author: Justice O’Connor Justice Marshall,

text:
    WHITLEY, individually and as ASSISTANT SUPERINTENDENT, OREGON STATE PENITENTIARY, et al. v. ALBERS
    No. 84-1077.
    Argued December 10, 1985
    Decided March 4, 1986

      O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, and in all but n. 2 of which Stevens, J., joined, post, p. 328.

      Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioners. With him on the briefs were William F. Gary, Deputy Attorney General, James E. Mountain, Jr., Solicitor General, Virginia L. Linder, Assistant Solicitor General, and Robert M. Atkinson, Assistant Attorney General.

      Gene B. Mechanic, by appointment of the Court, 474 U. S. 809, argued the cause and filed a brief for respondent.

         Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, and Andrew J. Pincus filed a brief for the United States as amicus curiae urging reversal.

        Steven Ney and Michael Mushlin filed a brief for the Correctional Association of New York et al. as amici curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

This case requires us to decide what standard governs a prison inmate’s claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot.

I — I

At the time he was injured, respondent Gerald Albers was confined in cellblock “A” of the Oregon State Penitentiary. Cellblock “A” consists of two tiers of barred cells housing some 200 inmates. The two tiers are connected by a stairway that offers the only practical way to move from one tier to another.

At about 8:30 on the evening of June 27, 1980, several inmates were found intoxicated at the prison annex. Prison guards attempted to move the intoxicated prisoners, some of whom resisted, to the penitentiary’s isolation and segregation facility. This incident could be seen from the cell windows in cellblock “A,” and some of the onlookers became agitated because they thought that the guards were using unnecessary force. Acting on instructions from their superiors, Officers Kemper and Fitts, who were on duty in cellblock “A,” ordered the prisoners to return to their cells. The order was not obeyed. Several inmates confronted the two officers, who were standing in the open area of the lower tier. One inmate, Richard Klenk, jumped from the second tier and assaulted Officer Kemper. Kemper escaped but Officer Fitts was taken hostage. Klenk and other inmates then began breaking furniture and milling about.

Upon being informed of the disturbance, petitioner Hard Whitley, the prison security manager, entered cellblock “A” and spoke with Klenk. Captain Whitley agreed to permit four residents of cellblock “A” to view the inmates who had been taken to segregation earlier. These emissaries reported back that the prisoners in segregation were intoxicated but unharmed. Nonetheless, the disturbance in cell-block “A” continued.

Whitley returned to the cellblock and confirmed that Fitts was not harmed. Shortly thereafter, Fitts was moved from an office on the lower tier to cell 201 on the upper tier, and Klenk demanded that media representatives be brought into the cellblock. In the course of the negotiations, Klenk, who was armed with a homemade knife, informed Whitley that one inmate had already been killed and other deaths would follow. In fact, an inmate had been beaten but not killed by other prisoners.

Captain Whitley left the cellblock to organize an assault squad. When Whitley returned to cellblock “A,” he was taken to see Fitts in cell 201. Several inmates assured Whitley that they would protect Fitts from harm, but Klenk threatened to kill the hostage if an attempt was made to lead an assault. Klenk and at least some other inmates were aware that guards had assembled outside the cellblock and that shotguns had been issued. Meanwhile, respondent had left his cell on the upper tier to see if elderly prisoners housed on the lower tier could be moved out of harm’s way in the event that tear gas was used. Respondent testified that he asked Whitley for the key to the row of cells housing the elderly prisoners, and Whitley indicated that he would return with the key. Whitley denied that he spoke to respondent at any time during the disturbance. Tr. 380.

Whitley next consulted with his superiors, petitioners Cupp, the prison Superintendent, and Kenney, the Assistant Superintendent. They agreed that forceful intervention was necessary to protect the life of the hostage and the safety of the inmates who were not rioting, and ruled out tear gas as an unworkable alternative. Cupp ordered Whitley to take a squad armed with shotguns into cellblock “A.”

Whitley gave the final orders to the assault team, which was assembled in the area outside cellblock “A.” Petitioner Kennicott and two other officers armed with shotguns were to follow Whitley, who was unarmed, over the barricade the inmates had constructed at the cellblock entrance. A second group of officers, without firearms, would be behind them. Whitley ordered Kennicott to fire a warning shot as he crossed the barricade. He also ordered Kennicott to shoot low at any prisoners climbing the stairs toward cell 201, since they could pose a threat to the safety of the hostage or to Whitley himself, who would be climbing the stairs in an attempt to free the hostage in cell 201.

At about 10:30 p.m., Whitley reappeared just outside the barricade. By this time, about a half hour had elapsed since the earlier breaking of furniture, and the noise level in the cellblock had noticeably diminished. Respondent, who was standing at the bottom of the stairway, asked about the key. Whitley replied “No,” clambered over the barricade, yelled “shoot the bastards,” and ran toward the stairs after Klenk, who had been standing in the open areaway along with a number of other inmates. Kennicott fired a warning shot into the wall opposite the cellblock entrance as he followed Whitley over the barricade. He then fired a second shot that struck a post near the stairway. Meanwhile, Whitley chased Klenk up the stairs, and shortly thereafter respondent started up the stairs. Kennicott fired a third shot that struck respondent in the left knee. Another inmate was shot on the stairs and several others on the lower tier were wounded by gunshot. The inmates in cell 201 prevented Klenk from entering, and Whitley subdued Klenk at the cell door, freeing the hostage.

As a result of the incident, respondent sustained severe damage to his left leg and mental and emotional distress. He subsequently commenced this action pursuant to 42 U. S. C. § 1983, alleging that petitioners deprived him of his rights under the Eighth and Fourteenth Amendments and raising pendent state law claims for assault and battery and negligence. Many of the facts were stipulated, see Tr. 53-60, but both sides also presented testimony from witnesses to the disturbance and the rescue attempt, as well as from expert witnesses with backgrounds in prison discipline and security. At the conclusion of trial, the District Judge directed a verdict for petitioners. He understood respondent’s claim to be based solely on the Eighth Amendment as made applicable to the States by the Fourteenth Amendment. See Robinson v. California, 370 U. S. 660 (1962). The District Judge held:

“[Defendants’ use of deadly force was justified under the unique circumstances of this case. Possible alternatives were considered and reasonably rejected by prison officers. The use of shotguns and specifically the order to shoot low anyone following the unarmed Whitley up the stairs were necessary to protect Whitley, secure the safe release of the hostage and to restore order and discipline. Even in hindsight, it cannot be said that defendants’ actions were not reasonably necessary.” 546 F. Supp. 726, 735 (Ore. 1982).

In the alternative, he held that petitioners were' immune from damages liability because the constitutional constraints on the use of force in a prison riot were not clearly established. Finally, the District Judge held that respondent was barred from recovery on his pendent state law claims by virtue of an immunity conferred on public officers by the Oregon Tort Claims Act as to claims arising out of riots or mob actions.

A panel of the Court of Appeals for the Ninth Circuit reversed in part and affirmed in part, with one judge dissenting. 743 F. 2d 1372 (1984). The court held that an Eighth Amendment violation would be established “if a prison official deliberately shot Albers under circumstances where the official, with due allowance for the exigency, knew or should have known that it was unnecessary,” id., at 1375, or “if the emergency plan was adopted or carried out with ‘deliberate indifference’ to the right of Albers to be free of cruel unusual punishment.” Ibid. The Court of Appeals pointed to evidence that the general disturbance in cellblock “A” was subsiding and to respondent’s experts’ testimony that the use of deadly force was excessive under the circumstances and should have been preceded by a verbal warning, and concluded that the jury could have found an Eighth Amendment violation. Id., at 1376.

