Barbara Conner v. Rudy G. Reinhard

CUDAHY, Circuit Judge,

concurring in the result:

I agree with the decision to reverse the summary judgment for the defendants in *398 this case and with most of the majority's reasoning en route to this result. I disagree, however, with the majority’s treatment of the insubordination question. The majority seems to assess Conner’s response to Reinhard’s letter as if the only question before us were whether Reinhard is entitled to summary judgment on the merits under Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977). In my view, the district court’s decision (mem. op. at 1, 5-8 (Mar. 26, 1987)), and the parties’ arguments on appeal (Brief of Defendants-Appellees at 19-20) also present a more difficult question: whether, accepting that a jury could find a constitutional violation on the facts pleaded by Conner, Rein-hard’s contention that he fired Conner for insubordination after the meeting rather than for her speech during the meeting entitles him to qualified immunity.

The qualified immunity question is difficult because Mt. Healthy apparently requires an investigation whether permissible motives for firing an employee were sufficient, in the mind of the defendant, to bring about the plaintiff’s termination. 429 U.S. at 285-87 , 97 S.Ct. at 575-76 ; Nekolny v. Painter, 653 F.2d 1164, 1166-68 (7th Cir.1981), ce rt. denied, 455 U.S. 1021 , 102 S.Ct. 1719 , 72 L.Ed.2d 139 (1982). The Supreme Court has indicated that qualified immunity claims are to be tested under a purely objective standard, Harlow v. Fitzgerald, 457 U.S. 800, 815-19 , 102 S.Ct. 2727, 2736-39 , 73 L.Ed.2d 396 (1982); but it “has not explained how this objective standard is to be employed when the plaintiff's claim depends on the state of mind of the defendant.” Benson v. Allphin, 786 F.2d 268 , 276 n. 19 (7th Cir.), cert. denied, — U.S. —, 107 S.Ct. 172 , 93 L.Ed.2d 109 (1986).

The courts of appeals for the Ninth and District of Columbia Circuits, however, have confronted qualified immunity defenses in section 1983 cases involving allegations of unconstitutional motives. Both have determined that where the legality of the actions of a section 1983 defendant depends upon the defendant’s motive or intent, the qualified immunity inquiry cannot be confined to a purely objective view of a defendant’s actions. Gutierrez v. Municipal Court, 838 F.2d 1031 , 1049-51 (9th Cir.1988) (intentional discrimination on the basis of race); Martin v. District of Columbia Metro. Police Dep’t, 812 F.2d 1425, 1431-33 (D.C.Cir.1987) (malicious prosecution); 1 Hobson v. Wilson, 737 F.2d 1, 26-29 (D.C.Cir.1984) (conspiracy to violate first amendment rights of political protesters), cert. denied, 470 U.S. 1084 , 105 S.Ct. 1843 , 85 L.Ed.2d 142 (1985); see also Goodwin v. Circuit Court, 729 F.2d 541, 546 (8th Cir.1984) (upholding district court refusal to give qualified immunity instruction in case involving claim of “invidious sex discrimination”). 2

I believe that the case before us requires us to decide how Harlow applies to section 1983 claims that raise issues of illegal intent. Following the well-reasoned decisions of the Ninth and District of Columbia Circuits, I would conclude that Conner’s specific allegations that impermissible mo *399 tives were essential to Reinhard’s discharge decision preclude summary judgment on qualified immunity grounds. I therefore arrive at the same outcome as the majority, though via a somewhat longer and rockier route.

. Soon after Martin was decided, the D.C. Circuit granted rehearing en banc and vacated part IV of the majority opinion, which discussed plaintiff’s burden to support allegations of illegal motive with specific facts and the availability of discovery against government officials to obtain the necessary facts. Martin v. District of Columbia Metro. Police Dep’t, 817 F.2d 144 (D.C.Cir.1987). Subsequently, however, the court reversed its decision to grant rehearing en banc and restored part IV of the original decision. Barlett ex rel. Neuman v. Bowen, 824 F.2d 1240 (D.C.Cir.1987).

. Miller v. Solem, 728 F.2d 1020 (8th Cir.), cert. denied, 469 U.S. 841 , 105 S.Ct. 145 , 83 L.Ed.2d 84 (1984), held that an entirely objective test could be applied to an eighth amendment claim of deliberate indifference. Id. at 1025. Compare Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir.1984) (objective test for qualified immunity unavailable where plaintiff alleges deliberate indifference), rev’d on other grounds, 475 U.S. 312 , 106 S.Ct. 1078 , 89 L.Ed.2d 251 (1986). The Eighth Circuit adhered to an "objective” approach by evaluating the defendant’s qualified immunity claim under a "reckless disregard” standard — a close analog to deliberate indifference. Miller, 728 F.2d at 1025 . No such objective substitute suggests itself for the intent elements of intentional discrimination, malicious prosecution, and conspiracy, the claims addressed in the Ninth and District of Columbia Circuit cases cited in the text.