In The

Supreme Court of the United States




Decided June 19, 1985

Justice O’Connor, Concurring


Mitchell v. Forsyth, 472 U.S. 511 (1985), was a United States Supreme Court case deciding on the issue of immunity of cabinet officers from suits from individuals.

In 1970, John N. Mitchell, Attorney General, authorized a warrantless wiretap for the purpose of gathering intelligence regarding the activities of a radical group that had made tentative plans to take actions threatening the Nation's security. During the time the wiretap was installed, the Government intercepted three conversations between a member of the group and respondent. In 1972, the Supreme Court in United States v. United States District Court (1972), also known as the Keith case, ruled that the Fourth Amendment does not permit warrantless wiretaps in cases involving domestic threats to the national security. Respondent then filed a damages action in Federal District Court against petitioner and others, alleging that the surveillance to which he had been subjected violated the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act. Ultimately, the District Court, granting respondent's motion for summary judgment on the issue of liability, held that petitioner was not entitled to either absolute or qualified immunity. The Court of Appeals agreed with the denial of absolute immunity, but held, with respect to the denial of qualified immunity, that the District Court's order was not appealable under the collateral order doctrine.

Topic: Economic Activity*Court vote: 4–3
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Joining O'Connor opinion: Chief Justice BURGER Chief Justice BURGER
Holding: Petitioner is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.
Citation: 472 U.S. 511 Docket: 84–335Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part.

I join Parts I, III, and IV of the majority opinion and the judgment of the Court. Our previous cases concerning the qualified immunity doctrine indicate that a defendant official whose conduct did not violate clearly established legal norms is entitled to avoid trial. Davis v. Scherer, 468 U. S. 183 (1984); Harlow v. Fitzgerald, 457 U. S. 800, 457 U. S. 815 -819 (1982). This entitlement is analogous to the right to avoid trial protected by absolute immunity or by the Double Jeopardy Clause. Where the district court rejects claims that official immunity or double jeopardy preclude trial, the special nature of the asserted right justifies immediate review. The very purpose of such immunities is to protect the defendant from the burdens of trial, and the right will be irretrievably lost if its denial is not immediately appealable. See Helstoski v. Meanor, 442 U. S. 500, 442 U. S. 506 -508 (1979); Abney v. United States, 431 U. S. 651, 431 U. S. 660 -662 (1977). I agree that the District Court's denial of qualified immunity comes within the small class of interlocutory orders appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949).

Because I also agree that the District Court erred in holding that petitioner's authorization of the wiretaps in 1970 violated legal rights that were clearly established at the time, I concur in the judgment of the Court. The conclusion that petitioner is entitled to qualified immunity is sufficient to resolve this case, and therefore I would not reach the issue whether the Attorney General may claim absolute immunity when he acts to prevent a threat to national security. Accordingly, I decline to join Parts II and V of the Court's opinion.

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