The Court of Appeals also ruled that petitioners could not prevail on their qualified immunity defense, because “[a] finding of deliberate indifference is inconsistent with a finding of good faith or qualified immunity.” Ibid. Accordingly, the court remanded for a new trial on respondent’s Eighth Amendment claim, while agreeing with the District Judge that respondent could not prevail on his state law claims, id., at 1377, and that he had not asserted an independent violation of the Fourteenth Amendment. Id., at 1374, n. 1. We granted certiorari, 472 U. S. 1007 (1985), and now reverse.

1 — 1 I — l

The language of the Eighth Amendment, [ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” manifests “an intention to limit the power of those entrusted with the criminal-law function of government.” Ingraham v. Wright, 430 U. S. 651, 664 (1977). The Cruel and Unusual Punishments Clause “was designed to protect those convicted of crimes,” ibid., and consequently the Clause applies “only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.” Id., at 671, n. 40. See also Revere v. Massachusetts General Hospital, 463 U. S. 239, 244 (1983); Bell v. Wolfish, 441 U. S. 520, 535, n. 16 (1979). An express intent to inflict unnecessary pain is not required, Estelle v. Gamble, 429 U. S. 97, 104 (1976) (“deliberate indifference” to a prisoner’s serious medical needs is cruel and unusual punishment), and harsh “conditions of confinement” may constitute cruel and unusual punishment unless such conditions “are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U. S. 337, 347 (1981).

Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however. “After incarceration, only the ‘“unnecessary and wanton infliction of pain” ’ . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Ingraham v. Wright, supra, at 670 (quoting Estelle v. Gamble, supra, at 103) (citations omitted). To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. This reading of the Clause underlies our decision in Estelle v. Gamble, supra, at 105-106, which held that a prison physician’s “negli-gente] in diagnosing or treating a medical condition” did not suffice to make out a claim of cruel and unusual punishment. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.

The general requirement that an Eighth Amendment claimant allege and prove the unnecessary and wanton infliction of pain should also be applied with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged. The deliberate indifference standard articulated in Estelle was appropriate in the context presented in that case because the State’s responsibility to attend to the medical needs of prisoners does not ordinarily clash -with other equally important governmental responsibilities. Consequently, “deliberate indifference to a prisoner’s serious illness or injury,” Estelle, supra, at 105, can typically be established or disproved without the necessity of balancing competing institutional concerns for the safety of prison staff or other inmates. But, in making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials undoubtedly must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used. As we said in Hudson v. Palmer, 468 U. S. 517, 526-527 (1984), prison administrators are charged with the responsibility of ensuring the safety of the prison staff, administrative personnel, and visitors, as well as the “obligation to take reasonable measures to guarantee the safety of the inmates themselves.” In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance.

Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2) (Friendly, J.), cert. denied sub nom. John v. Johnson, 414 U. S. 1033 (1973). As the District Judge correctly perceived, “such factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted,” 481 F. 2d, at 1033, are relevant to that ultimate determination. See 546 F. Supp., at 733. From such considerations inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur. See Duckworth v. Franzen, 780 F. 2d 645, 652 (CA7 1985) (equating “deliberate indifference,” in an Eighth Amendment case involving security risks, with “recklessness in criminal law,” which “implies an act so dangerous that the defendant’s knowledge of the risk can be inferred”); cf. Block v. Rutherford, 468 U. S. 576, 584 (1984) (requiring pretrial detainees claiming that they were subjected to “punishment” without due process to prove intent to punish or show that the challenged conduct “ ‘is not reasonably related to a legitimate goal,’” from which an intent to punish may be inferred); Bell v. Wolfish, supra, at 539. But equally relevant are such factors as the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response.

When the “ever-present potential for violent confrontation and conflagration,” Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 132 (1977), ripens into actual unrest and conflict, the admonition that “a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators,” Rhodes v. Chapman, supra, at 349, n. 14, carries special weight. “Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U. S., at 547. That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline. It does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice. Accordingly, in ruling on a motion for a directed verdict in a case such as this, courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury.

Ill

Since this case comes to us from a decision of the Court of Appeals reversing the District Court’s directed verdict for petitioners, we evaluate the facts in the light most favorable to respondent. The Court of Appeals believed that testimony that the disturbance was subsiding at the time the assault was made, and the conflicting expert testimony as to whether the force used was excessive, were enough to allow a jury to find that respondent’s Eighth Amendment rights were violated. We think the Court of Appeals effectively collapsed the distinction between mere negligence and wanton conduct that we find implicit in the Eighth Amendment. Only if ordinary errors of judgment could make out an Eighth Amendment claim would this evidence create a jury question.

To begin with, although the evidence could be taken to show that the general disturbance had quieted down, a guard was still held hostage, Klenk was armed and threatening, several other inmates were armed with homemade clubs, numerous inmates remained outside their cells, and the cellblock remained in the control of the inmates. The situation remained dangerous and volatile. As respondent concedes, at the time he was shot “an officer’s safety was in question and ... an inmate was armed and dangerous.” Brief for Respondent 25. Prison officials had no way of knowing what direction matters would take if they continued to negotiate or did nothing, but they had ample reason to believe that these options presented unacceptable risks.

Respondent’s expert testimony is likewise unavailing. One of respondent’s experts opined that petitioners gave inadequate consideration to less forceful means of intervention, and that the use of deadly force under the circumstances was not necessary to “prevent imminent danger” to the hostage guard or other inmates. Tr. 266. Respondent’s second expert testified that prison officials were “possibly a little hasty in using the firepower” on the inmates. Id., at 314. At most, this evidence, which was controverted by petitioners’ experts, establishes that prison officials arguably erred in judgment when they decided on a plan that employed potentially deadly force. It falls far short of a showing that there was no plausible basis for the officials’ belief that this degree of force was necessary. Indeed, any such conclusion would run counter to common sense, in light of the risks to the life of the hostage and the safety of inmates that demonstrably persisted notwithstanding repeated attempts to defuse the situation. An expert’s after-the-fact opinion that danger was not “imminent” in no way establishes that there was no danger, or that a conclusion by the officers that it was imminent would have been wholly unreasonable.

Once the basic design of the plan was in place, moreover, it is apparent why any inmate running up the stairs after Captain Whitley, or interfering with his progress towards the hostage, could reasonably be thought to present a threat to the success of the rescue attempt and to Whitley — particularly after a warning shot was fired. A sizable group of inmates, in defiance of the cell-in order and in apparent support of Klenk, continued to stand in the open area on the lower tier. Respondent testified that this was not “an organized group,” id., at 113, and that he saw no inmates armed with clubs in that area. Id., at 114. But the fact remains that the officials had no way of knowing which members of that group of inmates had joined with Klenk in destroying furniture, breaking glass, seizing the hostage, and setting up the barricade, and they certainly had reason to believe that some members of this group might intervene in support of Klenk. It was perhaps also foreseeable that one or more of these inmates would run up the stairs after the shooting started in order to return to their cells. But there would be neither means nor time to inquire into the reasons why each inmate acted as he did. Consequently, the order to shoot, qualified as it was by an instruction to shoot low, falls short of commanding the infliction of pain in a wanton and unnecessary fashion.

