Morgan v. Swanson

DENNIS, Circuit Judge,

specially concurring in Parts I to IV and V.D, but not joining Part V.A to C or reaching the issue addressed therein:

I concur in Judge Benavides’ opinion, but I do not join Part V.A to C because I respectfully do not agree that we should reach the issue addressed therein, and, accordingly, I concur in the judgment only insofar as it grants defendant-appellants qualified immunity.

I also do not join fully in Part IV.A of Judge Benavides’ opinion because I disagree with one of its premises in discussing clearly established law. Specifically, I disagree with the blanket statement that “generalizations and abstract propositions are not capable of establishing the law.” Judge Benavides’ Op. 371-72. In Anderson v. Creighton, 483 U.S. 635, 639 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987), the Supreme Court “appealed] to require a relatively high degree of specificity before a rule can be called ‘clearly established.’ ” Schneyder v. Smith, 653 F.3d 313, 329 , 2011 WL 3211504, at *11 (3d Cir. July 29, 2011) (citing Anderson, 483 U.S. at 640 , 107 S.Ct. 3034 ). However, the Court was also “at pains to emphasize that ‘[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.’ ” Id. at 329, 2011 WL 3211504,

*392 at *11 (quoting Anderson, 483 U.S. at 640 , 107 S.Ct. 3034 ) (citation omitted).

“The Court further expounded this principle in a line of cases beginning with United, States v. Lanier, 520 U.S. 259 , 117 S.Ct. 1219 , 137 L.Edüd 432 (1997).” Schneyder, 653 F.3d at 329 , 2011 WL 3211504, at *11 . In Lanier, the Supreme Court “held that the defendant was entitled to ‘fair warning’ that his conduct deprived his victim of a constitutional right ....” Hope v. Pelzer, 536 U.S. 730, 739-40 , 122 S.Ct. 2508 , 153 L.Ed.2d 666 (2002). In so doing, the Lanier Court “expressly rejected the requirement that previous cases be ‘fundamentally similar’ ” in order to give fair warning. Hope, 536 U.S. at 741 , 122 S.Ct. 2508 . The Court explained: [G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and ... 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.”

Lanier, 520 U.S. at 271 , 117 S.Ct. 1219 (quoting Anderson, 483 U.S. at 640 , 107 S.Ct. 3034 ). Although Lanier dealt with another statute, 18 U.S.C. § 242 , 1 the Supreme Court explained “that the standard for determining the adequacy of that warning was the same as the standard for determining whether a constitutional right was ‘clearly established’ in civil litigation under [42 U.S.C.] § 1983.” Hope, 536 U.S. at 739-40 , 122 S.Ct. 2508 .

In Hope v. Pelzer, the Supreme Court “granted certiorari to determine whether the Court of Appeals’ qualified immunity holding comport[ed] with [its] decision in [Lanier].” Hope, 536 U.S. at 733 , 122 S.Ct. 2508 . The court of appeals in Hope had “stated that ‘the federal law by which the government official’s conduct should be evaluated must be preexisting, obvious and mandatory,’ and established, not by ‘abstractions,’ but by cases that are ‘materially similar’ to the facts in the case in front of us.” Id. at 736 , 122 S.Ct. 2508 (quoting Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir.2001)) (internal quotation marks omitted). The Supreme Court applied the same reasoning as in Lanier to reject the court of appeals’ requirement that cases must be “materially similar” in order to clearly establish a constitutional right:

Although earlier cases involving “fundamentally similar” facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional.

Id. Thus, Hope makes plain that the correct standard to apply in a clearly established inquiry is whether the state actor had fair and clear warning that his actions were unconstitutional.

