Petitioners are two public defenders working in the State of Oregon. Petitioner Bruce Tower, the Douglas County Public Defender, represented respondent Billy Irl Glover at one of Glover's state trials on robbery charges, at which Glover was convicted. Petitioner Gary Babcock, the Oregon State Public Defender, represented Glover in Glover's unsuccessful state-court appeal from this and at least one other conviction.
In an action brought under 42 U. S. C. § 1983, Glover alleges that petitioners conspired with various state officials, including the trial and appellate court judges and the former Attorney General of Oregon, to secure Glover's conviction. Glover seeks neither reversal of his conviction nor compensatory damages, but asks instead for $5 million in punitive damages to be awarded against each petitioner. App. 5, 9. We conclude that public defenders are not immune from liability in actions brought by a criminal defendant against state public defenders who are alleged to have conspired with state officials to deprive the § 1983 plaintiff of federal constitutional rights.
Glover was arrested on February 1, 1976, in Del Norte County, Cal. Pet. for Cert. in Glover v. Dolan, O. T. 1978, No. 78-5457, p. 3. The State of California extradited Glover to Benton County, Ore., on December 6, 1976.
Before any final disposition of his federal habeas action, Glover was tried and convicted on different robbery charges in at least two Oregon state courts. One trial — the trial to which this § 1983 action is directly linked — was held in Douglas County Circuit Court, case No. 76-0386. Glover was represented by petitioner Tower, and was convicted. Petitioner Babcock represented Glover in the appeal from that conviction. The conviction was summarily affirmed by the Oregon Court of Appeals on January 18, 1978. Oregon v. Glover, 32 Or.App. 177, 573 P.2d 780. A second robbery trial — the trial in connection with which Glover had filed his federal habeas action — was held in the Benton County Circuit Court, case No. 31159. Pet. for Cert. in No. 78-5457, supra, at 6, 9. On April 6, 1977, Glover was convicted; five days later he was sentenced to 10 years in prison. This conviction was affirmed on April 17, 1978. Oregon v. Glover, 33 Or.App. 553, 577 P.2d 91. Petitioner Babcock represented Glover in this state-court appeal as well.
Meanwhile, on December 6, 1977, the Federal Magistrate to whom Glover's habeas petition had been referred recommended that it be dismissed. On March 6, 1978, the District Court dismissed the habeas petition on the ground that Glover had failed to exhaust state remedies. Glover v. Dolan, No. 77-276 (Dist. Ct. Ore.). Glover gave notice of appeal to the Court of Appeals for the Ninth Circuit, but the District Court refused to issue a certificate of probable cause. The Court of Appeals dismissed Glover's application for a certificate of probable cause on July 12, 1978, agreeing with the District Court that Glover had failed to exhaust state remedies. Glover v. Dolan, No. 78-8077 (CA9). In a petition for a writ of certiorari filed with this Court, Glover
While incarcerated in the Oregon State Penitentiary, Glover then initiated new lawsuits, again attacking his conviction simultaneously in both state and federal courts, and these suits, again, proceeded in parallel for almost three years. First, on December 11, 1980, Glover filed a petition for postconviction relief in the Circuit Court of the State of Oregon for Marion County, seeking to have his conviction set aside on the basis of the alleged conspiracy between his lawyers and various state officials. This state-court petition was later consolidated with a petition for postconviction relief filed in connection with Glover's Benton County conviction. On the following day, December 12, 1980, Glover filed this § 1983 action against petitioners in Federal District Court.
On April 1, 1981, the Federal District Court granted petitioners' motion to dismiss Glover's § 1983 action, relying on a decision of the Court of Appeals for the Ninth Circuit that had held public defenders absolutely immune from § 1983 liability, Miller v. Barilla, 549 F.2d 648 (1977). App. B to Pet. for Cert.
On February 23, 1983, the consolidated state-court petitions came to trial before the Marion County Circuit Court. The state court found that there had been no conspiracy to
Title 42 U. S. C. § 1983 provides that "[e]very person" who acts "under color of" state law to deprive another of constitutional rights shall be liable in a suit for damages. Petitioners concede, and the Court of Appeals agreed, that Glover's conspiracy allegations "cast the color of state law over [petitioners'] actions." Brief for Petitioners 14; see 700 F. 2d., at 558, n. 1.
On its face § 1983 admits no immunities. But since 1951 this Court has consistently recognized that substantive doctrines of privilege and immunity may limit the relief available in § 1983 litigation. See Imbler v. Pachtman, 424 U.S. 409, 417-419 (1976); Pulliam v. Allen, 466 U.S. 522 (1984). The Court has recognized absolute § 1983 immunity for legislators acting within their legislative roles, Tenney v. Brandhove, 341 U.S. 367 (1951), for judges acting within their judicial roles, Pierson v. Ray, 386 U.S. 547, 554-555 (1967), for prosecutors, Imbler v. Pachtman, supra, and for witnesses, Briscoe v. LaHue, 460 U.S. 325 (1983), and has recognized qualified immunity for state executive officers and school officials, see Scheuer v. Rhodes, 416 U.S. 232 (1974); Wood v. Strickland, 420 U.S. 308 (1975).
