involved in creating the causes of action that have given us the problem.
Federal damage actions that typically raise qualified
immunity concerns are those brought against federal officials as
Bivens actions or against state officers under § 1 of the 1871
Civil Rights Act (hereinafter § 1983). Section 1983 reads:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1994). Ironically, § 1983 was the least
controversial provision in the 1871 Act, attracting little
attention or debate. And for almost 100 years the federal courts
read that statute as it was clearly intended, to attack the
so-called "Black Codes" passed by Southern states after the civil
war, not private torts. See, e.g., Lane v. Wilson, 307 U.S. 268
(1939); Brawner v. Irvin, 169 F. 964, 968 (C.C.N.D. Ga. 1909)
(dismissing case that alleged that the police chief had whipped
petitioner for striking his relative since it alleged only a
private tort). But in 1961 in Monroe v. Pape, 365 U.S. 167, the
Supreme Court extended the statute to reach the behavior of
Chicago police officers who did not claim their actions were
sanctioned under state law. Indeed, there was little doubt that
the plaintiffs had a tort remedy under Illinois law. But as is
so often true when the Supreme Court hands down a decision that
substantially expands federal judicial power, the facts were
dramatic: thirteen Chicago police officers broke into the
Monroes' apartment, forced the Monroes to stand naked at gunpoint
in the middle of their living room, struck their children, and
called Mr. Monroe "nigger" and "black boy." Id. at 203
(Frankfurter, J., dissenting in
2
part). The Court overrode what
seems to me to be the characteristically impeccable reasoning of
Justice Frankfurter (when he was relying on reasoning rather than
rhetoric) in dissent, and turned § 1983 into a provision that the
post-civil war Congress could not possibly have visualized. See
Zagrans, "Under Color Of" What Law: A Reconstructed Model of
Section 1983 Liability, 71 VA. L. REV. 499 (1985). The Court's
construction effectively read out of the statute the "under color
of law" limitation, making it synonymous with the Fourteenth
Amendment's state action requirement. [2] Subsequently, the Court discovered a whole series of new constitutional rights and
applied the Bill of Rights to the states. [3] As a result, the
296 federal civil rights actions against government officials
filed in 1961 have exploded into over 40,000 by 1988, over half
of which were filed by prisoners. In just the period between
1975 and 1984, the number of prisoner civil rights cases
increased by approximately 200%, from 6,606 to a staggering
18,856. See Eisenberg & Schwab, The Reality of Constitutional
Tort Litigation, 72 CORNELL L. REV. 641, 667 (1987). In
contrast, there were only 21 cases decided under § 1983 in its
first 50 years. See Comment, The Civil Rights Act: Emergence of
an Adequate Federal Civil Remedy?, 26 IND. L.J. 361, 363 (1951).
[2 The Court's interpretation of "under color of law" has not been its only creative interpretation of § 1983. It has allowed
litigants to use § 1983 to enforce statutes that have no
connection to the Fourteenth Amendment or the post-civil war
civil rights legislation. See Maine v. Thiboutot, 448 U.S. 1
(1980). The Court was not discomforted that its interpretation
would result in the scope of § 1983 being vastly greater than its
jurisdictional counterpart (which was the only conceivable basis
for § 1983 suits until § 1331 was passed some years later). The
dissent in Thiboutot indicated that it is "idiotic" to interpret
§ 1983 in this fashion. Id. at 21 n.9.]
[3 In fairness, "incorporation" of the Bill of Rights had begun
a long time before. See, e.g., Smyth v. Ames, 169 U.S. 466,
525-26 (1898) (applying the "Takings Clause" to state rate
regulation of railroads). ]
3
Then, in 1971 the Court, in perhaps an even more stunning
exercise of judicial policymaking, fashioned a federal cause of
action for damages against federal officials for a
"constitutional tort." In Bivens v. Six Unkown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), the facts were
again grim; six federal law enforcement officials without a
warrant broke into the apartment of the plaintiff to conduct a
search. He was arrested in front of his wife and children - who
were also threatened with arrest - for a narcotics violation and
was subsequently interrogated, searched, and booked. The case
against him was ultimately dismissed. Bivens reflected the
Court's policy proclivity to "equalize" the obligations of
constitutional law imposed on state government to those imposed
on federal government. See, e.g., Bolling v. Sharpe, 347 U.S.
