95-1717.ZO Opinion
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SUPREME COURT OF THE UNITED STATES
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No. 95-1717
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UNITED STATES, PETITIONER v.
DAVID W. LANIER
on writ of certiorari to the united states court
of appeals for the sixth circuit
[March 31, 1997]
Justice Souter delivered the opinion of the Court.
Respondent David Lanier was convicted under 18
U. S. C. 242 of criminally violating the constitutional
rights of five women by assaulting them sexually while
Lanier served as a state judge. The Sixth Circuit
reversed his convictions on the ground that the constitu-
tional right in issue had not previously been identified
by this Court in a case with fundamentally similar facts.
The question is whether this standard of notice is higher
than the Constitution requires, and we hold that it is.
I
David Lanier was formerly the sole state Chancery
Court judge for two rural counties in western Tennessee.
The trial record, read most favorably to the jury's
verdict, shows that from 1989 to 1991, while Lanier was
in office, he sexually assaulted several women in his
judicial chambers. The two most serious assaults were
against a woman whose divorce proceedings had come
before Lanier and whose daughter's custody remained
subject to his jurisdiction. When the woman applied for
a secretarial job at Lanier's courthouse, Lanier inter-
viewed her and suggested that he might have to reexam-
ine the daughter's custody. When the woman got up to
leave, Lanier grabbed her, sexually assaulted her, and
finally committed oral rape. A few weeks later, Lanier
inveigled the woman into returning to the courthouse
again to get information about another job opportunity,
and again sexually assaulted and orally raped her. App.
44-67. On five other occasions Lanier sexually assaulted
four other women: two of his secretaries, a Youth Ser-
vices Officer of the juvenile court over which Lanier
presided, and a local coordinator for a federal program
who was in Lanier's chambers to discuss a matter
affecting the same court. Id., at 13-43, 67-109.
Ultimately, Lanier was charged with 11 violations of
242, each count of the indictment alleging that, acting
willfully and under color of Tennessee law, he had
deprived the victim of -rights and privileges which are
secured and protected by the Constitution and the laws
of the United States, namely the right not to be de-
prived of liberty without due process of law, including
the right to be free from wilful sexual assault.- Id., at
5-12. Before trial, Lanier moved to dismiss the indict-
ment on the ground that 242 is void for vagueness.
The District Court denied the motion.
The trial judge instructed the jury on the Govern-
ment's burden to prove as an element of the offense that
the defendant deprived the victim of rights secured or
protected by the Constitution or laws of the United
States:
-Included in the liberty protected by the [Due
Process Clause of the] Fourteenth Amendment is the
concept of personal bodily integrity and the right to
be free of unauthorized and unlawful physical abuse
by state intrusion. Thus, this protected right of
liberty provides that no person shall be subject to
physical or bodily abuse without lawful justification
by a state official acting or claiming to act under
the color of the laws of any state of the United
States when that official's conduct is so demeaning
and harmful under all the circumstances as to shock
one's consci[ence]. Freedom from such physical
abuse includes the right to be free from certain
sexually motivated physical assaults and coerced
sexual battery. It is not, however, every unjustified
touching or grabbing by a state official that consti-
tutes a violation of a person's constitutional rights.
The physical abuse must be of a serious substantial
nature that involves physical force, mental coercion,
bodily injury or emotional damage which is shocking
to one's consci[ence].- Id., at 186-187.
The jury returned verdicts of guilty on seven counts, and
not guilty on three (one count having been dismissed at
the close of the Government's evidence). It also found
that the two oral rapes resulted in -bodily injury,- for
which Lanier was subject to 10-year terms of imprison-
ment on each count, in addition to 1-year terms under
the other five counts of conviction, see 242. He was
sentenced to consecutive maximum terms totaling 25
years.
