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                         BRISCOE ET AL. v. LaHUE ET AL.
                                  No. 81-1404
                       SUPREME COURT OF THE UNITED STATES
           460 U.S. 325; 103 S. Ct. 1108; 75 L.Ed. 2d 96;
                     51 U.S.L.W. 4247
                          November 9, 1982, Argued
                             March 7, 1983, Decided
PRIOR HISTORY:   [***1]
   CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.

DISPOSITION: 663 F.2d 713, affirmed.

SYLLABUS:  Held: Title 42 U. S. C. @ 1983 (1976 ed., Supp. V) does
not authorize a convicted state defendant to assert a claim for
damages against a police officer for giving perjured testimony at
the defendant's criminal trial.  Pp. 329-346.

   (a) The common law provided absolute immunity from subsequent
damages liability for all persons -- governmental or otherwise --
who were integral parts of the judicial process.  Section 1983 does
not authorize a damages claim against private witnesses.
Similarly, judges, Pierson v. Ray, 386 U.S. 547, and prosecutors,
Imbler v. Pachtman, 424 U.S. 409, may not be held liable for
damages under @ 1983 for the performance of their respective duties
in judicial proceedings.  When a police officer appears as a
witness, he may reasonably be viewed as acting like any witness
sworn to tell the truth, in which event he can make a strong claim
to witness immunity.  Alternatively, he may be regarded as an
official performing a critical role in the judicial process, in
which event he may seek the benefit  [***2]   afforded to other
governmental participants in the same proceeding.  Nothing in @
1983's language suggests that a police officer witness belongs in
a narrow, special category lacking protection against damages
suits.  Pp. 329-336.

   (b) Nor does anything in the legislative history of the statute
indicate that Congress intended to abrogate common-law witness
immunity in order to provide a damages remedy under @ 1983 against
police officers or any other witnesses.  Pp. 336-341.

   (c) There is some force to the contentions that the reasons
supporting common-law witness immunity -- the need to avoid
intimidation and self-censorship -- apply with diminished force to
police officers and that police officers' perjured testimony is
likely to be more damaging to constitutional rights than such
testimony by ordinary citizens.  But immunity analysis rests on
functional categories, not on the defendant's status.  A police
officer witness performs the same functions as any other witness.
Moreover, to the extent that traditional reasons for witness
immunity are less applicable to governmental witnesses, other
considerations of public policy support absolute immunity for such
witnesses more emphatically  [***3]   than for ordinary witnesses.
Subjecting government officials, such as police
    PAGE   30                      460 U.S. 325, *; 103 S. Ct.
1108, **;                                          1983 U.S. LEXIS
146, ***3; 75 L. Ed. 2d 96

officers, to damages liability under @ 1983 for their testimony
might undermine not only their contribution to the judicial process
but also the effective performance of their other public duties.
Pp. 341-346.

COUNSEL: Edmund B. Moran, Jr., argued the cause for petitioners.
With him on the briefs was Robert A. Creamer.

   Harriet Lipkin argued the cause for respondents.  With her on
the brief was William T. Enslen.

JUDGES: STEVENS, J., delivered the opinion of the Court, in which
BURGER, C. J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ.,
joined.  BRENNAN, J., filed a dissenting opinion, post, p. 346.
MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J.,
joined except as to Part I, post, p. 346.  BLACKMUN, J., filed a
dissenting opinion, post, p. 369.

OPINIONBY: STEVENS

OPINION:    [*326]      [**1110]   JUSTICE STEVENS delivered the
opinion of the Court.

   This case presents a question of statutory construction: whether
42 U. S. C. @ 1983 (1976 ed., Supp. V) authorizes a convicted
person to assert a claim for damages against a police officer for
giving   [**1111]   perjured testimony at his criminal trial.  The
Court of  [***4]   Appeals for the Seventh Circuit held that
witnesses are absolutely immune from damages liability based on
their testimony, and rejected the petitioners' contention that
government officials who testify about the performance of their
official duties may be held liable under @ 1983 even if other
witnesses may not.  We agree with that conclusion.

   The Court of Appeals heard argument in three separate cases
raising the absolute immunity issue and decided them in a single
opinion.  Two of these cases are before us on a writ of certiorari.
Petitioner Briscoe was convicted in state court of burglarizing a
house trailer.  He then filed a @ 1983 complaint against respondent
LaHue, a member of the Bloomington, Indiana, police force, alleging
that LaHue had violated his constitutional right to due process by
committing perjury in the criminal proceedings leading to his
conviction. n1 [*327]   LaHue had testified that in his opinion
Briscoe was one of no more than 50 to 100 people in Bloomington
whose prints would match a partial thumbprint on a piece of glass
found at the scene of the crime.  According to Briscoe, the
testimony was false because the Federal Bureau of Investigation and
the [***5]   state police considered the partial print too
incomplete to be of value, and without the print there was noevidence identifying him as the burglar.  He sought $ 100,000 in
damages.  The District Court granted LaHue's motion for summary
judgment on four separate grounds: (1) the facts alleged in the
complaint did not suggest that LaHue had testified falsely; (2)
allegations of perjury alone are insufficient to state a
constitutional claim; (3) LaHue had not testified "under color of
law"; and (4) Briscoe's claim was collaterally estopped by his
criminal conviction.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n1 The Court has held that the prosecutor's knowing use of
perjured testimony violates due process, but has not held that the
false testimony of a police
    PAGE   31                   460 U.S. 325, *327; 103 S. Ct.
1108, **1111;                                      1983 U.S. LEXIS
146, ***5; 75 L. Ed. 2d 96

officer in itself violates constitutional rights.  See United
States v. Agurs, 427 U.S. 97, 103, and nn. 8, 9 (1976) (citing
cases).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Petitioners Vickers and Ballard were jointly tried and convicted
of sexual assault in state court.  They subsequently brought a
civil action under [***6]   @ 1983 against respondent Hunley, a
member of the Cedar Lake, Indiana, police force, alleging that he
had deprived them of their constitutional rights to due process and
a fair trial.  They alleged that, by giving false testimony
suggesting  that they had been able to harmonize their stories
before making exculpatory statements to police, he had
prejudicially diminished the credibility of those statements.  Each
plaintiff sought $ 150,000 in compensatory and $ 50,000 in punitive
damages.  The Federal Magistrate granted a motion to dismiss the
complaint on alternative grounds: (1) Hunley had not testified
"under color of law"; (2) he was entitled to absolute witness
immunity; and (3) petitioners had failed to state a claim under @
1983 because they did not allege that the prosecutor had knowingly
used false testimony.  The District Court affirmed the dismissal on
the first ground.  Both cases were appealed to the United States
Court of Appeals for the Seventh Circuit. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n2 At the time of the Court of Appeals' decision, petitioner
Briscoe's conviction had been set aside by the Indiana Court of
Appeals on the ground that the evidence was insufficient to prove
Briscoe's guilt beyond a reasonable doubt.  The opinion did not
question the veracity of LaHue's testimony, but found that the
State's evidence, including testimony that Briscoe was one of 50 to
100 persons who might have robbed the trailer, did not meet the
State's burden of proof.  Briscoe v. State, 180 Ind. App. 450, 460,
388 N. E. 2d 638, 644 (1979). Petitioners Vickers and Ballard were
still serving their sentences when the Court of Appeals affirmed
the dismissal of their complaint.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***7]

   [*328]   Although other issues were argued in the Court of
Appeals, its holding in both cases was predicated squarely on the
ground that, in litigation brought under 42 U. S. C. @ 1983 (1976
ed., Supp. V), all witnesses -- police officers as well as lay
witnesses -- are absolutely immune from civil liability based on
their testimony in judicial proceedings.  663 F.2d 713   [**1112]
(1981). n3 Because of the importance of the immunity question,
which has given rise to divergent conclusions in the Courts of
Appeals, n4 we granted certiorari.  455 U.S. 1016 (1982). n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n3 On review of pretrial orders dismissing petitioners'
complaints, the Court of Appeals assumed that the complaints'
factual allegations of perjury were true.  It also assumed that
petitioners had alleged a constitutional violation -- that they had
been deprived of their liberty without due process of law by
respondents' perjury in the judicial proceedings that resulted in
their convictions.  Because we granted certiorari to review the
Court of Appeals' holding, we make the same assumptions for
purposes of deciding this case,
    PAGE   32                   460 U.S. 325, *328; 103 S. Ct.
1108, **1112;                                      1983 U.S. LEXIS
146, ***7; 75 L. Ed. 2d 96

without implying that they are valid.  In light of its resolution
of the immunity question the Court of Appeals did not determine
whether the respondents had acted "under color of law," though it
suggested that it might have answered in the affirmative.  663
F.2d, at 721, n. 4.  [***8]

   n4 A rule of absolute witness immunity has been adopted by the
majority of Courts of Appeals.  Brawer v. Horowitz, 535 F.2d 830,
836-837 (CA3 1976) (lay witness in federal court; Bivens action);
Burke v. Miller, 580 F.2d 108 (CA4 1978) (state medical examiner;
@ 1983 action), cert. denied, 440 U.S. 930 (1979); Charles v. Wade,
665 F.2d 661 (CA5 1982) (police officer victim; @ 1983 suit), cert.
pending, No. 81-1881; Myers v. Bull, 599 F.2d 863, 866 (CA8)
(police officer witness; @ 1983 suit), cert. denied, 444 U.S. 901
(1979); Blevins v. Ford, 572 F.2d 1336 (CA9 1978) (private
witnesses and former Assistant U.S. Attorney; action under @ 1983
and the Fifth Amendment).  But see Briggs v. Goodwin, 186 U. S.
App. D. C. 179, 569 F.2d 10 (1977) (dicta rejecting absolute
immunity for government official witness; Bivens action), cert.
denied, 437 U.S. 904 (1978); Hilliard v. Williams, 516 F.2d 1344,
1350 (CA6 1975) (rejecting absolute immunity for agent of state
bureau of investigation; @ 1983 action), cert. denied sub nom.
Clark v. Hilliard, 423 U.S. 1066 (1976). [***9]

   n5 The petition for writ of certiorari presents the following
question: "Whether a police officer who commits perjury during a
state court criminal trial should be granted absolute immunity from
civil liability under 42 U. S. C. @ 1983." Pet. for Cert. i.  The
petition does not raise the question of immunity for testimony at
pretrial proceedings such as probable-cause hearings, nor does
petitioners' brief discuss whether the same immunity considerations
that apply to trial testimony also apply to testimony at probable-cause hearings.  We therefore do not decide whether respondent
LaHue is entitled to absolute immunity for allegedly false
testimony at two probable-cause hearings regarding petitioner
Briscoe.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   [*329]   Before  confronting the precise question that this case
presents --whether @ 1983 creates a damages remedy against police
officers for their testimony as witnesses -- we begin by
considering the potential liability of lay witnesses on the one
hand, and of judges and prosecutors who perform integral functions
in judicial proceedings on the other hand.  The unavailability of
[***10]   a damages remedy against both of these categories sheds
considerable light on petitioners' claim that Congress intended
police officer witnesses to be treated differently.
   I

   There are two reasons why @ 1983 does not allow recovery of
damages against a private party for testimony in a judicial
proceeding.  First, @ 1983 does not create a remedy for all conduct
that may result in violation of "rights, privileges, or immunities
secured by the Constitution and laws." Its reach is limited to
actions taken "under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory . . . ." n6 It is
beyond question that, when a private   [*330]   party gives
testimony   [**1113]   in open court in a criminal trial, that act
is not performed "under color of law." n7
    PAGE   33                   460 U.S. 325, *330; 103 S. Ct.
1108, **1113;                                     1983 U.S. LEXIS
146, ***10; 75 L. Ed. 2d 96

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n6 Thus, even though the defective performance of defense
counsel may cause the trial process to deprive an accused person of
his liberty in an unconstitutional manner, Cuyler v. Sullivan, 446
U.S. 335, 342-345 (1980), the lawyer who may be responsible for the
unconstitutional state action does not himself act under color of
state law within the meaning of @ 1983. Polk County v. Dodson, 454
U.S. 312 (1981). This conclusion is compelled by the character of
the office performed by defense counsel.  See id., at 317-319;
Ferri v. Ackerman, 444 U.S. 193, 204 (1979). It is equally clear
that the office of the lay witness who merely discharges his duty
to testify truthfully is not performed under color of law within
the meaning of @ 1983.  [***11]

   n7 It is conceivable, however, that nongovernmental witnesses
could act "under color of law" by conspiring with the prosecutor or
other state officials. See Dennis v. Sparks, 449 U.S. 24, 27-29
(1980); Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). It
is therefore necessary to go beyond the "color of law" analysis to
consider whether private witnesses may ever be held liable for
damages under @ 1983.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Second, since 1951, when this Court decided Tenney v. Brandhove,
341 U.S. 367, it has been settled that the allencompassing language
of @ 1983, referring to "[every] person" who, under color of law,
deprives another of federal constitutional or statutory rights, is
not to be taken literally. n8

