SMITH v. WADE

JUSTICE BRENNAN delivered the opinion of the Court.

We granted certiorari in this case, 456 U.S. 924 (1982), to decide whether the District Court for the Western District of Missouri applied the correct legal standard in instructing the jury that it might award punitive damages under 42 U. S. C. § 1983 (1976 ed., Supp. V).1 The Court of Appeals for the Eighth Circuit sustained the award of punitive damages. Wade v. Haynes, 663 F.2d 778 (1981). We affirm.

I

The petitioner, William H. Smith, is a guard at Algoa Reformatory, a unit of the Missouri Division of Corrections for youthful first offenders. The respondent, Daniel R. Wade, was assigned to Algoa as an inmate in 1976. In the summer of 1976 Wade voluntarily checked into Algoa's protective custody unit. Because of disciplinary violations during his stay in protective custody, Wade was given a short term in punitive segregation and then transferred to administrative segregation. On the evening of Wade's first day in administrative segregation, he was placed in a cell with another inmate. Later, when Smith came on duty in Wade's dormitory, he placed a third inmate in Wade's cell. According to Wade's testimony, his cellmates harassed, beat, and sexually assaulted him.

Wade brought suit under 42 U. S. C. § 1983 against Smith and four other guards and correctional officials, alleging that his Eighth Amendment rights had been violated. At trial his evidence showed that he had placed himself in protective custody because of prior incidents of violence against him by other inmates. The third prisoner whom Smith added to the cell had been placed in administrative segregation for fighting. Smith had made no effort to find out whether another cell was available; in fact there was another cell in the same dormitory with only one occupant. Further, only a few weeks earlier, another inmate had been beaten to death in the same dormitory during the same shift, while Smith had been on duty. Wade asserted that Smith and the other defendants knew or should have known that an assault against him was likely under the circumstances.

During trial, the District Judge entered a directed verdict for two of the defendants. He instructed the jury that Wade could make out an Eighth Amendment violation only by showing "physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities." Tr. 639. Further, because of Smith's qualified immunity as a prison guard, see Procunier v. Navarette, 434 U.S. 555 (1978), the judge instructed the jury that Wade could recover only if the defendants were guilty of "gross negligence" (defined as "a callous indifference or a thoughtless disregard for the consequences of one's act or failure to act") or "[e]gregious failure to protect" (defined as "a flagrant or remarkably bad failure to protect") Wade. Tr. 641-642. He reiterated that Wade could not recover on a showing of simple negligence. Id., at 644.

The District Judge also charged the jury that it could award punitive damages on a proper showing:

The jury returned verdicts for two of the three remaining defendants. It found Smith liable, however, and awarded $25,000 in compensatory damages and $5,000 in punitive damages. The District Court entered judgment on the verdict, and the Court of Appeals affirmed. Wade v. Haynes, 663 F.2d 778 (1981).

In this Court, Smith attacks only the award of punitive damages. He does not challenge the correctness of the instructions on liability or qualified immunity, nor does he question the adequacy of the evidence to support the verdict of liability for compensatory damages.

II

Section 1983 is derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It was intended to create "a species of tort liability" in favor of persons deprived of federally secured rights. Carey v. Piphus, 435 U.S. 247, 253 (1978); Imbler v. Pachtman, 424 U.S. 409, 417 (1976). We noted in Carey that there was little in the section's legislative history concerning the damages recoverable for this tort liability, 435 U. S., at 255. In the absence of more specific guidance, we looked first to the common law of torts (both modern and as of 1871), with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute. Id., at 253-264. We have done the same in other contexts arising under § 1983, especially the recurring problem of common-law immunities.2

Smith correctly concedes that "punitive damages are available in a `proper' § 1983 action . . . ." Carlson v. Green, 446 U.S. 14, 22 (1980); Brief for Petitioner 8. Although there was debate about the theoretical correctness of the punitive damages doctrine in the latter part of the last century, the doctrine was accepted as settled law by nearly all state and federal courts, including this Court.3 It was likewise generally established that individual public officers were liable for punitive damages for their misconduct on the same basis as other individual defendants.4 See also Scott v. Donald, 165 U.S. 58, 77-89 (1897) (punitive damages for constitutional tort). Further, although the precise issue of the availability of punitive damages under § 1983 has never come squarely before us, we have had occasion more than once to make clear our view that they are available; indeed, we have rested decisions on related questions on the premise of such availability.5

Smith argues, nonetheless, that this was not a "proper" case in which to award punitive damages. More particularly, he attacks the instruction that punitive damages could be awarded on a finding of reckless or callous disregard of or indifference to Wade's rights or safety. Instead, he contends that the proper test is one of actual malicious intent — "ill will, spite, or intent to injure."6 Brief for Petitioner 9. He offers two arguments for this position: first, that actual intent is the proper standard for punitive damages in all cases under § 1983; and second, that even if intent is not always required, it should be required here because the threshold for punitive damages should always be higher than that for liability in the first instance. We address these in turn.

III

Smith does not argue that the common law, either in 1871 or now, required or requires a showing of actual malicious intent for recovery of punitive damages. See Tr. of Oral Arg. 5-6, 9.7

Perhaps not surprisingly, there was significant variation (both terminological and substantive) among American jurisdictions in the latter 19th century on the precise standard to be applied in awarding punitive damages — variation that was exacerbated by the ambiguity and slipperiness of such common terms as "malice" and "gross negligence."8 Most of the confusion, however, seems to have been over the degree of negligence, recklessness, carelessness, or culpable indifference that should be required — not over whether actual intent was essential. On the contrary, the rule in a large majority of jurisdictions was that punitive damages (also called exemplary damages, vindictive damages, or smart money) could be awarded without a showing of actual ill will, spite, or intent to injure.

