in avoiding the incarceration of the innocent equally demand that the identification of arrested persons conform to standards designed to minimize the risk of error. I am not prepared or qualified to define the standards that should govern this aspect of the law enforcement profession’s work, but I have no hesitation in concluding that an 8-day imprisonment resulting from a total absence of any regular identification procedures in Potter County was a deprivation of liberty without the due process of law that the Constitution commands.

I respectfully dissent.

       Of course, the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place, quite apart from the issue of whether § 1983 contains some additional qualification of that nature before a defendant may be held to respond in damages under its provisions.

       In rejecting the contention that a defendant is entitled to an adversary hearing on the question of probable cause to detain, the Gerstein Court stated:
      “These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard — probable cause to believe the suspect has committed a crime— traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.” 420 U. S., at 120 (footnote omitted).

       We of course agree with the dissent’s quotation of the statement from Schilb v. Kuebel, 404 U. S. 357, 365 (1971), that “the Eighth Amendment’s proscription of excessive bail has been assumed to have application to thé States through the Fourteenth Amendment.” Post, at 149 n. 1. But the inference that the dissent appears to draw from this statement — that States are required by the United States Constitution to release an accused criminal defendant on bail — would, if correct, merely supply one more possibility of release from incarceration by resort to procedures specifically set out in the Bill of Rights, over and above those guarantees discussed in the text. It is for violations of such constitutional and statutory rights that 42 U. S. C. § 1983 authorizes redress; that section is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes. Cases such as Neil v. Biggers, 409 U. S. 188, 198 (1972), relied upon by the dissent, post, at 152-153, and n. 7, in no way contradict this view. The discussion of misidentification in Neil was in the context of the use of eyewitness identification testimony at the trial which the United States Constitution guarantees to any accused before he may be punished. See Bell v. Wolfish, 441 U. S. 520 (1979).

         We, of course, do not deal here with a criminal defendant’s claim to a new trial after conviction where that claim is based upon newly discovered evidence. Most States provide a procedure similar to that contained in Fed. Rule Crim. Proc. 33 to process such claims.

       In view of the substantive analysis employed by the dissent, it would seem virtually impossible to reach a conclusion other than that any case of misidentification in connection with an arrest made pursuant to an admittedly valid warrant or concededly on probable cause would constitute a deprivation of liberty without due process of law.

      See Gerstein v. Pugh, 420 U. S. 103, 113-114. See also Schilb v. Kuebel, 404 U. S. 357, 365 (“[T]he Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment”); Stack v. Boyle, 342 U. S. 1, 4 (“Unless this right to bail before trial is preserved, the presumption of innocence,, secured only after centuries of struggle, would lose its meaning”).

       App. 36-40.

        Id., at 40-42, 118.

       See id,, at 42-43.

       “The sheriff himself testified that it was a standard practice in most sheriff’s departments the size of his to send such identifying material.” McCollan v. Tate, 575 F. 2d 509, 513. See App. 44-45, 52-53.

        Id., at 83.

       See Foster v. California, 394 U. S. 440; Neil v. Biggers, 409 U. S. 188, 198 (“It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster"). See also United States v. Wade, 388 U. S. 218, 228 (“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification”).

       See Bell v. Wolfish, 441 U. S. 520, 569, and n. 7 (Marshall, J., dissenting); id., at 593 (Stevens, J., dissenting).

       See Terry v. Ohio, 392 U. S. 1; Delaware v. Prouse, 440 U. S. 648.

       See, e. g., Dunaway v. New York, 442 U. S. 200; Spinelli v. United States, 393 U. S. 410.

       See, e. g., Brewer v. Williams, 430 U. S. 387; Miranda v. Arizona, 384 U. S. 436; Turner v. Pennsylvania, 338 U. S. 62 (coerced confession excluded on due process grounds even if “trustworthiness” test met). See also Rochin v. California, 342 U. S. 165.

       See, e. g., Barker v. Wingo, 407 U. S. 514 (delay of over four years held constitutional).

       See K. Brosi, A Cross-City Comparison of Felony Case Processing 7 (1979). Nationally, as many as 40% of all adult arrestees are released without the filing of charges. Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 7 (1974).

       While it might be argued that the holiday weekend would provide support for the sheriff’s claim that he should be immune from damages on the grounds of a good-faith defense, it would surely seem irrelevant to any claim that respondent might have raised in a habeas corpus proceeding' that he was being held in violation of his constitutional rights. Yet under the majority’s holding, respondent would not be entitled to such relief, since his detention is not a violation of his constitutional rights.