   "It is by now well settled that the tort liability created by @
1983 cannot be understood in a historical vacuum. . . .  One
important assumption underlying the Court's decisions in this area
is that members of the 42d Congress were familiar with common-law
principles, including defenses previously  recognized in ordinary
[***12]   tort litigation, and that they likely intended these
common-law principles to obtain, absent specific provisions to the
contrary." City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
258 (1981).
See Pierson v. Ray, 386 U.S. 547, 554 (1967).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n8 Nor is this the only piece of 19th-century legislation in
which the word "every" may not be given a literal reading.  See
National Society of Professional Engineers v. United States, 435
U.S. 679, 687-688 (1978).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   The immunity of parties and witnesses from subsequent damages
liability for their testimony in judicial proceedings n9   [*331]
 was well established in English common law.  Cutler v. Dixon, 4
Co. Rep. 14b, 76 Eng. Rep. 886 (Q. B. 1585); Anfield v. Feverhill,
2 Bulst. 269, 80 Eng. Rep. 1113 (K. B. 1614); Henderson v.
Broomhead, 4 H. & N. 569, 578, 157 Eng. Rep. 964, 968 (Ex. 1859);
n10 see Dawkins v. Lord Rokeby, 4 F. & F. 806, 833-834, 176 Eng.
Rep. 800, 812 (C. P. 1866).  [***13]   Some American decisions
required a showing that the witness' allegedly defamatory
statements were relevant to the judicial proceeding, but once this
threshold showing had been made, the witness had an
    PAGE   34                   460 U.S. 325, *331; 103 S. Ct.
1108, **1113;                                     1983 U.S. LEXIS
146, ***13; 75 L. Ed. 2d 96

absolute privilege. n11 The   [*332]   plaintiff could   [**1114]
 not recover

even if the witness knew the statements were false and made them
with malice. n12

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n9 The availability of a common-law action for false accusations
of crime, see post, at 350-351, is inapposite because petitioners
present only the question of @ 1983 liability for false testimony
during a state-court criminal trial.  See n. 5, supra.

   n10 "We have therefore a large collection of cases where from
time to time parties have attempted to get damages in cases like
the present, but in no one instance has the action ever been held
to be maintainable.  If for centuries many persons have attempted
to get a remedy for injuries like the present, and there is an
entire absence of authority that such remedy exists, it shews the
unanimous opinion of those who have held the place which we do now,
that such an action is not maintainable." Henderson v. Broomhead,
4 H. & N., at 578, 157 Eng. Rep., at 968.  [***14]

   n11 See generally M. Newell, Law of Defamation, Libel and
Slander 425, 450-459 (1890); J. Townshend, A Treatise on the Wrongs
Called Slander and Libel 353-354 (2d ed. 1872).  See, e. g., Lawson
v. Hicks, 38 Ala. 279, 285-288 (1862); Myers v. Hodges, 53 Fla.
197, 208-210, 44 So. 357, 361 (1907); Smith v. Howard, 28 Iowa 51,
56-57 (1869); Gardemal v. McWilliams, 43 La. Ann. 454, 457-458, 9
So. 106, 108 (1891); Burke v. Ryan, 36 La. Ann. 951, 951-952
(1884); McLaughlin v. Cowley, 127 Mass. 316, 319-320 (1879); Barnes
v. McCrate, 32 Me. 442, 446-447 (1851); Cooper v. Phipps, 24 Ore.
357, 363-364, 33 P. 985, 986-987 (1893); Shadden v. McElwee, 86
Tenn. 146, 149-154, 5 S. W. 602, 603-605 (1887); Cooley v. Galyon,
109 Tenn. 1, 13-14, 70 S. W. 607, 610 (1902); cf. Hoar v. Wood, 44
Mass. 193, 197-198 (1841) (statements by counsel); Marsh v.
Ellsworth, 50 N. Y. 309, 312-313 (1872) (same).  Other courts
appear to have taken a position closer to the English rule, which
did not require any showing of pertinency or materiality.  See, e.
g., Chambliss v. Blau, 127 Ala. 86, 89-90, 28 So. 602, 603 (1899);
cf. Calkins v. Sumner, 13 Wis. 193, 197-198 (1860) (in absence of
objection and ruling by court, lack of pertinency of responses to
questions does not remove immunity, because witnesses are not in a
position to know what statements are pertinent to the case).

   Although some cases used the words "good faith," see, e. g.,
White v. Carroll, 42 N. Y. 161, 166 (1870); Shadden v. McElwee,
supra, at 149-150, 5 S. W., at 603, good faith was established as
a matter of law if the statements were pertinent and material tothe judicial proceeding and given in response to questions.
Indeed, even if the testimony was not pertinent, the plaintiff had
the burden of proving bad faith.  The testimony by respondents in
this case would have received absolute protection at common law,
because it was directly relevant to the criminal charges against
petitioners.  If the testimony had not been relevant, it is
unlikely that petitioners would have stated a claim that their
constitutional rights had been violated.  Therefore, for purposes
of @ 1983 analysis, there is no material difference between the
English rule and the American rule.  [***15]

   n12 JUSTICE MARSHALL's dissent relies heavily on an opinion
rendered by this Court, White v. Nicholls, 3 How. 266, 286-288
(1845). The Court's discussion
    PAGE   35                   460 U.S. 325, *332; 103 S. Ct.
1108, **1114;                                     1983 U.S. LEXIS
146, ***15; 75 L. Ed. 2d 96

of privileged statements in judicial proceedings was purely dictum.
The plaintiff sought damages for defendants' allegedly defamatory
assertions in a petition to the President of the United States
requesting the plaintiff's removal from office as a customs
collector, a statement entitled at most to a qualified privilege.
White v. Nicholls cannot be considered authoritative.  In 1909 a
leading commentator stated:

"[The] demands of public policy on which the rule [of absolute
immunity] is based are so controlling that there is only one
considered case in the English or American reports in which the
existence of the general doctrine of absolute immunity under the
common law has ever been questioned.  Strangely enough this
isolated instance was a decision of the Supreme Court of the United
States, in the course of which Mr. Justice Daniel, speaking for the
court, denied both the rule and its policy; but this expression of
opinion was obiter, since the case in issue was one of qualified
immunity." Veeder, Absolute Immunity in Defamation: Judicial
Proceedings, 9 Colum. L. Rev. 463, 465-466 (footnotes omitted).

In 1860, a New York court asserted that "the reasoning of Judge
Daniel's opinion, and the propositions which he deduces where he
goes beyond the case in hand, are clearly unsustained by principle
or authority." Perkins v. Mitchell, 31 Barb. 461, 468 (N. Y. Sup.
Ct.).  In 1878, the West Virginia Supreme Court severely criticized
White v. Nicholls, stating: "We have reviewed all the authorities,
cited by Justice Daniel, and have seen, that none of them are in
conflict with the position, that express malice may be shielded by
its being expressed in judicial proceedings in certain forms. . .
.  And the review of the American authorities will show, that the
overwhelming weight of authority is opposed to Justice Daniel's
idea, that there is no case, in which an action of slander or libel
will not lie for libelous matter, spoken or written in the course
of regular judicial proceedings. . . .  The authorities, both
English and American, fully establish the position, that there is
a class of absolutely privileged communications. . . ." Johnson v.
Brown, 13 W. Va. 71, 128-129. See also McGehee v. Insurance Co. of
North America, 112 F. 853 (CA5 1902) (declining to follow White v.
Nicholls); Shelfer v. Gooding, 47 N. C. 175, 181-182 (1855)
(suggesting that Justice Daniel miscited Hodgson v. Scarlett, 1
Barn. & Ald. 232, 106 Eng. Rep. 86 (K. B. 1818)). In short, White
v. Nicholls was not even a reliable statement of the common law;
still less was it "the most salient feature in the landscape of the
common law at the time Congress acted" in 1871.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***16]

   In  the words of one 19th-century court, in damages suits
against witnesses, "the claims of the individual must yield to  [*333]   the dictates of public policy, which requires that the
paths which lead to the ascertainment of truth should be left as
free and unobstructed as possible." Calkins v. Sumner, 13 Wis. 193,
197 (1860). A witness' apprehension of subsequent damages liability
might induce two forms of self-censorship.  First, witnesses might
be reluctant to come forward to testify.  See Henderson v.
Broomhead, supra, at 578-579, 157 Eng. Rep., at 968. And once a
witness is on the stand, his testimony might be distorted by the
fear of subsequent liability.  See Barnes v. McCrate, 32 Me. 442,
446-447 (1851). Even within the constraints of the witness' oath
there may be various ways to give an account or to state an
opinion.  These alternatives may be more or less detailed and may
differ in emphasis and certainty.  A
    PAGE   36                   460 U.S. 325, *333; 103 S. Ct.
1108, **1114;                                     1983 U.S. LEXIS
146, ***16; 75 L. Ed. 2d 96

witness who knows that he might be forced to defend a subsequent
lawsuit, and perhaps to pay damages, might be inclined to shade his
testimony in favor of the potential  [***17]   plaintiff, to
magnify uncertainties, and thus to deprive the finder of fact of
candid, objective, and undistorted evidence.  See Veeder, Absolute
Immunity in Defamation: Judicial Proceedings, 9 Colum. L. Rev. 463,
470 (1909). n13 But   [**1115]   the truthfinding process  is
better   [*334] served if the witness' testimony is submitted to
"the crucible of the judicial process so that the factfinder may
consider it, after cross-examination, together with the other
evidence in the case to determine where the truth lies." Imbler v.
Pachtman, 424 U.S. 409, 440 (1976) (WHITE, J., concurring in
judgment). n14

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n13 In addition, some courts expressed concern that, in the
absence of a privilege, honest witnesses might erroneously be
subjected to liability because they would have difficulty proving
the truth of their statements.  This result seemed inappropriate in
light of the witness' duty to testify.  E. g., Calkins v. Sumner,
13 Wis., at 198; Barnes v. McCrate, 32 Me., at 446-447; Chambliss
v. Blau, 127 Ala., at 89, 28 So., at 603.  [***18]

   n14 Cf. Marsh v. Ellsworth, 50 N. Y., at 312 (importance of
placing all relevant evidence before court and jury "to enable them
to arrive at the truth"); Hoar v. Wood, 44 Mass., at 197 (stressing
impartiality of judge as sufficient antidote to inaccuracies and
exaggerations by adversaries).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   At least with respect to private witnesses, it is clear that @
1983 did not abrogate the absolute immunity existing at common law,
and petitioners do not contend otherwise.  Like the immunity for
legislators at issue in Tenney v. Brandhove, the common law's
protection for witnesses is "a tradition so well grounded in
history and reason" that we cannot believe that Congress impinged
on it "by covert inclusion in the general language before us." 341
U.S., at 376.

   II

   The Court has already addressed the question whether @ 1983
permits damages recoveries from judges, prosecutors, and other
persons acting "under color of law" who perform official functions
in the judicial process.  Again, we have found that, in light of
common-law immunity principles,   [***19]   @ 1983 did not impose
liability on these officials.  We have held that state judges are
absolutely immune from liability for their judicial acts, Piersonv. Ray, 386 U.S. 547 (1967); Stump v. Sparkman, 435 U.S. 349
(1978), and that state prosecutors have absolute immunity from
liability for their actions in initiating prosecutions, Imbler v.
Pachtman, supra.

   The central focus of our analysis has been the nature of the
judicial proceeding itself.  Thus, in his opinion concurring in the
judgment in Imbler v. Pachtman, supra, JUSTICE WHITE explained that
the absolute immunity of public prosecutors was "based on the
policy of protecting the judicial process." [*335]   424 U.S., at
439. He explained that this protection extended equally to other
participants, including counsel and witnesses.
    PAGE   37                   460 U.S. 325, *335; 103 S. Ct.
1108, **1115;                                     1983 U.S. LEXIS
146, ***19; 75 L. Ed. 2d 96



"The reasons for this rule are also substantial.  It is precisely
the function of a judicial proceeding to determine where the truth
lies.  The ability of courts, under carefully developed procedures,
to separate truth from falsity, and the importance of accurately
resolving factual  [***20]   disputes in criminal (and civil) cases
are such that those involved in judicial proceedings should be
'given every encouragement to make a full disclosure of all
pertinent information within their knowledge.'" Ibid.