This Court so stated on several occasions, before and shortly after 1871. In Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 (1859), a diversity libel suit, the Court held erroneous an instruction that authorized the jury to return a punitive award but gave the jury virtually no substantive guidance as to the proper threshold. We described the standard thus:

The Court further explained the standard for punitive damages in Milwaukee & St. Paul R. Co. v. Arms, 91 U.S. 489 (1876), a diversity railroad collision case:

The Court therefore held erroneous a jury instruction allowing a punitive award on "gross negligence"; it concluded that the latter term was too vague, and too likely to be confused with mere ordinary negligence, to provide a fair standard. It remanded for a new trial.10

Ten years later, the Court in dictum suggested that perhaps even gross negligence would suffice after all, at least in some cases:

See also Minneapolis & St. Louis R. Co. v. Beckwith, 129 U.S. 26, 34 (1889) ("culpable negligence").11

The large majority of state and lower federal courts were in agreement that punitive damages awards did not require a showing of actual malicious intent; they permitted punitive awards on variously stated standards of negligence, recklessness, or other culpable conduct short of actual malicious intent.12

The same rule applies today. The Restatement (Second) of Torts (1979), for example, states: "Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." § 908(2) (emphasis added); see also id., Comment b. Most cases under state common law, although varying in their precise terminology, have adopted more or less the same rule, recognizing that punitive damages in tort cases may be awarded not only for actual intent to injure or evil motive, but also for recklessness, serious indifference to or disregard for the rights of others, or even gross negligence.13

The remaining question is whether the policies and purposes of § 1983 itself require a departure from the rules of tort common law. As a general matter, we discern no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action. Smith offers us no persuasive reason to the contrary.

Smith's argument, which he offers in several forms, is that an actual-intent standard is preferable to a recklessness standard because it is less vague. He points out that punitive damages, by their very nature, are not awarded to compensate the injured party. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267 (1981); Electrical Workers v. Foust, 442 U.S. 42, 48 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-350 (1974). He concedes, of course, that deterrence of future egregious conduct is a primary purpose of both § 1983, see Newport, supra, at 268; Owen v. City of Independence, 445 U.S. 622, 651 (1980); Robertson v. Wegmann, 436 U.S. 584, 591 (1978), and of punitive damages, see Newport, supra, at 268; Restatement (Second) of Torts § 908(1) (1979). But deterrence, he contends, cannot be achieved unless the standard of conduct sought to be deterred is stated with sufficient clarity to enable potential defendants to conform to the law and to avoid the proposed sanction. Recklessness or callous indifference, he argues, is too uncertain a standard to achieve deterrence rationally and fairly. A prison guard, for example, can be expected to know whether he is acting with actual ill will or intent to injure, but not whether he is being reckless or callously indifferent.

Smith's argument, if valid, would apply to ordinary tort cases as easily as to § 1983 suits; hence, it hardly presents an argument for adopting a different rule under § 1983. In any event, the argument is unpersuasive. While, arguendo, an intent standard may be easier to understand and apply to particular situations than a recklessness standard, we are not persuaded that a recklessness standard is too vague to be fair or useful. In the Milwaukee case, 91 U.S. 489 (1876), we adopted a recklessness standard rather than a gross negligence standard precisely because recklessness would better serve the need for adequate clarity and fair application. Almost a century later, in the First Amendment context, we held that punitive damages cannot be assessed for defamation in the absence of proof of "knowledge of falsity or reckless disregard for the truth." Gertz, 418 U. S., at 349. Our concern in Gertz was that the threat of punitive damages, if not limited to especially egregious cases, might "inhibit the vigorous exercise of First Amendment freedoms," ibid. — a concern at least as pressing as any urged by Smith in this case. Yet we did not find it necessary to impose an actual-intent standard there. Just as Smith has not shown why § 1983 should give higher protection from punitive damages than ordinary tort law, he has not explained why it gives higher protection than we have demanded under the First Amendment.

More fundamentally, Smith's argument for certainty in the interest of deterrence overlooks the distinction between a standard for punitive damages and a standard of liability in the first instance. Smith seems to assume that prison guards and other state officials look mainly to the standard for punitive damages in shaping their conduct. We question the premise; we assume, and hope, that most officials are guided primarily by the underlying standards of federal substantive law — both out of devotion to duty, and in the interest of avoiding liability for compensatory damages. At any rate, the conscientious officer who desires clear guidance on how to do his job and avoid lawsuits can and should look to the standard for actionability in the first instance. The need for exceptional clarity in the standard for punitive damages arises only if one assumes that there are substantial numbers of officers who will not be deterred by compensatory damages; only such officers will seek to guide their conduct by the punitive damages standard. The presence of such officers constitutes a powerful argument against raising the threshold for punitive damages.

In this case, the jury was instructed to apply a high standard of constitutional right ("physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities"). It was also instructed, under the principle of qualified immunity, that Smith could not be held liable at all unless he was guilty of "a callous indifference or a thoughtless disregard for the consequences of [his] act or failure to act," or of "a flagrant or remarkably bad failure to protect" Wade. These instructions are not challenged in this Court, nor were they challenged on grounds of vagueness in the lower courts. Smith's contention that this recklessness standard is too vague to provide clear guidance and reasonable deterrence might more properly be reserved for a challenge seeking different standards of liability in the first instance. As for punitive damages, however, in the absence of any persuasive argument to the contrary based on the policies of § 1983, we are content to adopt the policy judgment of the common law — that reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law, should be sufficient to trigger a jury's consideration of the appropriateness of punitive damages. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 233 (1970) (BRENNAN, J., concurring and dissenting).

IV

Smith contends that even if § 1983 does not ordinarily require a showing of actual malicious intent for an award of punitive damages, such a showing should be required in this case. He argues that the deterrent and punitive purposes of punitive damages are served only if the threshold for punitive damages is higher in every case than the underlying standard for liability in the first instance. In this case, while the District Judge did not use the same precise terms to explain the standards of liability for compensatory and punitive damages, the parties agree that there is no substantial difference between the showings required by the two instructions; both apply a standard of reckless or callous indifference to Wade's rights. Hence, Smith argues, the District Judge erred in not requiring a higher standard for punitive damages, namely, actual malicious intent.

