BRENNAN, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

457 U.S. 800

Harlow v. Fitzgerald

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring.

I agree with the substantive standard announced by the Court today, imposing liability when a public official defendant [p821] "knew or should have known" of the constitutionally violative effect of his actions. Ante at 815, 819. This standard would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not "reasonably have been expected" to know what he actually did know. Ante at 819, n. 33. Thus the clever and unusually well-informed violator of constitutional rights will not evade just punishment for his crimes. I also agree that this standard applies "across the board," to all "government officials performing discretionary functions." Ante at 818. I write separately only to note that, given this standard, it seems inescapable to me that some measure of discovery may sometimes be required to determine exactly what a public official defendant did "know" at the time of his actions. In this respect, the issue before us is very similar to that addressed in Herbert v. Lando, 441 U.S. 153 (1979), in which the Court observed that

[t]o erect an impenetrable barrier to the plaintiff's use of such evidence on his side of the case is a matter of some substance, particularly when defendants themselves are prone to assert their goo[d f]aith. . . .

Id. at 170. Of course, as the Court has already noted, ante at 818-819, summary judgment will be readily available to public official defendants whenever the state of the law was so ambiguous at the time of the alleged violation that it could not have been "known" then, and thus liability could not ensue. In my view, summary judgment will also be readily available whenever the plaintiff cannot prove, as a threshold matter, that a violation of his constitutional rights actually occurred. I see no reason why discovery of defendants' "knowledge" should not be deferred by the trial judge pending decision of any motion of defendants for summary judgment on grounds such as these. Cf. Herbert v. Lando, supra, at 180, n. 4 (POWELL, J., concurring).