MITCHELL V. FORSYTH, 472 U. S. 511 (1985)

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U.S. Supreme Court

Mitchell v. Forsyth, 472 U.S. 511 (1985)

Mitchell v. Forsyth

No. 84-335

Argued February 27, 1985

Decided June 19, 1985

472 U.S. 511


In 1970, petitioner, who was then the Attorney General, authorized a warrantless wiretap for the purpose of gathering intelligence regarding the activities of a radical group that had made tentative plans to take actions threatening the Nation's security. During the time the wiretap was installed, the Government intercepted three conversations between a member of the group and respondent. Thereafter, this Court in United States v. United States District Court, 407 U. S. 297 (Keith), ruled that the Fourth Amendment does not permit warrantless wiretaps in cases involving domestic threats to the national security. Respondent then filed a damages action in Federal District Court against petitioner and others, alleging that the surveillance to which he had been subjected violated the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act. Ultimately, the District Court, granting respondent's motion for summary judgment on the issue of liability, held that petitioner was not entitled to either absolute or qualified immunity. The Court of Appeals agreed with the denial of absolute immunity, but held, with respect to the denial of qualified immunity, that the District Court's order was not appealable under the collateral order doctrine.


1. Petitioner is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions. His status as a Cabinet officer is not in itself sufficient to invest him with absolute immunity. The considerations of separation of powers that call for absolute immunity for state and federal legislators and for the President do not demand a similar immunity for Cabinet officers or other high executive officials. Nor does the nature of the Attorney General's national security functions -- as opposed to his prosecutorial functions -- warrant absolute immunity. Petitioner points to no historical or common law basis for absolute immunity for officers carrying out tasks essential to national security, such as pertains to absolute immunity for judges, prosecutors, and witnesses. The performance of national security functions does not subject an official to the same risks of entanglement in vexatious litigation as does the carrying out of the judicial or "quasijudicial" tasks that have been the primary wellsprings of absolute immunities. And the danger that high federal officials will disregard constitutional rights in their zeal to protect the

Page 472 U. S. 512

national security is sufficiently real to counsel against affording such officials an absolute immunity. Pp. 472 U. S. 520-524.

2. The District Court's denial of qualified immunity, to the extent it turned on a question of law, is an appealable "final decision" within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment. Qualified immunity, similar to absolute immunity, is an entitlement not to stand trial under certain circumstances. Such entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lot if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of the denial of absolute immunity indicates that the denial of qualified immunity should be similarly appealable under the "collateral order" doctrine; in each case, the district court's decision is effectively unreviewable on appeal from a final judgment. The denial of qualified immunity also meets the additional criteria for an appealable interlocutory order: it conclusively determines the disputed question, and it involves a claim of rights separable from, and collateral to, rights asserted in the action. Pp. 472 U. S. 524-530.

3. Petitioner is entitled to qualified immunity from suit for his authorization of the wiretap in question notwithstanding his actions violated the Fourth Amendment. Under Harlow v. Fitzgerald, 457 U. S. 800, petitioner is immune unless his actions violated clearly established law. In 1970, when the wiretap took place, well over a year before Keith, supra, was decided, it was not clearly established that such a wiretap was unconstitutional. Pp. 472 U. S. 530-535.

729 F.2d 267, affirmed in part and reversed in part.

WHITE, J., delivered the opinion of the Court, in which BLACKMUN, J., joined; in Parts I, III, and IV of which BURGER, C.J.,and O'CONNOR, J., joined; and in Parts I and II of which BRENNAN and MARSHALL, JJ., joined. BURGER, C.J.,filed an opinion concurring in part, post, p. 472 U. S. 536. O'CONNOR, J., filed an opinion concurring in part, in which BURGER, C.J.,joined, post, p. 472 U. S. 537. STEVENS, J., filed an opinion concurring in the judgment, post p. 472 U. S. 538. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 472 U. S. 543. POWELL, J., took no part in the decision of the case. REHNQUIST, J., took no part in the consideration or decision of the case.

Page 472 U. S. 513

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