This argument incorrectly assumes that, simply because the instructions specified the same threshold of liability for punitive and compensatory damages, the two forms of damages were equally available to the plaintiff. The argument overlooks a key feature of punitive damages — that they are never awarded as of right, no matter how egregious the defendant's conduct. "If the plaintiff proves sufficiently serious misconduct on the defendant's part, the question whether to award punitive damages is left to the jury, which may or may not make such an award." D. Dobbs, Law of Remedies 204 (1973) (footnote omitted).14 Compensatory damages, by contrast, are mandatory; once liability is found, the jury is required to award compensatory damages in an amount appropriate to compensate the plaintiff for his loss.15 Hence, it is not entirely accurate to say that punitive and compensatory damages were awarded in this case on the same standard. To make its punitive award, the jury was required to find not only that Smith's conduct met the recklessness threshold (a question of ultimate fact), but also that his conduct merited a punitive award of $5,000 in addition to the compensatory award (a discretionary moral judgment).

Moreover, the rules of ordinary tort law are once more against Smith's argument. There has never been any general common-law rule that the threshold for punitive damages must always be higher than that for compensatory liability. On the contrary, both the First and Second Restatements of Torts have pointed out that "in torts like malicious prosecution that require a particular antisocial state of mind, the improper motive of the tortfeasor is both a necessary element in the cause of action and a reason for awarding punitive damages."16 Accordingly, in situations where the standard for compensatory liability is as high as or higher than the usual threshold for punitive damages, most courts will permit awards of punitive damages without requiring any extra showing. Several courts have so held expressly.17 Many other courts, not directly addressing the congruence of compensatory and punitive thresholds, have held that punitive damages are available on the same showing of fault as is required by the underlying tort in, for example, intentional infliction of emotional distress,18 defamation of a public official or public figure,19 and defamation covered by a common-law qualified immunity.20

This common-law rule makes sense in terms of the purposes of punitive damages. Punitive damages are awarded in the jury's discretion "to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future." Restatement (Second) of Torts § 908(1) (1979). The focus is on the character of the tortfeasor's conduct — whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards. If it is of such a character, then it is appropriate to allow a jury to assess punitive damages; and that assessment does not become less appropriate simply because the plaintiff in the case faces a more demanding standard of actionability. To put it differently, society has an interest in deterring and punishing all intentional or reckless invasions of the rights of others, even though it sometimes chooses not to impose any liability for lesser degrees of fault.21

As with his first argument, Smith gives us no good reason to depart from the common-law rule in the context of § 1983. He argues that too low a standard of exposure to punitive damages in cases such as this threatens to undermine the policies of his qualified immunity as a prison guard. The same reasoning would apply with at least as much force to, for example, the First Amendment and common-law immunities involved in the defamation cases described above. In any case, Smith overstates the extent of his immunity. Smith is protected from liability for mere negligence because of the need to protect his use of discretion in his day-to-day decisions in the running of a correctional facility. See generally Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. Strickland, 420 U.S. 308 (1975). But the immunity on which Smith relies is coextensive with the interest it protects.22 The very fact that the privilege is qualified reflects a recognition that there is no societal interest in protecting those uses of a prison guard's discretion that amount to reckless or callous indifference to the rights and safety of the prisoners in his charge. Once the protected sphere of privilege is exceeded, we see no reason why state officers should not be liable for their reckless misconduct on the same basis as private tortfeasors.23

V

We hold that a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. We further hold that this threshold applies even when the underlying standard of liability for compensatory damages is one of recklessness. Because the jury instructions in this case are in accord with this rule, the judgment of the Court of Appeals is

Affirmed.

JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE POWELL join, dissenting.

This case requires us to determine what degree of culpability on the part of a defendant in an action under 42 U. S. C. § 1983 (1976 ed., Supp. V) will permit an award of punitive damages. The District Court instructed the jury that it could award punitive damages in favor of the plaintiff if it concluded that the defendant's conduct constituted "reckless or callous disregard of, or indifference to, the rights or safety of others." In my view, a forthright inquiry into the intent of the 42d Congress and a balanced consideration of the public policies at issue compel the conclusion that the proper standard for an award of punitive damages under § 1983 requires at least some degree of bad faith or improper motive on the part of the defendant.

The Court rejects a "wrongful intent" standard, instead requiring a plaintiff to show merely "reckless . . . indifference to the federally protected rights of others." The following justifications are offered by the Court for this result: first, the rule in "[m]ost cases [decided in the last 15 years] under state common law" is "more or less" equivalent to a recklessness standard; second, the Court asserts that a similar rule "prevail[ed] at the time when § 1983 was enacted"; and finally, there is an "absence of any persuasive argument" for not applying existing state tort rules to the federal statutory remedies available against state and local officials under § 1983. In my opinion none of these justifications, taken singly or together, supports the Court's result. First, the decisions of state courts in the last decade or so are all but irrelevant in determining the intent of the 42d Congress, and thus, the meaning of § 1983. Second, the Court's characterization of the common-law rules prevailing when § 1983 was enacted is both oversimplified and misleading; in fact, the majority rule in 1871 seems to have been that some sort of "evil intent" — and not mere recklessness — was necessary to justify an award of punitive damages. Third, the Court's inability to distinguish a state court's award of punitive damages against a state officer from a federal court's analogous action under §§ 1983 and 1988 precludes it from adequately assessing the public policies implicated by its decision. Finally, the Court fails utterly to grapple with the cogent and persuasive criticisms that have been offered of punitive damages generally.

