Smith v. Wade

461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632, 1983 U.S. LEXIS 24, 51 U.S.L.W. 4407

• Court: Supreme Court of the United States
• Decided: April 20, 1983
• Docket: 81-1196
• Status: Published

Opinions

Justice Brennan

delivered the opinion of the Court.

We granted certiorari in this case, 456 U. S. 924 (1982), to decide whether the District Court for the Western District of Missouri applied the correct legal standard in instructing the jury that it might award punitive damages under 42 U. S. C. §1983 (1976 ed., Supp. V).¹ The Court of Appeals for the Eighth Circuit sustained the award of punitive damages. Wade v. Haynes, 663 F. 2d 778 (1981). We affirm.

HH

The petitioner, William H. Smith, is a guard at Algoa Reformatory, a unit of the Missouri Division of Corrections for youthful first offenders. The respondent, Daniel R. Wade, was assigned to Algoa as an inmate in 1976. In the summer of 1976 Wade voluntarily checked into Algoa’s protective custody unit. Because of disciplinary violations during his stay in protective custody, Wade was given a short term in punitive segregation and then transferred to administrative segregation. On the evening of Wade’s first day in administrative segregation, he was placed in a cell with another inmate. Later, when Smith came on duty in Wade’s dormitory, he placed a third inmate in Wade’s cell. According to Wade’s testimony, his cellmates harassed, beat, and sexually assaulted him.

Wade brought suit under 42 U. S. C. § 1983 against Smith and four other guards and correctional officials, alleging that his Eighth Amendment rights had been violated. At trial his evidence showed that he had placed himself in protective custody because of prior incidents of violence against him by other inmates. The third prisoner whom Smith added to the cell had been placed in administrative segregation for fighting. Smith had made no effort to find out whether another cell was available; in fact there was another cell in the same dormitory with only one occupant. Further, only a few weeks earlier, another inmate had been beaten to death in the same dormitory during the same shift, while Smith had been on duty. Wade asserted that Smith and the other defendants knew or should have known that an assault against him was likely under the circumstances.

During trial, the District Judge entered a directed verdict for two of the defendants. He instructed the jury that Wade could make out an Eighth Amendment violation only by showing “physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities.” Tr. 639. Further, because of Smith’s qualified immunity as a prison guard, see Procunier v. Navarette, 434 U. S. 555 (1978), the judge instructed the jury that Wade could recover only if the defendants were guilty of “gross negligence” (defined as “a callous indifference or a thoughtless disregard for the consequences of one’s act or failure to act”) or “[e]gregious failure to protect” (defined as “a flagrant or remarkably bad failure to protect”) Wade. Tr. 641-642. He reiterated that Wade could not recover on a showing of simple negligence. Id., at 644.

The District Judge also charged the jury that it could award punitive damages on a proper showing:

“In addition to actual damages, the law permits the jury, under certain circumstances, to award the injured person punitive and exemplary damages, in order to punish the wrongdoer for some extraordinary misconduct, and to serve as an example or warning to others not to engage in such conduct.

“If you find the issues in favor of the plaintiff, and if the conduct of one or more of the defendants is shown to be a reckless or callous disregard of, or indifference to, the rights or safety of others, then you may assess punitive or exemplary damages in addition to any award of actual damages.

“. . . The amount , of punitive or exemplary damages assessed against any defendant may be such sum as you believe will serve to punish that defendant and to deter him and others from like conduct.” Id., at 643 (emphasis added).

The jury returned verdicts for two of the three remaining defendants. It found Smith liable, however, and awarded $25,000 in compensatory damages and $5,000 in punitive damages. The District Court entered judgment on the verdict, and the Court of Appeals affirmed. Wade v. Haynes, 663 F. 2d 778 (1981).

In this Court, Smith attacks only the award of punitive damages. He does not challenge the correctness of the instructions on liability or qualified immunity, nor does he question the adequacy of the evidence to support the verdict of liability for compensatory damages.

II

Section 1983 is derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It was intended to create “a species of tort liability” in favor of persons deprived of federally secured rights. Carey v. Piphus, 435 U. S. 247, 253 (1978); Imbler v. Pachtman, 424 U. S. 409, 417 (1976). We noted in Carey that there was little in the section’s legislative history concerning the damages recoverable for this tort liability, 435 U. S., at 255. In the absence of more specific guidance, we looked first to the common law of torts (both modérn and as of 1871), with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute. Id., at 253-264. We have done the same in other contexts arising under § 1983, especially the recurring problem of common-law immunities.²

Smith correctly concedes that “punitive damages are available in a ‘proper’ § 1983 action . . . Carlson v. Green, 446 U. S. 14, 22 (1980); Brief for Petitioner 8. Although there was debate about the theoretical correctness of the punitive damages doctrine in the latter part of the last century, the doctrine was accepted as settled law by nearly all state and federal courts, including this Court.³ It was likewise generally established that individual public officers were liable for punitive damages for their misconduct on the same basis as other individual defendants.⁴ See also Scott v. Donald, 165 U. S. 58, 77-89 (1897) (punitive damages for constitutional tort). Further, although the precise issue of the availability of punitive damages under § 1983 has never come squarely before us, we have had occasion more than once to make clear our view that they are available; indeed, we have rested decisions on related questions on the premise of such availability.⁵

Smith argues, nonetheless, that this was not a “proper” case in which to award punitive damages. More particularly, he attacks the instruction that punitive damages could be awarded on a finding of reckless or callous disregard of or indifference to Wade’s rights or safety. Instead, he contends that the proper test is one of actual malicious intent— “ill will, spite, or intent to injure.”⁶ Brief for Petitioner 9. He offers two arguments for this position: first, that actual intent is the proper standard for punitive damages in all cases under § 1983; and second, that even if intent is not always required, it should be required here because the threshold for punitive damages should always be higher than that for liability in the first instance. We address these in turn.

III

Smith does not argue that the common law, either in 1871 or now, required or requires a showing of actual malicious intent for recovery of punitive damages. See Tr. of Oral Arg. 5-6, 9.⁷

Perhaps not surprisingly, there was significant variation (both terminological and substantive) among American jurisdictions in the latter 19th century on the precise standard to be applied in awarding punitive damages — variation that was exacerbated by the ambiguity and slipperiness of such common terms as “malice” and “gross negligence.”⁸ Most of the confusion, however, seems to have been over the degree of negligence, recklessness, carelessness, or culpable indifference that should be required — not over whether actual intent was essential. On the contrary, the rule in a large majority of jurisdictions was that punitive damages (also called exemplary damages, vindictive damages, or smart money) could be awarded without a showing of actual ill will, spite, or intent to injure.

