Crawford-El v. Britton

SILBERMAN, Circuit Judge, concurring: Crawford-El, a D.C. prisoner serving a life sentence for murder and a chronic litigant whom we have previously described as a "trouble maker," Crawford-El v. Britton, 951 F.2d 1314, 1320 (D.C. Cir. 1991), cert. denied, 506 U.S. 818 (1992), has brought a damage claim (now amended four times) against a prison official who allegedly retaliated against him for the exercise of his constitutional rights to bring innumerable law suits (and talk to the press) by allowing his boxes of "legal material" to be picked up by his brother-in-law (horrors!) when the plaintiff was transferred from one prison to another.

There was a time, not too many years ago, when any American lawyer or judge hearing that such a case was the subject of an en banc hearing in a federal court of appeals, even that it plausibly could be brought as a claim in a federal district court, would have been incredulous. Before I discuss what I believe to be the appropriate resolution of the case - given the state of present law on qualified immunity of government officials - I think it worthwhile to trace the jurisprudential steps that have led us to this situation. Particularly is this so because some justices have expressed legitimate concerns about the degree of judicial "policymaking" implicated in fashioning the substantive and procedural framework of qualified immunity, see Wyatt v. Cole, 504 U.S. 158, 171-72 (1992) (Kennedy, J., concurring, joined by Justice Scalia); [1] see also Chief Judge Edwards' Sep. Op. at 14-15, overlooking the much more fundamental - and troublesome - judicial policymaking

[1 Qualified immunity is not a new innovation and some have expressed concern insofar as it has been extended beyond its common-law boundaries. But at common law, we did not have constitutional torts as such. Moreover, pre-trial discovery in the nineteenth century was not burdensome (in sharp contrast to our current system) due to the severe restrictions placed on it, if it was allowed at all, even in the most permissive of states. See Wolfson, Addressing the Adversarial Dilemma of Civil Discovery, 36 CLEV. ST. L. REV. 17, 25-27 (1987). ]


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


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). ]


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.]


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. ]


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.]


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. ]



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


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


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. ]


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


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
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