Karen Bonitz v. Michael v. Fair, Karen Bonitz v. Michael v. Fair, Appeal of William Shaughnessy

CAMPBELL, Chief Judge

(dissenting).

I respectfully dissent from the court’s reasoning. Because the law is still being formed following the Supreme Court’s allowance of interlocutory appeals about qualified immunity, I feel justified in stating my views separately and at some length.

My colleagues seem to believe that a qualified immunity claim raised prior to trial should be analyzed exclusively in *178 terms of plaintiffs’ allegations in the complaint. 1 They would first ascertain from the complaint, in a general way, the nature of the constitutional violation alleged by plaintiffs. They then would ask if the law was clearly established, at the time defendants acted, that such an alleged violation was, in fact, a violation. The district and appellate court’s review would thereafter focus only on that question.

In my view, this analysis would be appropriate in a case where the lower court’s ruling on immunity rested on a motion based on the pleadings. But the immunity ruling appealed from here was in the context of a motion for summary judgment, after two years of discovery. We thus have an extensive record showing what the parties can prove as to the actual conduct of each of the defendants. In such a case, I believe Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), contemplates that we look at each defendant’s qualified immunity claim in light of the facts of his or her conduct, such conduct to be ascertained under usual summary judgment analysis. See Fed.R.Civ.P. 56. This involves deciding each defendant’s qualified immunity .claim on the basis not of the pleadings but of the “facts” tentatively established from the contents of the depositions, discovery materials, affidavits, etc., read in a light most favorable to the position of the non-movant, i.e., here plaintiffs. If it should be found, after doing so that any defendant is entitled to prevail, as a matter of law, on his qualified immunity claim, that ends the case against him. But if the immunity claim fails as a matter of law, or if its outcome is found to depend on a triable issue of fact, the case proceeds onward to trial or other disposition, and the interlocutory appeal is resolved against the defendant. Thus, the district court should have tested each defendant’s conduct, as so ascertained, rather than plaintiffs’ generalized allegations only, against the qualified immunity defense. The district court’s failure to do so here is perhaps excusable because defendants failed to properly present their individual immunity claims, but instead relied upon the overall contention that the law was not established against offensive strip searches in general. But my colleagues do not decide this case on that narrow ground, but rather imply that the analysis used here is to be generally employed.

I do not know on what basis my colleagues can'read Mitchell as licensing deviation from the normal method by which facts are ascertained on summary judgment. Such norms do not, of course, involve factfinding as such. Summary judgment rests on purely legal assumptions. The non-movants are entitled to the benefit of all favorable factual assumptions. But I know of no precedent for treating a motion for summary judgment (addressed narrowly, to be sure, to the single defense of qualified.immunity) as if it were simply a motion for judgment on the pleadings. Nor can a claim of qualified immunity be addressed without close attention to the individual conduct of the defendant. The question is whether, objectively viewed, such conduct violates clearly established law — not whether plaintiffs’ perhaps inflated allegations in their complaint indicate a violation of established law. Surely if the Mitchell Court intended the departure from conventional norms, it would have said so with much greater clarity.

My colleagues follow an unprecedented procedure which frankly I do not grasp. Notwithstanding the existence of extensive discovery materials, and the fact that defendants have raised their immunity claim by way of a summary judgment motion, my colleagues limit their inquiry to allegations in the complaint. They dismiss any other avenue as raising inappropriate factual questions, which they refer to as questions of “causation.” They insist that even defendants who have presented unrebutted proof as to their conduct are not entitled to have their immunity determined in light of *179 that conduct but must await some later judgment day. Since (incorrectly, I believe) they regard summary judgment analysis as tantamount to making findings of fact, they sternly quote language from Mitchell to the effect that we should avoid considering the correctness of plaintiffs’ facts. But, of course, summary judgment never involves factfinding as such. One merely assumes facts most favorable to the nonmovant and asks whether, on those assumptions, movant still wins as a matter of law. If there is a dispute over facts relevant to disposition of the motion, the trial must go on. But one must first read the depositions, affidavits, etc., to see if this is so.

I see nothing in Mitchell to require or support my brothers’ different procedure. The Mitchell Court itself clearly did not determine the defendant’s qualified immunity claim in vacuo only on plaintiff’s pleadings and assertions. In Mitchell , the Supreme Court asked whether the law was clear that “warrantless wiretaps aimed at gathering intelligence regarding a domestic threat to national security” were illegal at the time the defendant ordered the wiretaps. Mitchell, 105 S.Ct. 2818 . And yet the factual question as to the Attorney General’s motive for issuing such a warrantless wiretap had been in dispute. The Court in a footnote stated:

Forsyth insists that even if the District Court was incorrect in concluding that warrantless national security wiretaps conducted in 1970-1971 violated clearly established law, Mitchell is not entitled to summary judgment because it has never been found that his actions were in fact motivated by a concern for national security. This submission is untenable. The District Court held a hearing on the purpose of the wiretap and took Mitchell at his word that the wiretap was a national security interception, not a prosecutorial function for which absolute immunity was recognized. The court then concluded that the tap violated the Fourth Amendment and that Mitchell was not immune from liability for this violation under the Harlow standard. Had the court not concluded that the wiretap was indeed a national security wiretap, the qualified immunity question would never have been reached, for the tap would clearly have been illegal under Title III, and qualified immunity hence unavailable. In this light, the District Court’s handling of the case precludes any suggestion that the wiretap was either (1) authorized for criminal investigatory purposes, or (2) authorized for some purpose unrelated to national security.