This Court so stated on several occasions, before and shortly after 1871. In Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 (1859), a diversity libel suit, the Court held erroneous an instruction that authorized the jury to return a punitive award but gave the jury virtually no substantive guidance as to the proper threshold. We described the standard thus:

“Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations.” Id., at 214 (emphasis added).⁹

The Court further explained the standard for punitive damages in Milwaukee & St. Paul R. Co. v. Arms, 91 U. S. 489 (1876), a diversity railroad collision case:

“Redress commensurate to such [personal] injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case, the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.” Id., at 493.

“ ... To [assess punitive damages], there must have been some wilful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences” Id., at 495 (emphasis added).

The Court therefore held erroneous a jury instruction allowing a punitive award on “gross negligence”; it concluded that the latter term was too vague, and too likely to be confused with mere ordinary negligence, to provide a fair standard. It remanded for a new trial.¹⁰

Ten years later, the Court in dictum suggested that perhaps even gross negligence would suffice after all, at least in some cases:

“For injuries resulting from a neglect of duties, in the discharge of which the public is interested, juries are also permitted to assess exemplary damages. These may be perhaps considered as falling under the head of cases of gross negligence, for any neglect of duties imposed for the protection of life or property is culpable, and deserves punishment.” Missouri Pacific R. Co. v. Humes, 115 U. S. 512, 521 (1885).

See also Minneapolis & St. Louis R. Co. v. Beckwith, 129 U. S. 26, 34 (1889) (“culpable negligence”).¹¹

The large majority of state and lower federal courts were in agreement that punitive damages awards did not require a showing of actual malicious intent; they permitted punitive awards on variously stated standards of negligence, recklessness, or other culpable conduct short of actual malicious intent.¹²

The same rule applies today. The Restatement (Second) of Torts (1979), for example, states: “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” § 908(2) (emphasis added); see also id., Comment b. Most cases under state common law, although varying in their precise terminology, have adopted more or less the same rule, recognizing that punitive damages in tort cases may be awarded not only for actual intent to injure or evil motive, but also for recklessness, serious indifference to or disregard for the rights of others, or even gross negligence.¹³

The remaining question is whether the policies and purposes of § 1983 itself require a departure from the rules of tort common law. As a general matter, we discern no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action. Smith offers us no persuasive reason to the contrary.

Smith’s argument, which he offers in several forms, is that an actual-intent standard is preferable to a recklessness standard because it is less vague. He points out that punitive damages, by their very nature, are not awarded to compensate the injured party. See Newport v. Fact Concerts, Inc., 453 U. S. 247, 266-267 (1981); Electrical Workers v. Foust, 442 U. S. 42, 48 (1979); Gertz v. Robert Welch, Inc., 418 U. S. 323, 349-350 (1974). He concedes, of course, that deterrence of future egregious conduct is a primary purpose of both § 1983, see Newport, supra, at 268; Owen v. City of Independence, 445 U. S. 622, 651 (1980); Robertson v. Wegmann, 436 U. S. 584, 591 (1978), and of punitive damages, see Newport, supra, at 268; Restatement (Second) of Torts §908(1) (1979). But deterrence, he contends, cannot be achieved unless the standard of conduct sought to be deterred is stated with sufficient clarity to enable potential defendants to conform to the law and to avoid the proposed sanction. Recklessness or callous indifference, he argues, is too uncertain a standard to achieve deterrence rationally and fairly. A prison guard, for example, can be expected to know whether he is acting with actual ill will or intent to injure, but not whether he is being reckless or callously indifferent.

Smith’s argument, if valid, would apply to ordinary tort cases as easily as to § 1983 suits; hence,, it hardly presents an argument for adopting a different rule under § 1983. In any event, the argument is unpersuasive. While, arguendo, an intent standard may be easier to understand and apply to particular situations than a recklessness standard, we are not persuaded that a recklessness standard is too vague to be fair or useful. In the Milwaukee case, 91 U. S. 489 (1876), we adopted a recklessness standard rather than a gross negligence standard precisely because recklessness would better serve the need for adequate clarity and fair application. Almost a century later, in the First Amendment context, we held that punitive damages cannot be assessed for defamation in the absence of proof of “knowledge of falsity or reckless disregard for the truth.” Gertz, 418 U. S., at 849. Our concern in Gertz was that the threat of punitive damages, if not limited to especially egregious cases, might “inhibit the vigorous exercise of First Amendment freedoms,” ibid. — a concern at least as pressing as any urged by Smith in this case. Yet we did not find it necessary to impose an actual-intent standard there. Just as Smith has not shown why § 1983 should give higher protection from punitive damages than ordinary tort law, he has not explained why it gives higher protection than we have demanded under the First Amendment.

More fundamentally, Smith’s argument for certainty in the interest of deterrence overlooks the distinction between a standard for punitive damages and a standard of liability in the first instance. Smith seems to assume that prison guards and other state officials look mainly to the standard for punitive damages in shaping their conduct. We question the premise; we assume, and hope, that most officials are guided primarily by the underlying standards of federal substantive law — both out of devotion to duty, and in the interest of avoiding liability for compensatory damages. At any rate, the conscientious officer who desires clear guidance on how to do his job and avoid lawsuits can and should look to the standard for actionability in the first instance. The need for exceptional clarity in the standard for punitive damages arises only if one assumes that there are substantial numbers of officers who will not be deterred by compensatory damages; only such officers will seek to guide their conduct by the punitive damages standard. The presence of such officers constitutes a powerful argument against raising the threshold for punitive damages.

In this case, the jury was instructed to apply a high standard of constitutional right (“physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities”). It was also instructed, under the principle of qualified immunity, that Smith could not be held liable at all unless he was guilty of “a callous indifference or a thoughtless disregard for the consequences of [his] act or failure to act,” or of “a flagrant or remarkably bad failure to protect” Wade. These instructions are not challenged in this Court, nor were they challenged on grounds of vagueness in the lower courts. Smith's contention that this recklessness standard is too vague to provide clear guidance and reasonable deterrence might more properly be reserved for a challenge seeking different standards of liability in the first instance. As for punitive damages, however, in the absence of any persuasive argument to the contrary based on the policies of § 1983, we are content to adopt the policy judgment of the common law — that reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law, should be sufficient to trigger a jury’s consideration of the appropriateness of punitive damages. See Adickes v. S. H. Kress & Co., 398 U. S. 144, 233 (1970) (Brennan, J., concurring and dissenting).

