# Butler v. Elle > Court of Appeals for the Ninth Circuit · February 26, 2002 · 281 F.3d 1014 URL: https://www.frixlaw.com/law-library/cases/7009369 ## Case - **Full name:** Cornelius "Neil" BUTLER, Jr. Butler Trailer Manufacturing Company v. Eric ELLE, individually and in his official capacity as an investigator with the Idaho Transportation Department Scott Shaw, individually and in his official capacity as Franklin County Sheriff Don B. Beckstead, individually and in his official capacity as Franklin County Sheriff Jay B. Heusser, individually and in his official capacity as Mayor of Preston Mark Beckstead, individually and in his official capacity as a police officer for the Preston Police Department Ned Robert Burton, individually and in his official capacity as a police officer for the Preston Police Department Jay R. McKenzie, individually and in his official capacity as Franklin County Prosecutor - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** February 26, 2002 - **Citations:** 281 F.3d 1014; 2002 WL 271483 - **Precedential status:** Published - **Opinion:** Concurring in part by Lay - **Judges:** Berzon, Lay, Trott - **Cited by:** 154 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7009369 ## How later opinions describe it (automated extraction) - holding that a trucker’s § 1983 claim survived summary judgment when a government investigator told the magistrate that the trucker had failed to pay ton-mile taxes, citing a lack of evidence of payment, when the experienced investigator knew he had never searched the records … - noting that “our cases effectively intertwine the qualified immunity question (1) whether a reasonable officer should have known that he acted in violation of a plaintiff’s constitutional rights with (2) the substantive recklessness or dishonesty question” - noting that 15 where the violation prong of the qualified immunity analysis is not established before trial, it 16 effectively merges with the question of liability at trial ## Opinion text LAY, Circuit Judge, concurring, and dissenting in part: Perhaps my disagreement with the majority opinion on the issue of Elle’s qualified immunity is based more on semantics than substance. If this be true, so be it; however, I sense a more major concern. We all are bound by the opinions of the United States Supreme Court. The majority opinion finds that the issue of qualified immunity is intertwined with the alleged constitutional violation because there exists a factual question of intent as to whether Elle in instigating the issuance of the search warrant was guilty of reckless disregard of the truth. 1 However, I respectfully disagree that motive touches the defense of qualified immunity. The issue of qualified immunity is one that should be passed upon as a matter of law and decided at this time by this court without further remand. See Jeffers v. Gomez, 267 F.3d 895, 906-8 (9th Cir.2001). 2 *1030 I am in complete agreement that as a matter of law, no probable cause existed for the issuance of the search warrant instigated by Eric Elle. The majority and I agree that the underlying constitutional issue does involve Elle’s state of mind. In this sense the question as to whether Elle acted in reckless disregard of the truth, which is the basis of Butler’s complaint against Elle under the Fourth Amendment, remains as a fact issue for the jury to decide. However, where we part company is that this question is wholly separate from the issue now before this court: whether Elle’s defense of qualified immunity should be sustained. The majority reasons motive is relevant to both the issue of qualified immunity and the alleged constitutional violation. The majority rules Elle’s motive in securing the search warrant makes it impossible, at this time, for this court to pass on Elle’s defense of qualified immunity. However, I cannot agree there exists a merger of the question of qualified immunity and plaintiffs constitutional claim. The Supreme Court has never recognized a merger of these two claims. The Supreme Court has never recognized that motive is a factual issue in reviewing the defense of qualified immunity. In fact, the Court has repeatedly rejected this argument: The court’s clear and convincing evidence requirement applies to the plaintiffs showing of improper intent (a pure issue of fact), not to the separate qualified immunity question whether the official’s alleged conduct violated clearly established law, which is an “essentially legal question.” Mitchell v. Forsyth, 472 U.S. 511, 526-529 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985); see Gomez, 446 U.S. at 640, 100 S.Ct. 1920 (“[Tjhis Court has never indicated that qualified immunity is relevant to the existence of the plaintiffs cause of action”) (emphasis added). Crawford-El v. Britton, 523 U.S. 574, 589 , 118 S.Ct. 1584 , 140 L.Ed.2d 759 (1998). The majority overlooks the very purpose of the qualified immunity defense is not to determine liability vel non, but to make certain innocent government officials need not stand trial. The very purpose of the defense is to avoid the subjective examination of the government officials’ state of mind that requires endless discovery and time consuming trial proceedings. If motive is