Crawford-El v. Britton

• Decision Date: 27 August 1996
• Docket Number: A,No. 94-7203,CRAWFORD-E,94-7203
• Citation: 93 F.3d 813
• Parties: Leonard Rollonppellant, v. Patricia BRITTON and the District of Columbia, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 813

93 F.3d 813

320 U.S.App.D.C. 150

Leonard Rollon CRAWFORD-EL, Appellant, v. Patricia BRITTON and the District of Columbia, Appellees.

No. 94-7203.

United States Court of Appeals, District of Columbia Circuit.

Argued March 20, 1996.

Decided Aug. 27, 1996.

[320 U.S.App.D.C. 151] Appeal from the United States District Court for the District of Columbia (No. 89cv03076).

Daniel M. Schember, Washington, DC, argued the cause and filed the briefs, for appellant.

Charles L. Reischel, Deputy Corporation Counsel, argued the cause, for appellees. With him on the brief were Charles F. Ruff, Corporation Counsel, and Edward E. Schwab, Assistant Corporation Counsel. Garland Pinkston, Jr., Principal Deputy Corporation Counsel and Erias A. Hyman, Counsel, entered appearances.

Stephen W. Preston, Deputy Assistant Attorney General, United States Department of Justice, argued the cause, for amicus curiae the United States. With him on the brief were Frank W. Hunger, Assistant Attorney General, Barbara L. Herwig, Assistant Director, Robert M. Loeb, Attorney and Eric H. Holder, Jr., United States Attorney.

Michael L. Martinez and William J. Dempster, Washington, DC, were on the brief, for amici curiae J. Michael Quinlan and Loye W. Miller, Jr.

Arthur B. Spitzer, Washington, DC, was on the brief, for amicus curiae American Civil Liberties Union of the National Capital Area.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge WILLIAMS.

Concurring opinion filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge GINSBURG.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion filed by Chief Judge EDWARDS, concurring in the judgment to remand.

STEPHEN F. WILLIAMS, Circuit Judge:

We decided to hear this case en banc on our own initiative in order to resolve continuing disputes as to how a government official's assertion of qualified immunity, as a defense to a damage action for a constitutional tort, may affect pleading and summary judgment standards where the unconstitutionality of the official's act turns on his motive. Our inquiry is framed by the competing goals described by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 816-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982)--vindicating constitutional rights but at the same time protecting officials from exposure to discovery and trial that would unduly chill their readiness to exercise discretion in the public interest. We here discard our former solution--a requirement that the plaintiff allege "direct" evidence of unconstitutional motive. See, e.g., Siegert v. Gilley, 895 F.2d 797 (D.C.Cir.1990), aff'd. on other grounds, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). But we read Harlow as calling for alternative rules to protect officials. First, we think Harlow allows an official to get summary judgment resolution of the qualified immunity issue, including the question of the official's state of mind, before the plaintiff has engaged in discovery on that issue. Second, we believe that unless the plaintiff offers clear and convincing evidence on the state-of-mind issue at summary judgment and trial, judgment or directed verdict (as appropriate) should be granted for the individual defendant.

* * *

Crawford-El is a prisoner in the District of Columbia's correctional system serving a life sentence for murder. He filed the present lawsuit in 1989, claiming that the individual defendant, Patricia Britton, a D.C. correctional official, and the District of Columbia had misdelivered boxes belonging to him containing legal papers, clothes and other personal items, thereby violating his constitutional right of access to the courts. When Britton moved for dismissal and for summary judgment on grounds of qualified immunity, the district court denied the motion and Britton appealed. We reviewed Crawford-El's allegations under a "heightened pleading" requirement, insisting that the plaintiff in such a case advance "nonconclusory allegations that are sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds." Crawford-El v. Britton, 951 F.2d 1314, 1317 (D.C.Cir.1991) (quotations omitted). By this standard we found his claims wanting. Because we thought that our heightened pleading doctrine had become clearer in ways adverse to plaintiff since his pleading, however, we remanded the case to the district court in case that court, in its discretion, should decide to permit repleading. Id. at 1322.

