Petition — Gomez v. Toledo

~,

- amaleann

RECEIVED

mova 19/9

OFFICE OF THE CLERK

SUPREME couat, U.S.

IN THE

SUPREME COURT

OF TE&E

UB ZTTEOD ETATES

OCTOBER TERM, 1979

“» 9-560]

‘CARLOS RIVERA GOMEZ

: Petitioner

Vv.

ASTOL CALERO TOLEDO

Respondent.

PETITION OF CARLOS RIVERA GOMEZ FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT AND APPENDIX

MICHAEL AVERY

Two Park Square

Boston, Massachusetts 02116

DAVID RUDOVSKY

1425 Walnut Street

Philadelphia, Pennsylvania 19102

JOSE L. RODRIGUEZ MANGUAL

Condominio Le Mans

Avenue Munoz Rivera 602

Hato Rey, Puerto Rico 00918

JAMES A. TORO

P.O. Box 3952

Old San Juan Station

San Juan, Puerto Rico 00904

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Question Presented for Review

Constitutional and Statutory Provisions

Invoived

Statement of the Case

Reasons for Granting the Writ

I. The Decision of the Court of

Appeals Below Creates a Conflict

In the Decisions of the Circuit

‘ Courts of Appeals.

II. The Decision of the Court of

Appeals Below Is In Conflict With

the Applicable Decisions of the

Supreme Court

Conclusion

Appendix

Opinion of District Court

Judgment of Distriet Court

Opinion of Court of Appeals

Complaint

16

22

A-1

A-3

A-4

A-8

Case

Apton v. Wilson, 506 F.2d 83 (D.C. Cir. 1974)

Arnett v. Kennedy, 416 U.S. ane Cea) SC Sk

Bishop v. Wood, 426 U.S. 341 on , ee ee a °

Bivens v. Six Unknown Named A ents,

456 F.2d 1339 (24 Cir. 1972) eh a Ae,

Board of Regents Vv. Roth, 408 U.S. 564 (1972)

Boscarino yv. Nelson, 518 F.2q 879

(7th Cir. 1975) . -s . . a . 7 . . — -

Brubaker y. King, 505 F.2a 534 (7th Cir. 1974)

Bryan v. Jones, 530 F.2a 1210 (5th ciz., en

banc, 1976), cert. den. 429 U.S. 865

(1976) . 7 . . . . — J . . . a . - . .

Butz v. Economou, 438 U.S. 478 oo. a_i ‘

Cruz v. Beto, 603 F.2d 1178 (5th Cir. a

Dellums v. Powell, 566 F.2q4 167 (D.c. Cir.

1977), cert. den. 438 U.S. 916 cave)...

Donovan v. Reinbold, 433 F.2d 738 (9th Cir.

1970) — _ . * . . a — . — + J * 7 - . .

Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978)

Glasson v. City of Louisville, 518 F.24 899

(6th Cir. 1975), cert. den. 423 U.S.

930 (1975) x @¢ 7 . . . . — . 7 . - . .

Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972)

Landrum v. Moats, 576 F.24 1320 (8th cir.

1978), cert. den. 439 U.S. 912 (1978) .

Martin v. Duffie, 463 F.24 464 (10th

Cir. 1972) a > . - — . a. . . - oo J

ll, 15

13

Case Page

McCray v. Burrell, 516 F.2d 357 (4th Cir.,

en banc, 1975) cert. granted, 423 U.S.

923, cert. dism. as improvidently granted,

Soe, eee See NeOeeL, b oS 6 ¢ oe ees

Monroe v. Pape, 365 U.S. 167 (1961). ......

O'Connor v. Donaldson, 422 U.S. 563 CASTS « ‘ss

Perry v. Sindermann, 408 U.S. 564 (1972) ...

Pickering v. Board of Education, 391 U.S.

563 (1968) o . a . . > - ° . . . ° o . +

Pierson v. Ray, 386 U.S. 547 (1967) .....

Procunier v. Navarette, 434 U.S. 555 (1978). .

Reimer v. Short, 578 F.2d 621 (5th Cir.

1978, cert. den. Pies - 99 Sxet.

Be en yy ere ae © a

Safeguard Mutual Insurance Co. v. Milier,

Sta Tea tan (Oe Gabe APFOF 6 8 6 8 eS

Scheuer v. Rhodes, 416 U.S. 232 (1974) ....

Skehan v. Board of Trustees of Bloomsburg

State College, 538 F.2d 53 (3d Cir., en

banc, 1976), cert. den. 429 U.S. 979

NE aA NG wd ks) er Ee eg

Thompson v. Burke, 566 F.2d 231 (3d Cir. 1977)

Tritsis v. Backer, 501 F.2d 1021 (7th Cir.

1974) a .* . . * * o . o . . . . : . . .

Wood v. Strickland, 420 U.S. 308 (1975) ...

Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir.

1975), cert. den. 425 U.S. 944 (1976) ..