       See 575 F. 2d, at 512 (“[T]he deputies’ actions were authorized by Sheriff Baker and the same actions were in keeping with the policies of the Potter County Sheriff’s Department at that time”).

       See App. 26 (testimony of Sheriff Baker).

       As of May 1979, there were 7,285,951 records included in the data base of the National Crime Information Center (NCIC), the national computerized data bank operated by the Federal Bureau of Investigation and designed to assist federal, state, and local law enforcement agencies. In April 1979, an average of 279,966 requests for information from the system were made daily by law enforcement officials.

       According to a study conducted by the International Association of Chiefs of Police, over 5,000 civil actions were filed against police officers asserting claims of false arrest or imprisonment between 1967 and 1971. This figure represented over 40% of the total number of suits filed during those years alleging any form of police misconduct. See Survey of Police Misconduct Litigation 1967-1971, p. 6 (Americans for Effective Law Enforcement 1974).

       See, e. g., Ulster County Court v. Allen, 442 U. S. 140, in which the police held one of the respondents on the basis of mistaken information received in response to a radio check with headquarters. See also United States v. Mackey, 387 F. Supp. 1121 (Nev. 1975) (individual arrested based on inaccurate computer information). See generally Note, Garbage In, Gospel Out: Establishing Probable Cause Through Computerized Criminal Information Transmittals, 28 Hastings L. J. 509 (1976); DeWeese, Reforming our “Record Prisons”: A Proposal for the Federal Regulation of Crime Data Banks, 6 Rutgers-Camden L. J. 26, 33 (1974) (citing report of 35% inaccuracy in criminal histories maintained by FBI).

       In the NCIC system, “[e]ach computerized offender criminal history cycle must have a criminal fingerprint card as its basic source document. This is necessary in order to preserve the personal identification integrity of the system.” NCIC, Computerized Criminal History Program; Background, Concept and Policy 4 (FBI 1978). “[T]he long-standing law enforcement fingerprint identification process is an essential element in the criminal justice system.” Id., at 13.


source: Caselaw Access Project

author: Mr. Justice Rehnquist Mr. Justice Blackmun, Mr. Justice Brennan,

license: Public Domain

text:
    WOLSTON v. READER’S DIGEST ASSOCIATION, INC., et al.
    No. 78-5414.
    Argued April 17, 1979
    Decided June 26, 1979

      Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Stevens, JJ., joined. Black-mun, J., filed an opinion concurring in the result, in which Marshall, J., joined, post, p. 169. Brennan, J., filed a dissenting opinion, post, p. 172.

      Sidney Dickstein argued the cause for petitioner. With him on the brief were George Kaufmann and Leslie J. Ruben.

      John J. Buckley, Jr., argued the cause for respondents. With him on the brief were Edward Bennett Williams and David Otis Fuller, Jr.

        Richard M. Schmidt, Jr., filed a brief for the American Society of Newspaper Editors et al. as amici curiae urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

In 1974, respondent Reader’s Digest Association, Inc., published a book entitled KGB, the Secret Work of Soviet Agents (KGB), written by respondent John Barron. The book describes the Soviet Union’s espionage organization and chronicles its activities since World War II. In a passage referring to disclosures by “royal commissions in Canada and Australia, and official investigations in Great Britain and the United States,” the book contains the following statements relating to petitioner Ilya Wolston:

“Among Soviet agents identified in the United States were Elizabeth T. Bentley, Edward Joseph Fitzgerald, William Ludwig Ullmann, William Walter Remington, Franklin Victor Reno, Judith Coplon, Harry Gold, David Greenglass, Julius and Ethel Rosenberg, Morton Sobell, William Perl, Alfred Dean Slack, Jack Soble, Ilya Wol-ston, Alfred and Martha Stern.*
“'"‘No claim is made that this list is complete. It consists of Soviet agents who were convicted of espionage or falsifying information or perjury and/or contempt charges following espionage indictments, or who fled to the Soviet bloc to avoid prosecution. . . .” App. 28 (emphasis supplied).

In addition, the index to KGB lists petitioner as follows: “Wolston, Ilya, Soviet agent in U. S.” Id., at 29.

