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universe of relevant decisions to the Court's opinions; and the Court has specifically referred to Court of Appeals decisions in defining the established scope of a constitutional right under § 241, see Anderson v. United States, 417 U. S. 211, 223-227, and in enquiring whether a right was "clearly established" when applying the qualified immunity rule under § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, see, e. g., Mitchell v. Forsyth, 472 U. S. 511, 533. Nor has this Court demanded precedents applying the right at issue to a "fundamentally similar" factual situation at the level of specificity meant by the Sixth Circuit. Rather, the Court has upheld convictions under § 241 or § 242 despite notable factual distinctions between prior cases and the later case, so long as the prior decisions gave reasonable warning that the conduct at issue violated constitutional rights. See, e. g., United States v. Guest, 383 U. S. 745, 759, n. 17. The Sixth Circuit's view that due process under § 242 demands more than the "clearly established" qualified immunity test under § 1983 or Bivens is error. In effect that test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes. As with official conduct under § 1983 or Bivens, liability may be imposed under § 242 if, but only if, in the light of pre-existing law the unlawfulness of the defendant's conduct is apparent. Pp. 264-272. 73 F. 3d 1380, vacated and remanded.
Souter, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Waxman argued the cause for the United States. On the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Paul R. Q. Wolfson, Jessica Dunsay Silver, and Thomas E. Chandler.
Alfred H. Knight, by appointment of the Court, 519 U. S. 804, argued the cause and filed a brief for respondent.*
*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Marjorie Heins and Steven R. Shapiro; for the NOW Legal Defense and Education Fund et al. by Lynn Hecht Schafran and Martha F. Davis; for the Southern Poverty Law Center et al. by Mary-Christine Sungaila, Gregory R. Smith, J. Richard Cohen, and Brian Levin; and for Vivian Forsythe-Archie et al. by Catharine A. MacKinnon.
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