As petitioners’ own experts conceded, a verbal warning would have been desirable, in addition to a warning shot, if circumstances permitted it to be given without undue risk. See id., at 446, 556. While a jury might conclude that this omission was unreasonable, we think that an inference of wantonness could not properly be drawn. First, some warning was given in the form of the first shot fired by Officer Kennicott. Second, the prison officials could have believed in good faith that such a warning might endanger the success of the security measure because of the risk that it would have allowed one or more inmates to climb the stairs before they could be stopped. The failure to provide for verbal warnings is thus not so insupportable as to be wanton. Accordingly, a jury could not properly find that this omission, coupled with the order to shoot, offended the Eighth Amendment.

To be sure, the plan was not adapted to take into account the appearance of respondent on the scene, and, on the facts as we must take them, Whitley was aware that respondent was present on the first tier for benign reasons. Conceivably, Whitley could have added a proviso exempting respondent from his order to shoot any prisoner climbing the stairs. But such an oversight simply does not rise to the level of an Eighth* Amendment violation. Officials cannot realistically be expected to consider every contingency or minimize every risk, and it was far from inevitable that respondent would react as he did. Whitley was about to risk his life in an effort to rescue the hostage, and he was understandably focusing on the orders essential to the success of the plan. His failure to make special provision for respondent may have been unfortunate, but is hardly behavior from which a wanton willingness to inflict unjustified suffering on respondent can be inferred.

Once it is established that the order to shoot low at anyone climbing the stairs after a warning shot was not wanton, respondent’s burden in showing that the actual shooting constituted the wanton and unnecessary infliction of pain is an extremely heavy one. Accepting that respondent could not have sought safety in a cell on the lower tier, the fact remains that had respondent thrown himself to the floor he would not have been shot at. Instead, after the warning shot was fired, he attempted to return to his cell by running up the stairs behind Whitley. That is equivocal conduct. While respondent had not been actively involved in the riot and indeed had attempted to help matters, there is no indication that Officer Kennicott knew this, nor any claim that he acted vindictively or in retaliation. Respondent testified that as he started to run up the stairs he “froze” when he looked to his left and saw Kennicott, and that “we locked eyes.” Id., at 119. Kennicott testified that he saw several inmates running up the stairs, that he thought they were pursuing Whitley, and that he fired at their legs. Id., at 459. To the extent that this testimony is conflicting, we resolve the conflict in respondent’s favor by assuming that Kennicott shot at respondent rather than at the inmates as a group. But this does not establish that Kennicott shot respondent knowing it was unnecessary to do so. Kennicott had some basis for believing that respondent constituted a threat to the hostage and to Whitley, and had at most a few seconds in which to react. He was also under orders to respond to such a perceived threat in precisely the manner he did. Under these circumstances, the actual shooting was part and parcel of a good-faith effort to restore prison security. As such, it did not violate respondent’s Eighth Amendment right to be free from cruel and unusual punishments.

IV

As an alternative ground for affirmance, respondent contends that, independently of the Eighth Amendment, the shooting deprived him of a protected liberty interest without due process of law, in violation of the Fourteenth Amendment. Respondent correctly observes that any ground properly raised below may be urged as a basis for affirmance of the Court of Appeals’ decision, see United States v. New York Telephone Co., 434 U. S. 159, 166, n. 8 (1977), and argues that he has maintained throughout this litigation that his “constitutional protection against the use of excessive and unnecessary force, as well as the use of deadly force without meaningful warning,” derives from the Due Process Clause as well as the Eighth Amendment. Brief for Respondent 25, n. 13.

The District Court was correct in ruling that respondent did not assert a procedural due process claim that the State was obliged to afford him some kind of hearing either before or after he was shot. See 546 F. Supp., at 732, n. 1. But we believe respondent did raise a claim that his “substantive rights under the Due Process Clause of the Fourteenth Amendment,” Youngberg v. Romeo, 457 U. S. 307, 309 (1982), were infringed by prison officials when he was shot. His complaint alleged violations of the Eighth and Fourteenth Amendments, App. 2, 7 (First Amended Complaint), and at argument on petitioners’ motion for a directed verdict, counsel for both petitioners and respondents treated the Fourteenth Amendment as a distinct though overlapping source of substantive protection from state action involving excessive force. See id., at 21, 27. Accordingly, we consider whether the Due Process Clause could serve as an alternative basis for affirmance.

We need say little on this score. We think the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. It would indeed be surprising if, in the context of forceful prison security measures, “conduct that shocks the conscience” or “afford[s] brutality the cloak of law,” and so violates the Fourteenth Amendment, Rochin v. California, 342 U. S. 165, 172, 173 (1952), were not also punishment “inconsistent with contemporary standards of decency” and “‘repugnant to the conscience of mankind,’” Estelle v. Gamble, 429 U. S., at 103, 106, in violation of the Eighth. We only . recently reserved the general question “whether something less than intentional conduct, such as recklessness or ‘gross negligence,’ is enough to trigger the protections of the Due Process Clause.” Daniels v. Williams, 474 U. S. 327, 334, n. 3 (1986). Because this case involves prison inmates rather than pretrial detainees or persons enjoying unrestricted liberty we imply nothing as to the proper answer to that question outside the prison security context by holding, as we do, that in these circumstances the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause.

Petitioners also ask us to hold that the Court of Appeals erred in ruling that they did not enjoy qualified immunity. We decline to review that holding, because our decision that petitioners were entitled to a directed verdict on the merits makes it unnecessary to do so.

The judgment of the Court of Appeals is

Reversed.

Justice Marshall,

with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, dissenting.

I share the majority’s concern that prison officials be permitted to respond reasonably to inmate disturbances without unwarranted fear of liability. I agree that the threshold for establishing a constitutional violation under these circumstances is high. I do not agree, however, that the contested existence of a “riot” in the prison lessens the constraints imposed on prison authorities by the Eighth Amendment.

The majority has erred, I believe, both in developing its legal analysis and in employing it. First, the especially onerous standard the Court has devised for determining whether a prisoner injured during a prison disturbance has been subjected to cruel and unusual punishment is incorrect and not justified by precedent. That standard is particularly inappropriate because courts deciding whether to apply it must resolve a preliminary issue of fact that will often be disputed and properly left to the jury. Finally, the Court has applied its test improperly to the facts of this case. For these reasons, I must respectfully dissent.

⅜ — I

The Court properly begins by acknowledging that, for a prisoner attempting to prove a violation of the Eighth Amendment, “[a]n express intent to inflict unnecessary pain is not required, Estelle v. Gamble, 429 U. S. 97, 104 (1976).” Ante, at 319. Rather, our cases have established that the “unnecessary and wanton” infliction of pain on prisoners constitutes cruel and unusual punishment prohibited by the Eighth Amendment, even in the absence of intent to harm. Ibid.; see also Ingraham v. Wright, 430 U. S. 651, 670 (1977); Gregg v. Georgia, 428 U. S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Having correctly articulated the teaching of our cases on this issue, however, the majority inexplicably arrives at the conclusion that a constitutional violation in the context of a prison uprising can be established only if force was used “maliciously and sadistically for the very purpose of causing harm,” ante, at 320-321 — thus requiring the very “express intent to inflict unnecessary pain” that it had properly disavowed.