Petitioner sued the author and publishers of KGB in the United States District Court for the District of Columbia, claiming that the passages in KGB stating that he had been indicted for espionage and had been a Soviet agent were false and defamatory. The District Court granted respondents’ motion for summary judgment. 429 F. Supp. 167 (1977). The court held that petitioner was a “public figure” and that the First Amendment therefore precluded recovery unless petitioner proved that respondents had published a defamatory falsehood with “ 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not,” New York Times Co. v. Sullivan, 376 U. S. 264, 280 (1964). 429 F. Supp., at 172, 176. While the District Court agreed that the above-quoted portions of KGB appeared to state falsely that petitioner had been indicted for espionage, it ruled, on the basis of affidavits and deposition testimony, that the evidence raised no genuine issue with respect to the existence of “actual malice” on the part of respondents. Id., at 180-181. The Court of Appeals for the District of Columbia Circuit affirmed. 188 U. S. App. D. C. 185, 578 F. 2d 427 (1978).

We granted certiorari, 439 U. S. 1066 (1979), and we now reverse. We hold that the District Court and the Court of Appeals were wrong in concluding that petitioner was a public figure within the meaning of this Court's defamation cases. Petitioner therefore was not required by the First Amendment to meet the “actual, malice" standard of New York Times Co. v. Sullivan, supra, in order to recover from respondents.

During 1957 and 1958, a special federal grand jury sitting in New York City conducted a major investigation into the activities of Soviet intelligence agents in the United States. As a result of this investigation, petitioner’s aunt and uncle, Myra and Jack Soble, were arrested in January 1957 on charges of spying. The Sobles later pleaded guilty to espionage charges, and in the ensuing months, the grand jury’s investigation focused on other participants in a suspected Soviet espionage ring, resulting in further arrests, convictions, and guilty pleas. On the same day the Sobles were arrested, petitioner was interviewed by agents of the Federal Bureau of Investigation at his home in the District of Columbia. Petitioner was interviewed several more times during the following months in both Washington and in New York City and traveled to New York on various occasions pursuant to grand jury subpoenas.

On July 1, 1958, however, petitioner failed to respond to a grand jury subpoena directing him to appear on that date. Petitioner previously had attempted to persuade law enforcement authorities not to require him to travel to New York for interrogation because of his state of mental depression. App. 91 (affidavit of petitioner, June 15, 1976). On July 14, a Federal District Judge issued an order to show cause why petitioner should not be held in criminal contempt- of court. These events immediately attracted the interest of the news media, and on July 15 and 16, at least seven news stories focusing on petitoner’s failure to respond to the grand jury subpoena appeared in New York and Washington newspapers.

Petitioner appeared in court on the return date of the show-cause order and offered to testify before the grand jury, but the offer was refused. A hearing then commenced on the contempt charges. Petitioner’s wife, who then was pregnant, was called to testify as to petitioner’s mental condition at the time of the return date of the subpoena, but after she became hysterical on the witness stand, petitioner agreed to plead guilty to the contempt charge. See App. 92 (affidavit of petitioner, June 15, 1976). He received a 1-year suspended sentence and was placed on probation for three years, conditioned on his cooperation with the grand jury in any further inquiries regarding Soviet espionage. Ibid. Newspapers also reported the details of the contempt proceedings and petitioner’s guilty plea and sentencing. In all, during the 6-week period between petitioner’s failure to appear before the grand jury and his sentencing, 15 stories in newspapers in Washington and New York mentioned or discussed these events. This flurry of publicity subsided following petitioner’s sentencing, however, and, thereafter, he succeeded for the most part in returning to the private life he had led prior to issuance of the grand jury subpoena. 429 F. Supp., at 174. At no time was petitioner indicted for espionage.

In New York Times Co. v. Sullivan, 376 U. S., at 279-280, the Court held that the First and Fourteenth Amendments prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct absent proof that the statement was made with “actual malice,” as that term is defined in that opinion. See also St. Amant v. Thompson, 390 U. S. 727, 731 (1968). Three years later, the Court extended the New York Times standard to “public figures.” Curtis Publishing Co. v. Butts, 388 U. S. 130, 162 (1967) (Warren, C. J., concurring in result). But in Gertz v. Robert Welch, Inc., 418 U. S. 323, 344-347 (1974), we declined to expand the protection afforded by that standard to defamation actions brought by private individuals. We explained in Gerts that the rationale for extending the New York Times rule to public figures-was twofold. First, we recognized that public figures are less vulnerable to injury from defamatory statements because of their ability to resort to effective “self-help.” They usually enjoy significantly greater access than private individuals to channels of effective communication, which enable them through discussion to counter criticism and expose the falsehood and fallacies of defamatory statements. 418 U. S., at 344; see Curtis Publishing Co. v. Butts, 388 U. S., at 155 (plurality opinion); id., at 164 (Warren, C. J., concurring in result). Second, and more importantly, was a normative consideration that public figures are less deserving of protection than private persons because public figures, like public officials, have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” 418 U. S., at 345; see Curtis Publishing Co. v. Butts, supra, at 164 (Warren, C. J., concurring in result). We identified two ways in which a person may become a public figure for purposes of the First Amendment:

