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# Malley v. Briggs
Instructional note: Harlow v. Fitzgerald has been referenced in earlier cases and will be referenced here as well. Expand this block to read it the summary of what is frequently referred to as the "Harlow standard" for immunity.
The issue in *Harlow* was the scope of immunity from personal liability of "senior aides and advisors of the President of the United States in a suit for damages based on their official acts.
Senior aides to President Nixon— Harlow and Butterfield— were accused of violating Fitzgerald’s constitutional rights by having him dismissed from the Air Force. Fitzgerald asserted that they conspired to remove him from his post in retaliation for his blowing the whistle on purchasing practices within the Air Force. The lower court and the appellate court denied summary judgment to the two aides and they appealed.
The United States Supreme Court granted certiorari to examine the issue of the type of immunity the two aides may possess as advisors to the president when acting in their official capacity. The Court ruled that the two aides performed discretionary functions and when governmental officials perform such actions they are entitled to qualified immunity as long as their conduct did not violate an individual’s constitutional rights.
At the time of *Harlow*, qualified immunity was commonly referred to as "good faith" immunity. At the time, good faith had both an objective and a subjective component. *Harlow* did away with the subjective component, and it clarified the objective component, which is discussed in the following paragraph (which made it a single-component standard; i.e., objective reasonableness).
When discussing qualified immunity ("good faith"), the court discussed what is called the "objective reasonable test":
> \[G]overnment officials performing **discretionary** functions, generally are shielded from liability for civil damages **insofar as their conduct does not violate clearly established statutory or constitutional rights** of which a **reasonable person would have known.** (Emphasis added.)\
> \[However, **if] the law was clearly established**, the immunity defense ordinarily should fail, since **a reasonably competent public official should know the law governing his conduct**.
***
[475 U.S. 335](https://www.courtlistener.com/opinion/111611/malley-v-briggs/?type=o\&q=\&type=o\&order_by=score%20desc\&stat_Precedential=on\&citation=475%20U.S.%20335) (1986)
Supreme Court of United States
**Malley et al.**\
**v.**\
**Briggs et al.**
JUSTICE WHITE delivered the opinion of the Court.
This case presents the question of the degree of immunity accorded a defendant police officer in a damages action under 42 U.S. C. § 1983 when it is alleged that the officer caused the plaintiffs to be unconstitutionally arrested by presenting a judge with a complaint and a supporting affidavit which failed to establish probable cause.
## I
In December 1980, the Rhode Island State Police were conducting a court-authorized wiretap on the telephone of one Paul Driscoll, an acquaintance of respondents' daughter. On December 20, the police intercepted a call to Driscoll from an unknown individual who identified himself as "Dr. Shogun." The police logsheet summarizes the call as follows: "General conversation re. a party they went to last night \[...] caller says I can't believe I was \[taken] in front of Jimmy Briggs—caller states he passed it to Louisa \[...] Paul says Nancy was sitting in his lap rolling her thing." \[...]
Petitioner Edward Malley (hereafter petitioner) was the Rhode Island state trooper in charge of the investigation of Driscoll. After reviewing the logsheet for December 20, petitioner decided that the call from "Dr. Shogun" was incriminating, because in drug parlance "toking" means smoking marihuana and "rolling her thing" refers to rolling a marihuana cigarette. Petitioner also concluded that another call monitored the same day showed that the party discussed by Driscoll and "Dr. Shogun" took place at respondents' house. On the basis of these two calls, petitioner drew up felony complaints charging that respondents and Paul Driscoll "did unlawfully conspire to violate the uniform controlled substance act of the State of Rhode Island by having \[marihuana] in their possession \[...]." \[...]
These complaints were presented to a State District Court Judge in February 1981, after the wiretap of Driscoll's phone had been terminated. Accompanying the complaints were unsigned warrants for each respondent's arrest and supporting affidavits describing the two intercepted calls and petitioner's interpretation of them. The judge signed warrants for the arrest of respondents and 20 other individuals charged by petitioner as a result of information gathered through the wiretap.
Respondents were arrested at their home shortly before six o'clock on the morning of March 19, 1981. They were taken to a police station, booked, held for several hours, arraigned, and released. Local and statewide newspapers published the fact that respondents, who are prominent members of their community, had been arrested and charged with drug possession. The charges against respondents were subsequently dropped when the grand jury to which the case was presented did not return an indictment.