A panel of the Court of Appeals for the Sixth Circuit
affirmed the convictions and sentence, 33 F. 3d 639
(1994), but the full Court vacated that decision and
granted rehearing en banc, 43 F. 3d 1033 (1995). On
rehearing, the Court set aside Lanier's convictions for
-lack of any notice to the public that this ambiguous
criminal statute [i.e., 242] includes simple or sexual
assault crimes within its coverage.- 73 F. 3d 1380, 1384
(1996). Invoking general canons for interpreting crimi-
nal statutes, as well as this Court's plurality opinion in
Screws v. United States, 325 U. S. 91 (1945), the Sixth
Circuit held that criminal liability may be imposed
under 242 only if the constitutional right said to have
been violated is first identified in a decision of this
Court (not any other federal, or state, court), and only
when the right has been held to apply in -a factual
situation fundamentally similar to the one at bar.- 73
F. 3d, at 1393. The Court of Appeals regarded these
combined requirements as -substantially higher than the
`clearly established' standard used to judge qualified
immunity- in civil cases under Rev. Stat. 1979, 42
U. S. C. 1983. 73 F. 3d, at 1393. Finding no decision
of this Court applying a right to be free from unjustified
assault or invasions of bodily integrity in a situation
-fundamentally similar- to those charged, the Sixth
Circuit reversed the judgment of conviction with instruc-
tions to dismiss the indictment. Two judges would not
have dismissed the felony counts charging the oral rapes
but concurred in dismissing the misdemeanor counts,
while three members of the court dissented as to all
dismissals.
We granted certiorari to review the standard for deter-
mining whether particular conduct falls within the range
of criminal liability under 242. 518 U. S. ___ (1996).
We now reverse.
II
Section 242 is a Reconstruction Era civil rights statute
making it criminal to act (1) -willfully- and (2) under
color of law (3) to deprive a person of rights protected
by the Constitution or laws of the United States. 18
U. S. C. 242; Screws v. United States, supra. The en
banc decision of the Sixth Circuit dealt only with the
last of these elements, and it is with that element alone
that we are concerned here.
The general language of 242, referring to -the
deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the
United States,- is matched by the breadth of its compan-
ion conspiracy statute, 241, which speaks of conspira-
cies to prevent -the free exercise or enjoyment of any
right or privilege secured to [any person] by the Consti-
tution or laws of the United States.- Thus, in lieu of
describing the specific conduct it forbids, each statute's
general terms incorporate constitutional law by refer-
ence, see United States v. Kozminski, 487 U. S. 931, 941
(1988); United States v. Price, 383 U. S. 787, 797, 805
(1966), and many of the incorporated constitutional
guarantees are, of course, themselves stated with some
catholicity of phrasing. The result is that neither the
statutes nor a good many of their constitutional refer-
ents delineate the range of forbidden conduct with
particularity.
The right to due process enforced by 242 and said to
have been violated by Lanier presents a case in point,
with the irony that a prosecution to enforce one applica-
tion of its spacious protection of liberty can threaten
the accused with deprivation of another: what Justice
Holmes spoke of as -fair warning . . . in language that
the common world will understand, of what the law
intends to do if a certain line is passed. To make the
warning fair, so far as possible the line should be clear.-
McBoyle v. United States, 283 U. S. 25, 27 (1931). -`The
. . . principle is that no man shall be held criminally
responsible for conduct which he could not reasonably
understand to be proscribed.'- Bouie v. City of Colum-
bia, 378 U. S. 347, 351 (1964) (quoting United States v.
Harriss, 347 U. S. 612, 617 (1954)).
There are three related manifestations of the fair
warning requirement. First, the vagueness doctrine bars
enforcement of -a statute which either forbids or
requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its
meaning and differ as to its application.- Connally v.
General Constr. Co., 269 U. S. 385, 391 (1926); accord
Kolender v. Lawson, 461 U. S. 352, 357 (1983); Lanzetta
v. New Jersey, 306 U. S. 451, 453 (1939). Second, as a
sort of -junior version of the vagueness doctrine,- H.
Packer, The Limits of the Criminal Sanction 95 (1968),
the canon of strict construction of criminal statutes, or
rule of lenity, ensures fair warning by so resolving
ambiguity in a criminal statute as to apply it only to
conduct clearly covered. See, e.g., Liparota v. United
States, 471 U. S. 419, 427 (1985); United States v. Bass,
404 U. S. 336, 347-348 (1971); McBoyle, supra, at 27.
Third, although clarity at the requisite level may be
supplied by judicial gloss on an otherwise uncertain
statute, see, e.g., Bouie, supra, at 357-359; Kolender,
supra, at 355-356; Lanzetta, supra, at 455-457; J. Jef-
fries, Legality, Vagueness, and the Construction of Penal
Statutes, 71 Va. L. Rev. 189, 207 (1985), due process
bars courts from applying a novel construction of a
criminal statute to conduct that neither the statute nor
any prior judicial decision has fairly disclosed to be
within its scope, see, e.g., Marks v. United States, 430
U. S. 188, 191-192 (1977); Rabe v. Washington, 405
U. S. 313 (1972); Bouie, supra, at 353-354; cf. U. S.
Const. Art. I, 9, cl. 3; id., 10, cl. 1; Bouie, supra, at
353-354 (Ex Post Facto Clauses bar legislatures from
making substantive criminal offenses retroactive). In
each of these guises, the touchstone is whether the
statute, either standing alone or as construed, made it
reasonably clear at the relevant time that the defend-
ant's conduct was criminal.