497, 500 (1954); Butz v. Economou, 438 U.S. 478, 501-03 (1978).
To be sure, prior to 1875 and the passage of the general
federal question jurisdiction statute, an injured party could
bring a common-law suit in state court against a governmental
actor. The governmental official would then raise as a defense
that he was acting pursuant to a statute or authority vested in
him - a defense which could be defeated by showing that the
statute or delegated authority was unconstitutional. For
instance, the Fourth Amendment's prohibition against unreasonable
searches and seizures was enforced by bringing a common-law
trespass action against a governmental official, an action which
an official could not defeat by invoking a claim of authority
violative of the Fourth Amendment. [4] See Boyd v. United States, 116 U.S. 616, 626-27 (1886). Of course, there was no a priori
assurance that there would always be a common-law right
guaranteeing a remedy for an official's unconstitutional action
(although there normally
[4 In actions for trespass, the defendant would typically seek damages against the trespasser. See, e.g., Huckle v. Money, 95
Eng.Rep. 768 (1763). While one might be tempted to argue that
since the framers envisioned the Fourth Amendment being enforced
through actions for damages - where the Fourth Amendment negated
the government official's defense - the important point is that
the underlying cause of action was a creature of state law.]
4
would be), but this is only a problem if
one thinks that there is an a priori reason to believe that every
constitutional violation must be remedied. Our historical
practice simply does not support the proposition that the
Constitution is self-executing. Cf. Webster v. Doe, 486 U.S.
592, 613 (1988) (Scalia, J. dissenting) (explaining that it is
"untenable that there must be a judicial remedy for every
constitutional violation"). [5]
After 1875, the Court started down a different path. It
gradually concluded that an implied cause of action under the
Constitution existed where the remedy sought was an injunction.
The Court by "almost imperceptible steps ... appears to have come
to treat the remedy of injunction as conferred directly by
federal law for any abuse of state authority which in the view of
federal law ought to be remediable." Hart, The Relations Between
State and Federal Law, 54 COLUM. L. REV. 489, 524 (1954). This
process culminated in Ex Parte Young, 209 U.S. 123 (1908), in
which the Court upheld an injunction of a state official where
the alleged wrong was the threat of future prosecutions.
Whatever the validity of this reasoning in an era when the courts
had license to create general federal common law, see Swift v.
Tyson, 41 U.S. (16 Pet.) 1 (1842), there is no question that the
Court's finding of an implied right to an injunction against a
government official in his official capacity is on far more solid
ground than the creation of an implied right to damages against a
governmental official as an individual. After all, the
Constitution (with a few exceptions such as the Thirteenth
Amendment) is concerned with limitations on the power of
government. Individuals are implicated only insofar as they act
as agents of the government as opposed to private tortfeasors.
Moreover,
[5 One should keep in mind that even under the most narrow
construction of Harlow v. Fitzgerald, 457 U.S. 800 (1982), it is
inevitable that some meritorious suits will be barred. This
should not be surprising since the very notion of an "immunity"
from suit, as opposed to a "defense," entails that valid
constitutional claims will be barred. ]
5
the Court has for the last hundred years consistently
followed this line of reasoning in finding an implied right to an
injunction; Bivens suits lack such a pedigree. [6] See, e.g., Davis v. Passman, 442 U.S. 228, 241-43 (1979) (explaining this
tradition); Chamber of Commerce v. Reich, 74 F.3d 1322, 1327-28
(D.C. Cir. 1996); Collins, "Economic Rights," Implied
Constitutional Actions, and the Scope of Section 1983, 77 GEO.
L.J. 1493, 1510 (1989). The availability of the historically
recognized right to injunctive relief obviates the need for a
judicially-created damages remedy. As Justices Frankfurter and
Brandeis explained (and as implicitly recognized by Justice
Harlan in his Bivens concurrence) "remedies" are independent of
"rights." Remedies can vary based on the weighing of numerous
policy considerations even while the right being enforced remains
the same. See Truax v. Corrigan, 257 U.S. 312, 354-57 (1921)
(Brandeis, J., dissenting);
[6 The Court has implied a damages remedy in order to enforce
the Fifth Amendment's prohibition on the taking of private
property for public use without just compensation. See Jacobs v.