I

Before examining these points, however, it is useful to consider briefly the purposes of punitive damages. A fundamental premise of our legal system is the notion that damages are awarded to compensate the victim — to redress the injuries that he or she actually has suffered. D. Dobbs, Law of Remedies § 3.1 (1973); C. McCormick, Law of Damages 1 (1935). In sharp contrast to this principle, the doctrine of punitive damages permits the award of "damages" beyond even the most generous and expansive conception of actual injury to the plaintiff. This anomaly is rationalized principally on three grounds. First, punitive damages "are assessed for the avowed purpose of visiting a punishment upon the defendant." Id., at 275 (emphasis added); Dobbs, supra, § 3.9, at 205; K. Redden, Punitive Damages § 2.1 (1980); Electrical Workers v. Foust, 442 U.S. 42, 48 (1979). Second, the doctrine is rationalized on the ground that it deters persons from violating the rights of others. Ibid. Third, punitive damages are justified as a "bounty" that encourages private lawsuits seeking to assert legal rights. Ibid.

Despite these attempted justifications, the doctrine of punitive damages has been vigorously criticized throughout the Nation's history. Countless cases remark that such damages have never been "a favorite of the law."1 The year after § 1983 was enacted, the New Hampshire Supreme Court declared: "The idea of [punitive damages] is wrong. It is a monstrous heresy. It is an unsightly and unhealthy excrescence, deforming the symmetry of the body of the law." Fay v. Parker, 53 N.H. 342, 382 (1872).2 Such remarks reflect a number of deeply held reservations regarding punitive damages, which can only be briefly summarized here.

Punitive damages are generally seen as a windfall to plaintiffs, who are entitled to receive full compensation for their injuries — but no more. Even assuming that a punitive "fine" should be imposed after a civil trial, the penalty should go to the State, not to the plaintiff — who by hypothesis is fully compensated. Moreover, although punitive damages are "quasi-criminal," Huber v. Teuber, 10 D. C. 484, 490 (1877), their imposition is unaccompanied by the types of safeguards present in criminal proceedings. This absence of safeguards is exacerbated by the fact that punitive damages are frequently based upon the caprice and prejudice of jurors. Walther & Plein, Punitive Damages: A Critical Analysis, 49 Marq. L. Rev. 369 (1965). We observed in Electrical Workers v. Foust, supra, at 50-51, n. 14, that "punitive damages may be employed to punish unpopular defendants," and noted elsewhere that "juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused." Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). Finally, the alleged deterrence achieved by punitive damages awards is likely outweighed by the costs — such as the encouragement of unnecessary litigation and the chilling of desirable conduct — flowing from the rule, at least when the standards on which the awards are based are ill-defined. Long, Punitive Damages: An Unsettled Doctrine, 25 Drake L. Rev. 870 (1976).

Because of these considerations, a significant number of American jurisdictions refuse to condone punitive damages awards. See, e. g., Killibrew v. Abbott Laboratories, 359 So.2d 1275 (La. 1978); Burt v. Advertiser Newspaper Co., 154 Mass. 238, 28 N. E. 1 (1891) (Holmes, J.); Miller v. Kingsley, 194 Neb. 123, 124, 230 N.W.2d 472, 474 (1975); Vratsenes v. New Hampshire Auto, Inc., 112 N.H. 71, 73, 289 A.2d 66, 68 (1972); Pereira v. International Basic Economy Corp., 95 P. R. R. 28 (1967); Maki v. Aluminum Building Products, 73 Wn.2d 23, 25, 436 P.2d 186, 187 (1968). See also Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884) (no punitive damages at common law). Other jurisdictions limit the amount of punitive damages that may be awarded, for example, to the plaintiff's attorney's fees, see Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 222 A.2d 220 (1966), or otherwise, Riggs v. Fremont Insurance Co., 85 Mich.App. 203, 270 N.W.2d 654 (1978).

Nonetheless, a number of States do permit juries to award punitive damages in certain circumstances. Historically, however, there has been little uniformity among the standards applied in these States for determining on what basis a jury might award punitive damages. See, e. g., Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 1283, and n. 135 (1976); Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S. Cal. L. Rev. 1, 52-53 (1982) ("the law of punitive damages is characterized by a high degree of uncertainty that stems from the use of a multiplicity of vague, overlapping terms"); Duckett v. Pool, 34 S.C. 311, 325, 13 S. E. 542, 547 (1891); Lynd v. Picket, 7 Minn. 184, 200 (1862).

One fundamental distinction is essential to an understanding of the differences among the various standards for punitive damages. Many jurisdictions have required some sort of wrongful motive, actual intention to inflict harm or intentional doing of an act known to be unlawful — "express malice," "actual malice," "bad faith," "wilful wrong" or "ill will."3 Other States, however, have permitted punitive damages awards merely upon a showing of very careless or negligent conduct by the defendant — "gross negligence," "recklessness," or "extreme carelessness."4 In sharp contrast to the first set of terms noted above, which connote a requirement of actual ill will towards the plaintiff, these latter phrases import only a degree of negligence. This distinction between acts that are intentionally harmful and those that are very negligent, or unreasonable, involves a basic difference of kind, not just a variation of degree. W. Prosser, Law of Torts § 34, p. 185 (4th ed. 1971); Restatement (Second) of Torts § 500, Comment f (1965). The former typically demands inquiry into the actor's subjective motive and purpose, while the latter ordinarily requires only an objective determination of the relative risks and advantages accruing to society from particular behavior. See id., § 282.

The importance of this distinction is reflected in what one court, speaking not many years before the time § 1983 was enacted, said:

The Ohio court, applying this distinction, held that punitive damages could only be awarded where some "evil motive" was involved. Ibid. Oliver Wendell Holmes identified precisely the same distinction between intentionally injurious conduct and careless conduct:

It is illuminating to examine the Court's reasoning with this distinction in mind.