“For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular | public controversies in order to influence the resolution of ¡ the issues involved.” 418 U. S., at 345.

See id., at 351; Time, Inc. v. Firestone, 424 U. S. 448, 453 (1976).

Neither respondents nor the lower courts relied on any claim that petitioner occupied a position of such “persuasive power and influence” that he could be deemed one of that small group of individuals who are public figures for all purposes. Petitioner led a thoroughly private existence prior to the grand jury inquiry and returned to a position of relative obscurity after his sentencing. He achieved no general fame or notoriety and assumed no role of special prominence in the affairs of society as a result of his contempt citation or because of his involvement in the investigation of Soviet espionage in 1958. See Time, Inc. v. Firestone, supra, at 453; Gertz v. Robert Welch, Inc., supra, at 352.

Instead, respondents argue, and the lower courts held, that petitioner falls within the second category of public figures— those who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved” — and that, therefore, petitioner is a public figure for the limited purpose of comment on his connection with, or involvement in, Soviet espionage in the 1940’s and 1950’s. 188 U. S. App. D. C., at 189, 578 F. 2d, at 431; 429 F. Supp., at 174-178. Both lower courts found petitioner’s failure to appear before the grand jury and citation for contempt determinative of the public-figure issue. The District Court concluded that by failing to appear before the grand jury and subjecting himself to a citation for contempt, petitioner “became involved in a controversy of a decidedly public nature in a way that invited attention and comment, and thereby created in the public an interest in knowing about his connection with espionage . . . .” Id., at 177 n. 33. Similarly, the Court of Appeals stated that by refusing to comply with the subpoena, petitioner “stepped center front into the spotlight focused on the investigation of Soviet espionage. In short, by his voluntary action he invited attention and comment in connection with the public questions involved in the investigation of espionage.” 188 U. S. App. D. C., at 189, 578 F. 2d, at 431.

We do not agree with respondents and the lower courts that petitioner can be classed as such a limited-purpose public figure. First, the undisputed facts do not justify the conclusion of the District Court and Court of Appeals that petitioner “voluntarily thrust” or “injected” himself into the forefront of the public controversy surrounding the investigation of Soviet espionage in the United States. See Time, Inc. v. Firestone, supra, at 453-454; Gertz v. Robert Welch, Inc., supra, at 352; Curtis Publishing Co. v. Butts, supra, at 155 (plurality opinion). It would be more accurate to say that petitioner was dragged unwillingly into the controversy. The Government pursued him in its investigation. Petitioner did fail to respond to a grand jury subpoena, and this failure, as well as his subsequent citation for contempt, did attract media attention. But the mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that his action might be attended by publicity, is not decisive on the question of public-figure status. In Gertz, we held that an attorney was not a public figure even though he voluntarily associated himself with a case that was certain to receive extensive media exposure. 418 U. S., at 352. We emphasized that a court must focus on the “nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Ibid. In Gertz, the attorney took no part in the criminal prosecution, never discussed the litigation with the press, and limited his participation in the civil litigation solely to his representation of a private client. Ibid. Similarly, petitioner never discussed this matter with the press and limited his involvement to that necessary to defend himself against the contempt charge. It is clear that petitioner played only a minor role in whatever public controversy there may have been concerning the investigation of Soviet espionage. We decline to hold that his mere citation for contempt rendered him a public figure for purposes of comment on the investigation of Soviet espionage.

Petitioner’s failure to appear before the grand jury and citation for contempt no doubt were “newsworthy,” but the simple fact that these events attracted media attention also is not conclusive of the public-figure issue. A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. To accept such reasoning would in effect re-establish the doctrine advanced by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 44 (1971), which concluded that the New York Times standard should extend to defamatory falsehoods relating to private persons if the statements involved matters of public or general concern. We repudiated this proposition in Gertz and in Firestone, however, and we reject it again today. A libel defendant must show more than mere newsworthiness to justify application of the demanding burden of New York Times. See Time, Inc. v. Firestone, 424 U. S., at 454.