Id. at 2820 n. 13. Thus, the Supreme Court’s resolution of Mitchell’s qualified immunity claim was not based merely on the plaintiff’s allegations as my colleagues now believe Mitchell requires. Rather, the Court relied upon certain post-complaint factual predicates. One cannot rule meaningfully on qualified immunity in a factual vacuum. Our own cases of Floyd v. Farrell, 765 F.2d 1 (1st Cir.1985) and DeAbadia v. Izquierdo Mora, 792 F.2d 1187 (1st Cir.1986), and the Court’s case of Malley v. Briggs, — U.S. —, 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986), make this clear. In Floyd , we determined whether, objectively viewed, the officer had grounds for a particular arrest under then existing law. We did not look at the complaint; we looked at the facts so far developed. In DeAbadia we followed the same procedure. To be sure, if summary judgment analysis shows that the immunity issue turns on disputed facts, the motion must be denied and the case sent to trial. But that is different from refusing to look at the supporting materials.

In the present case, by focusing only on plaintiffs’ generalized hyperbole as to the character of the search and the right violated, the majority simply ignores the conduct of each individual defendant. The error of this approach is highlighted in the case of defendant Shaughnessy, whose uncontroverted statements, in depositions, etc., are that all he did was submit the affidavit in support of a search warrant and work on an operational search plan that was not adopted. He was not at the prison. Plaintiffs produced no contrary evidence as to *180 Shaughnessy, nor have they ever denied Shaughnessy’s assertions after more than two years of discovery. My colleagues, however, say that the only relevant law to examine is whether a supposed violent, overreaching prison search violates the Constitution. Shaughnessy’s own conduct is simply irrelevant, they say, at this stage since plaintiffs’ complaint alleges, generally, that all defendants were involved in the illegal search. I simply don’t understand on what basis this analysis is constructed. This is not the case where, for example, plaintiffs present evidence that Shaughnessy was present at a strip search and abused certain prisoners, whereas Shaughnessy claims that he was not present and only had some marginal, absentee connection with the incident. (In such circumstances, on summary judgment we would accept plaintiffs’ version and send the case to trial.) No one disputes Shaughnessy’s own version of the facts. Shaughnessy is not raising the defense of “I wasn’t involved” or some other “wrong man” defense. He is saying, “I did participate, officially, by doing certain specific things at a preliminary stage, but that conduct did not, objectively viewed, violate the Constitution. If you look at my conduct you’ll see I’m entitled to qualified immunity.” He is, in other words, raising a genuine immunity defense and he is entitled to have a court rule on that defense prior to trial by examining the caselaw relevant to such conduct. The question is simply whether the law was “clearly established” that doing those limited, preliminary things that are all Shaughnessy did was a violation of a constitutional right.

Under the court’s reasoning we would never reach this analysis, however, because it focuses merely on the alleged constitutional violation in the abstract, i.e., body searches of the worst sort, and not on what the record (viewed in plaintiffs’ favor) shows as to each defendant’s involvement in various stages of the entire incident. Whether Shaughnessy’s limited actions violate clearly established law seems to me to be a significantly different question from that discussed by the majority. As to him, it is not enough to focus the “clearly established law” inquiry on a strip search itself or even, in general, whether supervisors may be held liable; rather, the inquiry must be directed at whether the law forbade what, in essence, he did. The inquiry into each participant’s immunity defense is entitled to be framed in light of the conduct actually established, through discovery, taken most favorably to plaintiffs in connection with the motion for summary judgment. 2 The question in each case is, did that conduct (not some generalized collective conduct characterized colorfully in plaintiffs’ complaint) violate clearly established law?

I realize that this court’s unusual approach to this type of a fact-bound case is in response to its serious concern over a problem seemingly not anticipated in Mitchell. The concern is how to avoid delaying plaintiff’s case, and wasting an appellate court’s time, through lengthy interlocutory reviews of the denials of qualified immunity motions.