II

At bottom, this case requires the Court to decide when a particular remedy is available under § 1983. Until today, ante, at 34-35, n. 2, the Court has adhered, with some fidelity, to the scarcely controversial principle that its proper role in interpreting § 1983 is determining what the 42d Congress intended. That § 1983 is to be interpreted according to this basic principle of statutory construction, 2A C. Sands, Sutherland on Statutory Construction § 45.05 (4th ed. 1972), is clearly demonstrated by our many decisions relying upon the plain language of the section. See, e. g., Parratt v. Taylor, 451 U.S. 527, 534 (1981); Maine v. Thiboutot, 448 U.S. 1, 4 (1980); Owen v. City of Independence, 445 U.S. 622, 635 (1980). The Court's opinion purports to pursue an inquiry into legislative intent, yet relies heavily upon state-court decisions decided well after the 42d Congress adjourned, see ante, at 48, n. 13. I find these cases unilluminating, at least in part because I am unprepared to attribute to the 42d Congress the truly extraordinary foresight that the Court seems to think it had. The reason our earlier decisions interpreting § 1983 have relied upon common-law decisions is simple: Members of the 42d Congress were lawyers, familiar with the law of their time. In resolving ambiguities in the enactments of that Congress, as with other Congresses, it is useful to consider the legal principles and rules that shaped the thinking of its Members. The decisions of state courts decided well after 1871, while of some academic interest, are largely irrelevant to what Members of the 42d Congress intended by way of a standard for punitive damages.

In an apparent attempt to justify its novel approach to discerning the intent of a body that deliberated more than a century ago, the Court makes passing reference to our decisions relating to common-law immunities under § 1983. These decisions provide no support for the Court's analysis, since they all plainly evidence an attempt to discern the intent of the 42d Congress, albeit indirectly, by reference to the common-law principles known to Members of that body. In Tenney v. Brandhove, 341 U.S. 367 (1951), one of our earliest immunity decisions, we phrased the question whether legislators were immune from actions under § 1983 as follows:

More recently, in Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981), we said:

Likewise, our other decisions with respect to common-law immunities under § 1983 clearly reveal that our consideration of state common-law rules is only a device to facilitate determination of congressional intent.6 Decisions from the 1970's, relied on by the Court, are almost completely irrelevant to this inquiry into legislative intent.

III

The Court also purports to rely on decisions, handed down in the second half of the last century by this Court, in drawing up its rule that mere recklessness will support an award of punitive damages. In fact, these decisions unambiguously support an actual-malice standard. The Court rests primarily on Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 (1859), a diversity tort action against a railroad. There, we initially observed that in "certain actions of tort," punitive damages might be awarded, and then described those actions as "[w]henever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity." Id., at 214. As discussed previously, n. 3, supra, it was relatively clear at the time that "malice" required a showing of actual ill will or intent to injure. Perhaps foreseeing future efforts to expand the rule, however, we hastened to specify the type of malice that would warrant punitive damages: "the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations." 21 How., at 214 (emphasis added). It would have been difficult to have more clearly expressed the "actual malice" standard. We explicitly rejected an "implied malice" formulation, and then mandated inquiry into the "spirit" in which a defendant's act was "conceived."

The Court does not address the requirement, explicitly set forth in Quigley, that punitive damages depend on the spirit in which an act was conceived. Instead, focusing only on the words "criminal indifference," ante, at 41-42, n. 9, the Court suggests that the use of this phrase indicates that Quigley established no requirement of wrongful intent. This is unlikely. An authority on criminal law in the 1870's wrote:

Of course, as the Court notes, there are crimes based on reckless or negligent conduct; it reasons from this that the "criminality" requirement in Quigley is not confined to cases where persons act with wrongful intent. Yet the requirement of "criminal" spirit is far more sensibly interpreted, not as incorporating every possible twist and turn of criminal law, but as reflecting "a principle of our legal system . . . that the essence of an offence is the wrongful intent." 1 Bishop, supra, § 287. Indeed, the Court's argument proves far too much: if we are to assume that the reference to "criminal indifference" in Quigley was meant, as the Court argues, to incorporate every possible mental state that justifies the imposition of criminal sanctions, then punitive damages would be available for simple negligence. Plainly our decision in Quigley does not stand for this remarkable proposition.

Even assuming some ambiguity in our decision in Quigley, however, the careful discussion of punitive damages in Day v. Woodworth, 13 How. 363, 371 (1852), dispels any doubts. While the Court dismisses this treatment as "merely . . . a sidelight," ante, at 42, n. 9, in Quigley we evidently thought otherwise: in addition to citing and relying explicitly on Day, see 21 How., at 213-214, we also drew our punitive damages standard from that case. Ibid. Day made it perfectly clear that punitive damages cannot be awarded absent actual evil motive. It reasoned that punitive damages are predicated on the "malice, wantonness, oppression, or outrage of the defendant's conduct," and stated the following standard:

Elsewhere in Day we explained that punitive damages are awarded because of "moral turpitude or atrocity." Ibid. It is obvious from these references that we understood the terms "malice" and "wantonness" as requiring that a defendant have acted with evil purposes or intent to do injury. It was with this understanding of the phrases in question that the Quigley Court framed its rule, and with this background, any fair reading of that decision could not avoid the conclusion that the Court intended to create an actual-malice requirement.

Our decisions following 1871 indicate yet more clearly that we adhered to an actual-malice or intent-to-injure requirement in punitive damages actions. In Milwaukee & St. Paul R. Co. v. Arms, 91 U.S. 489 (1876), a verdict against a railroad in a diversity action was reversed because the jury was erroneously charged that it might award punitive damages on a finding of "gross negligence." The Arms Court first expressed reservations regarding the entire doctrine of punitive damages, remarking that since "the question of intention is always material in an action of tort" in fixing compensatory damages, permitting punitive damages based on the same element posed the threat of double recovery. Nonetheless, acknowledging that the remedy had been approved in Day and Quigley, the Court concluded that the rule set forth in those decisions should be followed. After quoting the passage in Quigley, discussed above, rejecting an implied-malice and adopting an actual-intent-to-injure standard, the Court said:

Read in context, this language strongly suggests that an actual-malice standard was intended. The rule of exemplary damages "rests" on a defendant's "evil motive," and, while "reckless indifference" may justify some awards of punitive damages, it may do so only in "that" class of "reckless indifference. . . which is equivalent to an intentional violation" of the plaintiff's rights. Ibid. (emphasis added).