Nor do we think that petitioner engaged the attention of the public in an attempt to influence the resolution of the issues involved. Petitioner assumed no “special prominence in the resolution of public questions.” See Gertz v. Robert Welch, Inc., 418 U. S., at 351. His failure to respond to the grand jury’s subpoena was in no way calculated to draw attention to himself in order to invite public comment or influence the public with respect to any issue. He did not in any way seek to arouse public sentiment in his favor and against the investigation. Thus, this is not a case where a defendant invites a citation for contempt in order to use the contempt citation as a fulcrum to create public discussion about the methods being used in connection with an investigation or prosecution. To the contrary, petitioner’s failure to appear before the grand jury appears simply to have been the result of his poor health. 429 F. Supp., at 177 n. 33; App. 91-92 (affidavit of petitioner, June 15, 1976). He then promptly communicated his desire to testify and, when the offer was rejected, passively accepted his punishment. There is no evidence that petitioner’s failure to appear was intended to have, or did in fact have, any effect on any issue of public concern. In short, we find no basis whatsoever for concluding that petitioner relinquished, to any degree, his interest in the protection of his own name.

This reasoning leads us to reject the further contention of respondents that any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction. Brief for Respondents 24; Tr. of Oral Arg. 15, 17. We declined to accept a similar argument in Time, Inc. v. Firestone, supra, at 457, where we said

“[Wjhile participants in some litigation may be legitimate 'public figures,’ either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others. There appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co. [v. Cohn, 420 U. S. 469 (1975)]. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection ... , we think Gertz provides an adequate safeguard for the constitutionally protected interests of the press and affords it a tolerable margin for error by requiring some type of fault.”

We think that these observations remain sound, and that they control the disposition of this case. To hold otherwise would create an “open season” for all who sought to defame persons convicted of a crime.

Accordingly, the judgment of the Court of Appeals is

Reversed.

Mr. Justice Blackmun,

with whom Mr. Justice Marshall joins, concurring in the result.

I agree that petitioner is not a “public figure” for purposes of this case. The Court reaches this conclusion by reasoning that a prospective public figure must enter a controversy “in an attempt to influence the resolution of the issues involved,” ante, at 168, and that petitioner failed to act in that manner purposefully here. The Court seems to hold, in other words, that a person becomes a limited-issue public figure only if he literally or figuratively “mounts a rostrum” to advocate a particular view.

I see no need to adopt so restrictive a definition of “public figure” on the facts before us. Assuming, arguendo, that petitioner gained public-figure status when he became involved in the espionage controversy in 1958, he clearly had lost that distinction by the time respondents published KGB in 1974. Because I believe that the lapse of the intervening 16 years renders consideration of this petitioner’s original public-figure status unnecessary, I concur only in the result.

In Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), this Court held that a person may become a public figure for a limited range of issues if he “voluntarily injects himself or is drawn into a particular public controversy.” Id., at 351. Such a person, the Court reasoned, resembles a public official in that he typically enjoys “significantly greater access to the channels of effective communication” and knowingly “runs the risk of closer public scrutiny” than would have been true had he remained in private life. Id., at 344. The passage of time, I believe, often will be relevant in deciding whether a person possesses these two public-figure characteristics. First, a lapse of years between a controversial event and a libelous utterance may diminish the defamed party’s access to the means of counterargument. At the height of the publicity surrounding the espionage controversy here, petitioner may well have had sufficient access to the media effectively to rebut a charge that he was a Soviet spy. It would strain credulity to suggest that petitioner could have commanded such media interest when respondents published their book in 1974. Second, the passage of time may diminish the “risk of public scrutiny” that a putative public figure may fairly be said to have assumed. In ignoring the grand jury subpoena in 1958, petitioner may have anticipated that his conduct would invite critical commentary from the press. Following the contempt citation, however, petitioner “succeeded for the most part in returning to . .. private life.” Ante, at 163. Any inference that petitioner “assumed the risk” of public scrutiny in 1958 assuredly is negated by his conscious efforts to regain anonymity during the succeeding 16 years.

