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REHNQUIST, C. J., dissenting

immunity claims. Harlow, supra, at 818. Thus, private defendants who have invoked a state attachment law are put in the same position whether we recognize that they are entitled to qualified immunity or if we instead recognize a goodfaith defense. Perhaps the Court believes that the “defense" will be less amenable to summary disposition than will the “immunity'; perhaps it believes the defense will be an issue that must be submitted to the jury, see ante, at 168 (referring to cases such as this “proceed[ing] to trial”). While I can see no reason why this would be so (given that probable cause is a legal question), if it is true, today's decision will only manage to increase litigation costs needlessly for hapless defendants.

This, in turn, leads to the second basis on which we have previously recognized a qualified immunity-reasons of public policy. Assuming that some practical difference will result from recognizing a defense but not an immunity, I think such a step is neither dictated by our prior decisions nor desirable. It is true, as the Court points out, that in abandoning a strictly historical approach to § 1983 immunities we have often explained our decision to recognize an immunity in terms of the special needs of public officials. But those cases simply do not answer—because the question was not at issue—whether similar (or even completely unrelated) reasons of public policy would warrant immunity for private parties as well.

I believe there are such reasons. The normal presumption that attaches to any law is that society will be benefited if private parties rely on that law to provide them a remedy, rather than turning to some form of private, and perhaps lawless, relief. In denying immunity to those who reasonably rely on presumptively valid state law, and thereby discouraging such reliance, the Court expresses confidence that today's decision will not "unduly impai[r],” ibid., the public interest. I do not share that confidence. I would have thought it beyond peradventure that there is strong public

REHNQUIST, C. J., dissenting

interest in encouraging private citizens to rely on valid state laws of which they have no reason to doubt the validity. Buller v. Buechler, 706 F. 2d 844, 851 (CA8 1983); Folsom Investment Co. v. Moore, 681 F. 2d 1032, 1037–1038 (CA5 1982).

Second, as with the police officer making an arrest, I believe the private plaintiff's lot is “not so unhappy” that he must forgo recovery of property he believes to be properly recoverable through available legal processes or to be "mulcted in damages,” Pierson, 386 U. S., at 555, if his belief turns out to be mistaken. For as one Court of Appeals has pointed out, it is at least passing strange to conclude that private individuals are acting “under color of law” because they invoke a state garnishment statute and the aid of state officers, see Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), but yet deny them the immunity to which those same state officers are entitled, simply because the private parties are not state employees. Buller, supra, at 851. While some of the strangeness may be laid at the doorstep of our decision in Lugar, see 457 U. S., at 943 (Burger, C. J., dissenting); and id., at 944–956 (Powell, J., dissenting), there is no reason to proceed still further down this path. Our § 1983 jurisprudence has gone very far afield indeed, when it subjects private parties to greater risk than their public counterparts, despite the fact that § 1983's historic purpose was “to prevent state officials from using the cloak of their authority under state law to violate rights protected against state infringement.” Id., at 948 (emphasis added). See also Monroe v. Pape, 365 U. S. 167, 175-176 (1961).

Because I find today's decision dictated neither by our own precedent nor by any sound considerations of public policy, I dissent.





No. 91–5771. Argued March 23, 1992—Decided May 18, 1992 After his arrest on, inter alia, federal drug charges, petitioner Wade gave

law enforcement officials information that led them to arrest another drug dealer. Subsequently, he pleaded guilty to the charges, and the District Court sentenced him to the 10-year minimum sentence required by 21 U. S. C. $841(b)(1)(B) and the United States Sentencing Commission, Guidelines Manual (USSG). The court refused Wade's request that his sentence be reduced below the minimum to reward him for his substantial assistance to the Government, holding that 18 U. S. C. $ 3553(e) and USSG $5K1.1 empower the district courts to make such a reduction only if the Government files a motion requesting the departure. The Court of Appeals affirmed, rejecting Wade's arguments that the District Court erred in holding that the absence of a Government motion deprived it of the authority to reduce his sentence and that the lower court was authorized to enquire into the Government's motives

for failing to file a motion. Held:

