Case 2.1 Qualified Immunity: Harlow v. Fitzgerald
(1982)
BRYCE N. HARLOW and
ALEXANDER P. BUTTERFIELD,
Petitioners
V
A. ERNEST FITZGERALD
457 US 800
No. 80-945
Argued November 30, 1981.
Decided June 24, 1982.
Decision
Senior aides and advisers of President of United States, held
entitled to qualified immunity from civil damages suits insofar as
their conduct does not violate rights of which reasonable person
would have known.
Summary
A civilian employee of the Department of the Air Force was
terminated from his position. He instituted a suit for civil damages
in the United States District Court for the District of Columbia
against two senior aides and advisers of the President of the United
States, alleging that they participated in a conspiracy in their
official capacities, to effect his unlawful discharge.
[T]he District Court… ruled that the aides were not entitled to
absolute immunity. The aides appealed the denial of their immunity
defense to the United States Court of Appeals for the District of
Columbia which dismissed the appeal.
Opinion
Justice Powell delivered the opinion of the Court.
The issue in this case is the scope of the immunity available to the
senior aides and advisers of the President of the United States in a
suit for damages based upon their official acts.
I
In this suit for civil damages petitioners Bryce Harlow and
Alexander Butterfield are alleged to have participated in a
conspiracy to violate the constitutional and statutory rights of the
respondent A. Ernest Fitzgerald….
***
…As evidence of Harlow’s conspiratorial activity respondent relies
heavily on discussed Fitzgerald’s dismissal with Air Force Secretary
Robert Seamans. The other evidence most supportive of Fitzgerald’s
claims consists of a recorded conversation in which the President
later voiced a tentative recollection that Harlow was “all for
canning” Fitzgerald.
***
Petitioner Butterfield also is alleged to have entered the
conspiracy not later than May 1969. Employed as Deputy Assistant to
the President and Deputy Chief of Staff to H.R. Haldeman,
Butterfield Circulated a White House memorandum in that month in
which he claimed to have learned that Fitzgerald planned to “blow
the Whistle” on some “shoddy purchasing practices” by exposing these
practices to public view. Fitzgerald characterizes this memorandum
as evidence that Butterfield had commenced efforts to secure
Fitzgerald’s retaliatory dismissal.
…[O]ur decisions consistently have held that Government officials
are entitled to some form of immunity from suits for damages. As
recognized at common law, public officers require this protection to
shield them from undue interference with their duties and from
potentially disabling threats of liability.
Our decisions have recognized immunity defenses of two kinds. For
officials whose special functions or constitutional status require
complete protection from suit, we have recognized the defense of
“absolute immunity” The absolute immunity of legislators in thief
legislative functions… and of judges, in their judicial functions, …
how is well settled. Our decisions also have extended absolute
immunity to certain officials of the Executive Branch. These include
prosecutors and similar officials,… executive officers engaged in
adjudicative functions… and the President of the United States….
For executive officials in general, however, our cases make plain
that qualified immunity represents the norm. In Scheuer v. Rhodes
[1974]… we acknowledged that high officials require greater
protection than those with less complex discretionary
responsibilities. Nonetheless, we held that a governor and his aides
could receive the requisite protection from qualified or good-faith
immunity….
In Butz v. Economou [1978] we extended the approach of Scheuer to
high federal officials of the Executive Branch. Discussing in detail
the considerations that also had underlain our decision in Scheuer,
we explained that the recognition of a qualified immunity defense
for high executives reflected an attempt to balance competing
values: not only the importance of a damages remedy to protect the
rights of citizens,… but also “the need to protect officials who are
required to exercise their discretion and the related public
interests in encouraging the vigorous exercise of official
authority.”
Butz continued to acknowledge that the special functions of some
officials might require absolute immunity. But the Court held that
“federal officials who seek absolute exemption from personal
liability for unconstitutional conduct must bear the burden of
showing that public policy requires an exemption of that scope.”
***
…In order to establish entitlement to absolute immunity a
Presidential aide first must show that the responsibilities of his
office embraced a function so sensitive as to require a total shield
from liability. He then must demonstrate that he was discharging the
protected function when performing the act for which liability is
asserted.
Applying these standards to the claims advanced by petitioners
Harlow and Butterfield, we cannot conclude on the record before us
that either has shown that “public policy requires [for any of the
functions of his office] and exemption of [absolute] scope.”… Nor,
assuming that petitioners did have functions for which absolute
immunity would be warranted, could we now conclude that the acts
charged in this lawsuit – if taken at all – would lie within the
protected area.
Even if they cannot establish that their official functions require
absolute immunity, petitioners assert that public policy at least
mandates an application of the qualified immunity standard that
would permit the defeat of insubstantial claims without resort to
trial. We agree.
The resolution of immunity questions inherently requires a balance
between the evils inevitable in any available alternative. In
situations of abuse of office, an action for damages may offer the
only realistic avenue for vindication of constitutional guarantees…
It is this recognition that has required the denial of absolute
immunity to most public officers. At the same time, however, it
cannot be disputed seriously that claims frequently run against the
innocent as well as the guilty – at a cost not only to the defendant
officials, but to the society as a whole. These social costs include
the expenses of litigation, the diversion of official energy from
pressing public issues, and the deterrence of able citizens from
acceptance of public office. Finally, there is the danger that fear
of being sued will “dampen the ardor of all but the most resolute,
or the most irresponsible [public officials], in the unflinching
discharge of their duties.”
In identifying qualified immunity as the best attainable
accommodation of competing values, in Butz, … as in Scheuer… we
relied on the assumption that this standard would permit
“[I]nsubstantial lawsuits [to] be quickly terminated.”
***
Consistently with the balance at which we aimed in Butz, we conclude
today we aimed in Butz, we conclude today that bare allegations of
malice should not suffice to subject government officials either to
the costs of trial or to the burdens of broad-reaching discovery. We
therefore hold that government officials performing discretionary
functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known…
Reliance on the objective reasonableness of an official’s conduct,
as measured by reference to clearly established law, should avoid
excessive disruption of government and permit the resolution of many
insubstantial claims on summary judgment. On summary judgment, the
judge appropriately may determine, not only the currently applicable
law, but whether that law was clearly established at the time an
action occurred. If the law at that time was clearly established at
the time was not clearly established, an official could not
reasonably be expected to anticipate subsequent legal developments,
nor could he fairly be said to “know” that the law forbade conduct
not previously identified as unlawful. Until this threshold immunity
question is resolved, discovery should not be allowed. If the law
was clearly established, the immunity defense ordinarily should
fail, since a reasonably competent public official should know the
law governing his conduct. Nevertheless, if the official pleading
the defense claims extraordinary circumstances and con prove that he
neither knew nor should have known of the relevant legal standard,
the defense should be sustained. But again, the defense would turn
primarily on objective factors.
By defining the limits of qualified immunity essentially in
objective terms, we provide no license to lawless conduct. The
public interest in deterrence of unlawful conduct and in
compensation of victims remains protected by a test that focuses on
the objective legal reasonableness of an official’s acts. Where an
official could be expected to know that certain conduct would
violate statutory or constitutional rights, he should be made to
hesitate; and a person who suffers injury caused by such conduct may
have a cause of action. But where an official’s duties legitimately
require action in which clearly established rights are not
implicated, the public interest may be better served by action taken
“with independence and without fear of consequences.”…
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