   The common law's protection for judges and prosecutors formed
part of a "cluster of immunities protecting the various
participants in judge-supervised trials," which stemmed "from the
characteristics of the judicial process." Butz v. Economou, 438
U.S. 478, 512 (1978); cf. King v. Skinner, Lofft 54, 56, 98 Eng.
Rep. 529 (K. B. 1772) ("[Neither] party, witness, counsel, jury, or
judge can be put to answer,  civilly or criminally, for words
spoken in office").  The common law recognized that



"controversies sufficiently intense to erupt in litigation are not
easily capped by a judicial decree.  The loser in one forum will
frequently seek another . . . .  Absolute immunity is thus
necessary to assure that judges, advocates, and witnesses can
perform their respective functions without harassment or
intimidation." Butz, supra, at 512.

   In short, the common law provided absolute immunity from
[***21] subsequent   [**1116]   damages liability for all persons -- governmental or otherwise -- who were integral parts of the
judicial process.  It is equally clear that @ 1983 does not
authorize a damages claim against private witnesses on the one
hand, or against judges or prosecutors in the performance of their
respective duties on the other.  When a police officer appears as
a witness, he may reasonably be viewed as acting like any   [*336]
 other witness sworn to tell the truth -- in which event he can
make a strong claim to witness immunity; n15 alternatively, he may
be regarded as an official performing a critical role in the
judicial process, in which event he may seek the benefit afforded
to other governmental participants in the same proceeding.  Nothing
in the language of the statute suggests that such a witness belongs
in a narrow, special category lacking protection against damages
suits.  We must ask, however, whether anything in the legislative
history of @ 1983 points to a different conclusion.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -   n15 The common-law immunity that protected witnesses as well as
other participants in the judicial process drew no distinction
between public officials and private citizens.  See Veeder, supra
n. 12, at 468-469.  The general purposes underlying witness
immunity at common law applied equally to official and private
witnesses.  Both types of witness took the stand and testified
under oath in response to the questions of counsel.  Both might be
deterred by the prospect of subsequent, vexatious litigation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***22]
    PAGE   38                   460 U.S. 325, *336; 103 S. Ct.
1108, **1116;                                     1983 U.S. LEXIS
146, ***22; 75 L. Ed. 2d 96

   III

   Petitioners point to a number of references throughout the
debates on the 1871 Act to widespread perjury by Ku Klux Klan
witnesses in state criminal trials. n16 They urge that, because
perjury was one of the specific evils with which Congress was
concerned, recognizing an absolute immunity for witnesses would
conflict with congressional intent.  We find this argument
unpersuasive. The Act consisted of several sections establishing
different remedies for disorder and violence in the Southern
States. n17 The legislative history and statutory language indicate
that Congress intended perjury   [*337]   leading to unjust
acquittals of Klan conspirators to be prohibited by @ 2, the civil
and criminal conspiracy section of the statute, now codified in
relevant part at 42 U. S. C. @ 1985(3) (1976 ed., Supp. V) and 18
U. S. C. @ 241. But the language of @ 1 -- now codified as @ 1983 -- differs from that of @ 2 in  essential respects, and we find no
evidence that Congress intended to abrogate the traditional common-law witness immunity in @  1983  actions.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n16 Brief for Petitioners 19-20, citing 1 B. Schwartz, Statutory
History of the United States:  Civil Rights  599-606, 625 (1970).
[***23]

   n17 In addition to @ 1, codified as @  1983,  and @ 2, discussed
in text infra, the Act permitted the President to use armed force
in response to insurrection and domestic violence (@ 3), authorized
the suspension of habeas corpus if the President deemed it
necessary (@ 4), required grand and petit jurors to take a test
oath (@ 5), and provided a civil penalty against persons who knew
of and failed to prevent @ 2 violations.  17 Stat. 13.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   The Ku Klux Act, 17 Stat. 13, was enacted on April 20, 1871,
less than a month after President Grant sent a dramatic message to
Congress describing the breakdown of law and order in the Southern
States.  Cong. Globe, 42d Cong., 1st Sess., 236, 244 (1871).
During the debates, supporters of the bill repeatedly described the
reign of terror imposed by the Klan upon black citizens and their
white sympathizers in the Southern States.  Hours of oratory were
devoted to the details of Klan outrages -- arson, robbery,
whippings, shootings, murders, and other forms of violence and
intimidation -- often committed in disguise and under cover of
night.  These acts of lawlessness  [***24]   went unpunished,
legislators asserted, because Klan members and sympathizers
controlled or influenced the administration of state criminal
justice.  In particular, it was alleged that Klan members were
obligated, by virtue of membership in the organization, to protectfellow members who were charged with criminal activity. They had a
duty to offer themselves for service on grand and petit juries, and
to   [**1117]   violate their jurors' oaths by refusing to indict
or to convict regardless of the strength of the evidence.  They
also were bound to appear as witnesses, and again to violate their
oaths by committing perjury, if necessary, to exculpate their Klan
colleagues. n18 Perjury was thus one of the   [*338] means by which
the Klan prevented state courts from gaining convictions of Klan
members for crimes against blacks and Republicans.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
    PAGE   39                   460 U.S. 325, *338; 103 S. Ct.
1108, **1117;                                     1983 U.S. LEXIS
146, ***24; 75 L. Ed. 2d 96

   n18 Supporters of the bill repeatedly quoted the testimony
before an investigating committee of two former Klan members, who
described a Klan oath binding its members to commit perjury.  Cong.
Globe, 42d Cong., 1st Sess., 152, 158, 173, 201, 320-321, 322, 340,
437, 439, 443-444, 457, 458, 503, 516, 518, 653, 654, 687 (1871).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***25]

   It is clear from the legislative debates that, in the view of
the Act's sponsors, the victims of Klan outrages were deprived of
"equal protection of the laws" if the perpetrators systematically
went unpunished. n19 Proponents of the measure repeatedly argued
that, given the ineffectiveness of state law enforcement and the
individual's federal right to "equal protection of the laws," an
independent federal remedy was necessary and Congress had the power
to provide it. n20 See Monroe v. Pape, 365 U.S. 167, 174  (1961).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n19 See id., at 322 (remarks of Rep. Stoughton); 334 (remarks of
Rep. Hoar); 375 (remarks of Rep. Lowe); 428 (remarks of Rep.
Beatty); 458, 459 (remarks of Rep. Coburn); 481-482 (remarks of
Rep. Wilson); 486 (remarks of Rep. Cook); 501 (remarks of Sen.
Frelinghuysen); 506 (remarks of Sen. Pratt); 608 (remarks of Sen.
Pool); 697 (remarks of Sen. Edmunds).

   n20 As Representative Coburn stated:

"The United States courts are further above mere local influence
than the county courts; their judges can act with more
independence, cannot be put under terror, as local judges can;
their sympathies are not so nearly identified with those of the
vicinage; the jurors are taken from the State, and not the
neighborhood; they will be able to rise above prejudices and bad
passions or terror more easily.  The marshal, clothed with more
power than the sheriff, can make arrests with certainty, and, with
the aid of the General Government, can seize offenders in spite of
any banded and combined resistance such as may be expected." Id.,
at 460.

See id., at 334 (remarks of Rep. Hoar); 374 (remarks of Rep. Lowe);
428 (remarks of Rep. Beatty); 459-460 (remarks of Rep. Coburn); 486
(remarks of Rep. Cook); 501 (remarks of Sen. Frelinghuysen); 514
(remarks of Rep. Poland).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***26]

   Section 2 was designed specifically to provide criminal andcivil remedies in federal court for the conspiratorial activities
of the Klan.  Indeed the provision singles out those who "go in
disguise upon the public highway." Earlier versions of the section
enumerated precisely the activities that had been attributed to the
Klan -- murder, manslaughter, mayhem, robbery, assault and battery,
perjury, subornation of perjury, criminal obstruction of legal
process or resistance of officers   [*339]   in discharge of
official duty, arson, or larceny.  Cong. Globe, supra, at 317.  The
more general language in the final version of @ 2 was also intended
to apply to the abuses that had been described repeatedly in
congressional debate. n21 Part of the provision is
    PAGE   40                   460 U.S. 325, *339; 103 S. Ct.
1108, **1117;                                     1983 U.S. LEXIS
146, ***26; 75 L. Ed. 2d 96

particularly well tailored to reach conspiracies to commit perjury
in order to prevent punishment of fellow Klansmen.  It provides
penalties whenever two or more persons shall



"conspire together . . . for the purpose of preventing or hindering
the constituted authorities of any State from giving or securing to
all persons within such State the equal protection of the laws, or
shall conspire together for the purpose of in any  [***27]   manner
impeding, hindering, obstructing, or defeating the due course of
justice in any State or Territory, with intent to deny to any
citizen of the United States the due and equal protection of the
laws. . . ." n22

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n21 Compare id., at 317 (original version introduced by Rep.
Shellabarger) with id., at 477-478 (more general language in
amended version); see id., at 567, 702 (Senate amendment adding
language punishing conspiracy for obstructing the due course of
justice).

   n22 It is noteworthy that the imposition of criminal liability
on persons for conspiracy to give false evidence was not in
derogation of the common law as it existed in 1871.  Witnesses were
traditionally subject to a prosecution for perjury committed in the
course of their evidence, "or for conspiracy in case of a
combination of two or more to give false evidence." Newell, supra,
n. 11, at 450, @ 44.  The offense of perjury had been shaped in
English law during the 16th and 17th centuries by Parliament, the
Court of Star Chamber, and common-law judges.  4 W. Holdsworth, A
History of English Law 515-519 (1924); S. Milsom, Historical
Foundations of the Common Law 418 (2d ed. 1981).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***28]

   This   [**1118]   evidence does not, however, tend to show that
Congress intended to abrogate witness immunity in civil actions
under @ 1, which applied to wrongs committed "under color of . . .
law." The bill's proponents were exclusively concerned with perjury
resulting in unjust acquittals -- perjury likely to be committed by
private parties acting in furtherance of a conspiracy -- and not
with perjury committed "under color of   [*340]   law" that might
lead to unjust convictions.  In hundreds of pages of debate there
is no reference to the type of alleged constitutional deprivation
at issue in this case: perjury by a government official leading to
an unjust conviction.  Indeed, the legislative history is virtually
silent even with regard to perjury by private persons leading toconvictions of innocent defendants. n23 There is a simple enough
reason for this lacuna: the Klan had other, more direct, means of
dealing  with its victims.  A "reign of terrorism and bloodshed"
did not require the formal processes of law; at most, drumhead
tribunals were convened at dead of night. n24 Even when the
organization's intended victims had been taken into custody and
[***29]   charged with crimes, the evidence before Congress
suggested that the Klan resorted to vigilante justice rather than
courtroom perjury. n25

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - -
    PAGE   41                   460 U.S. 325, *340; 103 S. Ct.
1108, **1118;                                     1983 U.S. LEXIS
146, ***29; 75 L. Ed. 2d 96

-

   n23 In several hundred pages of small triple-columned print,
only one Senator -- not a member of the Committee that reported the
bill -- referred to the possibility that perjury was being used to
convict the innocent.  See Cong. Globe, 42d Cong., 1st Sess., 653
(1871) (remarks of Sen. Osborn).  His comments were made in
connection with a proposal to retain a test oath for grand and
petit jurors.

   n24 The debates describe nocturnal Klan meetings passing decrees
condemning political enemies.  See id., at 157, 209, 320, 321, 504.

   n25 For references to lynch mobs attacking suspects held in
custody, see id., at 156, 157, 166, 200, 321, 444, 446, 447.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   In summary, the legislative history supports criminal punishment
under @ 2 for a witness who conspired to give perjured testimony
favorable to a defendant, with the effect of preventing effective
enforcement of the laws,   [***30]   and liability in a civil suit
against the perjured witness by the defendant's victim.  But these
are not the issues before us today.  We are asked to extrapolate
from pro-defendant perjury to pro-prosecution perjury, and if
willing to make that step, we are further invited to apply
legislative history relating to @ 2 -- a section specifically
directed toward private conspiracies -- to @ 1 -- a section
designed to provide remedies for abuses under   [*341] color of
law.  We decline the invitation.  The debates of the 42d Congress
do not support petitioners' contention that Congress intended to
provide a @ 1 damages remedy against police officers or any other
witnesses. n26
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n26 The legislative history of the Civil Rights Act of 1866,
discussed at length by JUSTICE MARSHALL's dissent, simply does not
speak to the question whether Congress intended witnesses --
private parties or public officials -- to be civilly liable for
false testimony resulting in an unjust criminal conviction.  It
makes clear that judges and other "state officials integral to the
judicial process" are subject to criminal liability for violating
the constitutional rights of individuals.  But we have never
questioned that proposition, and we do not do so now.  Moreover,
witnesses enjoyed no common-law immunity from criminal prosecution
for perjury.  See n. 22, supra.  Therefore the criminal provisions
of the 1866 Act and its successors apply to official witnesses.
See n. 32, infra.  But the 1866 legislative history, to the extent
that it sheds any light on the meaning of the 1871 Act, does notsupport civil liability for such witnesses, because it does not
show the requisite congressional intent to override the clearly
established common-law immunity of witnesses from civil liability.
With respect to witnesses, the legislative history of the 1866 Act
is simply silent, and we are unwilling to assume that, whenever
legislators referred to "state judicial officials" or to "the
judicial power of the State," they were describing witnesses as
well as judges, sheriffs, and marshals.