The Court imposes its heightened version of the “unnecessary and wanton” standard only when the injury occurred in the course of a “disturbance” that “poses significant risks,” ante, at 320. But those very questions — whether a disturbance existed and whether it posed a risk — are likely to be hotly contested. It is inappropriate, to say the least, to condition the choice of a legal standard, the purpose of which is to determine whether to send a constitutional claim to the jury, upon the court’s resolution of factual disputes that in many cases should themselves be resolved by the jury.

The correct standard for identifying a violation of the Eighth Amendment under our cases is clearly the “unnecessary and wanton” standard, which establishes a high hurdle to be overcome by a prisoner seeking relief for a constitutional violation. The full circumstances of the plaintiff’s injury, including whether it was inflicted during an attempt to quell a riot and whether there was a reasonable apprehension of danger, should be considered by the factfinder in determining whether that standard is satisfied in a particular case. There is simply no justification for creating a distinct and more onerous burden for the plaintiff to meet merely because the judge believes that the injury at issue was caused during a disturbance that “pose[d] significant risks to the safety of inmates and prison staff,” ante, at 320. Determination of whether there was such a disturbance or risk, when disputed, should be made by the jury when it resolves disputed facts, not by the court in its role as arbiter of law. See Byrd v. Blue Ridge Cooperative, 356 U. S. 525, 537 (1958).

I — I h-i

The Court properly begins its application of the law by reciting the principle that the facts must be viewed in the light most favorable to respondent, who won a reversal of a directed verdict below. See Galloway v. United States, 319 U. S. 372, 395 (1943). If, under any reasonable interpretation of the facts, a jury could have found the “unnecessary and wanton” standard to be met, then the directed verdict was improper. The majority opinion, however, resolves factual disputes in the record in petitioners’ favor and discounts much of respondent’s theory of the case. This it is not entitled to do.

The majority pays short shrift to respondent’s significant contention that the disturbance had quieted down by the time the lethal force was employed. Ante, at 322-323. Respondent presented substantial testimony to show that the disturbance had subsided, Tr. 112, 165, 188, 193; that only one prisoner, Klenk, remained in any way disruptive, id., at 212; and that even Klenk had calmed down enough at that point to admit that he had “‘gone too far.’” Id., at 117. The majority asserts that “a guard was still held hostage, Klenk was armed and threatening, several other inmates were armed with homemade clubs, numerous inmates remained outside their cells, and . . . [t]he situation remained dangerous and volatile.” Ante, at 322-323. Respondent’s evidence, however, indicated that the guard was not, in fact, in danger. He had been put into a cell by several inmates to prevent Klenk from harming him. Tr. 161. Captain Whitley had been to see the guard, and had observed that the inmates protecting him from Klenk were not armed and had promised to keep Klenk out. Id., at 58 (stipulation), 163. According to respondent’s evidence, moreover, no other inmates were assisting Klenk in any way when the riot squad was called in; they were simply “milling around,” waiting for Klenk to be taken into custody, or for orders to return to their cells. Id., at 188. Respondent’s evidence tended to show not that the “situation remained dangerous and volatile,” ante, at 323, but, on the contrary, that it was calm. Although the Court sees fit to emphasize repeatedly “the risks to the life of the hostage and the safety of inmates that demonstrably persisted notwithstanding repeated attempts to defuse the situation,” ibid., I can only point out that respondent bitterly disputed that any such risk to guards or inmates had persisted. The Court just does not believe his story.

The Court’s treatment of the expert testimony is equally insensitive to its obligation to resolve all disputes in favor of respondent. Respondent’s experts testified that the use of deadly force under these circumstances was not justified by any necessity to prevent imminent danger to the officers or the inmates, Tr. 266; that the force used was excessive, ibid.; and that even if deadly force had been justified, it would have been unreasonable to unleash such force without a clear warning to allow nonparticipating inmates to return to their cells. Id., at 269. Insofar as expert testimony can ever be useful to show that prison authorities engaged in the “unnecessary and wanton” infliction of pain, even though it will always amount to “after-the-fact opinion” regarding the circumstances of the injury, see ante, at 323, respondent’s expert evidence contributed to the creation of a factual issue.

The majority characterizes the petitioners’ error in using deadly force where it was not justified as an “oversight.” Ante, at 325. This is an endorsement of petitioners’ rendition of the facts. As portrayed by respondent’s evidence, the “error” was made in cold blood. Respondent’s involvement started when, at the request of one of the inmates, he approached petitioner Whitley, who was talking to Klenk, to ask if Whitley would supply a key to a gate so that the elderly and sick patients in so-called “medical cells” near the area of disturbance could be removed before any tear gas was used. Tr. 115-116. Captain Whitley said that he would go and get the key, and left the cellblock. Ibid. In two or three minutes, Whitley returned. Id., at 118. Respondent went to the door of the cellblock, and asked Whitley if he had brought the key. Whitley responded “‘No,’” turned his head back and yelled: “ ‘Let’s go, let’s go. Shoot the bastards!’ ” Ibid.

Respondent, afraid, ran from his position by the door and headed for the stairs, the only route back to his cell. Id., at 118-119. He caught some movement out of the corner of his eye, looked in its direction, and saw petitioner Kennicott. According to respondent: “‘I froze. I looked at him; we locked eyes, then I looked down and seen the shotgun in his hand, then I seen the flash, and the next thing I know I was sitting down, grabbing my leg.’” Id., at 119. Losing a great deal of blood, respondent crawled up the stairs and fell on his face, trying to get out of range of the shotguns. Ibid. After about 10 minutes, an officer grabbed respondent by the hair and dragged him downstairs. Id., at 194. As he lay there, another officer came and stood over respondent and shoved the barrel of a gun or gas pistol into respondent’s face. Id., at 122. Respondent was left lying and bleeding profusely for approximately 10 or 15 more minutes, and was then taken to the prison hospital. Id., at 194. He suffered very severe injury. Meanwhile, Kflenk had been subdued with no resistance by Whitley, id., at 164, 234, who was unarmed, id., at 233.

Other testimony showed that, although most of the inmates assembled in the area were clearly not participating in the misconduct, they received no warning, instructions, or opportunity to leave the area and return to their cells before the officers started shooting. Id., at 163. Neither respondent nor any other inmate attempted to impede the officers as they entered the cellblock. Id., at 234. The officers were described as “wild,” “agitated, excited,” not in full control of their emotions. Id., at 192. One officer, prior to entering cellblock “A,” told the others to “‘shoot their asses off, and if Klenk gets in the way, kill him.’” Ibid. At the time of this assault, the cellblock was described as “quiet.” Id., at 193.

If a jury credited respondent’s testimony and that of his witnesses, it would have believed that there was only one inmate who was temporarily out of control, Klenk — “scared,” id., at 165, and “high,” id., at 117 — and ready to give up. The disturbance in the block had lasted only 15 or 20 minutes when it subsided, and there appeared to be no lasting danger to anyone. Respondent was shot while he stood motionless on the stairs, and was left to bleed for a perilously long time before receiving any assistance.