Respondents brought an action under 42 U.S. C. § 1983 in the United States District Court for the District of Rhode Island charging, [*inter alia*](#user-content-fn-1)[^1]*,* that petitioner, in applying for warrants for their arrest, violated their rights under the Fourth and Fourteenth Amendments. The case was tried to a jury, and at the close of respondents' evidence, petitioner moved for and was granted a \[directed verdict]1(#user-content-fn-2). The District Court's primary justification for directing a verdict was that the act of the judge in issuing the arrest warrants for respondents broke the causal chain between petitioner's filing of a complaint and respondents' arrest. The court also stated that an officer who believes that the facts stated in his affidavit are true and who submits them to a neutral magistrate may thereby be entitled to immunity under the "objective reasonableness" standard of *Harlow* v. *Fitzgerald,* [457 U.S. 800 ](https://www.courtlistener.com/opinion/110763/harlow-v-fitzgerald/)(1982).
The United States Court of Appeals for the First Circuit reversed, holding that an officer who seeks an arrest warrant by submitting a complaint and supporting affidavit to a judge is not entitled to immunity unless the officer has an objectively reasonable basis for believing that the facts alleged in his affidavit are sufficient to establish probable cause. ... We granted certiorari in order to review the First Circuit's application of the "objective reasonableness" standard in this context. ... We affirm.
## II
Petitioner urges reversal on two grounds: first, that in this context, he is absolutely immune from liability for damages; second, that he is at least entitled to qualified immunity in this case. We reject both propositions and address first the absolute immunity issue.
### A
\[...]
Our cases also make plain that "\[f]or executive officers in general, . . . qualified immunity represents the norm." *Harlow,* [*supra*](#user-content-fn-2)[^2]*,* at 807. Like federal officers, state officers who "seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope." *Butz* v. *Economou,* [438 U.S. 478](https://www.courtlistener.com/opinion/109932/butz-v-economou/), 506 (1978).
### B
\[...]
\[We are not] moved by petitioner's argument that policy considerations require absolute immunity for the officer applying for a warrant. As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law. At common law, in cases where probable cause to arrest was lacking, a complaining witness' immunity turned on the issue of malice, which was a jury question. Under the *Harlow* standard, on the other hand, an allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner. The *Harlow* standard is specifically designed to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment," and we believe it sufficiently serves this goal. Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.
### C
As an alternative ground for claiming absolute immunity, petitioner draws an analogy between an officer requesting a warrant and a prosecutor who asks a grand jury to indict a suspect. Like the prosecutor, petitioner argues, the officer must exercise a discretionary judgment based on the evidence before him, and like the prosecutor, the officer may not exercise his best judgment if the threat of retaliatory lawsuits hangs over him. Thus, petitioner urges us to read § 1983 as giving the officer the same absolute immunity enjoyed by the prosecutor. \[...]
We reemphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice, and that we are guided in interpreting Congress' intent by the common-law tradition. In [*Imbler*](https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/)*, ...* we concluded that at common law "\[t]he general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution." We do not find a comparable tradition of absolute immunity for one whose complaint causes a warrant to issue. \[...] While this observation may seem unresponsive to petitioner's policy argument, it is, we believe, an important guide to interpreting § 1983. Since the statute on its face does not provide for *any* immunities, we would be going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871.