We applied this standard in Screws v. United States,
325 U. S. 91 (1945), which recognized that the expansive
language of due process that provides a basis for judicial
review is, when incorporated by reference into 242,
generally ill-suited to the far different task of giving
fair warning about the scope of criminal liability. The
Screws plurality identified the affront to the warning
requirement posed by employing 242 to place -the
accused . . . on trial for an offense, the nature of which
the statute does not define and hence of which it gives
no warning.- Id., at 101. At the same time, the same
Justices recognized that this constitutional difficulty does
not arise when the accused is charged with violating a
-right which has been made specific either by the
express terms of the Constitution or laws of the United
States or by decisions interpreting them.- Id., at 104.
When broad constitutional requirements have been
-made specific- by the text or settled interpretations,
willful violators -certainly are in no position to say that
they had no adequate advance notice that they would be
visited with punishment. . . . [T]hey are not punished
for violating an unknowable something.- Id., at 105.
Accordingly, Screws limited the statute's coverage to
rights fairly warned of, having been -made specific- by
the time of the charged conduct. See also Kozminski,
supra, at 941 (parallel construction of 241).
The Sixth Circuit, in this case, added two glosses to
the made-specific standard of fair warning. In its view,
a generally phrased constitutional right has been made
specific within the meaning of Screws only if a prior
decision of this Court has declared the right, and then
only when this Court has applied its ruling in a case
with facts -fundamentally similar- to the case being
prosecuted. 73 F. 3d at 1393. None of the consider-
ations advanced in this case, however, persuades us that
either a decision of this Court or the extreme level of
factual specificity envisioned by the Court of Appeals is
necessary in every instance to give fair warning.
First, contrary to the Court of Appeals, see ibid., we
think it unsound to read Screws as reasoning that only
this Court's decisions could provide the required warn-
ing. Although the Screws plurality gave two examples
involving decisions of the Court, their opinion referred
in general terms to rights made specific by -decisions
interpreting- the Constitution, see 325 U. S., at 104
(plurality opinion), and no subsequent case has held that
the universe of relevant interpretive decisions is confined
to our opinions. While United States v. Kozminski, 487
U. S. 931 (1988), a case under 241 for violating
Thirteenth Amendment rights, did characterize our task
as ascertaining the crime charged -by looking to the
scope of the Thirteenth Amendment prohibition . . .
specified in our prior decisions,- id., at 941, in at least
one other case we have specifically referred to a decision
of a Court of Appeals in defining the established scope
of a constitutional right for purposes of 241 liability,
see Anderson v. United States, 417 U. S. 211, 223-227
(1974). It is also to the point, as we explain below, that
in applying the rule of qualified immunity under 42
U. S. C. 1983 and Bivens v. Six Unknown Fed. Narcot-
ics Agents, 403 U. S. 388 (1971), we have referred to
decisions of the Courts of Appeals when enquiring
whether a right was -clearly established.- See Mitchell
v. Forsyth, 472 U. S. 511, 533 (1985); Davis v. Scherer,
468 U. S. 183, 191-192 (1984); see also id., at 203-205
(Brennan, J., concurring in part and dissenting in part);
Elder v. Holloway, 510 U. S. 510, 516 (1994) (treating
Court of Appeals decision as -relevant authority- that
must be considered as part of qualified immunity
enquiry). Although the Sixth Circuit was concerned, and
rightly so, that disparate decisions in various Circuits
might leave the law insufficiently certain even on a
point widely considered, such a circumstance may be
taken into account in deciding whether the warning is
fair enough, without any need for a categorical rule that
decisions of the Courts of Appeals and other courts are
inadequate as a matter of law to provide it.