I — I ⅜ — I h-H

Part III of the Court’s opinion falls far short of a rendition of the events in the light most favorable to respondent. In that light, the facts present a very close question as to whether the prison officials’ infliction of pain on respondent could be said to display the level of wantonness necessary to make out a constitutional violation. At the very least, it is clear that fair-minded people could differ on the response to that question, and that is all it takes to preclude a directed verdict.

The majority suggests that the existence of more appropriate alternative measures for controlling prison disturbances is irrelevant to the constitutional inquiry, but surely it cannot mean what it appears to say. For if prison officials were to drop a bomb on a cellblock in order to halt a fistfight between two inmates, for example, I feel confident that the Court would have difficulty concluding, as a matter of law, that such an action was not sufficiently wanton to present a jury question, even though concededly taken in an effort to restore order in the prison. Thus, the question of wantonness in the context of prison disorder, as with other claims of mistreatment under the Eighth Amendment, is a matter of degree. And it is precisely in cases like this one, when shading the facts one way or the other can result in different legal conclusions, that a jury should be permitted to do its job. Properly instructed, a jury would take into account the petitioners’ legitimate need to protect security, the extent of the danger presented, and the reasonableness of force used, in assessing liability. Moreover, the jury would know that a prisoner’s burden is a heavy one, if he is to establish an Eighth Amendment violation under these circumstances. Whether respondent was able to meet that burden here is a question for the jury. From the Court’s usurpation of the jury’s function, I dissent. I would affirm the judgment of the Court of Appeals.

       This intent standard ostensibly derives from an opinion of Judge Friendly in Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2), cert. denied sub nom. John v. Johnson, 414 U. S. 1033 (1973). That opinion, however, considered maliciousness not as a prerequisite to a constitutional violation, but rather as a factor that, if present, could enable a plaintiff to survive a motion to dismiss when otherwise the facts might be insufficient to make out a claim. 481 F. 2d, at 1033.

       The majority also rejects the pure Fourteenth Amendment due process claim asserted by respondent before the District Court. For the reasons stated in Justice Blackmun’s dissent in Davidson v. Cannon, 474 U. S. 344, 349 (1986), which I joined, I believe that the evidence precluding a directed verdict under the “unnecessary and wanton” standard also precludes a directed verdict on respondent’s due process claim. Justice Stevens does not join this footnote.


source: Caselaw Access Project

author: Justice White Justice Powell,

license: Public Domain

text:
    MALLEY et al. v. BRIGGS et al.
    No. 84-1586.
    Argued November 13, 1985
    Decided March 5, 1986

      White, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, J., joined, post, p. 346.

      Ann M. Sheadel, Assistant Attorney General of Rhode Island, argued the cause for petitioners. With her on the brief was Arlene Violet, Attorney General.

      Leonard Decof, argued the cause for respondents. With him on the brief was John S. Foley.

      Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, and Catharine F. Haukedahl, Special Assistant Attorney General, Charles A. Graddick, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, John K. Van de Kamp, Attorney General of California, Jim Smith, Attorney General of Florida, Michael J. -Bowers, Attorney General of Georgia, Corinne Watanabe, Acting Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, William J. Guste, Jr., Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Edwin Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Mike Greely, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, Irwin I. Kimmelman, Attorney General of New Jersey, Lacy H. Thornburg, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, David

        Frohnmayer, Attorney General of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, David L. Wilkinson, Attorney General of Utah, William G. Broaddus, Attorney General of Virginia, Bronson C. La Follette, Attorney General of Wisconsin, and A. G. McClintock, Attorney General of Wyoming; and for Americans for Effective Law Enforcement, Inc., et al. by David Crump, Daniel B. Hales, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak.

        Steven P. Lockman, Jack D. Novik, Burt Neubome, and Lynette Labinger filed a brief for the American Civil Liberties Union et al. as amici curiae.

   Justice White

delivered the opinion of the Court.

This case presents the question of the degree of immunity accorded a defendant police officer in a damages action under 42 U. S. C. § 1983 when it is alleged that the officer caused the plaintiffs to be unconstitutionally arrested by presenting a judge with a complaint and a supporting affidavit which failed to establish probable cause.

) — I

In December 1980, the Rhode Island State Police were conducting a court-authorized wiretap on the telephone of one Paul Driscoll, an acquaintance of respondents’ daughter. On December 20, the police intercepted a call to Driscoll from an unknown individual who identified himself as “Dr. Shogun.” The police logsheet summarizes the call as follows: “General conversation re. a party they went to last night. . . caller says I can’t believe I was token [sic] in front of Jimmy Briggs — caller states he passed it to Louisa . . . Paul says Nancy was sitting in his lap rolling her thing.” App. 78.

Petitioner Edward Malley (hereafter petitioner) was the Rhode Island state trooper in charge of the investigation of Driscoll. After reviewing the logsheet for December 20, petitioner decided that the call from “Dr. Shogun” was incriminating, because in drug parlance “toking” means smoking marihuana and “rolling her thing” refers to rolling a marihuana cigarette. Petitioner also concluded that another call monitored the same day showed that the party discussed by Driscoll and “Dr. Shogun” took place at respondents’ house. On the basis of these two calls, petitioner drew up felony complaints charging that respondents and Paul Driscoll “did unlawfully conspire to violate the uniform controlled substance act of the State of Rhode Island by having [marihuana] in their possession . . . .” Id., at 74. These complaints were presented to a State District Court Judge in February 1981, after the wiretap of Driscoll’s phone had been terminated. Accompanying the complaints were unsigned warrants for each respondent’s arrest, and supporting affidavits describing the two intercepted calls and petitioner’s interpretation of them. The judge signed warrants for the arrest of respondents and 20 other individuals charged by petitioner as a result of information gathered through the wiretap.

Respondents were arrested at their home shortly before six o’clock on the morning of March 19, 1981. They were taken to a police station, booked, held for several hours, arraigned, and released. Local and statewide newspapers published the fact that respondents, who are prominent members of their community, had been arrested and charged with drug possession. The charges against repondents were subsequently dropped when the grand jury to which the case was presented did not return an indictment.

Respondents brought an action under 42 U. S. C. § 1983 in the United States District Court for the District of Rhode Island charging, inter alia, that petitioner, in applying for warrants for their arrest, violated their rights under the Fourth and Fourteenth Amendments. The case was tried to a jury, and at the close of respondents’ evidence, petitioner moved for and was granted a directed verdict. The District Court’s primary justification for directing a verdict was that the act of the judge in issuing the arrest warrants for respondents broke the causal chain between petitioner’s filing of a complaint and respondents’ arrest. The court also stated that an officer who believes that the facts stated in his affidavit are true and who submits them to a neutral magistrate may thereby be entitled to immunity under the “objective reasonableness” standard of Harlow v. Fitzgerald, 457 U. S. 800 (1982).

The United States Court of Appeals for the First Circuit reversed, holding that an officer who seeks an arrest warrant by submitting a complaint and supporting affidavit to a judge is not entitled to immunity unless the officer has an objectively reasonable basis for believing that the facts alleged in his affidavit are sufficient to establish probable cause. 748 F. 2d 715 (1984). We granted certiorari in order to review the First Circuit’s application of the “objective reasonableness” standard in this context. 471 U. S. 1124 (1985). We affirm.