a factual question in resolving the issue of qualified immunity, then the very purpose of the defense becomes a futile myth. The Supreme Court has made it clear that the question of qualified immunity is not one of fact and is not one that involves the state of mind of the state official, but is to be decided solely as a question of law. See Hunter v. Bryant, 502 U.S. 224, 227-28 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991). Thus, the sole question for this court in deciding qualified immunity in this case is whether (1) in light of clearly established law (2) a reasonable officer would have objectively believed his or her conduct lawful. The majority opinion has adequately set forth the reasons why, in light of all known circumstances, a reasonable officer under similar circumstances would not have objectively believed his conduct was lawful. As the majority succinctly states, the record demonstrates Elle did not follow the civil procedures for assessing and collecting a sales tax deficiency. Further, Elle testified he used the only names by which he knew Butler and his company. However, this is disputed, as the majority points out, by the information Elle possessed at the time he submitted his affidavit. As far as Elle’s argument that according to the *1031 records no taxes had been paid, the majority again points out “it was impossible for him to ascertain whether Butler had satisfied his ton-mile taxes in this manner.” Elle failed to investigate the possibility that ton-mile taxes could be paid by trip permit. I approach this evidence in discussing qualified immunity, from the objective perspective of whether a reasonable officer under the circumstances existing would have been justified in seeking the search warrant that Elle did. Once this decision is made as the majority appears to conclude, qualified immunity is removed from the case. Therefore, the remand to the district court should be for the sole purpose of allowing the jury to determine whether Elle acted with sufficient intent to cause a constitutional deprivation to Butler. As stated, qualified immunity is a question of law and the factual question of Elle’s state of mind is completely irrelevant to that issue. Harlow v. Fitzgerald, 457 U.S. 800, 817 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). The Supreme Court of the United States has emphasized, on various occasions, why the question of subjective intent is not an issue in the analysis of qualified immunity. See id. As the Harlow Court stated, subjective analysis defeats the purposes behind qualified immunity, since “[jjudicial inquiry into subjective motivation therefore may entail broad-ranging discovery.... Inquiries of this kind can be peculiarly disruptive of effective government.” Id. More recently, the Court in Britton stated, “[under existing precedent] a defense of qualified immunity may not be rebutted by evidence that the defendant’s conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant’s subjective intent is simply irrelevant to that defense.” Britton, 523 U.S. at 588 , 118 S.Ct. 1584 (emphasis added). I would hold, under the facts and circumstances involved here, that a reasonable officer would or should have known he was violating the constitutional right of the plaintiff. This resolution does not involve the officer’s subjective state of mind. This is a question of law and the district court erred in granting summary judgment to Elle on the defense of qualified immunity. On remand, the district court should instruct the jury that if it finds under all the facts and circumstances that the defendant Elle knew or should have known he was acting in reckless disregard of the plaintiffs constitutional rights, the verdict on the merits of his claim should be decided in favor of the plaintiff. In other words, on remand, qualified immunity is a non-issue; the basis of the present appeal as a collateral order is because the district court erred in dismissing Butler’s claim against Elle on the ground of qualified immunity. This court should now not only reverse this order, but affirmatively rule that Elle is not entitled to the defense of qualified immunity. For the reasons discussed by the majority the defense of qualified immunity asserted by Elle should now be adjudicated as a matter of law. The sole issue that persists relating to Elle’s mental state is to be decided by the fact finder because it still remains an element of proof of the alleged constitutional violation. With these qualifications, I am in full agreement with the majority opinion. . If this be so, then we should dismiss the appeal on Elle's qualified immunity since it is only an interlocutory order because of the remaining factual issue of intent. Johnson v. Jones, 515 U.S. 304 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). . The discussion in Jeffers as to factual issues to be decided preliminary to ruling on the issue of qualified immunity does not include the question of motive. This issue arises in § 1983 cases where the parties are in dispute as to the factual events leading up to plain *1030 tiff's claim. See Johnson, 515 U.S. at 304 , 115 S.Ct. 2151 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7009369. Public record. Not legal advice.