This analysis implies, of course, that one may be a public figure for purposes of contemporaneous reporting of a controversial event, yet not be a public figure for purposes of historical commentary on the same occurrence. Historians, consequently, may well run a greater risk of liability for defamation. Yet this result, in my view, does no violence to First Amendment values. While historical analysis is no less vital to the marketplace of ideas than reporting current events, historians work under different conditions than do their media counterparts. A reporter trying to meet a deadline may find it totally impossible to check thoroughly the accuracy of his sources. A historian writing sub specie aeter-nitatis has both the time for reflection and the opportunity to investigate the veracity of the pronouncements he makes.

For these reasons, I conclude that the lapse of 16 years between petitioner’s participation in the espionage controversy and respondents’ defamatory reference to it was sufficient to erase whatever public-figure attributes petitioner once may have possessed. Because petitioner clearly was a private individual in 1974, I see no need to decide the more difficult question whether he was a public figure in 1958.

Mr. Justice Brennan,

dissenting.

I dissent. I agree with the holding of the District Court, 429 F. Supp. 167, 176 (1977), affirmed by the Court of Appeals, 188 U. S. App. D. C. 185, 189, 578 F. 2d 427, 431 (1978), that petitioner qualified “as a public figure for the limited purpose of comment on his connection with, or involvement in, espionage in the 1940’s and ’50’s.” I further agree with the holding of the District Court, 429 F. Supp., at 178, affirmed by the Court of Appeals, 188 U. S. App. D. C., at 189, 578 F. 2d, at 431, that petitioner also qualified as a public figure in 1974. That conclusion follows, in my view, for the reasons stated by the Court of Appeals, ibid., 578 F. 2d, at 431: “The issue of Soviet espionage in 1958 and of Wolston’s involvement in that operation continues to be a legitimate topic of debate today, for that matter concerns the security of the United States. The mere lapse of time is not decisive.”

I disagree, however, with the holding of the District Court, affirmed by the Court of Appeals, that respondent Barron was entitled to summary judgment. In my view the evidence raised a genuine issue of fact respecting the existence of actual malice on his part. I would therefore reverse the judgment of the Court of Appeals and remand to the District Court for trial of that issue.

       Respondents Bantam Books, Inc., MacMillan Book Clubs, Inc., and Book-of-the-Month Club, Inc., are subsequent publishers of KGB under contractual arrangements with Reader’s Digest.

       Both the District Court and the Court of Appeals rested their decisions on the First Amendment to the United States Constitution. The District Court commented in a footnote that it “might also have decided to apply the actual-malice standard in this case on the ground that the law in the District of Columbia requires it.” 429 F. Supp., at 178-179, n. 37. The court referred to an unpublished decision of the Superior Court of the District of Columbia as support for that proposition. Hatter v. Evening Star Newspaper Co., Civ. No. 8298-75 (Mar. 15, 1975). But the Court of Appeals in a footnote to its opinion cast substantial doubt on the correctness of the District Court’s comment. See 188 U. S. App. D. C., at 193 n. 3, 578 F. 2d, at 435 n. 3. It described Hatter as “a brief unpublished order which recited several other grounds for granting summary judgment” and which cited no District of Columbia authority, and it noted that subsequent to the District Court’s decision, another judge of the District of Columbia Superior Court had “filed an elaborate opinion which concluded to the contrary that in the District a newspaper may be liable for actual damages suffered by a private person if it negligently publishes defamation, without actual malice.” 188 U. S. App. D. C., at 193 n. 3, 578 F. 2d, at 435 n. 3, citing Phillips v. Evening Star Newspaper Co.,
        Civ. No. 9999-75 (June 30, 1977). We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. E. g., Dillard v. Virginia Industrial Comm’n, 416 U. S. 783, 785 (1974); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129, 136 (1946); Siler v. Louisville & Nashville R. Co., 213 U. S. 175, 193 (1909). We interpret the footnote to the Court of Appeals’ opinion in this-case, where jurisdiction is based upon diversity of citizenship, to indicate its view that Phillips represents a more accurate expression of District of Columbia law than the dicta from Hatter and that, therefore, the appeal could not be decided without reaching the constitutional question. See Commissioner v. Estate of Bosch, 387 U. S. 456, 465 (1967); King v. Order of Travelers, 333 U. S. 153, 162 (1948); West v. American Tel. & Tel. Co., 311 U. S. 223, 236-237 (1940); Washington Times Co. v. Bonner, 66 App. D. C. 280, 86 F. 2d 836 (1936); Johnson v. Johnson Pub. Co., 271 A. 2d 696 (D. C. App. 1970); Chaloner v. Washington Post Co., 36 App. D. C. 231 (1911).