II

Petitioner urges reversal on two grounds: first, that in this context, he is absolutely immune from liability for damages; second, that he is at least entitled to qualified immunity in this case. We reject both propositions and address first the absolute immunity issue.

A

Our general approach to questions of immunity under § 1983 is by now well established. Although the statute on its face admits of no immunities, we have read it “in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Imbler v. Pachtman, 424 U. S. 409, 418 (1976). Our initial inquiry is whether an official claiming immunity under §1983 can point to a common-law counterpart to the privilege he asserts. Tower v. Glover, 467 U. S. 914 (1984). If “an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether §1983’s history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.” Id., at 920. Thus, while we look to the common law for guidance, we do not assume that Congress intended to incorporate every common-law immunity into §1983 in unaltered form.

Our cases also make plain that “[f]or executive officers in general, . . . qualified immunity represents the norm.” Harlow, supra, at 807. Like federal officers, state officers who “seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” Butz v. Economou, 438 U. S. 478, 506 (1978).

B

Although we have previously held that police officers sued under § 1983 for false arrest are qualifiedly immune, Pierson v. Ray, 386 U. S. 547, 557 (1967), petitioner urges that he should be absolutely immune because his function in seeking an arrest warrant was similar to that of a complaining witness. The difficulty with this submission is that complaining witnesses were not absolutely immune at common law. In 1871, the generally accepted rule was that one who procured the issuance of an arrest warrant by submitting a complaint could be held liable if the complaint was made maliciously and without probable cause. Given malice and the lack of probable cause, the complainant enjoyed no immunity. The common law thus affords no support for petitioner.

Nor are we moved by petitioner’s argument that policy considerations require absolute immunity for the officer applying for a warrant. As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law. At common law, in cases where probable cause to arrest was lacking, a complaining witness’ immunity turned on the issue of malice, which was a jury question. Under the Harlow standard, on the other hand, an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner. The Harlow standard is specifically designed to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,” and we believe it sufficiently serves this goal. Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.

C

As an alternative ground for claiming absolute immunity, petitioner draws an analogy between an officer requesting a warrant and a prosecutor who asks a grand jury to indict a suspect. Like the prosecutor, petitioner argues, the officer must exercise a discretionary judgment based on the evidence before him, and like the prosecutor, the officer may not exercise his best judgment if the threat of retaliatory lawsuits hangs over him. Thus, petitioner urges us to read § 1983 as giving the officer the same absolute immunity enjoyed by the prosecutor. Cf. Imbler v. Pachtman, 424 U. S. 409 (1976).

We reemphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice, and that we are guided in interpreting Congress’ intent by the common-law tradition. In Imbler, supra, we concluded that at common law “[t]he general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution.” Id., at 437. We do not find a comparable tradition of absolute immunity for one whose complaint causes a warrant to issue. See n. 3, supra. While this observation may seem unresponsive to petitioner’s policy argument, it is, we believe, an important guide to interpreting § 1983. Since the statute on its face does not provide for any immunities, we would be going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871.

Even were we to overlook the fact that petitioner is inviting us to expand what was a qualified immunity at common law into an absolute immunity, we would find his analogy between himself and a prosecutor untenable. We have interpreted § 1983 to give absolute immunity to functions “intimately associated with the judicial phase of the criminal process,” Imbler, supra, at 430 (emphasis added), not from an exaggerated esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself. Briscoe v. LaHue, 460 U. S. 325, 334-335 (1983). We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment. Furthermore, petitioner’s analogy, while it has some force, does not take account of the fact that the prosecutor’s act in seeking an indictment is but the first step in the process of seeking a conviction. Exposing the prosecutor to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability. Thus, we shield the prosecutor seeking an indictment because any lesser immunity could impair the performance of a central actor in the judicial process.

In the case of the officer applying for a warrant, it is our judgment that the judicial process will on the whole benefit from a rule of qualified rather than absolute immunity. We do not believe that the Harlow standard, which gives ample room for mistaken judgments, will frequently deter an officer from submitting an affidavit when probable cause to make an arrest is present. True, an officer who knows that objectively unreasonable decisions will be actionable may be motivated to reflect, before submitting a request for a warrant, upon whether he has a reasonable basis for believing that his affidavit establishes probable cause. But such reflection is desirable, because it reduces the likelihood that the officer’s request for a warrant will be premature. Premature requests for warrants are at best a waste of judicial resources; at worst, they lead to premature arrests, which may injure the innocent or, by giving the basis for a suppression motion, benefit the guilty.

Furthermore, it would be incongruous to test police behavior by the “objective reasonableness” standard in a suppression hearing, see United States v. Leon, 468 U. S. 897 (1984), while exempting police conduct in applying for an arrest or search warrant from any scrutiny whatsoever in a § 1988 damages action. While we believe the exclusionary rule serves a necessary purpose, it obviously does so at a considerable cost to society as a whole, because it excludes evidence probative of guilt. On the other hand, a damages remedy for an arrest following an objectively unreasonable request for a warrant imposes a cost directly on the officer responsible for the unreasonable request, without the side effect of hampering a criminal prosecution. Also, in the case of the § 1983 action, the likelihood is obviously greater than at the suppression hearing that the remedy is benefiting the victim of police misconduct one would think most deserving of a remedy — the person who in fact has done no wrong, and has been arrested for no reason, or a bad reason. See Owen v. City of Independence, 445 U. S. 622, 653 (1980).

Accordingly, we hold that the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon, supra, defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest. Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, Leon, supra, at 923, will the shield of immunity be lost.

I — I f — H HH

We also reject petitioner’s argument that if an officer is entitled to only qualified immunity in cases like this, he is nevertheless shielded from damages liability because the act of applying for a warrant is per se objectively reasonable, provided that the officer believes that the facts alleged in his affidavit are true. Petitioner insists that he is entitled to rely on the judgment of a judicial officer in finding that probable cause exists and hence issuing the warrant. This view of objective reasonableness is at odds with our development of that concept in Harlow and Leon. In Leon, we stated that “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” 468 U. S., at 922, n. 23. The analogous question in this case is whether a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. If such was the case, the officer’s application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest. It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment.

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Powell,

with whom Justice Rehnquist joins, concurring in part and dissenting in part.

Although I agree with much of the Court’s opinion, I write separately to emphasize that substantial weight should be accorded the judge’s finding of probable cause in determining whether petitioner state trooper (hereafter petitioner) will be personally liable for damages under § 1983. I also believe that summary judgment would have been appropriate here because respondents failed to show that petitioner’s decision to request a warrant was not objectively reasonable.

I — I

At the outset, I supplement the facts stated by the Court. Petitioner was supervising a wiretap in a narcotics investigation pursuant to an order by the Rhode Island Superior Court. It appears from a logged conversation recorded on the wiretap that a “Jimmy Briggs” and a “Luisa [sic] Briggs” attended a party where some of those present possessed and used marihuana. A marihuana cigarette may have been passed to Mrs. Briggs. The conversation also referred to a party that was going to be held at respondents’ home and attended by some of these people. A fair inference from the log is that respondents were hosting a marihuana party similar to the earlier one.