Even were we to overlook the fact that petitioner is inviting us to expand what was a qualified immunity at common law into an absolute immunity, we would find his analogy between himself and a prosecutor untenable. We have interpreted § 1983 to give absolute immunity to functions "intimately associated with the judicial phase of the criminal process," [*Imbler*](https://www.courtlistener.com/opinion/109387/imbler-v-pachtman/)*,* \[...], not from an exaggerated esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself. We intend no disrespect to the officer applying for a warrant by observing that his action, while a vital part of the administration of criminal justice, is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment. Furthermore, petitioner's analogy, while it has some force, does not take account of the fact that the prosecutor's act in seeking an indictment is but the first step in the process of seeking a conviction. Exposing the prosecutor to liability for the initial phase of his prosecutorial work could interfere with his exercise of independent judgment at every phase of his work, since the prosecutor might come to see later decisions in terms of their effect on his potential liability. Thus, we shield the prosecutor seeking an indictment because any lesser immunity could impair the performance of a central actor in the judicial process.[\[5\]](#footnotes)
In the case of the officer applying for a warrant, it is our judgment that the judicial process will on the whole benefit from a rule of qualified rather than absolute immunity. We do not believe that the *Harlow* standard, which gives ample room for mistaken judgments, will frequently deter an officer from submitting an affidavit when probable cause to make an arrest is present. True, an officer who knows that objectively unreasonable decisions will be actionable may be motivated to reflect, before submitting a request for a warrant, upon whether he has a reasonable basis for believing that his affidavit establishes probable cause. But such reflection is desirable, because it reduces the likelihood that the officer's request for a warrant will be premature. Premature requests for warrants are at best a waste of judicial resources; at worst, they lead to premature arrests, which may injure the innocent or, by giving the basis for a suppression motion, benefit the guilty.
Furthermore, it would be incongruous to test police behavior by the "objective reasonableness" standard in a suppression hearing \[...] while exempting police conduct in applying for an arrest or search warrant from any scrutiny whatsoever in a § 1983 damages action.[\[6\]](#footnotes) While we believe the exclusionary rule serves a necessary purpose, it obviously does so at a considerable cost to society as a whole, because it excludes evidence probative of guilt. On the other hand, a damages remedy for an arrest following an objectively unreasonable request for a warrant imposes a cost directly on the officer responsible for the unreasonable request, without the side effect of hampering a criminal prosecution. Also, in the case of the § 1983 action, the likelihood is obviously greater than at the suppression hearing that the remedy is benefiting the victim of police misconduct one would think most deserving of a remedy—the person who in fact has done no wrong, and has been arrested for no reason, or a bad reason.\*
Accordingly, we hold that the same standard of objective reasonableness that we applied in the context of a suppression hearing in \[[*United States v.* *Leon*](https://scholar.google.com/scholar_case?case=12950573209015417232\&hl=en\&as_sdt=6,50)] defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest.[\[7\]](#footnotes) Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... the shield of immunity be lost.
### III
We also reject petitioner's argument that if an officer is entitled to only qualified immunity in cases like this, he is nevertheless shielded from damages liability because the act of applying for a warrant is *per se* objectively reasonable, provided that the officer believes that the facts alleged in his affidavit are true. Petitioner insists that he is entitled to rely on the judgment of a judicial officer in finding that probable cause exists and hence issuing the warrant. This view of objective reasonableness is at odds with our development of that concept in *Harlow* and *Leon.* In *Leon,* we stated that "our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." \[...] The analogous question in this case is whether a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.[\[8\]](#footnotes) If such was the case, the officer's application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest. It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment.[\[9\]](#footnotes)
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
***It is so ordered.***
***
#### Footnotes
***
Editorial Notes and Licensing
Editing to the original by Matthew L. Mac Kelly. Many of the court's original citations to authorities and other content may have been omitted for length and readability purposes. Many elisions of text are not identified, particularly string citations and original footnotes when not materially necessary to the purpose of this portion of the sourcebook. However, some elisions are identified by bracketed ellipses (e.g., \[...]).
Judicial decisions and annotations thereto by third parties are not subject to copyright protection and are in the public domain. *See, e.g., Georgia v. Public.Resource.Org, Inc*., [140 S. Ct. 1498](https://scholar.google.com/scholar_case?case=8288711378870515248\&q=Georgia+et+al.+v.+Public.Resource.Org,+Inc.\&hl=en\&as_sdt=6,50) (2020).
Note: Hyperlinks within this case are not original. Some of these hyperlinks (such as cases and footnotes) may direct you to an external publicly accessible display of the case. This is helpful for reference purposes, and no copyright is claimed here over a third party's hyperlinking choices and methodologies, if applicable.
Subject to limitations above, if any, this page is in the public domain. [CC0 1.0](https://creativecommons.org/publicdomain/zero/1.0/) 
[^1]: Latin for "among other things."
[^2]: A Latin term meaning "above". A word often used in legal writing to refer the reader to a portion that comes in earlier part of the document, case, or book. The opposite of [infra](https://www.law.cornell.edu/wex/infra).[\[\*\]](https://www.law.cornell.edu/wex/supra)
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