United States, 290 U.S. 13 (1933). However, the damages remedy
was against the government and has explicit textual support in
the Amendment's requirement that "just compensation" be paid.
See First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (citing cases
that "make clear that it is the Constitution that dictates the
remedy for interference with property rights amounting to a
taking").
Some have argued that the Court after 1875, even if rarely, also implied a personal damages remedy. In most of these cases, the
Court seems to have conceived of the cause of action, although
admittedly sometimes artificially, as based upon the common law.
In Wiley v. Sinkler, 179 U.S. 58 (1900), and Swafford v.
Templeton, 185 U.S. 487 (1902), the two most cited examples of
this implied damages remedy, the Court concluded that the lower
federal court had federal question jurisdiction to entertain a
suit for damages against state officials for their interference
with the plaintiffs' right to vote in federal elections since it
involved the construction and application of the Constitution.
The Court in these cases was focused on whether the suits raised
federal questions, not the legitimacy of the damages remedy,
although the two questions admittedly do overlap.]
6
F. FRANKFURTER & N. GREENE, THE LABOR
INJUNCTION 205-223 (1930). The lack of a damages remedy does not
denigrate or change the nature of the underlying right.
The point to bear in mind then, before turning to the
qualified immunity question, is that the causes of action that
largely create the problem that qualified immunity addresses were
not created by Congress; they were devised by the Supreme Court
without any legislative or constitutional (in the sense of
positive law) guidance. Justice Harlan candidly admitted in his
concurring opinion in Bivens, and as subsequently affirmed by the
whole Court, see Bush v. Lucas, 462 U.S. 367, 376-78 (1983), that
the Court, in crafting a remedy, feels free to take into account
the range of policy considerations "at least as broad as the
range of those a legislature would consider." 403 U.S. at 407.
As Justice Rehnquist pointed out in dissent in Carlson v. Green,
446 U.S. 14, 36 (1980), this quasi-Article I legislative function
of open-ended balancing of different policy considerations and
goals is ill-suited for the judiciary. [7] The best solution to
the whole problem would be the flat overruling of both Bivens -
as Justice Rehnquist called for in Carlson - and Pape, putting the issue of damage remedies against state or federal officials
for constitutional torts where it belongs - with states and
Congress. But since the Supreme Court, in accordance with public
choice theory, see generally J. BUCHANAN & G. TULLOCH, THE
CALCULUS OF CONSENT (1962) (arguing that all rational actors,
including those in government, pursue power), follows its own
version of the Breznev Doctrine - no significant retreat from
extensions of federal constitutional power (unless perhaps, if
confronted by Congress) - that is a vain hope. [8]
[7 To the extent that the Bivens Court relied on the Court's authority to infer private damages remedies in the face of
statutory silence, see Bivens, 403 U.S. 388, 398 (Harlan, J.,
concurring), this has been undermined by subsequent case law.
See Carlson, 446 U.S. at 39 n.5. ]
[8 It could be argued that the Supreme Court's withdrawal from
Lochner is an exception, but of course substantive due process
grew back anew in "politically correct" gardens. ]
7
II.
As I have indicated, shocking factual allegations played no
small part in the development of the law in Pape and Bivens.
(Many journalists and lawyers describe as a virtue a hypothetical
Supreme Court justice's disposition to decide in accordance with
the facts of a particular case; they mean the justice should
decide how the dispute should be resolved using a Solomonic
policy-oriented methodology and then the law should be fashioned
to accommodate that resolution.) It is hard to imagine a similar
outcome in either case if facts akin to Crawford-El's had been
presented. In other words, if Pape or Bivens had involved
constitutional tort claims that depended on allegations that the
actor's motive was proscribed, I am confident that the Supreme
Court would not have gone down either path, especially in light
of the probative difficulties that motive-based wrongs
necessarily involve, because virtually any ostensibly legal
action taken by a government official can be thought
unconstitutional if prompted by an unconstitutional motive.