On remand the district court indeed granted permission, and Crawford-El filed his Fourth Amended Complaint. There he repleaded the access-to-courts claim, but without adding material to fill the gap identified in our first opinion. He also pleaded a due process claim. The district court dismissed both claims, and a panel of this court affirmed. Crawford-El v. Britton, No. 94-7203, mem. op. at 1-2, 1995 WL 761781 (D.C.Cir. Nov. 28, 1995). In addition, Crawford-El charged that the defendants' alleged misdelivery of his belongings was in retaliation for various feisty communications with the press and thus in violation of the First Amendment. (This claim had initially appeared in his briefing on the first round in this court. See Crawford-El, 951 F.2d at 1316.) The district court granted the defendants' motion to dismiss the First Amendment claim as well, saying that the complaint did not allege "direct" evidence of unconstitutional motivation and citing Siegert v. Gilley, 895 F.2d 797, 800-802 (D.C.Cir.1990), aff'd on other grounds, 500 U.S. 226, 231, 111 S.Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991), our court's most emphatic statement of the "direct" evidence requirement. Crawford-El v. Britton, 844 F.Supp. 795, 802 (D.D.C.1994). After affirming dismissal of the first two claims, the panel suggested, and the court en banc agreed, that the dismissal of the First The background law on subjective motivation and qualified immunity.

[320 U.S.App.D.C. 153] Amendment retaliation claim should be heard by the court en banc. ¹

In Harlow v. Fitzgerald the Court reformulated its test for officials' qualified immunity in constitutional tort actions. For acts to which qualified immunity may apply, ² it held that the plaintiff can prevail only by showing not just that there was a violation, but that defendant's acts violated "clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. at 818, 102 S.Ct. at 2738. It thus excluded liability where there was a violation (but not of a right so clearly established that a reasonable person would have known of it) even when the official acted "with the malicious intention to cause a deprivation of constitutional rights or other injury." Id. at 815, 102 S.Ct. at 2737 (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)).

The Court was quite explicit as to the purpose of its change. It noted that claims against officers necessarily included ones "against the innocent as well as the guilty," and that among the "social costs" of such suits were "the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." Id. at 814, 102 S.Ct. at 2736. Last but not least, it invoked Judge Hand's opinion in Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), which had argued that the fear of being sued would "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties." 177 F.2d at 581 (quoted in Harlow, 457 U.S. at 814, 102 S.Ct. at 2736). It saw the inclusion of liability based on subjective malice as greatly increasing all these costs. Because such liability opened up a wide field of inquiry, often with "no clear end to the relevant evidence" bearing on the official's "experiences, values, and emotions," and typically not susceptible of disposition by summary judgment, its resolution was "peculiarly disruptive of effective government." Id. at 816-17, 102 S.Ct. at 2737-38. Most notably for our purposes, the Court underscored the burdensome character of discovery flowing from such liability. See id. at 817, 102 S.Ct. at 2737 (speaking of the "broad-ranging discovery" that would result from allowing such claims); id. at 818, 102 S.Ct. at 2738 (speaking of the resulting "broad-reaching discovery"). Moreover, the Court said, such liability would thwart what had been its assumption in its earlier definition of qualified immunity--that "[i]nsubstantial lawsuits would be quickly terminated." Id. at 814, 102 S.Ct. at 2736 (quoting Butz v. Economou, 438 U.S. 478, 507-508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978)). Accordingly the Court held that qualified immunity could be penetrated only on a showing of objective unreasonableness--the now familiar requirement of "clearly established" rights. Id. at 818, 102 S.Ct. at 2738. Henceforth, "bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery." Id. at 817-18, 102 S.Ct. at 2738. The Court later described Harlow as having "purged qualified immunity doctrine of its subjective components." Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct. 2806, 2810, 86 L.Ed.2d 411 (1985); see also Davis In fact, under the decisions of every circuit court addressing the matter, Harlow has not accomplished the stated purpose. This circuit and others have understood Harlow to allow inquiry into subjective motivation where an otherwise constitutional act becomes unconstitutional only when performed with some sort of forbidden motive (such as, here, the claim that Britton's decisions...