IV

Smith contends that even if § 1983 does not ordinarily require a showing of actual malicious intent for an award of punitive damages, such a showing should be required in this case. He argues that the deterrent and punitive purposes of punitive damages are served only if the threshold, for punitive damages is higher in every case than the underlying standard for liability in the first instance. In this case, while the District Judge did not use the same precise terms to explain the standards of liability for compensatory and punitive damages, the parties agree that there is no substantial difference between the showings required by the two instructions; both apply a standard of reckless or callous indifference to Wade’s rights. Hence, Smith argues, the District Judge erred in not requiring a higher standard for punitive damages, namely, actual malicious intent.

This argument incorrectly assumes that, simply because the instructions specified the same threshold of liability for punitive and compensatory damages, the two forms of damages were equally available to the plaintiff. The argument overlooks a key feature of punitive damages — that they are never awarded as of right, no matter how egregious the defendant’s conduct. “If the plaintiff proves sufficiently serious misconduct on the defendant’s part, the question whether to award punitive damages is left to the jury, which may or may not make such an award.” D. Dobbs, Law of Remedies 204 (1973) (footnote omitted).¹⁴ Compensatory damages, by contrast, are mandatory; once liability is found, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintiff for his loss.¹⁵ Hence, it is not entirely accurate to say that punitive and compensatory damages were awarded in this, case on the same standard. To make its punitive award, the jury was required to find not only that Smith’s conduct met the recklessness threshold (a question of ultimate fact), but also that his conduct merited a punitive award of $5,000 in addition to the compensatory award (a discretionary moral judgment).

Moreover, the rules of ordinary tort law are once more against Smith’s argument. There has never been any general common-law rule that the threshold for punitive damages must always be higher than that for compensatory liability. On the contrary, both the First and Second Restatements of Torts have pointed out that “in torts like malicious prosecution that require a particular antisocial state of mind, the improper motive of the tortfeasor is both a necessary element in the cause of action and a reason for awarding punitive damages.”¹⁶ Accordingly, in situations where the standard for compensatory liability is as high as or higher than the usual threshold for punitive damages, most courts will permit awards of punitive damages without requiring any extra showing. Several courts have so held expressly.¹⁷ Many other courts, not directly addressing the congruence of compensatory and punitive thresholds, have held that punitive damages are available on the same showing of fault as is required by the underlying tort in, for example, intentional infliction of emotional distress,¹⁸ defamation of a public official or public figure,¹⁹ and defamation covered by a common-law qualified immunity.²⁰

This common-law rule makes sense in terms of the purposes of punitive damages. Punitive damages are awarded in the jury’s discretion “to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future.” Restatement (Second) of Torts § 908(1) (1979). The focus is on the character of the tortfeasor’s conduct — whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards. If it is of such a character, then it is appropriate to allow a jury to assess punitive damages; and that assessment does not become less appropriate simply because the plaintiff in the case faces a more demanding standard of actionability. To put it differently, society has an interest in deterring and punishing all intentional or reckless invasions of the rights of others, even though it sometimes chooses not to impose any liability for lesser degrees of fault.²¹

As with his first argument, Smith gives us no good reason to depart from the common-law rule in the context of § 1983. He argues that too low a standard of exposure to punitive damages in cases such as this threatens to undermine the policies of his qualified immunity as a prison guard. The same reasoning would apply with at least as much force to, for example, the First Amendment and common-law immunities involved in the defamation cases described above. In any case, Smith overstates the extent of his immunity. Smith is protected from liability for mere negligence because of the need to protect his use of discretion in his day-to-day decisions in the running of a correctional facility. See generally Procunier v. Navarette, 434 U. S. 555 (1978); Wood v. Strickland, 420 U. S. 308 (1975). But the immunity on which Smith relies is coextensive with the interest it protects.²² The very fact that the privilege is qualified reflects a recognition that there is no societal interest in protecting those uses of a prison guard’s discretion that amount to reckless or callous indifference to the rights and safety of the prisoners in his charge. Once the protected sphere of privilege is exceeded, we see no reason why state officers should not be liable for their reckless misconduct on the same basis as private tortfeasors.²³

V

We hold that a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. We further hold that this threshold applies even when the underlying standard of liability for compensatory damages is one of recklessness. Because the jury instructions in this case are in accord with this rule, the judgment of the Court of Appeals is

Affirmed.

1 Rev. Stat. § 1979, amended, 93 Stat. 1284. Section 1983 reads in relevant part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

2 Briscoe v. LaHue, 460 U. S. 325 (1983); Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981); Procunier v. Navarette, 434 U. S. 555 (1978); Imbler v. Pachtman, 424 U. S. 409 (1976); Wood v. Strickland, 420 U. S. 308 (1975); Scheuer v. Rhodes, 416 U. S. 232 (1974); Pierson v. Ray, 386 U. S. 547 (1967); Tenney v. Brandhove, 341 U. S. 367 (1951).

Justice Rehnquist’s dissent faults us for referring to modern tort decisions in construing § 1983. Its argument rests on the unstated and unsupported premise that Congress necessarily intended to freeze into permanent law whatever principles were current in 1871, rather than to incorporate applicable general legal principles as they evolve. Post, at 65-68; see also post, at 92-93 (O’Connor, J., dissenting). The dissents are correct, of course, that when the language of the section and its legislative history provide no clear answer, we have found useful guidance in the law prevailing at the time when § 1983 was enacted; but it does not follow that that law is absolutely controlling, or that current law is irrelevant. On the contrary, if the prevailing view on some point of general tort law had changed substantially in the intervening century (which is not the case here), we might be highly reluctant to assume that Congress intended to perpetuate a now-obsolete doctrine. See Carey v. Piphus, 435 U. S. 247, (1978) (“[O]ver the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well”) (footnote omitted); Adickes v. S. H. Kress & Co., 398 U. S. 144, 231-232 (1970) (Brennan, J., concurring and dissenting); Pierson, supra, at 555 (citing modern authority for “the prevailing view in this country’); Wood, supra, at 318-319, and n. 9; Tenney, supra, at 375, and n. 5. Indeed, in Imbler we recognized a common-law immunity that first came into existence 25 years after § 1983 was enacted, 424 U. S., at 421-422. Under the dissents’ view, Imbler was wrongly decided.

3 See, e. g., the cases cited in nn. 8 and 12, infra; Day v. Woodworth, 13 How. 363 (1852); Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 (1859); Milwaukee & St. Paul R. Co. v. Arms, 91 U. S. 489 (1876); Missouri Pacific R. Co. v. Humes, 115 U. S. 512 (1885); Barry v. Edmunds, 116 U. S. 550 (1886); Minneapolis & St. Louis R. Co. v. Beckwith, 129 U. S. 26 (1889); Scott v. Donald, 165 U. S. 58 (1897).