Viewed in this light, Judge (now Justice) Ginsburg's
"heightened pleading" requirement that a plaintiff allege direct
evidence to show an unconstitutional motive for actions that
would otherwise be perfectly legal might be thought an effort to
keep a Bivens claim close to the kinds of facts that moved the
Supreme Court to create the cause of action in the first place.
See Martin v. D.C. Metropolitan Police Dep't, 812 F.2d 1425 (D.C.
Cir. 1987). Theoretically, circumstantial evidence is not
inherently weaker than direct evidence, but I think Judge
Williams' opinion overstates the matter - by a good deal - when
it argues that "we have no reason to think that it did any better
as a screen, than, say a random rejection of nine out of every
ten claims." Judge Williams' Op. at 10. Since direct evidence
of an unconstitutional motive for an ostensible legal act is
virtually never available (I do not recall ever seeing such a
case since Martin was decided), the Martin heightened pleading
requirement effectively kept Bivens unconstitutional motive cases
from going to discovery
8
and trial in our circuit for 10 years.
That result, no matter how reached, is not only desirable, it is
implicitly contemplated, as I explain below, by Harlow v.
Fitzgerald, 457 U.S. 800 (1982). Thus, whatever the logical
flaws in the direct versus circumstantial evidence distinction or
the designation of a "heightened pleading" requirement, I would
have been content to hold to Martin as precedent - which under
Judge Edwards' reasoning would be the most judicially restrained
choice - but as long as the court is determined to reexamine the
doctrine, I prefer a somewhat different approach than does Judge
Williams.
In actual practice, Judge Williams' clear and convincing
test applied at the summary judgment stage may well have the same
ultimate impact as the Martin test. Under both standards, it
would appear quite difficult for a plaintiff to gain discovery,
let alone a trial, if the government official's bad motivation is
the key to making out the constitutional tort. Still, the test
as set forth by Judge Williams holds out the prospect of
confusion in application. I am not sure I understand just what
sort of showing a plaintiff must make to meet the "specific,
non-conclusory assertions of evidence, in affidavits or other
materials suitable for summary judgment" test. Judge Williams'
Op. at 13 (emphasis added). Or how that differs from Justice
Kennedy's requirement that "the plaintiff must put forward
specific, nonconclusory factual allegations which establish
malice." Siegert v. Gilley, 500 U.S. 226, 236 (1991) (emphases
added). Or how either standard differs from the Seventh
Circuit's cryptic phrase "[u]nless the plaintiff has the kernel
of a case in hand, the defendant wins on immunity grounds in
advance of discovery." Elliott v. Thomas, 937 F.2d 338, 345
(1991). For example, would Judge Williams' disposition differ if
the plaintiff produced an affidavit asserting that in a private
conversation with him the defendant unequivocally stated that she
intended to punish him, for his vexing litigation, by giving his
"legal papers" to his brother-in-law? Would Justice Kennedy's or
Judge Easterbrook's? I fear Judge Williams' approach, while
certainly
9
preferable to Judge Edwards', [9] will promise a good
deal of further litigation with very little return in providing
relief in supposedly meritorious cases.
Judge Ginsburg's approach promises even more confusion - and ungoverned variance among the practice of district judges. By
permitting discovery upon a showing based on "specific evidence
within the plaintiff's command, that such discovery will uncover
evidence sufficient to sustain a jury finding in the plaintiff's
favor," Judge Ginsburg asks each judge to use his or her crystal
ball rather than a rule of decision. The ex ante impact on
potential defendants' behavior would not under this formulation
differ meaningfully from Judge Edwards' position. In my view it
will induce more paralysis than discouragement of wicked actions.
It is perhaps one of the simplest axioms of law and economics
that overdeterrence as well as underdeterrence yields inefficient
results. See P. SCHUCK, SUING GOVERNMENT 68-75 (1983).
I think the more straightforward solution, following
Harlow's reasoning, is to hold that when the defendant asserts a
legitimate motive for his or her action, only an objective
inquiry into the pretextuality of the assertion is allowed. If
the facts establish that the purported motivation would have been
reasonable, the defendant is entitled to qualified immunity. Cf.
Halperin v. Kissinger, 807 F.2d 180, 188 (D.C. Cir. 1986).