On the basis of this conversation, petitioner and his partner decided to seek warrants against respondents for possessing marihuana. Petitioner presented the affidavits to Judge Capelli, a Rhode Island District Judge. Judge Capelli reviewed the affidavits, and entered an order stating:

“TO ANY AUTHORIZED OFFICER:
“Affidavit (and complaint) having been made to me under oath, and as I am satisfied that there is probable cause for the belief therein set forth that grounds for issuing an arrest warrant exists [sic], you are hereby commanded to arrest the defendant forthwith and to bring him before a judge of this court without unnecessary delay.”

The record before us does not disclose any evidence or claim that Judge Capelli failed to act in a competent judicial manner, or that he failed to exercise independent judgment in determining whether the arrest warrant should issue.

Respondents were prominent citizens in the community, and had never previously been implicated in any violation of the criminal laws. The grand jury did not return an indictment against them, and they instituted this suit under § 1983, seeking to hold petitioner personally liable for damages. The District Court directed a verdict for petitioner. It held that Judge Capelli’s finding of probable cause and his issuance of the arrest warrants immunized petitioner from respondents’ claim for damages.

The Court of Appeals for the First Circuit reversed, holding that liability under § 1983 will attach when “an officer is ‘constitutionally negligent,’ that is, where the officer should have known that the facts recited in the affidavit did not constitute probable cause.” 748 F. 2d 715, 721 (1984). The Court of Appeals also denied petitioner’s claim of immunity, purporting to apply the standard of objective reasonableness for qualified immunity articulated in Harlow v. Fitzgerald, 457 U. S. 800 (1982). This Court today affirms.

HH hH

I agree with the Court s decision that petitioner was not entitled to absolute immunity, and that the Harlow standard of qualified immunity — objective reasonableness — properly applies. In Harlow, however, the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., at 818. Putting it differently, we also stated that a claim for qualified immunity “would be defeated [only] if an official ‘knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff].”’ Id., at 815, quoting Wood v. Strickland, 420 U. S. 308, 322 (1975).

At one point in the Court’s opinion today, it correctly recognizes that as the “qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law” Ante, at 341 (emphasis added). The Court also says that liability will attach “if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.” Ibid.

I agree with the foregoing characterizations of the applicable standard when an official raises the defense of qualified immunity. I disagree, however, with the Court in two major respects. First, rather than deciding whether petitioner’s conduct met the foregoing standard, the Court remands for trial on this issue. Yet, as the Court recognizes, unless “no reasonably competent officer would have concluded that a warrant should issue,” ibid., petitioner should be immune from damages. Ibid. In my view, in the light of the logs of the duly authorized wiretap, a reasonably competent officer could have believed that a warrant should issue.

It is undisputed that wiretaps initiated as part of a drug investigation revealed that respondents had attended a party where marihuana was being smoked, that a marihuana cigarette may have been passed to Mrs. Briggs, and that another party — at least inferentially of a similar type — was to be held in respondents’ home. Under the Harlow standard, we need not consider whether this information would be viewed by every reasonable officer as sufficient evidence of probable cause for the issuance of a warrant. Police often operate “in the midst and haste of a criminal investigation,” United States v. Ventresca, 380 U. S. 102, 108 (1965), and they have to make judgment calls over which reasonable officers could differ. In this case, the logs from the wiretap at least arguably implicated respondents in unlawful activities. See supra, at 347, and n. 1. Under these circumstances, an officer of reasonable competence could have believed that the wiretap provided probable cause to arrest respondents.

Second, and perhaps of greater importance, in determining whether the police officer acted with objective reasonableness, the Court apparently would give little evidentiary weight to the finding of probable cause by a magistrate or judicial officer. The Court quotes from United States v. Leon, 468 U. S. 897, 922, n. 23 (1984), that “‘our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.’” Ante, at 345 (emphasis added). Although this quotation does not foreclose some consideration by the District Court of the judge’s judicial decision, the Court seems to denigrate the relevance of the judge’s determination of probable cause and his role in the issuance of a warrant. In my view, the Court misconstrues the respective roles of, and the relationship between, the police officer and the magistrate or judicial officer. In cases where a criminal defendant has asserted claims of unconstitutional search and seizure, this Court has consistently accorded primary evidentiary weight to a magistrate’s determination of probable cause. No reason has been articulated by the Court, and certainly none occurs to me, why less weight should be accorded the magistrate’s decision in a § 1983 damages suit against the police officer who applied for the warrant.

Our common law has long recognized a “reasonable division of functions,” Baker v. McCollan, 443 U. S. 137, 145 (1979), in law enforcement: the gathering of information is the province of the police, and the weighing and judging of that information is virtually the exclusive province of the magistrate. As Lord Mansfield stated two centuries ago: “It is not fit that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.” Leach v. Three of the King’s Messengers, 19 How. St. Tr. 1001, 1027 (1765), quoted in United States v. United States District Court, 407 U. S. 297, 316 (1972).

We have affirmed that the arrest warrant “should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify [issuance of a warrant].” United States v. United States District Court, supra, at 316. This Court also has recognized that “the informed and deliberate determinations of magistrates . . . are to be preferred over the hurried actions of officers.” United States v. Lefkowitz, 285 UA. S. 452, 464 (1932). Judicial evaluation of probable cause by a magistrate is the essential “checkpoint between the Government and the citizen.” Steagald v. United States, 451 U. S. 204, 212 (1981). As we stated in Arkansas v. Sanders, 442 U. S. 753, 759 (1979):

“The prominent place the warrant requirement is given in our decisions reflects the ‘basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.’ United States v. United States District Court, supra, at 317. By requiring that conclusions concerning probable cause and the scope of a search ‘be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,’ Johnson v. United States, 333 U. S. 10, 14 (1948), we minimize the risk of unreasonable assertions of executive authority.”

The police, where they have reason to believe probable cause exists, should be encouraged to submit affidavits to judicial officers. I therefore believe that in a suit such as this, the Court should expressly hold that the decision by the magistrate is entitled to substantial evidentiary weight. A more restrictive standard will discourage police officers from seeking warrants out of fear of litigation and possible personal liability. The specter of personal liability for a mistake in judgment may cause a prudent police officer to close his eyes to facts that should at least be brought to the attention of the judicial officer authorized to make the decision whether a warrant should issue. Law enforcement is ill-served by this in terrorem restraint.

r — 1 J — i I — i

This Court has long sought to divide the functions of law enforcement to impose on the magistrate the primary responsibility for determining whether a warrant will issue. It is inconsistent with this jurisprudence to imply or hold that the magistrate’s determination of probable cause is irrelevant in this suit. A judicial officer’s “judgment call” in determining probable cause, although not conclusive, is entitled to substantial evidentiary weight in suits seeking to impose personal liability on the police officer. In this case, in the light of the judge’s determination and the evidence of illegal activity, I would hold that petitioner is immune from damages.

I agree with the judgment declining to accord absolute immunity to the officer seeking a warrant, but I do not join the Court’s opinion, and I dissent from the decision to remand this case for trial on the immunity issue.

       Respondents’ complaint also named the State of Rhode Island as a defendant. At the close of respondents’ evidence, Rhode Island moved for and was granted a directed verdict on Eleventh Amendment grounds. Respondents have not contested the propriety of the directed verdict for the State.