   Moreover, our decisions recognizing absolute immunity for judges
and prosecutors from civil liability under the 1871 Act implicitly
reject the
    PAGE   42                   460 U.S. 325, *341; 103 S. Ct.
1108, **1118;                                     1983 U.S. LEXIS
146, ***30; 75 L. Ed. 2d 96

position that the legislative history of the 1866 Act defines the
scope of immunity for purposes of the 1871 Act.  See Pierson v.
Ray, 386 U.S. 547 (1967); Imbler v. Pachtman, 424 U.S. 409 (1976).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***31]

   IV

   [**1119]   Petitioners, finally, urge that we should carve out
an exception to the general rule of immunity in cases of alleged
perjury by police officer witnesses. n27 They assert that the
reasons supporting common-law immunity --the need to   [*342]
avoid intimidation and self-censorship -- apply with diminished
force to police officers.  Policemen often have a duty to testify
about the products of their investigations, and they have a
professional interest in obtaining convictions which would
assertedly counterbalance any tendency to shade testimony in favor
of potentially vindictive defendants.  In addition, they are
subject to @ 1983 lawsuits for the performance of their other
duties, as to which they have only qualified immunity, and their
defense is generally undertaken by their governmental employers.
Further, petitioners urge that perjured testimony by police
officers is likely to be more damaging to constitutional rights
than such testimony by ordinary citizens, because the policeman in
uniform carries special credibility in the eyes of jurors.  And, in
the case of police officers, who cooperate regularly with
prosecutors in the enforcement of criminal   [***32]   law,
prosecution for perjury is alleged to be so unlikely that it is not
an effective substitute for civil damages.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n27 The contours of the proposed exception are not clear.
Similar considerations would presumably apply to other government
officials and experts, including coroners, medical examiners,
psychiatric experts, and social workers.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   These contentions have some force.  But our cases clearly
indicate that immunity analysis rests on functional categories, not
on the status of the defendant. n28 A police officer on the witness
stand performs the same functions as any other witness; he is
subject to compulsory process, takes an oath, responds to questions
on direct examination and cross-examination, and may be prosecuted
subsequently for perjury.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n28 See Butz v. Economou, 438 U.S. 478, 513-514 (1978)(administrative law judges enjoy absolute  judicial immunity  even
though they are in the Executive Branch); Imbler v. Pachtman,
supra, at 430-431 (reserving the question whether a prosecutor, who
is absolutely immune for decisions to initiate a  prosecution  or
put witnesses on the stand, has similar immunity for administrative
or investigative tasks); cf. Hampton v. City of Chicago, 484 F.2d
602, 608 (CA7 1973) (prosecutor's immunity ceases when he acts in
a capacity other than his quasi-judicial role), cert. denied, 415
U.S. 917 (1974).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
    PAGE   43                   460 U.S. 325, *342; 103 S. Ct.
1108, **1119;                                     1983 U.S. LEXIS
146, ***32; 75 L. Ed. 2d 96

-  [***33]

   Moreover, to the extent that raditional reasons for witness
immunity are less applicable to governmental witnesses,   [*343]
other considerations of public policy support absolute immunity
more emphatically for such persons than for ordinary witnesses.
Subjecting government officials, such as police officers, to
damages liability under @ 1983 for their testimony might undermine
not only their contribution to the judicial process but also the
effective performance of their other public duties.

   Section 1983 lawsuits against police officer witnesses, like
lawsuits against prosecutors, "could be expected with some
frequency." Cf. Imbler v. Pachtman, 424 U.S., at 425. Police
officers testify in scores of cases every year, and defendants
often will transform resentment at being convicted into allegations
of perjury by the State's official witnesses.  As the files in this
case show, even the processing of a complaint that is dismissed
before trial consumes a considerable amount of time and resources.
n29

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n29 Moreover, lawsuits alleging perjury on the stand in
violation of the defendant's due process rights often raise
material questions of fact, inappropriate for disposition at the
summary judgment stage.  The plaintiff's complaint puts in issue
the falsity and materiality of the allegedly perjured statements,
and the defendant witness' knowledge and state of mind at the time
he testified.  Sometimes collateral-estoppel principles will permit
dismissal at the pretrial stage.  But if the truth of the allegedly
perjured statement was not necessarily decided in the previous
criminal verdict, if there is newly discovered evidence of falsity,
or if the defendant concedes that the testimony was inaccurate, the
central issue will be the defendant's state of mind. Summary
judgment is usually not feasible under these circumstances.  C.
Wright, Law of Federal Courts 493 (3d ed. 1976).  If summary
judgment is denied, the case must proceed to trial and must
traverse much of the same ground as the original criminal trial.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***34]

   This    [**1120]   category of @ 1983 litigation might well
impose significant burdens on the judicial system and on law
enforcement resources.  As this Court noted when it recognized
absolute immunity for prosecutors in Imbler, if the defendant
official "could be made to answer in court each time [a disgruntled
defendant] charged him with wrongdoing, his energy and attention[*344]   would be diverted from the pressing duty of enforcing the
criminal law." 424 U.S., at 425. To some degree the individual's
burden might be alleviated by the government's provision of
counsel, but a case that goes to trial always imposes significant
emotional and other costs on every party litigant.

   It is not sufficient to assert that the burdens on defendants
and the courts could be alleviated by limiting the cause of action
to those former criminal defendants who have already vindicated
themselves in another forum, either on appeal or by collateral
attack.  We rejected a similar contention in Imbler. Petitioner
contended that "his suit should be allowed, even if others would
    PAGE   44                   460 U.S. 325, *344; 103 S. Ct.
1108, **1120;                                     1983 U.S. LEXIS
146, ***34; 75 L. Ed. 2d 96

not be, because the District Court's issuance of the writ of habeas
corpus shows that his   [***35]   suit has substance." Id., at 428,
n. 27. We declined to carve out such an exception to prosecutorial
immunity, noting that petitioner's success in a collateral
proceeding did not necessarily establish the merits of his civil
rights action.  Moreover, we noted that "using the habeas
proceeding as a 'door-opener' for a subsequent civil rights action
would create the risk of injecting extraneous concerns into that
proceeding." Ibid.  We emphasized that, in determining whether to
grant postconviction relief, the tribunal should focus solely on
whether there was a fair trial under law.  "This focus should not
be blurred by even the subconscious knowledge that a post-trial
decision in favor of the accused might result in the prosecutor's
being called upon to respond in damages for his error or mistaken
judgment." Id., at 427. The same danger exists in the case of
potential liability for police officer witnesses. n30
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n30 We are not writing on a clean slate, and it is not for us to
craft a new rule designed to enable trial judges to dismiss
meritless claims before trial but to allow recovery in cases of
demonstrated injustice, when an innocent plaintiff has already
obtained postconviction relief.  The States remain free to grant
relief in such cases and, of course, Congress has the power to
fashion an appropriate remedy if it perceives the need for one.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***36]

   [*345]   There is, of course, the possibility that, despite the
truthfinding safeguards of the judicial process, some defendants
might indeed be unjustly convicted on the basis of knowingly false
testimony by police officers. n31 The absolute immunity for
prosecutors recognized in  Imbler bars one possible avenue of
redress for such defendants.  Similarly, in this case, the absolute
witness immunity bars another possible path to recovery for these
defendants.  But we have recognized, again and again, that in some
situations, the alternative of limiting the official's immunity
would disserve the broader public interest.  As Judge Learned Hand
wrote years ago:



"As is so often the case, the answer must be found in a balance
between the evils inevitable in either alternative.  In this
instance it has been thought in the end better to leave unredressed
the wrongs done by dishonest officers than to subject those who try
to do their duty to the constant dread of retaliation." Gregoire v.
Biddle, 177 F.2d 579, 581   [**1121]   (CA2 1949), cert. denied,339 U.S. 949 (1950). n32

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n31 There is no reason to believe, however, that this risk is
any greater than, or indeed as great as, the risk of an unjust
conviction resulting from a misidentification or other
unintentional mistake.  There is no federal damages remedy for such
innocent persons, or for those who are acquitted after undergoing
the burdens of a criminal trial.  [***37]
    PAGE   45                   460 U.S. 325, *345; 103 S. Ct.
1108, **1121;                                     1983 U.S. LEXIS
146, ***37; 75 L. Ed. 2d 96

   n32 Finally, in those cases in which the judicial process fails,
the public is not powerless to punish misconduct.  Like prosecutors
and judges, official witnesses may be punished criminally for
willful deprivations of constitutional rights under 18 U. S. C. @
242.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   In short, the rationale of our prior absolute immunity cases
governs the disposition of this case.  In 1871, common-law immunity
for witnesses was well settled.  The principles set forth in
Pierson v. Ray to protect judges and in Imbler v. Pachtman to
protect prosecutors also apply to witnesses, who perform a somewhat
different function in the trial process but whose participation in
bringing the litigation to a   [*346]   just -- or possibly unjust
-- conclusion is equally indispensable.

   The decision of the Court of Appeals is affirmed.

   It is so ordered.

DISSENTBY: BRENNAN; MARSHALL; BLACKMUN

DISSENT: JUSTICE BRENNAN, dissenting.

   JUSTICE MARSHALL's dissenting opinion, post, presents an
eloquent argument that Congress, in enacting @ 1983, did not intend
to create any absolute immunity from civil liability for
"government officials  [***38]   involved in the judicial process.
. . ." Post, at this page and 347.  Whatever the correctness of his
historical argument, I fear that the Court has already crossed that
bridge in Pierson v. Ray, 386 U.S. 547 (1967), and Imbler v.
Pachtman, 424 U.S. 409 (1976).

   I entirely agree with JUSTICE MARSHALL, however, that the
policies of @ 1983 and of common-law witness immunity, as they
apply to witnesses who are police officers, do not justify any
absolute immunity for perjurious testimony.  I therefore dissent
for the reasons stated in Part IV of JUSTICE MARSHALL's opinion.

   JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins, except as to
Part I, dissenting.

   I cannot agree that police officers are absolutely immune from
civil liability under 42 U. S. C. @ 1983 (1976 ed., Supp. V) for
testimony given in criminal proceedings.  The extension of absolute
immunity conflicts fundamentally with the language and purpose of
the statute.  I would therefore be reluctant in any case to
conclude that @ 1983 incorporates common-law tort immunities thatmay have  existed when Congress enacted the statute in 1871. But in
this case the conclusion  [***39]   is especially unjustified.
First, absolute immunity for witnesses was by no means a settled
legal proposition in 1871.  Most notably, in 1845 this Court had
cast serious doubt on the existence of absolute immunity for
testimony given in judicial proceedings.  Second, the origins and
history of @ 1983 strongly suggest that Congress meant to abrogate
any absolute immunity for government officials involved   [*347]
in the judicial process, including police officers.  Finally,
considerations of public policy deemed necessary to justify
absolute immunity in our past cases do not
    PAGE   46                   460 U.S. 325, *347; 103 S. Ct.
1108, **1121;                                     1983 U.S. LEXIS
146, ***39; 75 L. Ed. 2d 96

support an absolute immunity for officer-witnesses.

   I

   The majority opinion correctly states that this case presents a
question of statutory construction.  Ante, at 326.  Yet it departs
from generally accepted principles for interpreting laws.