This interpretation of the opinion in Arms is the only reading that can be squared with the holding of that case.7 The Court held that it was error to give an instruction that "gross negligence" would support a finding of punitive damages. This instruction was condemned because "gross negligence" is "a relative term," and "a word of description, and not of definition." Id., at 495. The Court regarded "gross negligence" as too imprecise and ill-defined a standard to support the extraordinary remedy of punitive damages. Given this, it is more than a little peculiar to read the Arms opinion as supporting the recklessness standard embraced by the Court.

A leading authority on the law of torts has written that there "is often no clear distinction at all between [`recklessness'] and `gross' negligence, and the two have tended to merge and take on the same meaning, of an aggravated form of negligence . . . ." W. Prosser, Law of Torts § 34, p. 185 (4th ed. 1971); see also n. 3, supra. Given the virtual identity of the two standards, a Court that held that "gross negligence" was too imprecise a standard to warrant a punitive damages award would not likely have intended its dicta to be read as adopting "recklessness" as an alternative standard. In contrast, a standard of culpability demanding inquiry into the wrongful mental state of the defendant — "evil motive," "conceived in the spirit of mischief, or of criminal indifference," or "design or intention" to do injury — is different in kind, not just degree, from the "very careless" standard explicitly rejected by the Arms Court. This standard is a significant step away from the "relative" and ill-defined terms of "description" that the Court thought so unsatisfactory; it seems obvious that the Arms Court meant to take just such a step.

Moreover, the meaning of the Arms decision was made abundantly clear in a case decided the same day Arms was handed down. In Western Union Telegraph Co. v. Eyser, 91 U.S. 495 (1876), the Court reversed a decision of the Supreme Court of the Territory of Colorado holding that on "no view of the evidence was the court below justified in instructing the jury that exemplary damages could be recovered." The Reporter of Decisions explained: "The [defendant's] omission to . . . give some other proper warning . . . was an act of negligence, entitling the plaintiff to compensatory damages. But there was nothing to authorize the jury to consider the omission as wilful: on the contrary, the evidence rebuts every presumption that there was any intentional wrong." Id., at 496 (emphasis added).8 The defendant in the case, who left electrical wires strung several feet above the ground across a city street in Denver without any real warning, may well have been reckless; certainly, as in fact occurred, a jury could have reached this conclusion. But this was irrelevant: in order to recover punitive damages an "intentional wrong" is what was needed.

Perhaps, by minute dissection of stray clauses in a few of the foregoing decisions, combined with a studied refusal to confront the plain intent underlying phrases like "evil motive," "design and intention," and "intentional wrong," one could discern some shadowy rule of liability resting on recklessness. Ante, at 39-48. Ninety years ago, however, the Court, after an exhaustive analysis of the foregoing decisions, explicitly and unambiguously reached precisely the opposite conclusion. In Lake Shore & M. S. R. Co. v. Prentice, 147 U.S. 101 (1893), the Court considered whether punitive damages were properly awarded against a railroad in a diversity action. The Court noted that the law on the subject was "well-settled," id., at 107, and paraphrased the Quigley standard: The jury may award punitive damages "if the defendant has acted wantonly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations." 147 U. S., at 107. Then, as it had in Day and Arms, the Court explained this formulation, observing that a "guilty intention on the part of the defendant is required in order to charge him with exemplary or punitive damages." 147 U. S., at 107 (emphases added). In addition, the Court quoted, with plain approval, the following statements of the New Jersey Supreme Court in Haines v. Schultz, 50 N. J. L. 481, 484, 14 A. 488, 489 (1888): "The right to award [punitive damages] rests primarily upon the single ground — wrongful motive. . . . It is the wrongful personal intention to injure that calls forth the penalty. To this wrongful intent knowledge is an essential prerequisite." 147 U. S., at 110. The Court went on to note that "criminal intent [is] necessary to warrant the imposition of [punitive] damages," id., at 111, and elsewhere wrote that "wanton, malicious or oppressive intent" and "unlawful and criminal intent," were required for the award of such damages. Ibid.; id., at 114. Prentice simply leaves no question that actual wrongful intent, not just recklessness, was required for a recovery of punitive damages, and, in addition, that this was what "well-settled" law always had required.9

And, once again, in Scott v. Donald, 165 U.S. 58, 86 (1897), we made it completely clear that actual malice was a prerequisite to a recovery of punitive damages. In Scott, we held that a complaint alleging a constitutional tort stated facts sufficient to support a claim for punitive damages. In so holding we carefully analyzed our prior decisions respecting punitive damages beginning with Day and continuing through Prentice. We repeated and applied the "well-settled" rule contained in those cases: "Damages have been defined to be the compensation which the law will award for an injury done, and are said to be exemplary and allowable in excess of the actual loss, where a tort is aggravated by evil motive, actual malice, deliberate violence or oppression." 165 U. S., at 86 (emphasis added). The point could not be clearer. The Court today fashions a federal standard for punitive damages, see 42 U. S. C. § 1988 (1976 ed., Supp. V), yet steadfastly refuses to follow those of our decisions speaking to that point. If it did, it would adopt a standard requiring "evil motive, actual malice, deliberate violence or oppression." Ibid.

In addition, the decisions rendered by state courts in the years preceding and immediately following the enactment of § 1983 attest to the fact that a solid majority of jurisdictions took the view that the standard for an award of punitive damages included a requirement of ill will.10 To be sure, a few jurisdictions followed a broader standard; a careful review of the decisions at the time uncovers a number of decisions that contain some reference to "recklessness." And equally clearly, in more recent years many courts have adopted a standard including "recklessness" as the minimal degree of culpability warranting punitive damages.11

Most clear of all, however, is the fact that at about the time § 1983 was enacted a considerable number of the 37 States then belonging to the Union required some showing of wrongful intent before punitive damages could be awarded.12 As the cases set out in the margin reveal, it is but a statement of the obvious that "evil motive" was the general standard for punitive damages in many States at the time of the 42d Congress.