We all know that in complex, fact-intensive cases, a good trial judge will often prefer to deny summary judgment motions and proceed to trial. By going to trial, lengthy hair-splitting over the technical sufficiency of the evidence in affidavits and *181 depositions may be avoided. So long as it is the “merits” that are raised in a summary judgment motion, such an election by a trial judge would be non-reviewable. But because the Supreme Court now permits interlocutory appeals relative to immunity claims, a court’s denial of summary judgment on a claim of immunity entitles the movant to immediate appellate review of that question. If, by raising immunity claims, litigants can force appellate courts to engage in preliminary review of endless depositions in close factual cases on summary judgment, they may be going further than the Supreme Court envisaged when it permitted interlocutory appeals on the subject of limited immunity. What exascerbates the problem, see Mitchell, 105 S.Ct. at 2824-26 (Brennan, J., dissenting), is that in many cases limited immunity and “the merits” merge. A court will not be able to decide whether the law was “clearly established” against certain conduct until it establishes what the conduct was. In many cases, a defendant will argue, in the alternative, first that his conduct did not violate the constitution and, second that, if it did, a reasonable person would not have known, when he committed the acts, that the law prohibited them. 3

Suppose, one might ask, an appellate court discovers after reading all the discovery materials in a light favorable to plaintiffs that defendants’ establishable conduct really did not violate the Constitution at all? Is this (as distinct from the limited immunity issue) an appropriate matter to consider at all on interlocutory appeal? Arguably, such a circumstance strengthens, it does not weaken, the immunity defense, for if the conduct was not unconstitutional, the law against it was a fortiori not “clearly established.” But this reasoning turns a defense “on the merits” into an immunity defense. Surely the Court in Mitchell did not really mean to allow unlimited interlocutory “merits” appeals from the denial of summary judgment in the guise of appeals concerning limited immunity. What should an appellate court do when faced with such an appeal? To simply deny the appeal, after all the work of examining hundreds of pages of discovery transcript, on the ground that the real defense went to the merits of the constitutional claim — and was not really an immunity defense — might seem hair-splitting and unjust. 4 Yet not to make some such distinction would be to sanction interlocutory appeals in most all cases, and eliminate a trial judge’s discretion to refuse to resolve the merits of factually close cases upon a motion for summary judgment.

I do not know the full answer to this problem. Perhaps it will become so troublesome that the Supreme Court will reconsider its endorsement in Mitchell of interlocutory appeals. Alternatively, as cases are examined, we may devise ways to live with the problem. A radical, but perhaps supportable approach would be to hold that, because of the difficulties involved in dealing with the limited immunity defense in close, fact-intensive cases, where there is an overlap between the immunity defense and the defense of no constitutional violation, we will uphold a district judge’s reasonable determination to defer a ruling on qualified immunity until the facts can be developed at trial. Thus the trial judge would be allowed some discretion to postpone resolving the immunity defense by way of summary judgment, if he feels the practicalities of the litigation made this desirable.

It might be feared that the latter approach would carve out a whole new doctrine in conflict with Harlow and Mitchell. However, the approach is arguably permissible since in Mitchell the facts were clear and the Court did not have to reflect on the practical burdens summary judgment pro *182 cedure might impose upon courts where an interlocutory appeal is available to the losing party. It may well be that an advance determination of qualified immunity was never meant to be required in difficult fact-bound cases where a defendant’s conduct is not easily discernible on summary judgment. In such cases (regardless whether summary judgment, technically, can be justified) it may be appropriate to let the case go to trial. Conversely, in factually straight forward cases, like the Mitchell case where the defendant’s conduct was not in dispute, or in factually simple cases where summary judgment procedures are easily managed, the essentially legal question — whether it was clearly established that the conduct amounted to a constitutional violation — can be appropriately submitted as an interlocutory appeal.

Whether or not the above approach, or something similar is adopted, I respectfully suggest that my colleagues’ approaches are incorrect and, worse, will be a source of considerable confusion, since I cannot discern what working principles underlie them. Moreover, it seems to me they overrule sub silentio this circuit’s precedent in cases like Floyd v. Farrell and DeAbadia , which did not follow the present analysis.

I therefore dissent.

. Judge Breyer, to be sure, would adopt this approach only some of the time but does not indicate how future courts, district and appellate, are to tell when the proper occasion has arisen.

. By ignoring defendant’s actual conduct, and focusing only on allegations in the complaint, the court reduces the qualified immunity defense to one which takes effect only if the law itself is murky in the broad area within which plaintiff believes defendant’s misconduct should fall. Yet a qualified immunity may exist even if the law is fairly clear in the general area of a defendant's alleged transgressions. The question is whether defendant should reasonably have known that what he did violated federal law — not whether the federal law, in a general way, was consistent and clear at the time. A guard who, under orders, stands by a prison gate while a strip search is conducted within may have a valid qualified immunity defense if he had no reason to believe that his actions violated federal law. This may be so even if the other guards who carried out the search are liable for their own conduct. The question is not the consistency of the law applicable to strip searches generally but how clear the law was in regard to defendant’s own conduct. My point is, by disassociating the law from the facts, my colleagues are robbing the immunity defense of much of its potency.

. Here, for example, a defendant might argue that (1) his conduct at the prison in respect to the strip searches did not violate anyone’s constitutional rights, and (2) even if it did, it was in a gray area of the law, thus entitling him to qualified immunity, as he could not have known his conduct violated the law.

. See this circuit’s decision in Floyd v. Farrell, 765 F.2d 1 (1st Cir.1985), a case in which we essentially reviewed the merits of the summary judgment motion in the course of deciding the issue of qualified immunity.