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Opinion of the Court
800, and Mitchell v. Forsyth, 472 U. S. 511. Moreover, the policy concerns mandating qualified immunity for officials in such cases—the need to preserve the officials' ability to perform their discretionary functions and to ensure that talented candidates not be deterred by the threat of damages suits from entering public service—are not applicable to private parties. Although it may be that private defendants faced with $ 1983 liability under Lugar, supra, could be entitled to an affirmative good faith defense, or that $ 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens, those issues are neither before the Court nor decided here. Pp. 163–169.
2. On remand, it must be determined, at least, whether respondents, in invoking the replevin statute, acted under color of state law within
the meaning of Lugar, supra. P. 169. 928 F. 2d 718, reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, in which SCALIA, J., joined, post, p. 169. REHNQUIST, C. J., filed a dissenting opinion, in which SOUTER and THOMAS, JJ., joined, post, p. 175.
Jim Waide argued the cause for petitioner. With him on the briefs were Douglas M. Magee and Alan B. Morrison.
Joseph Leray McNamara argued the cause and filed a brief for respondents.
JUSTICE O'CONNOR delivered the opinion of the Court.
In Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), we left open the question whether private defendants charged with 42 U. S. C. $1983 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional are entitled to qualified immunity from suit. 457 U. S., at 942, n. 23. We now hold that they are not.
This dispute arises out of a soured cattle partnership. In July 1986, respondent Bill Cole sought to dissolve his partnership with petitioner Howard Wyatt. When no agreement could be reached, Cole, with the assistance of an
Opinion of the Court
attorney, respondent John Robbins II, filed a state court complaint in replevin against Wyatt, accompanied by a replevin bond of $18,000.
At that time, Mississippi law provided that an individual could obtain a court order for seizure of property possessed by another by posting a bond and swearing to a state court that the applicant was entitled to that property and that the adversary "wrongfully took and detain[ed] or wrongfully detain[ed]” the property. 1975 Miss. Gen. Laws, ch. 508, § 1. The statute gave the judge no discretion to deny a writ of replevin.
After Cole presented a complaint and bond, the court ordered the county sheriff to seize 24 head of cattle, a tractor, and certain other personal property from Wyatt. Several months later, after a postseizure hearing, the court dismissed Cole's complaint in replevin and ordered the property returned to Wyatt. When Cole refused to comply, Wyatt brought suit in Federal District Court, challenging the constitutionality of the statute and seeking injunctive relief and damages from respondents, the county sheriff, and the deputies involved in the seizure.
The District Court held that the statute's failure to afford judges discretion to deny writs of replevin violated due process. 710 F. Supp. 180, 183 (SD Miss. 1989). It dismissed the suit against the government officials involved in the seizure on the ground that they were entitled to qualified immunity. App. 17–18. The court also held that Cole and Robbins, even if otherwise liable under § 1983, were entitled to qualified immunity from suit for conduct arising prior to the statute's invalidation. Id., at 12–14. The Court of Appeals for the Fifth Circuit affirmed the District Court's grant of qualified immunity to the private defendants. 928 F. 2d 718 (1991).
1 The State amended the statute in 1990. Miss. Code Ann. $ 11-37–101 (Supp. 1991).
Opinion of the Court
We granted certiorari, 502 U. S. 807 (1991), to resolve a conflict among the Courts of Appeals over whether private defendants threatened with 42 U. S. C. § 1983 liability are, like certain government officials, entitled to qualified immunity from suit. Like the Fifth Circuit, the Eighth and Eleventh Circuits have determined that private defendants are entitled to qualified immunity. See Buller v. Buechler, 706 F. 2d 844, 850–852 (CA8 1983); Jones v. Preuit & Mauldin, 851 F. 2d 1321, 1323–1325 (CA11 1988) (en banc), vacated on other grounds, 489 U. S. 1002 (1989). The First and Ninth Circuits, however, have held that in certain circumstances, private parties acting under color of state law are not entitled to such an immunity. See Downs v. Sawtelle, 574 F. 2d 1, 15–16 (CA1), cert. denied, 439 U. S. 910 (1978); Conner v. Santa Ana, 897 F. 2d 1487, 1492, n. 9 (CAI), cert. denied, 498 U. S. 816 (1990); Howerton v. Gabica, 708 F. 2d 380, 385, n. 10 (CA9 1983). The Sixth Circuit has rejected qualified immunity for private defendants sued under § 1983 but has established a good faith defense. Duncan v. Peck, 844 F. 2d 1261 (1988).