In short, a careful examination of the decisions available to the Members of the 42d Congress reveals a portrait different in important respects from that painted by the Court. While a few jurisdictions may have adopted a more lenient, if less precise, standard of recklessness, the majority's claim that the prevailing standard in 1871 was one of recklessness simply cannot be sustained. The decisions of this Court, which were likely well known to federal legislators, supported an animus requirement. As we said in Day v. Woodworth, 13 How. 363 (1852), and Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202 (1859), a "spirit of mischief" was necessary for an award of punitive damages. Among the States, there were many approaches to the imposition of punitive damages, with a variety of standards prevailing throughout the Nation. Nonetheless, a solid majority of jurisdictions followed the rule that punitive damages require some element of "evil motive," "wickedness," or "formed design to injure and oppress." Thus, if we are to adhere to the principle, consistently followed in our previous decisions, that the Members of the 42d Congress intended § 1983 to reflect existing common-law rules, it is very likely that wrongful animus was a prerequisite for an award of punitive damages.

IV

Even apart from this historical background, I am persuaded by a variety of additional factors that the 42d Congress intended a "wrongful intent" requirement. As mentioned above, punitive damages are not, and never have been, a favored remedy. In determining whether Congress, not bound by stare decisis,13 would have embraced this often-condemned doctrine, it is worth considering the judgment of one of the most respected commentators in the field regarding the desirability of a legislatively enacted punitive damages remedy: "It is probable that, in the framing of a model code of damages to-day for use in a country unhampered by legal tradition, the doctrine of exemplary damages would find no place." C. McCormick, Law of Damages 276 (1935).

In deciding whether Congress heeded such advice, it is useful to consider the language of § 1983 itself — which should, of course, be the starting point for any inquiry into legislative intent. Section 1983 provides:

Plainly, the statutory language itself provides absolutely no support for the cause of action for punitive damages that the Court reads into the provision. Indeed, it merely creates "liab[ility] to the party injured . . . for redress." "Redress" means "[r]eparation of, satisfaction or compensation for, a wrong sustained or the loss resulting from this." 8 Oxford English Dictionary 310 (1933). And, as the Court concedes, punitive damages are not "reparation" or "compensation"; their very purpose is to punish, not to compensate. If Congress meant to create a right to recover punitive damages, then it chose singularly inappropriate words: both the reference to injured parties and to redress suggests compensation, and not punishment.

Other statutes roughly contemporaneous with § 1983 illustrate that if Congress wanted to subject persons to a punitive damages remedy, it did so explicitly. For example, in § 59, 16 Stat. 207, Congress created express punitive damages remedies for various types of commercial misconduct. Likewise, the False Claims Act, § 5, 12 Stat. 698, provided a civil remedy of double damages and a $2,000 civil forfeiture penalty for certain misstatements to the Government. As one Court of Appeals has remarked: "Where Congress has intended [to create a right to punitive damages] it has found no difficulty in using language appropriate to that end." United Mine Workers v. Patton, 211 F.2d 742, 749 (CA4 1954). And yet, in § 1983 one searches in vain for some hint of such a remedy.14

In the light of the foregoing indications, it is accurate to say that the foundation upon which the right to punitive damages under § 1983 rests is precarious, at the best. Given the extraordinary diffidence and obliqueness with which the right was granted — if it was — it seems more than a little unusual to read that grant as incorporating the most expansive of the available views as to the standard for punitive damages. Given the legislative ambiguity, the sensible approach to the problem would be an honest recognition that, if we are to infer a right to punitive damages, it should be a restrained one, reflecting the Legislature's approach in creating the right. And surely, the right ought to be limited by the view of punitive damages that the Members of the 42d Congress would have had — not by what some state courts have done a century later.

An intent requirement, unlike a recklessness standard, is logically consistent with the underlying justification for punitive damages. It is a fundamental principle of American law that penal consequences generally ought to be imposed only where there has been some sort of wrongful animus creating the type of culpability warranting this treatment. As we said in Morissette v. United States, 342 U.S. 246, 250-251 (1952): "A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory `But I didn't mean to.' " This principle "is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Id., at 250. Indeed, as indicated previously, 19th-century decisions consistently justified the imposition of a quasi-criminal "fine" by reference to the "wickedness" or "evil" conduct of the defendant, just as Oliver Wendell Holmes drew a sharp distinction between accidentally and intentionally kicking an animal. Given that punitive damages are meant to punish, it is difficult to believe that Congress would have departed from the "instinctive," "universal and persistent" linkage in our law between punishment and wrongful intent.

V

Finally, even if the evidence of congressional intent were less clearcut, I would be persuaded to resolve any ambiguity in favor of an actual-malice standard. It scarcely needs repeating that punitive damages are not a "favorite of the law," see supra, at 58, owing to the numerous persuasive criticisms that have been leveled against the doctrine. The majority reasons that these arguments apply to all awards of punitive damages, not just to those under § 1983; while this is of course correct, it does little to reduce the strength of the arguments, and, if they are persuasive, we should not blindly follow the mistakes other courts have made.

Much of what has been said above regarding the failings of a punitive damages remedy is equally appropriate here. It is anomalous, and counter to deep-rooted legal principles and common-sense notions, to punish persons who meant no harm, and to award a windfall, in the form of punitive damages, to someone who already has been fully compensated. These peculiarities ought to be carefully limited — not expanded to every case where a jury may think a defendant was too careless, particularly where a vaguely defined, elastic standard like "reckless indifference" gives free reign to the biases and prejudices of juries. In short, there are persuasive reasons not to create a new punitive damages remedy unless it is clear that Congress so intended.

