612
Scalia, J., dissenting
immunities for the statute we have invented—rather than applying the common law embodied in the statute that Congress wrote. My preference is, in undiluted form, the approach suggested by Judge Silberman's concurring opinion in the Court of Appeals: extending the "objective reasonableness" test of Harlow v. Fitzgerald, 457 U. S. 800 (1982), to qualified immunity insofar as it relates to intent-based constitutional torts.
The Chief Justice's opinion sets forth a test that is "along the lines suggested by Judge Silberman," ante, at 602, but that differs in a significant respect: It would allow the introduction of "objective evidence" that the constitutionally valid reason offered for the complained-of action "is actually a pretext." Ibid. This would consist, presumably, of objective evidence regarding the state official's subjective intent—for example, remarks showing that he had a partisan-political animus against the plaintiff. The admission of such evidence produces a less subjective-free immunity than the one established by Harlow. Under that case, once the trial court finds that the constitutional right was not well established, it will not admit any "objective evidence" that the defendant knew he was violating the Constitution. The test I favor would apply a similar rule here: once the trial court finds that the asserted grounds for the official action were objectively valid (e. g., the person fired for alleged incompetence was indeed incompetent), it would not admit any proof that something other than those reasonable grounds was the genuine motive (e. g., the incompetent person fired was a Republican). This is of course a more severe restriction upon "intent-based" constitutional torts; I am less put off by that consequence than some may be, since I believe that no "intent-based" constitutional tort would have been actionable under the § 1983 that Congress enacted.
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