606
Rehnquist, C. J., dissenting
The Court's interpretation of Harlow does not differ from mine. See ante, at 588 ("Under [the Harlow] standard, a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense"). The Court does not, however, carry the Harlow principles to their logical extension. Its failure to discuss the issue explicitly makes it difficult to understand exactly why it rejects my position, but there appear to be two possibilities.
First, the Court appears concerned that an extension of Harlow qualified immunity to motive-based torts will mean that some meritorious claims will go unredressed. Ante, at 591 ("Social costs that adequately justified the elimination of the subjective component of an affirmative defense do not necessarily justify serious limitations upon 'the only realistic' remedy for the violation of constitutional guarantees"). This is perhaps true, but it is not a sufficient reason to refuse to apply the doctrine. Every time a privilege is created or an immunity extended, it is understood that some meritorious claims will be dismissed that otherwise would have been heard. Courts and legislatures craft these immunities because it is thought that the societal benefit they confer outweighs whatever cost they create in terms of unremedied meritorious claims. In crafting our qualified immunity doctrine, we have always considered the public policy implications of our decisions. See, e. g., Wyatt v. Cole, 504 U. S. 158, 167 (1992).
In considering those implications here, it is desirable to reflect on the subspecies of First Amendment claims which we address in this case. Respondent Britton is a District of Columbia corrections officer; petitioner Crawford-El is a District of Columbia prisoner who was transferred from Spokane, Washington, to Marianna, Florida, with intermediate stops along the way. The action of Britton's that gave rise to this lawsuit was asking Crawford-El's brother-in-law to
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