4 E. g., Nightingale v. Scannell, 18 Cal. 315, 324-326 (1861); Friend v. Hamill, 34 Md. 298, 314 (1871); Lynd v. Picket, 7 Minn. 184, 200-202 (1862); Parker v. Shackelford, 61 Mo. 68, 72 (1875); Rodgers v. Ferguson, 36 Tex. 544 (1871); see, e. g., Stinson v. Buisson, 17 La. 567, 572-573 (1841); Nagle v. Mullison, 34 Pa. 48 (1859); Von Storch v. Winslow, 13 R. I. 23, 24-25 (1880). Cf. Brewer v. Watson, 71 Ala. 299, 307 (1882). See also, e. g., Lane v. Yamamoto, 2 Haw. App. 176, 628 P. 2d 634 (1981); Wilson v. Eagan, 297 N. W. 2d 146, 148-150 (Minn. 1980).

5 In Newport v. Fact Concerts, Inc., supra, for example, we held that a municipality (as opposed to an individual defendant) is immune from liability for punitive damages under § 1983. A significant part of our reasoning was that deterrence of constitutional violations would be adequately accomplished by allowing punitive damages awards directly against the responsible individuals:

“Moreover, there is available a more effective means of deterrence. By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, the statute [§ 1983] directly advances the public’s interest in preventing repeated constitutional deprivations. In our view, this provides sufficient protection against the prospect that a public official may commit recurrent constitutional violations by reason of his office.” Id., at 269-270 (footnote omitted).

Similarly, in Carlson v. Green, 446 U. S. 14 (1980), we stated that punitive damages would be available in an action against federal officials directly under the Eighth Amendment, partly on the reasoning that since such damages are available under § 1983, it would be anomalous to allow punitive awards against state officers but not federal ones. Id., at 22, and n. 9. See also Adickes v. S. H. Kress & Co., supra, at 233 (Brennan, J., concurring and dissenting); Carey v. Piphus, supra, at 257, n. 11; Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 460 (1975) (punitive damages available under 42 U. S. C. § 1981).

Justice Rehnquist’s dissent, without squarely denying that punitive damages are available under § 1983, does its best to cast doubt on the proposition. It argues that the phrase “for redress” at the end of the section means that Congress intended to limit recovery to compensatory damages. Post, at 85; see n. 1, supra. This novel construction is strained; a more plausible reading of the statute is that the phrase “or other proper proceeding for redress” is simply an expansive alternative to the preceding phrases “action at law” and “suit in equity,” intended to avoid any unwanted technical limitations that might lurk in the other phrases.

Next Justice Rehnquist points to two other statutes enacted in 1863 and 1870 that provided expressly for punitive remedies. Post, at 85-86. Neither of these statutes enacted a punitive damages remedy as such, although they did create other forms of punitive civil remedies. The Act of March 2, 1863, § 3, 12 Stat. 698, created a civil fine for fraudulent military claims, apparently intended to stimulate suit by private attorneys general. The Act of July 8, 1870, § 59, 16 Stat. 207, was the treble damages provision of the revised patent code. These statutes do not support Justice Rehnquist’s speculation that Congress acted expressly when it intended to approve punitive damages, since both statutes created new remedies not available at common law; moreover, they undercut his argument that Congress was hostile to punitive civil remedies in favor of private parties.

Finally, Justice Rehnquist argues that Congress would not likely have approved “this often-condemned doctrine” in the 1871 Civil Rights Act. Post, at 84. This speculation is remarkable, to say the least, given that Congress did approve a punitive civil remedy in an 1870 Civil Rights Act. Act of May 31, 1870, § 2, 16 Stat. 140 (creating private cause of action for fixed penalty on behalf of persons suffering racial discrimination in voting registration). Cf. 1889 Colo. Sess. Laws 64 (enacting punitive damages statute, including awards for “wanton and reckless disregard,” five years after state court held against doctrine). At any rate, the punitive damages debate, though lively, was by no means one-sided. See, e. g., Missouri Pacific R. Co. v. Humes, supra, at 521-523; Linsley v. Bushnell, 15 Conn. 225, 235-237 (1842); Frink & Co. v. Coe, 4 Greene 555, 559-560 (Iowa 1854); Chiles v. Drake, 59 Ky. 146, 152-153 (1859); Lynd v. Picket, supra, at 200-201; Taylor v. Grand Trunk R. Co., 48 N. H. 304, 320 (1869), overruled, Fay v. Parker, 53 N. H. 342 (1872); Mayer v. Frobe, 40 W. Va. 246, 22 S. E. 58 (1895); Cosgriff Brothers v. Miller, 10 Wyo. 190, 236-237, 68 P. 206, 216-217 (1902). See also Tillotson v. Cheetham, 3 Johns. 56, 63-64 (N. Y. 1808) (Kent, C. J.).

6 Smith uses the term “actual malice” to refer to the standard he would apply. While the term may be an appropriate one, we prefer not to use it, simply to avoid the confusion and ambiguity that surrounds the word “malice.” See n. 8, infra. Indeed, as Smith recognizes, this Court has used the very term “actual malice” in the defamation context to refer to a recklessness standard. Brief for Petitioner 8-9; see Cantrell v. Forest City Publishing Co., 419 U. S. 245, 251-252 (1974); New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964).

We note in passing that it appears quite uncertain whether even Justice Rehnquist’s dissent ultimately agrees with Smith’s view that “ill will, spite, or intent to injure” should be required to allow punitive damages awards. Justice Rehnquist consistently confuses, and attempts to blend together, the quite distinct concepts of intent to cause injury, on one hand, and subjective consciousness of risk of injury (or of unlawfulness) on the other. For instance, his dissent purports ,to base its analysis on the “fundamental distinction” between “wrongful motive, actual intention to inflict harm or intentional doing of an act known to be unlawful,” versus “very careless or negligent conduct,” post, at 60-61 (emphasis added). Yet in the same paragraph, the dissent inaccurately recharacterizes the first element of this distinction as “acts that are intentionally harmful,” requiring “inquiry into the actor’s subjective motive and purpose.” Post, at 63-64. Consciousness of consequences or of wrongdoing, of course, does not require injurious intent or motive; it is equally consistent with indifference toward or disregard for consequences. This confusion of standards continues throughout the opinion. Justice Rehnquist’s dissent frequently uses such phrases as “intent to injure” or “evil motive”; yet at several points it refers more broadly to “subjective mental state” or like phrases, and expressly includes consciousness (as opposed to intent) in its reasoning. Post, at 63, n. 3, 71-72, n. 7, 72-73. More telling, perhaps, is its citation of cases and treatises, which frequently and consistently includes authority supporting (at most) a consciousness requirement rather than the “actual intent” standard for which the opinion purports to argue elsewhere. See, e. g., post, at 76-77, n. 10, 78-84, n. 12.