   In all other matters of statutory construction, this Court
begins by focusing on the language of the statute itself. n1
"Absent a clearly expressed legislative intention to the contrary,
that language must ordinarily be regarded as conclusive."
[**1122]   Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980). The language  [***40]   of @ 1983
provides unambiguous guidance in this case.  A witness is most
assuredly a "person," the word Congress employed to describe those
whose conduct @ 1983 encompasses. n2 The majority   [*348]   turns
the conventional approach to statutory interpretation on its head.
It assumes that common-law tort immunities provide an exemption
from the plain language of the statute unless petitioners
demonstrate that Congress meant to override the immunity.  See
ante, at 336. Thus, in the absence of a clearly expressed
legislative intent  to the contrary, the Court simply presumes that
Congress did not mean what it said.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n1 E. g., Jackson Transit Authority v. Transit Union, 457 U.S.
15, 23 (1982); Bread Political Action Comm. v. FEC, 455 U.S. 577,
580 (1982); Universities Research Assn. v. Coutu, 450 U.S. 754, 771
(1981); Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 187
(1980).

   n2 The majority criticizes a literal reading of the statute and
refers to National Society of Professional Engineers v. United
States, 435 U.S. 679 (1978). Ante, at 330, and n. 8.  In National
Society, the Court noted that the language of @ 1 of the Sherman
Act "cannot mean what it says." 435 U.S., at 687. But there is no
logical reason why the word "person" in @ 1983 should be read to
exclude a witness.  Moreover, on a number of occasions, this Court
has relied on the plain language of @ 1983. See, e. g., Maine v.
Thiboutot, 448 U.S. 1, 4 (1980) ("The question before us is whether
the phrase 'and laws' as used in @ 1983 means what it says, or
whether it should be limited to some subset of laws. Given that
Congress attached no modifiers to the phrase, the plain language of
the statute undoubtedly embraces respondents' claim . . .");
Parratt v. Taylor, 451 U.S. 527, 534 (1981) (relying in part on
text of @ 1983 to reject limitation of statute to intentional
deprivations); Owen v. City of Independence, 445 U.S. 622, 635
(1980) (relying on the "absolute and unqualified" language of @1983 to reject a qualified immunity for municipalities); Monell v.
New York City Dept. of Social Services, 436 U.S. 658, 688-689
(1978) (relying on "plain meaning" of @ 1983).  Cf. Jones v. Alfred
H. Mayer Co., 392 U.S. 409, 420 (1968) (relying on the "plain and
unambiguous terms" of 42 U. S. C. @ 1982).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***41]

   Absolute immunity for witnesses conflicts not only with the
language of @ 1983 but also with its purpose.  In enacting @ 1983,
Congress sought to create a damages action for victims of
violations of federal rights; absolute immunity
    PAGE   47                   460 U.S. 325, *348; 103 S. Ct.
1108, **1122;                                     1983 U.S. LEXIS
146, ***41; 75 L. Ed. 2d 96

nullifies "pro tanto the very remedy it appears Congress sought to
create." Imbler v. Pachtman, 424 U.S. 409, 434 (1976) (WHITE, J.,
concurring in judgment).  The words of a statute should always be
interpreted to carry out its purpose. n3 Moreover, Members of the
42d Congress explicitly stated that @ 1983 should be read so as to
further its broad remedial goals.  As the sponsor of the 1871 Act,
Representative Shellabarger, declared:



"This act is remedial, and in aid of the preservation of human
liberty and human rights.  All statutes and constitutional
provisions authorizing such statutes are liberally and beneficently
construed.  It would be most strange and, in civilized law,
monstrous were this not the rule of interpretation.  As has been
again and again decided by your own Supreme Court of the United
States, and everywhere else where there is wise judicial   [*349]
 interpretation, the largest latitude consistent with  [***42]
the words employed is uniformly given in construing such statutes
and constitutional provisions as are meant to protect and defend
and give remedies for their wrongs to all the people." Cong. Globe,
42d Cong., 1st Sess., App. 68 (1871). n4

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n3 See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956)
(quoting United States v. Boisdore's Heirs, 8 How. 113, 122
(1849)); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351
(1943); H. Hart & A. Sacks, The Legal Process 1411 (Tent. ed.
1958).

   n4 See also Cong. Globe, 42d Cong., 1st Sess., App. 217 (1871)
(Sen. Thurman in opposition) ("[There] is no limitation whatsoever
upon the terms that are employed [in @ 1983], and they are as
comprehensive as can be used"); id., at 800 (Rep. Perry) ("Now, by
our action on this bill we have asserted as fully as we can assert
the mischief intended to be remedied"); id., at 476 (Rep. Dawes)
(The person who "invades, trenches upon, or impairs one iota or
tittle of the least of [constitutional rights], to that extent
trenches upon the Constitution and laws of the United States, and
this Constitution authorizes us to bring him before the courts to
answer therefor").

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***43]

   It   [**1123]   might be appropriate to import common-law
defenses and immunities into the statute if, in enacting @  1983,
Congress had merely sought to federalize state tort law.  ButCongress "intended to give a broad remedy for violations of
federally protected  civil rights. " Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 685 (1978) (emphasis added).
Different considerations surely apply when a suit is based on a
federally guaranteed right -- in this case, the constitutional
right to due process of law -- rather than the common law. n5  The
Congress that enacted @ 1983 had concluded that "a deprivation of
a constitutional right is significantly different from and more
serious than a violation of a state right and therefore deserves a
different remedy even though   [*350]   the same act may constitute
both a state tort and the deprivation of a constitutional right."
Monroe v. Pape, 365 U.S. 167, 196 (1961) (Harlan, J., concurring).
Therefore, immunities that arose in the context of tort actions
against private parties provide little guidance for
    PAGE   48                   460 U.S. 325, *350; 103 S. Ct.
1108, **1123;                                     1983 U.S. LEXIS
146, ***43; 75 L. Ed. 2d 96

actions against state officials for constitutional violations.
[***44]   "It would indeed be the purest coincidence if the state
remedies for violations of common-law rights by private citizens
were fully appropriate to redress those injuries which only a state
official can cause and against which the Constitution provides
protection." Id., at 196, n. 5.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n5 See Note, 68 Harv. L. Rev. 1229, 1232 (1955) ("When a suit is
based on deprivation of a federally guaranteed right, the need to
enforce federal limitations on state action constitutes a
consideration in favor of recovery which is not present in suits
under state law"); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler,
Hart and Wechsler's The Federal Courts and the Federal System 336
(2d ed. 1973) ("[Where] constitutional rights are at stake the
courts are properly astute, in construing statutes, to avoid the
conclusion that Congress intended to use the privilege of immunity
. . . in order to defeat them").

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Given the language and purpose of @ 1983, I have serious doubts
about any further extension   [***45]   of absolute immunity to
state officials in actions under @ 1983. At a minimum, I do not
believe the Court should extend absolute

immunity to state officials "in the absence of the most convincing
showing that the immunity is necessary." Imbler v. Pachtman, supra,
at 434 (WHITE, J., concurring in judgment).  For the reasons
elaborated below, I believe that the case for absolute witness
immunity is far from convincing.

   II

   The majority's decision is predicated on its conclusion that
"[in] 1871, common-law immunity for witnesses was well settled."
Ante, at 345.  I disagree with this view of the law as it stood
when Congress enacted @ 1983.

   To begin with, some of petitioners' allegations would clearly
not have been barred by doctrines of immunity at common law.  The
majority discusses only the immunities associated with actions for
defamation at common law.  Ante, at 330-331, n. 9.  However,
petitioner Briscoe did not allege solely that Officer LaHue had
testified falsely at his trial, a claim resembling one for
defamation. He also alleged that Officer LaHue had made knowingly
false charges at two probable-cause hearings, one of which resulted
in Briscoe's  [***46]   arrest. n6 At common law, such anallegation would have   [*351]   formed the basis of an action on
the case for malicious prosecution, n7 or the related action
[**1124]   known by its Latin name, crimen feloniae imposuit
(imputing the crime of felony). n8  Both English and American
courts routinely permitted plaintiffs to bring actions alleging
that the defendant had made a false and malicious accusation of a
felony to a magistrate or other judicial officer. n9 No immunity
barred these suits.  Indeed, an absolute immunity would have been
illogical, for it would have allowed a defendant to avoid the
related common-law action for false imprisonment by the simple
expedient of proffering false charges before a magistrate and
thereby securing an arrest warrant. n10

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
    PAGE   49                   460 U.S. 325, *351; 103 S. Ct.
1108, **1124;                                     1983 U.S. LEXIS
146, ***46; 75 L. Ed. 2d 96

   n6 See Memorandum in Support of Complaint, App. 9-11.

   n7 The action for malicious prosecution grew out of the related
action for conspiracy.  As early as 1293, various statutes were
enacted to aid persons who had been falsely and maliciously
indicted or accused of crimes by conspiracy among the defendants.
In such cases a writ of conspiracy was employed in seeking redress.
By the 16th century, this action was replaced by an action on the
case in the nature of a conspiracy, but the allegation of a
conspiracy was soon treated as surplusage.  The result was an
action on the case.  See M. Bigelow, Leading Cases on the Law of
Torts 190-191 (1875); 1 T. Street, The Foundations of Legal
Liability 328-329 (1906); 2 W. Holdsworth, A History of English Law
366 (4th ed. 1936).  [***47]

   n8 See, e. g., Blizard v. Kelly, 2 Barn. & Cress. 283, 284, 107
Eng. Rep. 389 (K. B. 1823) ("The legal sense and meaning of those
words is, that the party made the charge of felony before a
magistrate"); Davis v. Noak, 1 Stark. 377, 382, 171 Eng. Rep. 502,
504 (N. P. 1816).

   n9 See, e. g., Fuller v. Cook, 3 Leo. 100, 74 Eng. Rep. 567 (K.
B. 1584); Knight v. Jermin, Cro. Eliz. 134, 78 Eng. Rep. 391 (K. B.
1589); Clarke v. Postan, 6 Car. & P. 423, 172 Eng. Rep. 1304 (N. P.
1834); Wheeler v. Nesbitt, 24 How. 544, 546 (1861); Bunton v.
Worley, 4 Ky. 38 (1815); Maddox v. Jackson, 4 Munf. 462 (Va. 1815);
Hill v. Miles, 9 N. H. 9, 13 (1837) (permitting an action for
"maliciously and without reasonable or probable cause, charging a
party with felony before a magistrate"); Briggs v. Byrd, 34 N. C.
377, 380 (1851); Center v. Spring, 2 Iowa 393 (1856); Wilkinson v.
Arnold, 11 Ind. 45 (1858); Rockwell v. Brown, 36 N. Y. 207, 209
(1867).  [***48]

   n10 I reject the majority's conclusion that the issue of
immunity for testimony by a police officer at a probable-cause
hearing is not before this Court.  The majority emphasizes that the
question presented in the petition for certiorari only mentions
testimony by a police officer during a criminal trial. Ante, at
329, n. 5.  This literal reading of the question presented is
contrary to our Rules, which provide that "[the] statement of a
question presented will be deemed to comprise every subsidiary
question fairly included therein." This Court's Rule 21.1(a).  See
also Peters v. Kiff, 407 U.S. 493, 495 (1972) (MARSHALL, J,
announcing the judgment of the Court and an opinion in which
Douglas and Stewart, JJ., joined) (a challenge to the composition
of a grand jury in the questions presented encompassed a challenge
to the composition of the petit jury even though the question
presented did not mention petit juries).
   I believe that the question of witness immunity in one state-court criminal proceeding, the trial, fairly includes the issue of
witness immunity in a related state-court criminal proceeding, the
probable-cause hearing.  The petition for certiorari in this case
specifically referred to Officer LaHue's testimony at "several
judicial proceedings relating to the state criminal prosecution,"
Pet. for Cert. 7, and it spoke in general terms about absolute
witness immunity, e. g., id., at 14, 16-18, 20.  Both petitioners
and respondents obviously thought the issue was before us since
they quoted lengthy excerpts from Officer LaHue's testimony at the
probable-cause hearings in their briefs before this Court.  See
Brief for Petitioners 3-5; Brief for Respondents 2-4.  Petitioner
Briscoe has asserted respondent LaHue's liability for testimony at
the probable-cause hearing throughout this proceeding.  E. g., App.
9-11, 17-22.  Indeed, the District Court appeared to believe that
the only issue
    PAGE   50                   460 U.S. 325, *351; 103 S. Ct.
1108, **1124;                                     1983 U.S. LEXIS
146, ***48; 75 L. Ed. 2d 96

raised by Briscoe's complaint involved testimony at a probable-cause hearing. See Briscoe v. LaHue, No. S 78-139 (ND Ind., Oct. 3,
1978), App. to Pet. for Cert. A-47.  The Court of Appeals discussed
the probable-cause hearing testimony, 663 F.2d 713, 715, and its
holding was framed in general terms regarding testimony at judicial
proceedings, see ante, at 328, which would certainly include
probable-cause hearings.

   The majority nonetheless clearly leaves open the issue of
immunity for testimony at a probable-cause hearing.  Ante, at 329,
n. 5.  The absence of any immunity in such cases at common law
should alone undermine any claim to absolute immunity under @ 1983.
In addition, the policy considerations applicable to testimony at
a probable-cause hearing differ substantially from those relevant
to testimony at a trial.  For instance, the absence of cross-examination at probable-cause hearings increases the risk that
false testimony will go undetected.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***49]

   [*352]   Even with respect to the common-law action for
defamation which the majority discusses, I cannot agree that an
absolute immunity for witnesses was well-settled law in 1871.  In
1845, this Court had rejected both the rule of absolute immunity
[*353]   and its logical underpinnings, proposing instead that a
plaintiff allege and prove malice in the case of privileged
communications.