       Petitioner also challenges the propriety of summary judgment on the issue of “actual malice.” Brief for Petitioner 21-31. In view of our disposition of the public-figure issue, we need not and do not reach this question. See generally Hutchinson v. Proxmire, ante, at 120 n. 9.

       “Wolston was bom in Russia in 1918. He subsequently lived in Lithuania, Germany, France, and England before coming to the United States in 1939. The army drafted him in 1942, and during his tour of duty he became a naturalized citizen; he was trained as an interpreter and served primarily in Alaska. After receiving an honorable discharge in 1946 he worked as an interpreter for the United States Military Government and the State Department in Allied-occupied Berlin. He returned to the United States in 1951 and worked as a clerk until 1953, when he enrolled in an undergraduate program at New York University. In 1955 he and his wife moved to Washington, D. C., where he worked several months for the Army Map Service and then as a free-lance translator until January 1957. Deposition of Ilya Wolston at 5-42.” 429 F. Supp., at 169 n. 1.

       Since this case was decided on respondents' motion for summary judgment, we must construe the record most favorably to petitioner. E. g., Bishop v. Wood, 426 U. S. 341, 347 n. 11 (1976); United States v. Diebold, Inc., 369 U. S. 654, 655 (1962).

       A short time after these events, petitioner was mentioned in two publications. In the book My Ten Years as a Counterspy, written by Boris Morros and published in 1959, Morros, a former confederate of Jack Soble who later became a double agent, states that Soble identified petitioner as a Soviet agent. App. 30-34. And in 1960, a report prepared by the Federal Bureau of Investigation, entitled Exposé of Soviet Espionage May 1960, listed petitioner’s name among people "the FBI investigation resulted in identifying as Soviet intelligence agents.” S. Doc. No. 114, 86th Cong., 2d Sess., 24, 26-27 (1960).

       Both lower courts found that petitioner became a public figure at the time of his contempt citation in 1968. See 188 U. S. App. D. C., at 189, 578 F. 2d, at 431; 429 F. Supp., at 176-177. Petitioner argued below that even if he was once a public figure, the passage of time has restored him to the status of a private figure for purposes of the First Amendment. Both the District Court and the Court of Appeals rejected this argument. 188 U. S. App. D. C., at 189, 678 F. 2d, at 431; 429 F. Supp., at 178. And petitioner has abandoned the argument in this Court. Reply Brief for Petitioner 5-6, n. 8; Tr. of Oral Arg. 10. Because petitioner does not press the issue in this Court and because we conclude that petitioner was not a public figure in 1958, we need not and do not decide whether or when an individual who was once a public figure may lose that status by the passage of time.

       It is difficult to determine with precision the “public controversy” into which petitioner is alleged to have thrust himself. Certainly, there was no public controversy or debate in 1958 about the desirability of permitting Soviet espionage in the United States; all responsible United States citizens understandably were and are opposed to it. Respondents urge, and the Court of Appeals apparently agreed, that the public controversy involved the propriety of the actions of law enforcement officials in investigating and prosecuting suspected Soviet agents. 188 U. S. App. D. C., at 189, 578 F. 2d, at 431; Brief for Respondents 26-27; Tr. of Oral Arg. 27-29. We may accept, arguendo, respondents’ characterization of the “public controversy” involved in this case, for it is clear that petitioner fails to meet the other criteria established in Gertz for public-figure status.

      The Court notes, ante, at 166 n. 7, that petitioner at oral argument here disclaimed the contention that the passage of time had restored him to private status, electing to place all his eggs in the more expansive basket that forms the framework of the Court’s opinion. Petitioner proffered this contention in both the District Court and the Court of Appeals, however, and both courts expressly considered it. 429 F. Supp. 167, 178 (1977); 188 U. S. App. D. C. 185, 189, 578 F. 2d 427, 431 (1978). Under these circumstances, petitioner’s tactical decision does not foreclose the “passage of time” rationale as a ratio decidendi. Indeed, petitioner makes the related argument that, if he should be deemed a public figure, the passage of time would be relevant in determining whether respondents’ failure to investigate amounted in this case to “actual malice.” Reply Brief for Petitioner 5-6, n. 8; Tr. of Oral Arg. 10-12.