If Justice Rehnquist does indeed mean to propose a standard reaching subjective consciousness as well as actual injurious intent, one wonders why the instructions given in this case, supra, at 33, do not meet his standard. It is hard to see how Smith could have disregarded or been indifferent to the danger to Wade unless he was subjectively conscious of that danger. If Justice Rehnquist stands by his “fundamental distinction” and his use of authority, then, he has no apparent reason to dissent from our judgment.

7 Indeed, the District Judge’s instruction on punitive damages in this case was drawn with only slight alteration from a standard jury instruction manual under Missouri state law. See Tr. 576-577; Tr. of Oral Arg. 9, 42-43.

8 This terminological difficulty seems to be responsible in some degree for the dissent’s error in asserting that intent was the majority rule in 1871, post, at 68-84. In particular, the dissent argues that “malice,” “wantonness,” and “willfulness” denoted actual ill will or intent to cause injury. See nn. 10, 12, infra; post, at 60-64, n. 3, 73, n. 8, 76-77, n. 10, 78-84, n. 12. See also n. 6, supra (dissent’s confusion of knowledge with intent); n. 9, infra (concerning “criminal indifference”). With regard to “malice,” the assumption is dubious at best; with regard to “wantonness” and “willfulness,” it is just plain wrong.

“Malice,” as used by courts and lawyers in the last century, was a hopelessly versatile and ambiguous term, carrying a broad spectrum of meanings. See generally, e. g., 2 J. Sutherland, Law of Damages § 394 (3d ed. J. Berryman, 1903); 25 Cyclopedia of Law and Procedure 1666-1669 (1907). As the dissent correctly states, post, at 60-64, n. 3, in some instances (especially when it was modified by terms such as “actual” or “express,” or in criminal law, where terms were generally more strictly construed than in civil law), it meant what the dissent says it meant — actual ill will, spite, or intent to injure. On the other extreme, in tort law, it was often used without modification to mean what was sometimes called “implied malice” — a purely fictional malice that was conclusively presumed to exist whenever a tort resulted from a voluntary act, even if no harm was intended. The term was sometimes, though not often, used in this fictional sense as a ground for punitive damages. E.g., Childers v. San Jose Mercury Printing & Publishing Co., 105 Cal. 284, 289, 38 P. 903, 904-905 (1894). In other cases it was explained to mean an intent to do the act that caused the injury, as opposed to intent to cause the injury itself. E. g., Goetz v. Ambs, 27 Mo. 28, 32-33 (1858). More commonly in the punitive damages context, the term meant something in between fictional malice and actual injurious intent — “that form of malice . . . where, without ‘deliberate mind’ or ‘formed design,’ the offender has been so grossly and recklessly negligent, so wantonly indifferent to another’s rights, that he should be required to pay damages in excess of mere compensation as a punishment and example.” Press Pub. Co. v. McDonald, 68 F. 288, 246 (CA2 1894). Accord, e. g., Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202, 214 (1859); South & N. A. R. Co. v. McLendon, 63 Ala. 266, 273-275 (1879); Yerian v. Linkletter, 80 Cal. 135, 138, 22 P. 70, 71 (1889) (Paterson, J., concurring); Cameron v. Bryan, 89 Iowa 214, 219, 56 N. W. 434 (1893); Lynd v. Picket, 7 Minn., at 200-202.

There was considerably less ambiguity or confusion concerning the meaning of “wantonness” in tort law:

“Wanton means reckless — without regard to the rights of others. . . . Wantonly means causelessly, without restraint, and in reckless disregard of the rights of others. Wantonness is defined as a licentious act of one man towards the person of another, without regard to his rights; it has also been defined as the conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure.” 30 American and English Encyclopedia of Law 2-4 (2d ed. 1905) (footnotes omitted).

The last sentence of that definition could have been written with this case in mind. See also, e. g., 40 Cyclopedia of Law and Procedure 292-295 (1912). The word was used with the same meaning in the punitive damages context. See, e. g., Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215, 224, 27 S. W. 66, 68 (1894); Welch v. Durand, 36 Conn. 182, 184-185 (1869); Southern Kansas R. Co. v. Rice, 38 Kan. 398, 403-404, 16 P. 817, 820 (1888).

Finally, “willfulness” did not mean intent to cause injury, but only voluntary action:

‘Wilful. . . generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this: that he knows what he is doing, and intends to do what he is doing, and is a free agent. And wilfully does not imply that an act done in that spirit was necessarily a malicious act. . . .” 30 American and English Encyclopedia of Law 529-530 (2d ed. 1905) (footnote omitted).

“Wilful neglect or negligence has been defined as that degree of neglect arising where there is a reckless indifference to the safety of human life, or an intentional failure to perform á manifest duty to the public, in the performance of which the public and the party injured had an interest.” Id., at 535 (footnote omitted).

See also, e. g., 40 Cyclopedia of Law and Procedure 944-947 (1912). Again, the punitive damages cases bear this reading out. Cameron, supra, at 219, 56 N. W., at 434; Goetz, supra, at 32-33; Chiles v. Drake, 59 Ky., at 152-155; Peoria Bridge Assn. v. Loomis, 20 Ill. 235, 251 (1858).

9 Justice Rehnquist’s dissent reads this statement as a requirement of actual intent, post, at 68-69. This misreading depends in part on the faulty assumption, see n. 8, supra, that “malice” always meant intent to injure (post, at 68) — a reading particularly inappropriate in light of the Court’s express definition of malice as including “criminal indifference.” As for the latter point, Justice Rehnquist reasons that the term “criminal indifference” must include an element of actual malicious intent. This surprising interpretation of the word “indifference” rests on the unstated and demonstrably false premise that intent to cause injury was always an element of crime. Not only were there crimes of recklessness or negligence (such as reckless homicide), but even crimes of intent commonly required only intent to do the criminal act (and, in some eases, knowledge that the injury would likely follow), rather than actual ill will or purpose to inflict an injury. See, e. g., 1 J. Bishop, Commentaries on Criminal Law §§ 313-322 (5th ed. 1872); J. May, Law of Crimes §§ 30, 31, 232, 233 (2d ed. J. Beale, 1893); see also, e. g., Model Penal Code §2.02 (Tent. Draft No. 4, 1955). The case law clearly illustrates that “criminal” did not mean “with injurious intent” in the punitive damages context. E. g., Hopkins v. Atlantic & St. L. R. Co., 36 N. H. 9, 18-19 (1857), overruled on other grounds, Fay v. Parker, 53 N. H. 342 (1872); Brooke v. Clark, 57 Tex. 105, 112-114 (1880); Meibus v. Dodge, 38 Wis. 300, 310-311 (1875).