I do not agree with Judge Benavides’ opinion’s characterization of this language as merely dicta. Judge Benavides reasons that the Supreme Court ultimately relied on prior circuit precedent to conclude that the defendants had violated the plaintiffs clearly established constitutional rights. Judge Benavides’ Op. 372. However, the Hope Court reversed the court of appeals *393 not only because it reached the wrong result on qualified immunity based on pri- or circuit precedent, but also because it had wrongly applied the “materially similar” standard in reaching that result. Indeed, the Court first held that the fair warning standard from Lanier should be used to evaluate whether the defendants were entitled to qualified immunity, and then applied that standard to conclude that they were. See Hope, 536 U.S. at 746 , 122 S.Ct. 2508 (“The ‘fair and clear warning,’ [Lanier, 520 U.S. at 271 , 117 S.Ct. 1219 ,] that these [prior circuit] cases provided was sufficient to preclude the defense of qualified immunity at the summary judgment stage.”). Therefore, the Court’s pronouncements on the fair and clear warning standard were an essential part of its holding in Hope.

Moreover, in the years since Hope, the Supreme Court has reaffirmed this principle. For example, the Court recently stated:

To be established clearly ... there is no need that “the very action in question [have] previously been held unlawful.” The unconstitutionality of outrageous conduct obviously will be unconstitutional, this being the reason, as Judge Posner has said, that “[t]he easiest cases don’t even arise.” But even as to action less than an outrage, “officials can still be on notice that their conduct violates established law ... in novel factual circumstances.”

Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. -, 129 S.Ct. 2633, 2643 , 174 L.Ed.2d 354 (2009) (fourth and fifth alterations in original) (quoting Wilson v. Layne, 526 U.S. 603, 615 , 119 S.Ct. 1692 , 143 L.Ed.2d 818 (1999); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); Hope, 536 U.S. at 741 , 122 S.Ct. 2508 ); see also Brosseau v. Haugen, 543 U.S. 194, 199 , 125 S.Ct. 596 , 160 L.Ed.2d 583 (2004) (per curiam) (“Graham [v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989),] and [Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985)], following the lead of the Fourth Amendment’s text, are cast at a high level of generality. Of course, in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant ease law.” (citations omitted) (citing Hope, 536 U.S. at 738 , 122 S.Ct. 2508 )). The Supreme Court’s recent decisions in Camreta v. Greene, — U.S.-, 131 S.Ct. 2020 , 179 L.Ed.2d 1118 (2011), and Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074 , 179 L.Ed.2d 1149 (2011), do not overrule Hope, Lanier, or any case in that line. In fact, the majority in neither alKidd nor Camreta mentions them, and Justice Kennedy’s concurrence in al-Kidd cites Lanier affirmatively as supporting the “fair and clear warning” rule. 131 S.Ct. at 2086-87 (Kennedy, J., concurring). Further, Justice Kennedy’s dissenting opinion in Camreta recognizes the continuing vitality of Hope: “Our cases make clear, moreover, that ‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’ [Hope, 536 U.S. at 741 , 122 S.Ct. 2508 ]. That rule permits clearly established violations to be found when extreme though unheard-of actions violate the Constitution. See, e.g., [id].” 131 S.Ct. at 2044 (Kennedy, J., dissenting).

In sum, pursuant to the line of cases described above, I believe that certain official conduct may so obviously fall within the prohibition of a general or abstract rule of the Constitution that any reasonable official would have “fair warning” that his actions are unconstitutional, even absent a prior court decision to that effect. However, I agree with Judge Benavides that this case does not present a situation where the defendants had fair warning that their actions were unconstitutional, *394 for substantially the reasons given by Judge Benavides in his opinion. Public school authorities, as state actors, must abide by the First Amendment. Consequently, they may not adopt any law or regulation “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech” insofar as schoolchildren are concerned. U.S. Const, amend. I. In our pluralistic society, the First Amendment requires that public school officials take care not to infringe upon the rights of parents to shape and nurture the religious beliefs and practices of their very young children and, correspondingly, not to adopt school regulations or policies that tend to establish a religion. At the same time, public school officials must also respect the rights of schoolchildren to the free exercise of religion, and to the freedom of speech. Because the challenged state actions in this case do not appear to conflict with any of these First Amendment commands at its core, but to fall in areas where the commands reasonably appear to be in conflict and thus are in need of further definition, I agree that the principals and teachers are entitled to qualified immunity in this case.

. "Section 242 makes it a crime for a state official to act 'willfully' and under color of law to deprive a person of rights protected by the Constitution." Hope, 536 U.S. at 739 , 122 S.Ct. 2508 .