II Title 42 U. S. C. $ 1983 provides a cause of action against “[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen. to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws ....' The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. Carey v. Piphus, 435 U. S. 247, 254–257 (1978).
In Lugar v. Edmondson Oil Co., supra, the Court considered the scope of § 1983 liability in the context of garnishment, prejudgment attachment, and replevin statutes. In that case, the Court held that private parties who attached a debtor's assets pursuant to a state attachment statute were subject to § 1983 liability if the statute was constitutionally
Opinion of the Court
infirm. Noting that our garnishment, prejudgment attachment, and replevin cases established that private use of state laws to secure property could constitute “state action” for purposes of the Fourteenth Amendment, id., at 932–935, the Court held that private defendants invoking a state-created attachment statute act "under color of state law” within the meaning of § 1983 if their actions are “fairly attributable to the State," id., at 937. This requirement is satisfied, the Court held, if two conditions are met. First, the “deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.” Ibid. Second, the private party must have “acted together with or ... obtained significant aid from state officials” or engaged in conduct "otherwise chargeable to the State." Ibid. The Court found potential § 1983 liability in Lugar because the attachment scheme was created by the State and because the private defendants, in invoking the aid of state officials to attach the disputed property, were “willful participant[s] in joint activity with the State or its agents.” Id., at 941 (internal quotation marks omitted).
Citing Lugar, the District Court assumed that Cole, by invoking the state statute, had acted under color of state law within the meaning of § 1983, and was therefore liable for damages for the deprivation of Wyatt's due process rights. App. 12. With respect to Robbins, the court noted that while an action taken by an attorney in representing a client “does not normally constitute an act under color of state law,
an attorney is still a person who may conspire to act under color of state law in depriving another of secured rights." Id., at 13. The court did not determine whether Robbins was liable, however, because it held that both Cole and Robbins were entitled to qualified immunity from suit at least for conduct prior to the statute's invalidation. Id., at 13-14.
Opinion of the Court
Although the Court of Appeals did not review whether, in the first instance, Cole and Robbins had acted under color of state law within the meaning of § 1983, it affirmed the District Court's grant of qualified immunity to respondents. In so doing, the Court of Appeals followed one of its prior cases, Folsom Investment Co. v. Moore, 681 F. 2d 1032 (CA5 1982), in which it held that “a $ 1983 defendant who has invoked an attachment statute is entitled to an immunity from monetary liability so long as he neither knew nor reasonably should have known that the statute was unconstitutional.” Id., at 1037. The court in Folsom based its holding on two grounds. First, it viewed the existence of a common law, probable cause defense to the torts of malicious prosecution and wrongful attachment as evidence that “Congress in enacting § 1983 could not have intended to subject to liability those who in good faith resorted to legal process.” Id., at 1038. Although it acknowledged that a defense is not the same as an immunity, the court maintained that it could “transfor[m] a common law defense extant at the time of § 1983's passage into an immunity.” Ibid. Second, the court held that while immunity for private parties is not derived from official immunity, it is based on “the important public interest in permitting ordinary citizens to rely on presumptively valid state laws, in shielding citizens from monetary damages when they reasonably resort to a legal process later held to be unconstitutional, and in protecting a private citizen from liability when his role in any unconstitutional action is marginal.” Id., at 1037. In defending the decision below, respondents advance both arguments put forward by the Court of Appeals in Folsom. Neither is availing.
Section 1983 “creates a species of tort liability that on its face admits of no immunities.” Imbler v. Pachtman, 424 U. S. 409, 417 (1976). Nonetheless, we have accorded certain government officials either absolute or qualified immu