Justice Rehnquist also cites Day v. Woodworth, 13 How. 363, 371 (1852), in support of an actual-intent requirement. Post, at 70. The language used in that case (“wanton and malicious, or gross and outrageous”) was precisely the precedent that the Philadelphia Court was exegeting in the passage quoted in text, when it held that “malice” includes “criminal indifference.” Moreover, the Day case did not present any issue of punitive damages; the Court discussed them merely as a sidelight to the costs- and-fees issue presented.

10 As with Philadelphia, n. 9, supra, Justice Rehnquist’s dissent reads this case as imposing a requirement of actual malicious intent, on the assumption that when the Court said “indifference to consequences” it really meant “intent to cause consequences,” and when it said “recklessness” it really meant “bad motive or intent to injure.” Post, at 70-73. This textual alchemy is untenable. For one thing, Justice Rehnquist’s analysis of the ease reflects the confusion in his dissent of motive with consciousness, see n. 6, supra; post, at 71-72, n. 7. Moreover, the Milwaukee Court did not say, or come close to saying, that recklessness is identical to intent, or that it is material only as evidence of intent; rather, it said that recklessness is “equivalent” to intent, meaning that the two are equally culpable and deserving of punishment and deterrence. 91 U. S., at 493. This also explains the Court’s reference, two sentences later, to “evil motive,” ibid. Justice Rehnquist’s great reliance on this sentence confuses the standard for punitive damages with the rationale for them. Plainly, read in context, what the Court meant is that punitive damages are justified by the moral culpability of evil intent, or by the “equivalent” culpability of “reckless indifference to the rights of others.” See also Cowen v. Winters, 96 F. 929, 934-935 (CA6 1899); Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 80, 8 So. 90, 93 (1890); Memphis & C.R. Co. v. Whitfield, 44 Miss. 466, 494-495 (1870); Thirkfield v. Mountain View Cemetery Assn., 12 Utah 76, 82, 41 P. 564, 565 (1895). The contrary reading adopted by Justice Rehnquist’s dissent is flatly inconsistent with the Court’s reiteration of the rule, 91 U. S., at 495 (emphasis added): “that entire want of care which would raise the presumption of a conscious indifference to consequences.” Try as he might, Justice Rehnquist cannot transform indifference, conscious or otherwise, into intent.

Justice Rehnquist also relies on a four-sentence capsulization by the Reporter of Decisions of our unreported decision in Western Union Telegraph Co. v. Eyser, 91 U. S. 495, decided the same day. While the Reporter’s summary does speak of the absence of “intentional wrong,” id., at 496, the factual context suggests that the basis of decision was the jury instruction that ordinary negligence would warrant punitive damages, combined with the fact that the defendant had taken some affirmative (though insufficient) steps to avoid injury to passersby. Thus, in context, the reference to “intentional wrong” is entirely consistent with the Milwaukee decision’s test of “conscious indifference”; the defendant in Western Union was not indifferent to injury, but instead plainly intended to avoid injury.

11 In two other eases the Court reaffirmed the Philadelphia “criminal indifference” standard and the Milwaukee “reckless indifference” standard. Barry v. Edmunds, 116 U. S., at 563; Denver & R. G. R. Co. v. Harris, 122 U. S. 597, 609-610 (1887).

Justice Rehnquist’s dissent relies on two later decisions of this Court, neither of which supports it. Post, at 74-75. In Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101 (1893), the issue was whether a corporation could be liable in punitive damages for the tort of its employee. The Court, reasoning largely from general principles of respondeat superior, held that such vicarious liability could exist only when the employer had authorized or ratified the tort. In so doing, however, it expressly reaffirmed as “well settled” the general standard announced in the Philadelphia case, including liability for “criminal indifference.” 147 U. S., at 107. Justice Rehnquist cites a passage quoting from one state case suggesting an intent requirement, post, at 74, but he omits to mention the court’s extensive quotations from Philadelphia and Milwaukee, 147 U. S., at 112-113, and its express approval of and quotation from other state cases stating unequivocally that an employer can be liable for its own recklessness in hiring unfit employees, id., at 114-116. See also n. 9, supra. In Scott v. Donald, 165 U. S., at 71-90, the issue was whether there was a sufficient amount in controversy. The Court held that allegations of “intentional, malicious and repeated interference” with federally protected rights, id., at 89, were enough, if proved, to warrant punitive damages. The Court undertook no statement of a general standard for punitive damages beyond noting the unsurprising principle that such damages are awardable on proof of actual evil motive, id., at 86. Under the allegations, of course, no question of liability for less culpable conduct was presented.

12 In the often-cited case of Welch v. Durand, 36 Conn. 182 (1869), for example, the court held that punitive damages were proper where the defendant’s pistol bullet, fired at a target, ricocheted and hit the plaintiff:

“In what cases then may smart money be awarded in addition to the damages? The proper answer to this question . . . seems to be, in actions of tort founded on the malicious or wanton misconduct or culpable neglect of the defendant. . . .

“In this case the defendant was guilty of wanton misconduct and culpable neglect. ... It is an immaterial fact that the injury was unintentional, and that the ball glanced from the intended direction. . . . [I]f the act is done where there are objects from which the balls may glance and endanger others, the act is wanton, reckless, without due care, and grossly negligent.” Id., at 185.

In Frink & Co. v. Coe, 4 Greene 555 (Iowa 1854), punitive damages were awarded against a stage company for employing a known drunkard as a driver, the court saying:

“In a case of gross negligence on the part of a stage proprietor, such as the employment of a known drunken driver, and where a passenger has been injured in consequence of such negligence, we think exemplary damages should be entertained.

“If a stage proprietor or carrier is guilty of gross negligence, it amounts to that kind of gross misconduct which will justify a jury in giving exemplary damages, even where an ‘intent or design’ to do the injury does not appear.” Id., at 559 (emphasis in original).

Maysville & Lexington R. Co. v. Herrick, 76 Ky. 122 (1877), held that the trial court correctly refused to instruct the jury that “willful or intentional wrong” was required to award punitive damages in a railroad accident case, remarking:

“The absence of slight care in the management of a railroad train, or in keeping a railroad track in repair, is gross negligence; and to enable a passenger to recover punitive damages, in a case like this, it is not necessary to show the absence of all care, or ‘reckless indifference to the safety of. . . passengers,’ or ‘intentional misconduct’ on the part of the agents and officers of the company.” Id., at 127 (ellipsis in original).