1. Federal district courts have the authority to review the Government's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive. Since the parties assume that the statutory and Guidelines provisions pose identical and equally burdensome obstacles, this Court is not required to decide whether $5K1.1 “implements” and thereby supersedes $ 3553(e) or whether the provisions pose separate obstacles. In both provisions, the condition limiting the court's authority gives the Government a power, not a duty, to file a substantial-assistance motion. Nonetheless, a prosecutor's discretion when exercising that power is subject to constitutional limitations that district courts can enforce. Thus, a defendant would be entitled to relief if the prosecution refused to file a motion for a suspect reason such as the defendant's race or religion. However, neither a claim that a defendant merely provided substantial assistance nor additional but generalized allegations of improper motive will entitle a defendant to a remedy or even to discovery or an evidentiary hearing. A defendant has a right to the latter procedures only if he makes a substantial threshold showing of improper motive. Pp. 184-186.

Opinion of the Court

2. Wade has failed to raise a claim of improper motive. He has never alleged or pointed to evidence tending to show that the Government refused to file a motion for suspect reasons. And he argues to no avail that, because the District Court erroneously believed that no impermissible motive charge could state a claim for relief, it thwarted his attempt to show that the Government violated his constitutional rights by withholding the motion arbitrarily or in bad faith. While Wade would be entitled to relief if the prosecutor's refusal to move was not rationally related to any legitimate Government end, the record here shows no support for his claim of frustration, and the claim as presented to the District Court failed to rise to the level warranting judicial enquiry. In response to the court's invitation to state what evidence he would introduce to support his claim, Wade merely explained the extent of his assistance to the Government. This is a necessary, but not a sufficient, condition for relief, because the Government's decision not to move may have been based simply on its rational assessment of the cost and benefit

that would flow from moving. Pp. 186–187. 936 F. 2d 169, affirmed.

SOUTER, J., delivered the opinion for a unanimous Court.

J. Matthew Martin, by appointment of the Court, 502 U. S. 1028, argued the cause for petitioner. With him on the briefs was Eugene Gressman.

Robert A. Long, Jr., argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Nina Goodman.

JUSTICE SOUTER delivered the opinion of the Court.

Section 3553(e) of Title 18 of the United States Code empowers district courts, “[u]pon motion of the Government," to impose a sentence below the statutory minimum to reflect a defendant's "substantial assistance in the investigation or prosecution of another person who has committed an offense.” Similarly, $ 5K1.1 of the United States Sentencing Commission, Guidelines Manual (Nov. 1991) (USSG), permits

* Charles B. Wayne filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.

Opinion of the Court

district courts to go below the minimum required under the Guidelines if the Government files a "substantial assistance" motion. This case presents the question whether district courts may subject the Government's refusal to file such a motion to review for constitutional violations. We hold that they may, but that the petitioner has raised no claim to such review.

On October 30, 1989, police searched the house of the petitioner, Harold Ray Wade, Jr., discovered 978 grams of cocaine, two handguns, and more than $22,000 in cash, and arrested Wade. In the aftermath of the search, Wade gave law enforcement officials information that led them to arrest another drug dealer. In due course, a federal grand jury indicted Wade for distributing cocaine and possessing cocaine with intent to distribute it, both in violation of 21 U. S. C. $ 841(a)(1); for conspiring to do these things, in violation of $846; and for using or carrying a firearm during, and in relation to, a drug crime, in violation of 18 U. S. C. § 924(c)(1). Wade pleaded guilty to all four counts.

The presentence report put the sentencing range under the Guidelines for the drug offenses at 97 to 121 months, but added that Wade was subject to a 10-year mandatory minimum sentence, 21 U. S. C. $841(b)(1)(B), narrowing the actual range to 120 to 121 months, see USSG $5G1.1(c)(2). The report also stated that both USSG $2K2.4(a) and 18 U. S. C. $ 924(c) required a 5-year sentence on the gun count. At the sentencing hearing in the District Court, Wade's lawyer urged the court to impose a sentence below the 10-year minimum for the drug counts to reward Wade for his assistance to the Government. The court responded that the Government had filed no motion as contemplated in 18 U. S. C. $ 3553(e) and USSG $5K1.1 for sentencing below the minimum, and ruled that, without such a motion, a court had no power to go beneath the minimum. Wade got a sentence of 180 months in prison.

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