    In White v. Nicholls, 3 How. 266 (1845), Justice Daniel wrote
for a [**1125]   unanimous Court in dicta a veritable treatise on
the law of defamation and privileged communications. n11 The Court
began by noting the existence of various exceptions "which, in the
elementary treatises, and in the decisions upon libel and slander,
have been denominated privileged communications or publications."
Id., at 286. One of these "exceptions" was for "[words] used in the
course of a legal or judicial proceeding, however hard they may
bear upon the party of whom they are used." Id., at 287. The Court
then stated:

   "But the term 'exceptions,' as applied to cases like those just
enumerated, could never be interpreted to mean that  [***50]
there is a class of actors or transactions placed above the
cognisance of the law, absolved from the commands of justice.  It
is difficult to conceive how, in society where rights and duties
are relative and mutual, there can be tolerated those who are
privileged to do injury legibus soluti; and still more difficult to
imagine, how such a privilege could be instituted or tolerated upon
the principles of social good.  The privilege spoken of in thebooks should, in our opinion, be taken with strong and well-defined
qualifications.  It properly signifies this, and nothing more. That
the excepted instances shall so far change the ordinary rule with
respect to slanderous or libellous matter, as to remove the regular
and usual presumption of malice, and to make it incumbent on the
party complaining to show malice, either by the construction of the
spoken or written matter, or by the facts and circumstances
connected with that matter, or with the situation of the parties,
adequate to authorize the conclusion." Ibid. (emphasis added).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
    PAGE   51                   460 U.S. 325, *353; 103 S. Ct.
1108, **1125;                                     1983 U.S. LEXIS
146, ***50; 75 L. Ed. 2d 96

   n11 The Court itself noted that its examination of the law was
"extended" because of the "importance of [the] subject." 3 How., at
291.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***51]

   [*354]   The Court invoked these principles in discussing the
specific exception for words used in a judicial proceeding, relying
on the views of one English judge who had rejected absolute
immunity. n12

   "With respect to words used in a course of judicial proceeding,
it has been ruled that they are protected by the occasion, and
cannot form the foundation of an action of slander without proof of
express malice; . . . in the case of Hodgson v. Scarlett, 1 Barn.
& Ald. 247, it is said by Holroyd, J., speaking of the words of
counsel in the argument of a cause, 'If they be fair comments upon
the evidence, and relevant to the matter in issue, then unless
malice be shown, the occasion justifies them.  If, however, it be
proved that they were not spoken bona fide, or express malice be
shown, then they may be actionable.'" Id., at 288 (emphasis added).
n13

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n12 Hodgson v. Scarlett, 1 Barn. & Ald. 232, 246-247, 106 Eng.
Rep. 86, 91 (K. B. 1818) (Holroyd, J.).  See also Kendillon v.
Maltby, Car. & M. 402, 409, 174 Eng. Rep. 562, 566 (N. P. 1842)
(Lord Denman, C. J.); Thomas v. Churton, 2 B. & S. 475, 477, 121
Eng. Rep. 1150, 1151 (Q. B. 1862) (Cockburn, C. J.) (reserving the
question).  [***52]

   n13 The Court explained that "falsehood and the absence of
probable cause will amount to proof of malice." 3 How., at 291.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   If  Congress in 1871 actually examined the subject of common-law
witness immunity, it could hardly have overlooked White v. Nicholls
since that case was the sole pronouncement on the subject from the
highest Court in the land. Congress might well have concluded -- as
did the Tennessee Supreme Court in 1871 -- that the principles
enunciated in White were "settled law." Saunders v. Baxter, 53
Tenn. 369, 383. In an age when federal common law prevailed, see
Swift v. Tyson, 16 Pet. 1 (1842), a Supreme Court decision would
have been the natural focus for a Congress establishing a federal
remedy which was accompanied by a new grant of federal
jurisdiction. n14 In short, the most   [**1126] salient feature in
the   [*355]   landscape of the common law at the time Congressacted was an opinion rebuffing absolute immunity in favor of a
qualified immunity based on the absence of malice. n15

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n14 This jurisdictional grant was contained in the Act of Apr.
20, 1871, @ 1, 17 Stat. 13, and was the forerunner of 28 U. S. C.
@ 1343(3).  [***53]

   n15 The views of the Supreme Court obviously conflicted with
those expressed by some state-court judges.  That is precisely the
point: federal common law diverged from state common law as to
witness immunity.  The majority reasons
    PAGE   52                   460 U.S. 325, *355; 103 S. Ct.
1108, **1126;                                     1983 U.S. LEXIS
146, ***53; 75 L. Ed. 2d 96

as if state common law controlled the matter.  See ante, at
331-333, and nn. 11, 12.  Because federal common law prevailed when
Congress enacted @ 1983, and because the federal remedy provided in
the Act was accompanied by a new grant of federal jurisdiction, I
believe White v. Nicholls would have been the natural focus of
attention for the 42d Congress.  The majority does not explain why
it thinks that the 42d Congress would instead have focused on state
common law.

   In any event, the majority's analysis of state-court decisions
is sorely deficient.  The proper inquiry in this case as defined by
the majority itself is on common-law principles as understood by
the Members of the 42d Congress.  See ante, at 330.  The 42d
Congress enacted @ 1983 in 1871.  Yet the majority inexplicably
relies on 11 cases decided after 1871.  These cases are plainly
irrelevant to the question of the 42d Congress' intent.  Unless it
was clairvoyant, the 42d Congress could not possibly have had
access to most of the decisions relied on by the majority.  By the
same token, Congress certainly would not have had the benefit of
the views of Van Vechter Veeder, ante, at 332, n. 12, who wrote his
article in 1909.

   The only arguably relevant support that the majority cites for
the view that Congress extended absolute immunity to police
officers who give perjurious testimony consists of eight state-court cases decided before 1871.  None of these cases involved
testimony by an official of the State, let alone a police officer,
and the only support the majority can muster for the notion that
the common-law witness immunity drew no distinction between public
officials and private citizens is the 1909 article by Van Vechter
Veeder.  See ante, at 336, n. 15.  In three of the pre-1871 cases,
plaintiffs suing for defamation prevailed completely.  In Smith v.
Howard, 28 Iowa 51 (1869), and White v. Carroll, 42 N. Y. 161
(1870), the State Supreme Courts affirmed an award of damages
recovered against a defendant who had slandered the plaintiff from
the witness stand.  Similarly, in Perkins v. Mitchell, 31 Barb. 461
(N. Y. 1860), the state court affirmed a trial court order
rejecting a defendant's demurrer to a complaint.  It held that a
plaintiff could sue for defamatory statements made by a physician
to a Justice of the Peace that resulted in the plaintiff's
commitment as a lunatic.  Whatever might have been said about
immunity in these cases was, to use the majority's language, ante,
at 332, n. 12, "purely dictum." Two other cases, Hoar v. Wood, 44
Mass. 193 (1841), and Shelfer v. Gooding, 47 N. C. 175 (1855),
involved statements by counsel and not statements by a witness.
This leaves three pre-1871 state cases upholding witness immunity,
and these only as to private witnesses.

   As between a smattering of state-court opinions and the extendedand well-reasoned analysis of a unanimous Supreme Court, I think
the latter would have commanded the attention of the Members of the
42d Congress.  In fact, while Members of the 42d Congress displayed
little interest in or familiarity with state-court decisions, they
often focused on cases from the United States Supreme Court in
their deliberations on the 1871 Act.  See, e. g., Cong. Globe, 42d
Cong., 1st Sess., 375 (1871) (Cong. Globe) (Rep. Lowe) (citing
Prigg v. Pennsylvania, 16 Pet. 539 (1842)); Cong. Globe, at 459
(Rep. Coburn) (citing Cohens v. Virginia, 6 Wheat. 264 (1821));
Cong. Globe, at App. 84 (Rep. Bingham) (citing Barron v. Mayor of
Baltimore, 7 Pet. 243 (1833), and Moore v. Illinois, 14 How. 13
(1852)); Cong. Globe, at App. 188 (Rep. Willard) (citing the
majority and dissenting opinions in the Dred Scott case, Dred Scott
v. Sandford, 19 How. 393 (1857)); Cong. Globe, at 242 (Sen. Bayard)
(citing Withers v. Buckley, 20 How. 84 (1858)); Cong. Globe, at
App. 311 (Rep. Shellabarger) (citing Jones v.
    PAGE   53                   460 U.S. 325, *355; 103 S. Ct.
1108, **1126;                                     1983 U.S. LEXIS
146, ***53; 75 L. Ed. 2d 96

Van Zandt, 5 How. 215 (1847)).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***54]

   [*356]   III

    The majority's decision is also predicated on its conclusion
that there is "no evidence that Congress intended to abrogate the
traditional common-law witness immunity in @ 1983 actions." Ante,
at 337.  In fact, there is considerable evidence in the legislative
history that Congress did intend to abrogate the immunity of
participants in state judicial proceedings.

   A

   At petitioners' urging, n16 the Court has extensively examined
the legislative history of @ 2 of the 1871 Ku Klux Klan Act, 17
Stat. 13, now codified as 42 U. S. C. @ 1985(3) (1976 ed., Supp.
V).  However, the forerunner of @ 1983 was @ 1 of the 1871 Act, not
@ 2.  As the majority points out, ante, at 337, 340-341,   [**1127]
 the two sections differ significantly in their language and
purpose.  It is thus hardly surprising that the debates over @ 2
shed little light on @ 1.  In my view the inquiry should focus on
the history of @ 1.  Only by examining the   [*357]   genesis of
that provision can it be determined whether Congress intended to
abrogate certain common-law immunities.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n16 Brief for Petitioners 19-20.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***55]

   The origin of @ 1 is not open to serious question.  The language
and concept of the provision were derived in large part from @ 2 of
the Civil Rights Act of 1866, 14 Stat. 27. n17 The author of @ 1
clearly stated the relationship between the two Acts in introducing
the 1871 measure:

   "My first inquiry is as to the warrant which we have for
enacting such a section as this [@ 1 of the 1871 Act].  The model
for it will be found in the second section of the act of April 9,
1866, known as the 'civil rights act.' That section provides a
criminal proceeding  in identically the same case as this one
provides a civil remedy for, except that the deprivation under
color of State law must, under the civil rights act, have been on
account of race, color, or former slavery.  This section of the
bill, on the same state of facts, not only provides a civil remedyfor   [*358]   persons whose former condition may have been that of
slaves, but also to all people where, under color of State law,
they or any of them may be deprived of rights to which they are
entitled under the Constitution by reason and virtue of their
national citizenship." Cong. Globe, 42d Cong., 1st Sess., App.
[***56]   68 (1871) (emphasis added).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n17 As enacted, @ 1 of the 1871 Act read in pertinent part:
    PAGE   54                   460 U.S. 325, *358; 103 S. Ct.
1108, **1127;                                     1983 U.S. LEXIS
146, ***56; 75 L. Ed. 2d 96

"That any person who, under color of any law, statute, ordinance,
regulation, custom, or usage of any State, shall subject, or cause
to be subjected, any person within the jurisdiction of the United
States to the deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States, shall, any such
law, statute, ordinance, regulation, custom, or usage of the State
to the contrary notwithstanding, be liable to the party injured in
any action at law, suit in equity, or other proper proceeding for
redress . . . ." Act of Apr. 20, 1871, @ 1, 17 Stat. 13.

   Section 2 of the 1866 Civil Rights Act read in pertinent part:

"That any person who, under color of any law, statute, ordinance,
regulation, or custom, shall subject, or cause to be subjected, any
inhabitant of any State or Territory to the deprivation of any
right secured or protected by this act, or to different punishment,
pains, or penalties on account of such person having at any time
been held in a condition of slavery or involuntary servitude,
except as a punishment for crime whereof the party shall have been
duly convicted, or by reason of his color or race, than is
prescribed for the punishment of white persons, shall be deemed
guilty of a misdemeanor, and, on conviction, shall be punished by
fine not exceeding one thousand dollars, or imprisonment not
exceeding one year, or both, in the discretion of the court."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***57]

   Because the two provisions are so intimately connected, a full
examination of the history of @ 1 of the 1871 Act must begin with
@ 2 of the 1866 Act.

   B

   The Civil Rights Act of 1866 was the first federal statute to
provide broad protection in the field of civil rights.  Its primary
purpose was to guarantee the newly emancipated Negro equality with
whites before the law.  Section 2 of the Act provided criminal
liability for any person who, acting under color of law, deprived
another of his rights because of race.  This provision was
extensively debated.  Controversy centered in large part over its
intended application to state officials integral to the judicial
process.