Accord, e. g., Cowen v. Winters, 96 F., at 934-935; Press Pub. Co. v. McDonald, 63 F., at 245-247; Morning Journal Assn. v. Rutherford, 51 F. 513, 514-515 (CA2 1892); Fotheringham v. Adams Express Co., 36 F. 252, 253-254 (CC ED Mo. 1888); United States v. Taylor, 35 F. 484, 488 (CC SD Ala. 1888); Malloy v. Bennett, 15 F. 371, 373-374 (CC SDNY 1883); Berry v. Fletcher, 3 F. Cas. 286, 288 (No. 1,357) (CC Mo. 1870); Alabama G. S. R. Co. v. Arnold, 80 Ala. 600, 608, 2 So. 337, 342 (1886); Texarkana Gas & Electric Light Co. v. Orr, 59 Ark., at 224, 27 S. W., at 68; Dorsey v. Manlove, 14 Cal. 553, 555-556 (1860); Florida Railway & Navigation Co. v. Webster, 25 Fla. 394, 419-420, 5 So. 714, 719 (1889); Jacobus v. Congregation of Children of Israel, 107 Ga. 518, 521, 33 S. E. 853, 855 (1899); Drohn v. Brewer, 77 Ill. 280, 282-283 (1875); Citizens’ St. R. Co. v. Willoeby, 134 Ind. 563, 569-570, 33 N. E. 627, 629 (1893); Sawyer v. Sauer, 10 Kan. 466, 470 (1872); Goddard v. Grand Trunk R. Co., 57 Me. 202, 218 (1869); Lynd v. Picket, 7 Minn., at 200-202; Memphis & C. R. Co. v. Whitfield, 44 Miss., at 494-495, 500; Buckley v. Knapp, 48 Mo. 152, 161-162 (1871); Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, 296 (1872); Sullivan v. Oregon Railway & Navigation Co., 12 Ore. 392, 404-406, 7 P. 508, 517 (1885) (dictum); Lake Shore & M. S. R. Co. v. Rosenzweig, 113 Pa. 519, 543-544, 6 A. 545, 552-553 (1886); Hart v. Charlotte, C. &A. R. Co., 33 S. C. 427, 435-436, 12 S. E. 9, 10 (1890); Haley v. Mobile & O. R. Co., 66 Tenn. 239, 242-243 (1874); Brooke v. Clark, 57 Tex., at 112-114; Thirkfield v. Mountain View Cemetery Assn., 12 Utah, at 82, 41 P., at 564-565; Earl v. Tupper, 45 Vt. 275, 286-287 (1873) (dictum); Borland v. Barrett, 76 Va. 128, 132-134 (1882); Pickett v. Crook, 20 Wis. 358, 359 (1866); Union Pacific R. Co. v. Hause, 1 Wyo. 27, 35 (1871).

Justice Rehnquist’s assertion that a “solid majority of jurisdictions” required actual malicious intent, post, at 84, is simply untrue. In fact, there were fairly few jurisdictions that imposed such a requirement, and fewer yet that adhered to it consistently. Justice Rehnquist’s attempt to establish this proposition with case citations, post, at 78-84, n. 12, does not offer him substantial support. Because the point is not of controlling significance, see n. 2, supra, we will not tarry here to analyze his citations case-by-case or State-by-State, but will only summarize the main themes.

Several of Justice Rehnquist’s eases actually offer unequivocal support for the rule that punitive damages are available on a showing of negligence, recklessness, disregard for or indifference to the rights of others, and various other standards short of actual ill will or injurious intent. In this same vein, Justice Rehnquist continues to try to equate consciousness or knowledge with actual ill will or intent to injure, see n. 6, supra.

Other cases do not clearly support either Justice Rehnquist’s view or ours. Some of these contain contradictory language in their formulations, indicating that the present distinction perhaps did not occur to the writers. Others support Justice Rehnquist’s rule only if one makes the questionable assumption, see nn. 8, 9, supra, that terms like “malice,” “wantonness,” and “criminal” always meant actual intent to injure. Still others simply ruled on collateral questions (such as the admissibility of evidence of bad motive or of good faith) without purporting to state any general standard for punitive damages. Some were apparently limited to particular classes of torts. A comparison of this class of eases with those cited supra, this note, reveals that in many instances other decisions of the same courts clear up any ambiguity in favor of a recklessness or negligence standard.

A third class of cases are those in which the courts simply affirmed awards of punitive damages based on evidence of, or jury instructions requiring, actual malicious intent, without discussing whether a lesser showing might also be adequate. Often the cases in this category involved-assault and battery or similar torts, where the facts presented little problem of negligence or recklessness. See also n. 11, supra. As with the previous category, many of the same courts spoke more directly in other cases, making it clear that injurious intent was not required.

Finally, even of those comparatively few cases that do seem to support Justice Rehnquist’s view, many are of debatable authority. In nearly every State there was at least some late 19th-century authority supporting awards on less than ill will or intent to injure. Admittedly, in a few States this was the less accepted view, but in a substantial majority of jurisdictions the prevailing rule (as evidenced by the cases cited supra, this note, and numerous other eases not listed here) was that no such actual malicious intent was required.

13 Loch Ridge Construction Corp. v. Barra, 291 Ala. 312, 280 So. 2d 745 (1973); Sturm, Ruger & Co. v. Day, 594 P. 2d 38 (Alaska 1979), modified on other grounds, 615 P. 2d 621 (1980), and 627 P. 2d 204 (1981); Huggins v. Deinhard, 127 Ariz. 358, 621 P. 2d 45 (App. 1980); White v. Brock, 41 Colo. App. 156, 584 P. 2d 1224 (1978); Collens v. New Canaan Water Co., 155 Conn. 477, 234 A. 2d 825 (1967); Sheats v. Bowen, 318 F. Supp. 640 (Del.1970) (Delaware law); Spar v. Obwoya, 369 A. 2d 173 (D. C. 1977); Adams v. Whitfield, 290 So. 2d 49 (Fla. 1974); Randall v. Ganz, 96 Idaho 785, 537 P. 2d 65 (1975); Pendowski v. Patent Scaffolding Co., 89 Ill. App. 3d 484, 411 N. E. 2d 910 (1980), appeal denied (Ill. 1981); Meyer v. Nottger, 241 N. W. 2d 911 (Iowa 1976); Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P. 2d 254 (1976); Pettengill v. Turo, 159 Me. 350, 193 A. 2d 367 (1963); American Laundry Machine Industries v. Horan, 45 Md. App. 97, 412 A. 2d 407 (1980); Bailey v. Graves, 411 Mich. 510, 309 N. W. 2d 166 (1981); Huebsch v. Larson, 291 Minn. 361, 191 N. W. 2d 433 (1971); Mississippi Power Co. v. Jones, 369 So. 2d 1381 (Miss. 1979); Stenson v. Laclede Gas Co., 553 S. W. 2d 309 (Mo. App. 1977); Butcher v. Petranek, 181 Mont. 358, 593 P. 2d 743 (1979); Berg v. Reaction Motors Division, 37 N. J. 396, 181 A. 2d 487 (1962); Robison v. Katz, 94 N. M. 314, 610 P. 2d 201 (App.), cert. denied, 94 N. M. 675, 615 P. 2d 992 (1980); Soucy v. Greyhound Corp., 27 App. Div. 2d 112, 276 N. Y. S. 2d 173 (1967); Newton v. Standard Fire Insurance Co., 291 N. C. 105, 229 S. E. 2d 297 (1976); Dahlen v. Landis, 314 N. W. 2d 63 (N. D. 1981); Leichtamer v. American Motors Corp., 67 Ohio St. 2d 456, 424 N. E. 2d 568 (1981); Smith v. Johnston, 591 P. 2d 1260 (Okla. 1978); Focht v. Rabada, 217 Pa. Super. 35, 268 A. 2d 157 (1970); Sherman v. McDermott, 114 R. I. 107, 329 A. 2d 195 (1974); King v. Allstate Insurance Co., 272 S. C. 259, 251 S. E. 2d 194 (1979); Hannahs v. Noah, 83 S. D. 296, 158 N. W. 2d 678 (1968); Inland Container Corp. v. March, 529 S. W. 2d 43 (Tenn. 1975); Shortle v. Central Vermont Public Service Corp., 137 Vt. 32, 399 A. 2d 517 (1979); Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N. W. 2d 437 (1980).