Nor have our decisions demanded precedents that
applied the right at issue to a factual situation that is
-fundamentally similar- at the level of specificity meant
by the Sixth Circuit in using that phrase. To the
contrary, we have upheld convictions under 241 or 242
despite notable factual distinctions between the prece-
dents relied on and the cases then before the Court, so
long as the prior decisions gave reasonable warning that
the conduct then at issue violated constitutional rights.
See United States v. Guest, 383 U. S. 745, 759 n. 17
(1966) (prior cases established right of interstate travel,
but later case was the first to address the deprivation of
this right by private persons); United States v. Saylor,
322 U. S. 385 (1944) (pre-Screws; prior cases established
right to have legitimate vote counted, whereas later case
involved dilution of legitimate votes through casting of
fraudulent ballots); United States v. Classic, 313 U. S.
299, 321-324 (1941) (pre-Screws; prior cases established
right to have vote counted in general election, whereas
later case involved primary election); see also Screws,
supra, at 106 (stating that Classic met the test being
announced).
But even putting these examples aside, we think that
the Sixth Circuit's -fundamentally similar- standard
would lead trial judges to demand a degree of certainty
at once unnecessarily high and likely to beget much
wrangling. This danger flows from the Court of Appeals'
stated view, 73 F. 3d, at 1393, that due process under
242 demands more than the -clearly established- law
required for a public officer to be held civilly liable for
a constitutional violation under 1983 or Bivens, see
Anderson v. Creighton, 483 U. S. 635 (1987) (Bivens
action); Davis v. Scherer, supra, at 183 (1983 action).
This, we think, is error.
In the civil sphere, we have explained that qualified
immunity seeks to ensure that defendants -reasonably
can anticipate when their conduct may give rise to lia-
bility,- id., at 195, by attaching liability only if -[t]he
contours of the right [violated are] sufficiently clear that
a reasonable official would understand that what he is
doing violates that right,- Anderson, supra, at 640. So
conceived, the object of the -clearly established- immun-
ity standard is not different from that of -fair warning-
as it relates to law -made specific- for the purpose of
validly applying 242. The fact that one has a civil and
the other a criminal law role is of no significance; both
serve the same objective, and in effect the qualified
immunity test is simply the adaptation of the fair
warning standard to give officials (and, ultimately,
governments) the same protection from civil liability and
its consequences that individuals have traditionally
possessed in the face of vague criminal statutes. To
require something clearer than -clearly established-
would, then, call for something beyond -fair warning.-
This is not to say, of course, that the single warning
standard points to a single level of specificity sufficient
in every instance. In some circumstances, as when an
earlier case expressly leaves open whether a general rule
applies to the particular type of conduct at issue, a very
high degree of prior factual particularity may be neces-
sary. See, e.g., Mitchell v. Forsyth, supra, at 530-535,
and n. 12. But general statements of the law are not
inherently incapable of giving fair and clear warning,
and in other instances a general constitutional rule
already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even
though -the very action in question has [not] previously
been held unlawful,- Anderson, supra, at 640. As Judge
Daughtrey noted in her dissenting opinion in this case,
-`[t]he easiest cases don't even arise. There has never
been . . . a section 1983 case accusing welfare officials
of selling foster children into slavery; it does not follow
that if such a case arose, the officials would be immune
from damages [or criminal] liability.'- 73 F. 3d, at 1410
(quoting K. H. Through Murphy v. Morgan, 914 F. 2d
846, 851 (CA7 1990)); see also Colten v. Kentucky, 407
U. S. 104, 110 (1972) (due process requirements are not
-designed to convert into a constitutional dilemma the
practical difficulties in drawing criminal statutes both
general enough to take into account a variety of human
conduct and sufficiently specific to provide fair warning
that certain kinds of conduct are prohibited-); Williams
v. United States, 341 U. S. 97, 101 (1951) (holding that
beating to obtain a confession plainly violates 242). In
sum, as with civil liability under 1983 or Bivens, all
that can usefully be said about criminal liability under
242 is that it may be imposed for deprivation of a
constitutional right if, but only if, -in the light of pre-
existing law the unlawfulness [under the Constitution is]
apparent,- Anderson, supra, at 640. Where it is, the
constitutional requirement of fair warning is satisfied.
Because the Court of Appeals used the wrong gauge in
deciding whether prior judicial decisions gave fair
warning that respondent's actions violated constitutional
rights, we vacate the judgment and remand for applica-
tion of the proper standard.
It is so ordered.