   The liability of state judicial officials and all official
participants in state judicial proceedings under @ 2 was explicitly
and repeatedly affirmed. n18 The notion of immunity   [**1128]
for such officials was thoroughly discredited.  The Senate sponsor
of   [*359]   the Act deemed the idea "akin to the maxim of the
English law that the King can do no wrong.  It places officialsabove the law.  It is the very doctrine out of which the rebellion
[the Civil War] was hatched." Cong. Globe, 39th Cong., 1st Sess.,
1758  [***58]   (1866) (Sen. Trumbull).  Thus, @ 2 was "aimed
directly at the State judiciary." Id., at 1155 (Rep. Eldridge).
See also id., at 1778 (Sen. Johnson, member of the Senate Judiciary
Committee) (@ 2 of the 1866 Act "strikes at the judicial department
of the governments of the States").

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n18 See, e. g., Cong. Globe, 39th Cong., 1st Sess., 475-476
(1866) (exchange between Sen. Trumbull, the Senate sponsor of the
bill, and Sen. Cowan); id.,
    PAGE   55                   460 U.S. 325, *359; 103 S. Ct.
1108, **1128;                                     1983 U.S. LEXIS
146, ***58; 75 L. Ed. 2d 96

at 1155 (exchange between Rep. Thayer and Rep. Eldridge); id., at
1267 (Rep. Raymond) ("[If] a judge or sheriff or any other officer
of a State court should take part in enforcing any State law making
distinctions among the citizens of the State on account of race or
color, he shall be deemed guilty of a misdemeanor and punished with
fine and imprisonment under this bill); id., at 500 (Sen. Cowan in
opposition) (noting that "the judge, the constable, the sheriff,
the marshal, and everybody" was liable under @ 2); id., at 598
(Sen. Davis in opposition) ("All the parties" who participate in
the unjust conviction of a Negro would be liable, including "the
grand jury, the petit jury, the judge, and the officer of the law"
who executes the judgment).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***59]

   Two unsuccessful efforts were made to amend @ 2.  First,
Representative Miller introduced an amendment to exempt state
judges from criminal liability. Id., at 1156.  Second, and of
particular significance, Representative Bingham introduced an
amendment to substitute a civil action for the criminal sanctions
contained in the proposal.  Id., at 1266, 1271-1272.  The sponsor
of the 1866 Act, Representative Wilson, opposed the amendment
largely on the  ground that it would place the financial burden of
protecting civil rights on poor individuals instead of on the
government.  Id., at 1295.  At the same time he stressed that there
was "no difference in the principle involved" between a civil
remedy and a criminal sanction.  Ibid.

   After the 1866 bill passed the Senate and House, President
Andrew Johnson vetoed it.  His opposition was based in part on the
fact that @ 2 of the bill "invades the judicial power of the
State." Veto Message, in id., at 1680.  The President warned that
"judges of the State courts . . . [and] marshals and sheriffs, who
should, as ministerial officers, execute processes, sanctioned by
State laws and issued by State judges, in execution  [***60]   of
their judgments, could be brought before other tribunals and there
subjected to fine and imprisonment for the performance of the
duties which such state laws might impose." Ibid.  Within two
weeks, both the Senate and the House overrode the veto.  Various
Congressmen responded to the President's criticisms and freely
admitted that @ 2 of the legislation was aimed at state judicial
systems.  As a member of the House Judiciary Committee,
Representative   [*360]   Lawrence, declared: "I answer it is
better to invade the judicial power of the State than permit it to
invade, strike down, and destroy the civil rights of citizens.  A
judicial power perverted to such uses should be speedily invaded.
The grievance would be insignificant." Id., at 1837.  See also id.,
at 1758 (response of Sen. Trumbull to President's veto message);
id., at 1838 (statement of Rep. Clarke). The bill became law onApril 9, 1866.

   C

   This Court has from time to time read @  1983  against the
"background" of common-law tort liability. n19 Far more pertinent
to this case, however, is the background provided by the 1866
Civil Rights  Act.  Representative Bingham, who had introduced the
amendment to  [***61]   substitute civil liability for criminal
liability in the 1866 Act, had become chairman of the House
Judiciary Committee by the time of the 42d Congress.  Senator
Trumbull, the Senate sponsor of the 1866 Act, was chairman of the
Senate Judiciary Committee in 1871. Representative Shellabarger,
who had participated in the debates on the 1866
    PAGE   56                   460 U.S. 325, *360; 103 S. Ct.
1108, **1128;                                     1983 U.S. LEXIS
146, ***61; 75 L. Ed. 2d 96

legislation, n20 drafted the 1871 Act.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n19 E. g., Pierson v. Ray, 386 U.S. 547, 556-557 (1967); Monroe
v. Pape, 365 U.S. 167, 187 (1961). See Carey v. Piphus, 435 U.S.
247, 255 (1978); Nahmod, Section 1983 and the "Background" of Tort
Liability, 50 Ind. L. J. 5 (1974).

   n20 See, e. g., Cong. Globe, 39th Cong., 1st Sess., 1293-1295
(1866).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Congress   [**1129]   was well aware that the "model" for @ 1 of
the 1871 law could be found in the 1866 Civil Rights Act.  Cong.
Globe, 42d Cong., 1st Sess., App. 68 (1871) (Rep. Shellabarger).
The manager of the bill in the Senate, George Edmunds, stressed
[***62]   that @ 1 was merely "carrying out the principles of the
civil rights bill" that had been passed in 1866.  Id., at 568.
Representative Coburn stated that @ 1 "gives a civil remedy
parallel to the penal provision" in the Civil Rights Act.  "If this
penal section is valid, and no one dares controvert it, the civil
remedy is legal and unquestionable." Id., at 461.  See also id., at
429 (Rep. McHenry in  opposition)   [*361]   ("The first section of
the bill is intended as an amendment of the civil rights act");
id., at 365 (Rep. Arthur in opposition) (@ 1 is "cumulative, as far
as it goes, with certain provisions in the civil rights bill").

   The fact that @ 2 of the Civil Rights Act was the model for @ 1
of the 1871 Act explains why the debates in the 42d Congress on @
1 were so perfunctory. n21 Of all the measures in the Ku Klux Klan
Act, @ 1 generated the least controversy since it merely provided
a civil counterpart to the far more controversial criminal
provision in the 1866 Act.  See id., at 568 (Sen. Edmunds) ("The
first section is one that I believe nobody objects to"); id., at
App. 313 (Rep. Burchard) ("To the first section, giving an injured
 [***63]   party redress by suit at law in the United States courts
in the cases enumerated, I can see no objections"); Monell v. New
York City Dept. of Social Services, 436 U.S., at 665 (debate on @
1 was limited and the section passed without amendment);
Developments in the Law -- Section 1983 and Federalism, 90 Harv. L.
Rev. 1133, 1155 (1977).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n21 Because discussion of @ 1 of the 1871 Act was so limited, it
is simply unrealistic to demand overwhelming evidence that the 42d
Congress meant to override a common-law witness immunity.  Surely
the majority does not mean todefine an inquiry that is inherently futile.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Opponents of @ 1 of the 1871 Act repeated the same arguments
that had been made against @ 2 of the 1866 Act.  They warned of the
liability for judicial officers that would result from enactment of
@ 1. n22 Indeed, in portraying the inevitable consequences of the
1871 Act, Senator Thurman pointed to criminal prosecutions of state
judicial officers that had already taken place under [***64]   the
1866 Act. n23 These statements can hardly be dismissed as
exaggerated rhetoric from opponents of the 1871 Act.  Instead, they
simply
    PAGE   57                   460 U.S. 325, *361; 103 S. Ct.
1108, **1129;                                     1983 U.S. LEXIS
146, ***64; 75 L. Ed. 2d 96

reflect the fact that the battle over liability for those integral
to the judicial process had already been fought in 1866 when
Congress   [*362] adopted the far more serious criminal sanction
aimed at state judicial systems. Section 1, in contrast, provided
for "the mild remedy of a civil action." Cong. Globe, 42d Cong.,
1st Sess., 482 (1871) (Rep. Wilson, member of the House Judiciary
Committee).  So it was not surprising that the arguments of the
opponents to the 1871 Act would fall on deaf ears.  It is also
noteworthy that Representative Shellabarger, who was hardly
reluctant to interrupt speakers who were misconstruing his
proposal, n24 never disputed the opponents' characterizations with
regard to the liability of state judicial officers. n25
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n22 See, e. g., Cong. Globe, 42d Cong., 1st Sess., 365, 366,
(1871) (statements of Rep. Arthur); id., at 385 (statement of Rep.
Lewis).

   n23 Id., at App. 217.

   n24 E. g., id., at 382, App. 46.  [***65]

   n25 On at least one of the occasions when such remarks were
made, Representative Shellabarger was present.  See Note, Liability
of Judicial Officers Under Section 1983, 79 Yale L. J. 322, 328, n.
40 (1969).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   To assume that Congress, which had enacted a criminal sanction
directed against state judicial officials, n26 intended sub
silentio   [**1130]   to exempt those same officials from the
civil counterpart approaches the incredible. n27 Sheriffs and
marshals, while performing a quintessentially judicial function
such as serving process, were clearly liable under the 1866 Act,
notwithstanding President Johnson's objections.  Because,   [*363]
 as Representative Shellabarger stated, @ 1 of the 1871 Act
provided a civil remedy "in identically the same case" or "on the
same state of facts" as @ 2 of the 1866 Act, it obviously overrode
whatever immunity may have existed at common law for these
participants in the judicial process in 1871.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n26 The majority does concede that witnesses can be punished
criminally for violations of 18 U. S. C. @ 242, the modern
successor of @ 2 of the 1866 Act. See ante, at 345, n. 32.  It
cannot go without mention that the classic English formulation of
absolute witness immunity by Lord Mansfield, which even the
majority quotes, ante, at 335, precluded civil or criminalliability.  King v. Skinner, Lofft 54, 56, 98 Eng. Rep. 529 (K. B.
1772) ("[Neither] party, witness, counsel, jury, or judge can be
put to answer, civilly, or criminally, for words spoken in office")
(emphasis added).  Under early common law, perjury was not a
punishable offense.  Jurors were merely a body of witnesses whose
verdict was based on their own personal knowledge and not on the
evidence of others testifying before them.  The only method of
punishment was by a writ of attaint. See generally 4 W. Holdsworth,
A History of English Law 515-519 (3d ed. 1924); Damport v. Sympson,
Cro. Eliz. 520, 78 Eng. Rep. 769 (Q. B. 1596).  [***66]
    PAGE   58                   460 U.S. 325, *363; 103 S. Ct.
1108, **1130;                                     1983 U.S. LEXIS
146, ***66; 75 L. Ed. 2d 96

   n27 See Kates, Immunity of State Judges under the Federal Civil
Rights Acts, 65 Nw. U. L. Rev. 615, 622-623 (1970).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   D

   The lack of historical support for witness immunity sharply
contrasts with the substantial historical support for legislative
immunity which this Court recognized in Tenney v. Brandhove, 341
U.S. 367 (1951), a case on which the majority relies.  Ante, at
330, 334.  Legislative immunity enjoyed a unique historical
position since it had been conceived in the Parliamentary struggles
of the 17th century and enshrined in the Speech and Debate Clause
of the Constitution.  The vast majority of States had adopted
constitutional provisions providing a parallel protection against
civil and criminal liability.  See 341 U.S., at 372-375.