14 See also, e. g., Restatement (Second) of Torts § 908, Comment d (1979); J. Ghiardi & J. Kircher, Punitive Damages Law and Practice § 5.38 (1981); C. McCormick, Law of Damages 296 (1935); W. Prosser, Law of Torts 13 (4th ed. 1971); K. Redden, Punitive Damages § 3.4(A) (1980); Chuy v. Philadelphia Eagles Football Club, 595 F. 2d 1265, 1277-1278, n. 15 (CA3 1979) (en banc).

15 The instructions in this case recognized this difference in treatment. The jury was instructed:

“If you find the issues in favor of the plaintiff, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the conduct of the defendants ....

“In addition to actual damages, the law permits the jury, under certain circumstances, to award the injured person punitive and exemplary damages ....

“If you find the issues in favor of the plaintiff, and if the conduct of one or more of the defendants is shown to be a reckless or callous disregard of, or indifference to, the rights or safety of others, then you may assess punitive or exemplary damages in addition to any award of actual damages.” Tr. 642-643 (emphasis added).

16 Restatement of Torts § 908, Comment c (1939); Restatement (Second) of Torts § 908, Comment c (1979).

Although there is general agreement with the broad principle of § 908, Comment c, there is authority suggesting that the tort of malicious prosecution may have been a poorly chosen illustration of it. See, e. g., Adams v. Whitfield, 290 So. 2d 49 (Fla. 1974); Jordan v. Sauve, 219 Va. 448, 247 S. E. 2d 739 (1978).

17 Huggins v. Deinhard, 127 Ariz., at 359-360, 621 P. 2d, at 46-47; Fletcher v. Western National Life Insurance Co., 10 Cal. App. 3d 376, 404, 89 Cal. Rptr. 78, 95 (1970); Sere v. Group Hospitalization, Inc., 443 A. 2d 33, 37-38 (D. C. 1982); Meyer v. Nottger, 241 N. W. 2d, at 922; Newton v. Standard Fire Insurance Co., 291 N. C., at 112, 229 S. E. 2d, at 301-302 (dictum); Hall v. May Department Stores Co., 292 Ore. 131, 144-145, 637 P. 2d 126, 134-135 (1981); Chuy v. Philadelphia Eagles Football Club, supra, at 1276-1278 (CA3 1979) (en banc) (Pennsylvania law); Johnson v. Woman’s Hospital, 527 S. W. 2d 133, 141-142 (Tenn. App.), cert. denied (Tenn. 1975).

18 See, e. g., Fletcher v. Western National Life Insurance Co., supra; Sere v. Group Hospitalization, Inc., supra; Cape Publications, Inc. v. Bridges, 387 So. 2d 436 (Fla. App. 1980); Meyer v. Nottger, supra; Hall v. May Department Stores Co., supra; Chuy v. Philadelphia Eagles Football Club, supra (en banc) (Pennsylvania law). See also Johnson v. Woman’s Hospital, supra (tort of outrageous conduct). Contra, Knierim v. Izzo, 22 Ill. 2d 73, 174 N. E. 2d 157 (1961).

19 See, e. g., Davis v. Schuchat, 166 U. S. App. D. C. 351, 510 F. 2d 731 (1975) (District of Columbia law); Fopay v. Noveroske, 31 Ill. App. 3d 182, 334 N. E. 2d 79 (1975); Goldwater v. Ginzburg, 414 F. 2d 324 (CA2 1969) (New York law); Sprouse v. Clay Communication, Inc., 158 W. Va. 427, 211 S. E. 2d 674 (1975) (dictum). See also Cape Publications, Inc. v. Bridges, supra (false light).

In citing the cases in this footnote and in n. 20, infra, we intimate no view on any First Amendment issues they may raise.

20 E. g., Pirre v. Printing Developments, Inc., 468 F. Supp. 1028 (SDNY) (Connecticut and New York law), affirmance order, 614 F. 2d 1290 (CA2 1979); Weenig v. Wood, 169 Ind. App. 413, 349 N. E. 2d 235 (1976); Stuempges v. Parke, Davis & Co., 297 N. W. 2d 252 (Minn. 1980); Snodgrass v. Headco Industries, Inc., 640 S. W. 2d 147 (Mo. App. 1982); Miller v. Lear Siegler, Inc., 525 F. Supp. 46 (Kan. 1981) (Oklahoma law). See also n. 19, supra.

21 “Moreover, after Carey punitive damages may be the only significant remedy available in some § 1983 actions where constitutional rights are maliciously violated but the victim cannot prove compensable injury.” Carlson, 446 U. S., at 22, n. 9.

22 As we noted supra, at 33-34, Smith does not challenge the instruction on qualified immunity. We therefore assume for purposes of this case that the instruction was correct. See generally, e. g., Procunier v. Navarette, 434 U. S. 555 (1978).

23 We reject Justice Rehnquist’s argument, post, at 92, that it somehow makes a difference that this suit was brought in federal court — as though it were inappropriate or unseemly that federal courts dare to enforce federal rights vigorously. Indeed, one wonders whether Justice Rehnquist would complain as loudly if this § 1983 suit had been brought in state court, as it could have been. Although Justice Rehnquist casts his argument as an attack on meddling by federal courts, the true thrust of his complaint seems to be against federal law — i. e., the Civil Rights Act of 1871. We have explained at length why we think that the policies of that statute call for our holding today.