Hope v. Pelzer, 536 U.S. 730, 11 (2002)

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Opinion of the Court

to "fair warning" that his conduct deprived his victim of a constitutional right, and that the standard for determining the adequacy of that warning was the same as the standard for determining whether a constitutional right was "clearly established" in civil litigation under 1983.10

In Lanier, the Court of Appeals had held that the indictment did not charge an offense under 242 because the constitutional right allegedly violated had not been identified in any earlier case involving a factual situation " 'fundamentally similar' " to the one in issue. Id., at 263 (citing United States v. Lanier, 73 F. 3d 1380, 1393 (CA6 1996)). The Court of Appeals had assumed that the defendant in a criminal case was entitled to a degree of notice " 'substantially higher than the "clearly established" standard used to judge qualified immunity' " in civil cases under 1983. 520 U. S., at 263. We reversed, explaining that the "fair warning" requirement is identical under 242 and the qualified immunity standard. We pointed out that we had "upheld convictions under 241 or 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Id., at 269. We explained:

"This is not to say, of course, that the single warning standard points to a single level of specificity sufficient in every instance. In some circumstances, as when an

10 "[T]he object of the 'clearly established' immunity standard is not different from that of 'fair warning' as it relates to law 'made specific' for the purpose of validly applying 242. The fact that one has a civil and the other a criminal law role is of no significance; both serve the same objective, and in effect the qualified immunity 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. To require something clearer than 'clearly established' would, then, call for something beyond 'fair warning.' " 520 U. S., at 270-271.

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