   Moreover, the history of @ 1 supports incorporation of
legislative immunity. For example, when the specter of holding
state legislators liable under @ 2 of the 1866 Act was raised by
President Johnson's veto message, n28 the Senate sponsor of the Act
was quick to disavow any such intention.  Senator  [***67] Trumbull
argued at some length that legislators did not fall within the
scope of the Act because they "enact" laws rather than act "under
color of" state law. n29 Whatever the validity of this distinction,
it no doubt reflected the reluctance of Congress to impinge on the
immunity of state legislators.  But while the Radical Republican
Congress was a "staunch advocate of legislative freedom," 341 U.S.,
at 376, it displayed no solicitude for state courts. n30 The
debates over the 1871 Act are replete with hostile comments
directed at state judicial   [*364]   systems. n31 It is entirely
reasonable to conclude that Congress intended to  make state
legislators immune from civil liability under @ 1 of the 1871 Act.
No similar evidence exists to support an immunity for police
officers testifying as witnesses. n32

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n28 See Cong. Globe, 39th Cong., 1st Sess., 1680 (1866).

   n29 Id., at 1758.

   n30 See Developments in the Law -- Section 1983 and Federalism,
90 Harv. L. Rev. 1133, 1150-1152 (1977).

   n31 See, e. g., Cong. Globe, 42d Cong., 1st Sess., App. 78 (Rep.
Perry) ("Sheriffs, having eyes to see, see not; judges, having ears
to hear, hear not; witnesses conceal the truth or falsify it; grandand petit juries act as if they might be accomplices"); id., at 394
(Rep. Rainey) ("[The] courts are in many instances under the
control of those who are wholly inimical to the impartial
administration of law and equity"); id., at App. 186 (Rep. Platt)
(judges exercise their "almost despotic powers . . . against
Republicans without regard to law or justice"); id., at App. 277
(Rep. Porter) ("The outrages committed upon loyal men there are
under the forms of law.  It can be summed up in one word: loyal men
cannot obtain justice in the courts . . ."); id., at 429 (referring
to "prejudiced juries and bribed judges").  [***68]
    PAGE   59                   460 U.S. 325, *364; 103 S. Ct.
1108, **1130;                                     1983 U.S. LEXIS
146, ***68; 75 L. Ed. 2d 96

   n32 The history of @ 1 of the 1871 Act casts some doubt on the
correctness of Pierson v. Ray, 386 U.S. 547 (1967), and Imbler v.
Pachtman, 424 U.S. 409 (1976). Pierson and Imbler are
distinguishable, however, on the ground that the policy
considerations in those cases are far more powerful.  Most
significantly, judges and prosecutors must exercise a substantial
amount of discretion in performing their official functions, while
witnesses sworn to tell the truth do not.  See n. 39, infra.  In
addition, we have only extended qualified immunity to police
officers for the performance of many of their other duties.  See
Pierson, supra, at 557.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   IV

   [**1131]   The majority also bases its decision on
considerations of public policy, which purportedly mandate absolute
immunity for police officers sued under @ 1983 for their testimony
as witnesses.  Ante, at 341-345.  This Court has recognized
absolute immunity only in "exceptional situations" where public
policy makes it "essential." Butz v. Economou, 438 U.S. 478, 507
(1978). [***69]   n33 In my view, the case for official-witness
immunity falls far short of this standard.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n33 Butz involved an action under Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971). In my view, we should be
even more reluctant to import absolute immunities into @ 1983 suits
than into Bivens actions.  First, with @ 1983 we deal with explicit
statutory language indicating the broad scope of the action,
whereas Bivens actions have been implied by the federal courts.
Second, the need to restrain state action implicit in the
Fourteenth Amendment is implicated by @ 1983 suits, while that
Amendment has no relevance to suits against federal officials.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   [*365]   Police officers and other government officials differ
significantly from private citizens, around whom common-law
doctrines of witness immunity developed.  A police officer comes to
the witness stand clothed with the authority of the State.  His
official status gives him credibility and creates a far greater
potential for  [***70]   harm than exists when the average citizen
testifies. n34 The situation is aggravated when the official draws
on special expertise.  A policeman testifying about a fingerprint
identification or a medical examiner testifying as to the cause of
a death can have a critical impact on a defendant's trial. n35 Atthe same time, the threat of a criminal perjury prosecution,  which
serves as an important constraint on the average witness'
testimony, is virtually nonexistent in the police-witness context.
Despite the apparent prevalence of police perjury, n36 prosecutors
exhibit extreme   [*366]   reluctance in charging police officials
with criminal conduct because of their need to maintain close
working relationships with law enforcement agencies. n37 The
majority thus forecloses a civil sanction in precisely those
situations where the need is most pressing.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -
    PAGE   60                   460 U.S. 325, *366; 103 S. Ct.
1108, **1131;                                     1983 U.S. LEXIS
146, ***70; 75 L. Ed. 2d 96

   n34 See Nugent v. Sheppard, 318 F.Supp. 314, 317 (ND Ind. 1970).
Cf. Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 392
(agent acting in the name of the United States possesses "far
greater capacity for harm" than individual trespasser acting on his
own).  [***71]

   n35 Checks and balances built into the trial process may well
have limitations and strategic costs.  For instance, lengthy cross-examination of an official witness may expose weaknesses in his
testimony only at the cost of emphasizing the evidence in the mind
of the jury.

   n36 See United States v. Marshall, 488 F.2d 1169, 1171 (CA9
1973); Veney v. United States, 120 U. S. App. D. C. 157, 157-158,
344 F.2d 542, 542-543 (1965) (Wright, J., concurring in judgment);
People v. Berrios, 28 N. Y. 2d 361, 370, 270 N. E. 2d 709, 714
(1971) (Fuld, C. J., dissenting); People v. Dickerson, 273 Cal.
App. 2d 645, 650, n. 4, 78 Cal. Rptr. 400, 403, n. 4 (1969); B.
Tarlow, Search Warrants 31-77 (1973); New York City Commission to
Investigate Alleged Police Corruption, Knapp Commission Report on
Police Corruption (1972); Sevilla, The Exclusionary Rule and Police
Perjury, 11 San Diego L. Rev. 839 (1974); Grano, A Dilemma for
Defense Counsel: Spinelli-Harris Search Warrants and the
Possibility of Police Perjury, 1971 U. Ill. Law Forum 405, 408-409;
Younger, The Perjury Routine, 204 The Nation 596 (1967); Comment,
60 Geo. L. J. 507 (1971); Note, 4 Colum. J. Law & Soc. Probs. 87,
96, n. 40 (1968).  [***72]

   n37 See Newman, Suing the Law Breakers, 87 Yale L. J. 447,
449-450 (1977).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Moreover, the danger that official witnesses would be inhibited
in testifying by the fear of a damages action is much more remote
than would be the case with private witnesses.  Policemen normally
have a duty to testify about matters involving their official
conduct.  The notion that officials with a professional interest in
securing criminal convictions would shade their testimony in favor
of a defendant to avoid the risk of a civil suit can only be viewed
 [**1132] with skepticism.  In addition, police officials are
usually insulated from any economic hardship associated with
lawsuits based on conduct within the scope of their authority. n38
In any event, if the Court truly desires to give police officers
"'every encouragement to make a full disclosure of all pertinent
information within their knowledge,'" ante, at 335 (quoting Imbler
v. Pachtman, 424 U.S., at 439 (WHITE, J., concurring in judgment)),
then at the very least it should permit @ 1983 suits which allege
that officials  [***73]   withheld key information while
testifying. n39
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n38 Police officers are generally provided free counsel and are
indemnified for conduct within the scope of their authority.  See
Monell v. New York City Dept. of Social Services, 436 U.S., at 713
(POWELL, J., concurring); Project, 88 Yale L. J. 781, 810 (1979).
This is certainly the state of the law with respect to respondents.
See Ind. Code Ann. @@ 34-4-16.5-5(b) and 34-4-16.5-18 (Burns Supp.
1982).

   n39 Despite the differences between official witnesses and
private witnesses, the majority contends that "immunity analysis
rests on functional categories, not on the status of the
defendant." Ante, at 342.  However, the cases cited
    PAGE   61                   460 U.S. 325, *366; 103 S. Ct.
1108, **1132;                                     1983 U.S. LEXIS
146, ***73; 75 L. Ed. 2d 96

for this proposition, ante, at 342, n. 28, all involve various
types of official conduct.  The fact that individuals within the
government should be treated the same because of the functions they
perform does not necessarily mean that individuals within the
government should be treated the same as private parties.

   While relying on functional categories, the majority ignores the
classic distinction embodied in immunity cases between acts
involving discretion and those that do not.  See Kendall v. Stokes
3 How. 87, 98 (1845); McCray v. Maryland, 456 F.2d 1, 3-4 (CA4
1972) ("Where an official is not called upon to exercise judicial
or quasi-judicial discretion, courts have properly refused to
extend to him the protection of absolute judicial immunity,
regardless of any apparent relationship of his role to the judicial
system").  Here, as the lower court noted, 663 F.2d 713, 719, a
witness normally exercises no discretion in the performance of his
duty to answer fully and truthfully all questions put to him.  As
a result, "the need for absolute immunity seems correspondingly
less compelling." Id., at 720.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***74]

   [*367]   The  majority's primary concern appears to be that @
1983 suits against police witnesses would impose "significant
burdens on the judicial system and on law enforcement resources."
Ante, at 343.  As an empirical matter, this contention is
unfounded.  Both the Sixth Circuit and the District of Columbia
Circuit have permitted such suits for over five years, see ante, at
328-329, n. 4, but there is no perceptible drain on legal resources
in those Circuits compared to other Circuits that bar such
lawsuits.  Moreover, a comprehensive study of @ 1983 suits filed in
the Central District of California, which includes Los Angeles,
indicates that only about 30 actions for false arrest were filed
annually in that District. n40 Police officers arrest much more
frequently than they testify, and an arrest will undoubtedly make
many individuals disgruntled.  Yet, lawsuits based on such
allegations constituted only 0.5% of all cases filed in the Central
District, n41 or an average of only one for every 243 full-time
police   [*368]   officers in the city of Los Angeles. n42 This
does not appear to be a "significant burden." n43 The simple fact
is that practical   [**1133]     [***75]   obstacles alone are
enough to deter most individuals from suing the police for official
misconduct. n44
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n40 See Eisenberg, Section 1983: Doctrinal Foundations and An
Empirical Study, 67 Cornell L. Rev. 482, 550-551, 555 (1982). The
statistics are for 1975-1976.  The estimate given in the text isapproximate because Professor Eisenberg has grouped statistics for
prisoner @ 1983 actions involving false arrest, assault, and search
and seizure.  See, id., at 555, Table VI.

   n41 A total of 5,810 cases were filed in the Central District of
California in 1976.  See Annual Report of the Director of the
Administrative Office of the United States Courts 177, Table 18,
350, Table D-3 (1976).

   n42 There were 7,294 full-time police officers employed by the
city of Los Angeles in 1976.  See generally U.S. Dept. of Commerce,
Bureau of the Census, City Employment in 1976, p. 8, Table 4 (1977)
(data for all police department employees).
    PAGE   62                   460 U.S. 325, *368; 103 S. Ct.
1108, **1133;                                     1983 U.S. LEXIS
146, ***75; 75 L. Ed. 2d 96

   n43 Data from another State indicate that the California
experience may overstate the burden of false arrest cases.  Over
more than seven years, a total of only 32 @ 1983 suits for false
arrest were brought in Federal District Court for all or part of
Connecticut.  See Project, 88 Yale L. J., supra, at 786, n. 23,
793.  [***76]

   n44 Former criminal defendants may well wish to avoid further
entanglements with the legal system and are unlikely to have the
resources needed to pursue such suits.  Lawyers will probably have
little incentive to become involved in actions against the police,
and those that do face an uphill struggle.  See Amsterdam, The
Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.
Y. U. L. Rev. 785, 787 (1970) (civil actions against the police are
"very rare, and until recently were so rare as to be insignificant,
because the obstacles to their maintenance are formidable").

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   In considering the competing interests at stake in this area,
the majority strikes a very one-sided balance.  It eschews any
qualified immunity in favor of an absolute one.  Thus, the mere
inquiry into good faith is deemed so undesirable that we must
simply acquiesce in the possibility that government officials will
maliciously deprive citizens of their rights. n45 For my part, I
cannot conceive in this case how patent violations of individual
rights can be tolerated in the name of the public    [***77]
good.  "The very essence of civil liberty certainly consists in the
right of every individual to claim the protections of the laws,
whenever he receives an injury." Marbury v. Madison, 1 Cranch 137,
163 (1803).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n45 Cf. 2 F. Harper & F. James, Law of Torts 1645 (1956) ("[It]
is stretching the argument pretty far to say that the mere inquiry
into malice would have worse consequences than the possibility of
actual malice . . . .  Since the danger that official power will be
abused is greatest where motives are improper, the balance here may
well swing the other way") (emphasis deleted).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   [*369]   V

   For all of the above reasons, I believe that the majority has
failed to sustain the heavy burden required to justify an immunity
so plainly at odds with the language and purpose of @ 1983.  I
therefore respectfully dissent.
   JUSTICE BLACKMUN, dissenting.

   I join all of JUSTICE MARSHALL's dissenting opinion except Part
I.  I cannot join its Part I, for I adhere to the views I expressed
for the Court in [***78]   City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 258-259 (1981), regarding the role played by history
and policy in determining whether @ 1983 incorporates a particular
common-law immunity.  It is proper to assume --indeed, the Court in
the past has assumed -- "that members of the 42d Congress were
familiar with common-law principles . . . and that they likely
intended these common-law principles to obtain, absent specific
provisions to the
    PAGE   63                   460 U.S. 325, *369; 103 S. Ct.
1108, **1133;                                     1983 U.S. LEXIS
146, ***78; 75 L. Ed. 2d 96

contrary." Id., at 258. If an immunity was well established in the
common law in 1871, careful analysis of the policies supporting it,
and those supporting @ 1983, governs the determination whether that
immunity was retained.

   In my view, JUSTICE MARSHALL's dissent convincingly demonstrates
that the Court finds little support for its decision in the present
case either in the language of the statute, the history of the
common law, the relevant legislative history, or policy
considerations.

   I therefore dissent.