Although Harlow dealt specifically with a different subjective
aspect of an official's motivation - his knowledge or
appreciation of governing constitutional law - as Judge Williams
notes, the Court in Mitchell v. Forsyth, 472 U.S. 511, 517
(1985), read Harlow as having "purged qualified immunity doctrine of its subjective components." See also Anderson v. Creighton, 483 U.S. 635, 645 (1987) (explaining that the Harlow Court "completely reformulated qualified immunity along principles not
at all embodied in the common law, replacing the inquiry into
subjective malice so frequently required at common law with an
objective inquiry into the
[9 I quite agree with Judge Williams' discussion of Leatherman
v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507
U.S. 163 (1993), and also agree that a plaintiff is entitled to
discovery for certain other purposes. Judge Williams' Op. at
13-14. ]
10
legal reasonableness of the official
action"). More important, Harlow itself unequivocally states
that "[u]ntil this threshold immunity question is resolved,
discovery should not be allowed." 457 U.S. at 818. That thought
certainly strongly suggests that a factual dispute over whether
the defendant's otherwise legal action is rendered illegal
because of an unconstitutional motive cannot defeat a qualified
immunity defense. The Harlow Court manifested a clear awareness
of the peculiar difficulties that litigation over any kind of
motivational disputes entail:
There are special costs to "subjective" inquiries.... In
contrast with the thought processes accompanying "ministerial"
tasks, the judgments surrounding discretionary action almost
inevitably are influenced by the decision maker's experiences,
values, and emotions. These variables explain in part why
questions of subjective intent so rarely can be decided by
summary judgment ...
Id. at 816. The Court specifically noted that "petitioners
advance persuasive arguments that the dismissal of insubstantial
lawsuits without trial - a factor presupposed in the balance of
competing interests struck by our prior cases - requires an
adjustment of the "good faith' standard established by our
decisions." Id. at 814-15. The gravamen of the petitioners'
argument was that the qualified immunity available under Butz was
undermined by district courts which "routinely denied motions for
summary judgment on the ground that the claim of malice or bad
faith automatically raised a triable issue of fact as to the
defendant's state of mind." It would be odd if the Court found
this concern persuasive and yet reformulated the qualified
immunity inquiry in a way that was not responsive to the
difficulty of defeating at summary judgment intent-based
constitutional suits. Nor is it at all clear that allowing a
government official, as Judge Williams puts it, Judge Williams'
Op. at 16, to maliciously perpetrate a constitutional violation
(so long as the constitutional right was not so clearly
established that a "merely reasonable person" would not have
known it) is less "egregious," Judge Williams' Op. at 11, than
allowing the
11
same official to take an objectively reasonable
action that would be blameless if the defendant's motives were
benign. The very logic that leads my colleagues to reject the
distinction between direct and circumstantial evidence, it seems
to me, could lead to a similar rejection of the distinction
between two subjective elements (knowledge of the law and actual
motivation) of the constitutional tort/qualified immunity
analysis.
Yet, as Judge Williams correctly notes, the circuit courts
have shrunk from that interpretation of Harlow. They have done
so, it appears, because of a concern that has driven much of
American jurisprudence in the latter half of the twentieth
century; the prospect of a racially discriminatory act. See,
e.g., Kennedy, The State, Criminal Law, and Racial
Discrimination: A Comment, 107 HARV. L. REV.1255 (1994)
(discussing the impact of race on the evolution of criminal law).
Thus in Elliott, the Seventh Circuit recognized that:
[c]arrying out the program of Harlow seems to imply attributing
to the defendants the best intent they (objectively) could have
under the circumstances, and asking whether the law at the time
clearly establishes that persons with such an intent violate the
Constitution. Yet that would be the functional equivalent of
eliminating all recoveries when a mental state is part of the
definition of the wrong - as it is in cases of racial
discrimination, excessive punishment, and many other
constitutional torts.
937 F.2d at 344 (emphasis added). Similarly, in Halperin, where
we actually so applied Harlow, at least to "national security
cases," see 807 F.2d at 187-88, we revealingly suggested that to
conclude that Harlow meant to preclude inquiry into all intent
would permit a defendant "to discriminate on the basis of race."
Id. at 186.
Silberman Opinion Continued
Case Intro
Listing of Cases |
Proposition One | Peace Park