Section 1983 immunities are "predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Imbler v. Pachtman, supra, at 421; Pulliam v. Allen, supra, at 529. If an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983's history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions. See Imbler v. Pachtman,
No immunity for public defenders, as such, existed at common law in 1871 because there was, of course, no such office or position in existence at that time. The first public defender program in the United States was reportedly established in 1914. Mounts, Public Defender Programs, Professional Responsibility, and Competent Representation, 1982 Wis. L. Rev. 473, 476. Our inquiry, however, cannot stop there. Immunities in this country have regularly been borrowed from the English precedents, and the public defender has a reasonably close "cousin" in the English barrister. Like public defenders, barristers are not free to pick and choose their clients. They are thought to have no formal contractual relationship with their clients, and they are incapable of suing their clients for a fee. See Rondel v. Worsley,  1 A. C. 191; Kaus & Mallen, The Misguiding Hand of Counsel — Reflections on "Criminal Malpractice," 21 UCLA L. Rev. 1191, 1193-1195, nn. 7-9 (1974). It is therefore noteworthy that English barristers enjoyed in the 19th century, as they still do today, a broad immunity from liability for negligent misconduct. Rondel v. Worsley, supra, a recent decision from the House of Lords, traces this immunity from its origins in 1435 until the present. Nevertheless, it appears that even barristers have never enjoyed immunity from liability for intentional misconduct, id., at 287 (opinion of Lord Pearson), and it is only intentional misconduct that concerns us here.
In this country the public defender's only 19th-century counterpart was a privately retained lawyer, and petitioners do not suggest that such a lawyer would have enjoyed immunity from tort liability for intentional misconduct. Cf. Baker v. Humphrey, 101 U.S. 494 (1880); Von Wallhoffen v. Newcombe, 10 Hun. 236 (N. Y. Sup. Ct. 1877); Hoopes
Finally, petitioners contend that public defenders have responsibilities similar to those of a judge or prosecutor, and therefore should enjoy similar immunities. The threat of § 1983 actions based on alleged conspiracies among defense counsel and other state officials may deter counsel from engaging in activities that require some degree of cooperation with prosecutors — negotiating pleas, expediting trials and appeals, and so on. Ultimately, petitioners argue, the State's attempt to meet its constitutional obligation to furnish criminal defendants with effective counsel will be impaired. At the same time, the federal courts may be inundated with frivolous lawsuits.
Petitioners' concerns may be well founded, but the remedy petitioners urge is not for us to adopt. We do not have a
As we have already described supra, at 916-919, Glover has already had more than one day in court. Indeed, those not familiar with the delicate intricacies of § 1983 jurisdiction might characterize Glover's successful initiation and prosecution of entirely parallel and duplicative state and federal actions as a great waste of judicial resources. But it appears that by now, at least, Glover has exhausted or defaulted on state-court opportunities to have his conviction set aside on the basis of the alleged conspiracy among his lawyers and state officials. We therefore have no occasion to decide if a Federal District Court should abstain from deciding a § 1983 suit for damages stemming from an unlawful conviction pending the collateral exhaustion of state-court attacks on the conviction itself.
It is open to the District Court on remand to consider whether Glover is now collaterally estopped in this action by the state court's finding that the conspiracy alleged in Glover's § 1983 complaint never occurred. Allen v. McCurry, 449 U.S. 90 (1980); see n. 4, supra. The judgment of the Court of Appeals for the Ninth Circuit is affirmed. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, concurring in part and concurring in the judgment.
I agree fully with both the Court's judgment and the reasoning used to arrive at its conclusion. Ordinarily, such complete agreement would make further writing quite unnecessary. But this is not an ordinary case. Although the issue was never raised by the parties, and although, as the Court properly concedes, the issue has absolutely no bearing on the disposition of this case, the Court nevertheless has seen fit to observe that it "ha[s] no occasion to decide" whether federal courts should "abstain" from deciding a state prisoner's § 1983 suit for damages stemming from an unlawful conviction pending that prisoner's exhaustion of collateral state-court challenges to his conviction. Ante, at 923. The reasons why the Court has no "occasion" to decide this question are clear enough: The question was never pressed or passed upon below, never briefed or argued in this Court, and, because respondent Glover has already exhausted all state-court remedies, the issue has no bearing whatsoever on the proper resolution of the controversy we have been called upon to decide. Accordingly, I join all of the Court's opinion except the unnecessary paragraph at the beginning of Part IV.
"1. The trial judge did not act to the prejudice of the petitioner in that:
"b) Trial judge did not arbitrarily exclude evidence and witnesses.
"c) Trial judge did not participate in a conspiracy against petitioner with the trial counsel.
"2. Petitioner was afforded effective assistance of trial counsel as trial counsel was adequately prepared for trial in securing the necessary evidence and witnesses.
"4. Petitioner was afforded effective assistance of appellate counsel . . . ."
Marion County Circuit Court's Findings of Fact, Conclusions of Law and Judgment in No. 125, 747, pp. 2-3, (June 2, 1983).