Briscoe v. LaHue

460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96, 1983 U.S. LEXIS 146, 51 U.S.L.W. 4247

Opinions

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 perjured testimony at his criminal trial. The Court of 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 Bloo-mington, 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.¹ 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 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.

Petitioners Vickers and Ballard were jointly tried and convicted of sexual assault in state court. They subsequently brought a civil action under § 1983 against respondent Hun-ley, 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) peti- - tioners 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.²

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 (1981).³ Because of the importance of the immunity question, which has given rise to divergent conclusions in the Courts of Appeals,⁴ we granted certiorari. 455 U. S. 1016 (1982).⁵

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 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 . . . .”⁶ It is beyond question that, when a private party gives testimony in open court in a criminal trial, that act is not performed “under color of law.”⁷

Second, since 1951, when this Court decided Tenney v. Brandhove, 341 U. S. 367, it has been settled that the all-encompassing language of § 1983, referring to “[e]very person” who, under color of law, deprives another of federal constitutional or statutory rights, is not to be taken literally.⁸

“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 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).

The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings⁹ 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);¹⁰ see Dawkins v. Lord Rokeby, 4 F. & F. 806, 833-834, 176 Eng. Rep. 800, 812 (C. P. 1866). 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 absolute privilege.¹¹ The plaintiff could not recover even if the witness knew the statements were false and made them with malice.¹²

In the words of one 19th-century court, in damages suits against witnesses, “the claims of the individual must yield to 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 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 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).¹³ But the truthfinding process is better 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).¹⁴

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, § 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.” 424 U. S., at 439. He explained that this protection extended equally to other participants, including counsel and witnesses.

“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 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) (“[NJeither 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 subsequent 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 other witness sworn to tell the truth — in which event he can make a strong claim to witness immunity;¹⁶ 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.

I — I HH h-H

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.¹⁵ 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.¹⁷ The legislative history and statutory language indicate that Congress intended perjury 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.

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 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 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.¹⁸ Perjury was thus one of the means by which the Klan prevented state courts from gaining convictions of Klan members for crimes against blacks and Republicans.

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.¹⁹ 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.²⁰ See Monroe v. Pape, 365 U. S. 167, 174 (1961).

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 of-fleers 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.²¹ Part of the provision is 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 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 . . . ,”22

This 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 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.²³ 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.²⁴ Even when the organization’s intended victims had been taken into custody and charged with crimes, the evidence before Congress suggested that the Klan resorted to vigilante justice rather than courtroom perjury.²⁵

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, 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 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.²⁶

I — I C

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.²⁷ They assert that the reasons supporting common-law immunity — the need to 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 law, prosecution for perjury is alleged to be so unlikely that it is not an effective substitute for civil damages.

These contentions have some force. But our cases clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant.²⁸ 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.

Moreover, to the extent that traditional reasons for witness immunity are less applicable to governmental witnesses, 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.²⁹

This 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 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 not be, because the District Court’s issuance of the writ of habeas corpus shows that his 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.³⁰

There is, of course, the possibility that, despite the truth-finding safeguards of the judicial process, some defendants might indeed be unjustly convicted on the basis of knowingly false testimony by police officers.³¹ 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 (CA2 1949), cert. denied, 339 U. S. 949 (1950).³²

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 just — or possibly unjust — conclusion is equally indispensable. The decision of the Court of Appeals is affirmed.

It is so ordered.

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

2 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.

3 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, 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.

4 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).

5 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.

6 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.

7 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.

8 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).

9 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.

10 “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.

11 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.

12 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 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:

“[T]he 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. Ya. 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. & Aid. 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.

13 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.

14 Cf. Marsh v. Ellsworth, 60 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).

15 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.

16 Brief for Petitioners 19-20, citing 1 B. Schwartz, Statutory History of the United States: Civil Rights 599-606, 625 (1970).

17 In addition to § 1, codified as § 1983, and § 2, discussed in text m/m, 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.

18 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).

19 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. Cobum); 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).

20 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).

21 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).

22 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).

23 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.

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

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

26 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 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).

27 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.

28 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).

29 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.

30 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.

31 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.

32 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.