This argument is particularly powerful in a case like this, where the uncertainty resulting from largely random awards of punitive damages will have serious effects upon the performance by state and local officers of their official duties.15 One of the principal themes of our immunity decisions is that the threat of liability must not deter an official's "willingness to execute his office with the decisiveness and the judgment required by the public good." Scheuer v. Rhodes, 416 U.S. 232, 240 (1974). To avoid stifling the types of initiative and decisiveness necessary for the "government to govern," Dalehite v. United States, 346 U.S. 15, 57 (1953) (Jackson, J., dissenting), we have held that officials will be liable for compensatory damages only for certain types of conduct. Precisely the same reasoning applies to liability for punitive damages. Because punitive damages generally are not subject to any relation to actual harm suffered, and because the recklessness standard is so imprecise, the remedy poses an even greater threat to the ability of officials to take decisive, efficient action. After the Court's decision, governmental officials will be subjected to the possibility of damages awards unlimited by any harm they may have caused or the fact they acted with unquestioned good faith: when swift action is demanded, their thoughts likely will be on personal financial consequences that may result from their conduct — but whose limits they cannot predict — and not upon their official duties. It would have been difficult for the Court to have fashioned a more effective Damoclean sword than the open-ended, standardless, and unpredictable liability it creates today.16

Moreover, notwithstanding the Court's inability to discern them, there are important distinctions between a right to damages under § 1983 and a similar right under state tort law. A leading rationale seized upon by proponents of punitive damages to justify the doctrine is that "the award is. . . a covert response to the legal system's overt refusal to provide financing for litigation." D. Dobbs, Law of Remedies 221 (1973); K. Redden, Punitive Damages § 2.4(C) (1980). Yet, 42 U. S. C. § 1988 (1976 ed., Supp. V) provides not just a "covert response" to plaintiffs' litigation expenses but an explicit provision for an award to the prevailing party in a § 1983 action of "a reasonable attorney's fee as part of the costs." By permitting punitive damages as well as attorney's fees, § 1983 plaintiffs, unlike state tort law plaintiffs, get not just one windfall but two — one for them, and one for their lawyer. This difference between the incentives that are present in state tort actions, and those in § 1983 actions, makes the Court's reliance upon the standard for punitive damages in the former entirely inapposite: in fashioning a new financial lure to litigate under § 1983 the Court does not act in a vacuum, but, by adding to existing incentives, creates an imbalance of inducements to litigate that may have serious consequences.17

The staggering effect of § 1983 claims upon the workload of the federal courts has been decried time and again. The torrent of frivolous claims under that section threatens to incapacitate the judicial system's resolution of claims where true injustice is involved; those claims which truly warrant redress are in a very real danger of being lost in a sea of meritless suits. Yet, apparently oblivious to this, the Court today reads into the silent, inhospitable terms of § 1983 a remedy that is designed to serve as a "bounty" to encourage private litigation. Dobbs, supra, at 221. In a time when the courts are flooded with suits that do not raise colorable claims, in large part because of the existing incentives for litigation under § 1983, it is regrettable that the Court should take upon itself, in apparent disregard for the likely intent of the 42d Congress, the legislative task of encouraging yet more litigation.18 There is a limit to what the federal judicial system can bear.

Finally, by unquestioningly transferring the standard of punitive damages in state tort actions to federal § 1983 actions, the Court utterly fails to recognize the fundamental difference that exists between an award of punitive damages by a federal court, acting under § 1983, and a similar award by a state court acting under prevailing local laws. While state courts may choose to adopt such measures as they deem appropriate to punish officers of the jurisdiction in which they sit, the standards they choose to adopt can scarcely be taken as evidence of what it is appropriate for a federal court to do. See Edelman v. Jordan, 415 U.S. 651, 677, n. 19 (1974). When federal courts enforce punitive damages awards against local officials they intrude into sensitive areas of sovereignty of coordinate branches of our Nation, thus implicating the most basic values of our system of federalism. Moreover, by yet further distorting the incentives that exist for litigating claims against local officials in federal court, as opposed to state courts, the Court's decision makes it even more difficult for state courts to attempt to conform the conduct of state officials to the Constitution.

I dissent.

JUSTICE O'CONNOR, dissenting.

Although I agree with the result reached in JUSTICE REHNQUIST's dissent, I write separately because I cannot agree with the approach taken by either the Court or JUSTICE REHNQUIST. Both opinions engage in exhaustive, but ultimately unilluminating, exegesis of the common law of the availability of punitive damages in 1871. Although both the Court and JUSTICE REHNQUIST display admirable skills in legal research and analysis of great numbers of musty cases, the results do not significantly further the goal of the inquiry: to establish the intent of the 42d Congress. In interpreting § 1983, we have often looked to the common law as it existed in 1871, in the belief that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar. See, e. g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981); Carey v. Piphus, 435 U.S. 247, 255 (1978). This approach makes sense when there was a generally prevailing rule of common law, for then it is reasonable to assume that Congressmen were familiar with that rule and imagined that it would cover the cause of action that they were creating. But when a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view rather than the other would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate the language of the late 19th century into terms that judges of the late 20th century can understand, see ante, at 39-41, n. 8; 61-64, nn. 3, 4, and in an area in which the courts of the earlier period frequently used inexact and contradictory language, see ante, at 45-47, n. 12, we cannot safely infer anything about congressional intent from the divided contemporaneous judicial opinions. The battle of the string citations can have no winner.

Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying § 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of § 1983 as pre-eminently to compensate victims of constitutional violations and to deter further violations. 453 U. S., at 268. See also Robertson v. Wegmann, 436 U.S. 584, 590-591 (1978); Carey v. Piphus, supra, at 254-257, and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney's fees under § 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney's fees will create an incentive to bring an ever-increasing flood of § 1983 claims, threatening the ability of the federal courts to handle those that are meritorious. Although I cannot concur in JUSTICE REHNQUIST's wholesale condemnation of awards of punitive damages in any context or with the suggestion that punitive damages should not be available even for intentional or malicious violations of constitutional rights, I do agree with the discussion in Part V of his opinion of the special problems of permitting awards of punitive damages for the recklessness of public officials. Since awards of compensatory damages and attorney's fees already provide significant deterrence, I am persuaded that the policies counseling against awarding punitive damages for the recklessness of public officials outweigh the desirability of any incremental deterrent effect that such awards may have. Consequently, I dissent.