        Harlow was a suit against federal, not state, officials, but as we stated in deciding the case, it is “ ‘untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.”’ 457 U. S., at 818, n. 30 (quoting Butz v. Economou, 438 U. S. 478, 504 (1978)).

       See, e. g., Dinsman v. Wilkes, 12 How. 390, 402 (1852); Randall v. Henry, 5 Stew. & P. 367, 378 (Ala. 1834); Bell v. Keepers, 37 Kan. 64, 14 P. 542 (1887); Finn v. Frink, 84 Me. 261, 24 A. 851 (1892); 4 W. Wait, Actions and Defenses 352-356 (1878). The same rule applied in the case of search warrants. See, e. g., Barker v. Stetson, 73 Mass. 53, 54 (1856); Carey v. Sheets, 67 Ind. 375, 378-379 (1879).

       See 4 Wait, supra, at 345 (‘Whether malice is proved or not is a question of fact for the jury”).

       The organized bar’s development and enforcement of professional standards for prosecutors also lessen the danger that absolute immunity will become a shield for prosecutorial misconduct. As we observed in Imbler, “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. ” 424 U. S., at 429 (footnote omitted). The absence of a comparably well-developed and pervasive mechanism for controlling police misconduct weighs against allowing absolute immunity for the officer.

       Although the case before us only concerns a damages action for an officer’s part in obtaining an allegedly unconstitutional arrest warrant, the distinction between a search warrant and an arrest warrant would not make a difference in the degree of immunity accorded the officer who applied for the warrant.

       Petitioner has not pressed the argument that in a case like this the officer should not be liable because the judge’s decision to issue the warrant breaks the causal chain between the application for the warrant and the improvident arrest. It should be clear, however, that the District Court’s “no causation” rationale in this case is inconsistent with our interpretation of § 1983. As we stated in Monroe v. Pape, 365 U. S. 167, 187 (1961), § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Since the common law recognized the causal link between the submission of a complaint and an ensuing arrest, we read § 1983 as recognizing the same causal link.

       The question is not presented to us, nor do we decide, whether petitioner’s conduct in this case was in fact objectively reasonable. That issue must be resolved on remand.

       Notwithstanding petitioner’s protestations, the rule we adopt in no way “requires the police officer to assume a role even more skilled . . . than the magistrate. ” Brief for Petitioners 33. It is a sound presumption that “the magistrate is more qualified than the police officer to make a probable cause determination,” ibid., and it goes without saying that where a magistrate acts mistakenly in issuing a warrant but -within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable. But it is different if no officer of reasonable competence would have requested the warrant, i. e., his request is outside the range of the professional competence expected of an officer. If the magistrate issues the warrant in such a ease, his action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty. The officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.

       The State Police successfully sought 20 additional arrest warrants in connection with the narcotics investigation. The record before this Court does not disclose how many of these warrants resulted in indictments.

       Trooper Malley’s attachment to the affidavit seeking a warrant for the arrest of James R. Briggs stated:
      “Your affiant upon oath states that he has reason to believe and does believe that grounds for issuance of an arrest warrant exists [sic] and states the following facts on which such belief is founded:
      “Persuant [sic] to a court ordered wire intercept....
      “On December 20, 1980, at 5:30 p.m. an incoming call was received to Paul Driscoll recorded on Reel 7, Side 1, Footage 30-48. This unidentified male calls Paul Driscoll and states, ‘This is Doctor Shotgun’ [sic]. General conversation reference to a party they went to last night. Caller states, T can’t believe I was token in front of Jimmy Briggs.’ Caller states that he passed it to Luisa [sic]. Caller and Paul talk about another party going on tonight. Paul says that Nancy was sitting in his lap rolling her thing.
      “On the same date at 5:56 p.m., Reel 7, Footage 48-59. Male subject Scott calls Paul Driscoll. General conversation about a party at Jaime’s parents’ [respondents’] home. Also, that they went there last night. They are referring to Jaime’s parents’ home, that is James and Luisa Briggs. Further, in regard to the conversation at 5:30 p.m. this unidentified male who called himself Doctor Shotgun [sic] stated that he was token in front of Jimmy Briggs. In your affiant’s experience, he was smoking a marijuana cigarette in front of James Briggs. He then states that he passed it to Luisa. Luisa would be Luisa Briggs. He passed her a marijuana cigarette. Where Paul states that Nancy was sitting on his lap rolling her thing, she was rolling a marijuana cigarette.” App. 72-73.
      The statement attached to the affidavit seeking a warrant for the arrest of Louisa Briggs was identical.

       Respondents each sought $1 million in compensatory damages and $1 million in punitive damages.

       Although the affidavit from Trooper Malley stated that a marihuana cigarette was passed to Mrs. Briggs, the call log simply states that the caller “passed it to Louisa.” Id., at 78. A subsequent call to Driscoll mentioned a “Louisa (Bungershort),” probably in connection with the same party. Ibid. It is possible that the marihuana cigarette was passed to Louisa Bungershort rather than Louisa Briggs. At trial, Mrs. Briggs denied seeing any marihuana at that party or receiving a marihuana cigarette. Id., at 40.

       The words “magistrate” and “judicial officer” often are used interchangeably in Court opinions. Shadwick v. City of Tampa, 407 U. S. 345 (1972). The Court’s emphasis on magistrates has “been directed at the need for independent, neutral, and detached judgment, not at legal training.” North v. Russell, 427 U. S. 328, 337 (1976).

       The Court observes that “ours is not an ideal system,” and states that “it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should.” Ante, at 345-346. While I do not question the possibility that some magistrates in some cases may “fail to perform as a magistrate should,” no one suggests that such is the case here.
      The Court previously has stated that “[i]f a magistrate serves merely as a ‘rubber stamp’ for the police or is unable to exercise mature judgment, closer supervision or removal provides a more effective remedy than the exclusionary rule.” United States v. Leon, 468 U. S., at 917-918, n. 18. I also believe that closer supervision or removal provides a more effective remedy than personal liability for police officers.

       In United States v. Ventresca, 380 U. S. 102, 105-106 (1965), the Court stated:
      “We begin our analysis of [the Fourth Amendment] mindful of the fact that in this case a search was made pursuant to a search warrant. . . .

      “In Jones v. United States, 362 U. S. 257, 270, this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. In Johnson v. United States, 333 U. S. 10, and Chapman v. United States, 365 U. S. 610, the Court, in condemning searches by officers who invaded premises without a warrant, plainly intimated that had the proper course of obtaining a warrant from a magistrate been followed and had the magistrate on the same evidence available to the police made a finding of probable cause, the search under the warrant would have been sustained.”
      Generally, the judicial officer’s determination of probable cause has greater reliability than a police officer’s, not only because the judicial officer is not immersed in the criminal investigation, but also because the judicial officer usually has greater time for deliberation and greater familiarity through training or education with the legal concepts concerning probable cause.

       There will, of course, be instances where “it is plainly evident that a magistrate or judge ha[s] no business issuing a warrant.” Illinois v. Gates, 462 U. S. 213, 264 (1983) (White, J., concurring in judgment). If the magistrate has wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979), then the magistrate’s approval of a warrant would not necessarily be probative of whether an officer’s request for a warrant was objectively reasonable.

       It is of course true that actions by police must comport with the Constitution. Police departments and prosecutors have an obligation to instill this understanding in officers, and to discipline those found to have violated the Constitution.