Statutes and Rules

SNCs BONO Sky 5 aru «a 6 hea es

42 U.8.C, §1983 7 * . 62 ££. Ss 0 @. ae .

Federal Rules of Civil Procedure, Pule 8 (c)

10

16

8

20

20

17

19, 20

12, 18

12

8, 10, 12, 19, 20

14

4

4, 6-10, 14,

16, 17, 18, 21

21

~<a,

IN THE

SUPREME COURT

OF THE

VRIitED SPAT? EBS

OCTOBER TERM, 1979

NO.

CARLOS RIVERA GOMEZ

Petitioner

Vv.

ASTOL CALERO TOLEDO

Respondent.

To the Honorable, the Chief Justice of the United States, and

the Associate Justices of the Supreme Court of the United States:

The petitioner, Carlos Rivera Gomez, appellant in the

court below, respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the First Circuit entered in the above case on

August 7, 1979. That decision affirmed the judgment of the

United States District Court for the District of Puerto Rico

entered in the above case on October 23, 1978.

OPINIONS BELOW

The unreported opinion and judgment of the United States

District Court for the District of Puerto Rico, dated October

23, 1978, dismissing petitioner's complaint against the

respondent Astol Calero Toledo, are set forth at page A-l

of the Appendix. The opinion of the United States Court of

Appeals for the First Circuit affirming the dismissal is

reported at 602 F.2d 1018 and is set forth at page A-4 of

the Appendix.

JURISDICTION

The judgment of the United States Court of Appeals for the

First Circuit was entered on August 7, 1979, and this

petition for certiorari was filed within 90 days of that

date. The jurisdiction of the Supreme Court of the United

States is invoked pursuant to 28 U.S.C. §1254 (1).

QUESTION PRESENTED FOR REVIEW

Whether the plaintiff in a civil rights action filed

under 42 U.S.C. §1983 must allege bad faith on the part of

the defendant in order to state a cause of action.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fourteenth Amendment provides, in pertinent part:

"Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws."

Title 42, §1983 of the United States Code provides:

"Every person who, under color of any statute

ordinance, regulation, custom, or usage, of

any State or Territory, subjects or causes to be

subjected, any citizen of the United States

or any other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to

the party injured in an action at law, suit

in equity, or other proper proceeding for redress."

STATEMENT OF THE CASE

The petitioner commenced this civil rights action in

the District Court for the District of Puerto Rico in July

of 1977. Petitioner claimed damages from respondent Astol

Calero Toledo, the Superintendent of Police of the Commonwealth

of Puerto Rico, and from the Commonwealth of Puerto Rico

and the Police of the Commonwealth of Puerto Rico. The

case against the respondent was based on 42 U.S.C. §1983,

with jurisdiction invoked under 28 U.S.C. §1331.

The claim against the respondent was for violation

of the petitioner's substantive and procedural rights

to due ibaa of law in connection with his discharge

from employment as a police officer. The allegations

in his complaint, which is attached hereto at page A-8

of the Appendix, set forth the following facts.

The petitioner had been employed since 1968 as a

police officer in the Police Department of the Commonwealth

of Puerto Rico. As specifically alleged in the complaint,

there is a statute in the Commonwealth which gives a

police officer the right to an administrative hearing before

the imposition of disciplinary action. The petitioner was

1 The Commonwealth and the Police Department were dismissed

and the petitioner did not appeal from that decision.

:

first suspended and then discharged without such a hearing.

The suspension was a retaliatory one, for impermissible

reasons which are set forth in detail in the complaint.

During his work, the petitioner discovered that

two other police officers had obtained false evidence and

offered it in evidence in a pending criminal prosecution.

The petitioner reported this matter to a superior officer.

ne a result of this report, the respondent transferred

the petitioner away from his normal duties and assigned

him to the police academy with no investigative authority.

An investigation by the Legal Division of the Police

Department, however, then exonerated the petitioner of any

wrongdoing and corroborated his accusations against the

other officers.

Subsequently, the petitioner was subpoenaed by the

defense lawyer in the criminal case in question and

testified concerning the false evidence which had been

offered by the two other police officers. Thereafter, and

as a result of the petitioner's court testimony, the respondent

obtained criminal charges against the petitioner for

wiretapping, although he knew that there had already been a

judicial determination that any alleged wiretapping had

occured prior to the effective date of the stature making

t illegal. The courts of Puerto Rico later found no

Probable cause for these criminal charges.

The suspension and discharge of the petitioner

followed on the grounds that he had contested the

honesty, integrity and competence of the other officers and

for injurious, immoral or disorderly conduct which

harmed the Police Department. The complaint specifically

alleges that the discharge was based on the same

facts upon which the petitioner had already been totally

exonerated by the Legal Division.

The District Court granted the respondent's motion

to dismiss for the reason that the petitioner had not

specifically alleged bad faith on the part of the

respondent. Petitioner appealed to the Court of Appeals

for the First Circuit, which affirmed the decision of the

District Court on August 7, 1979, holding that the

plaintiff in an action under 42 U.S.C. §1982 must

allege bad faith on the part of the defendant in order

to state a valid cause of action.

a

oti,

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT OF APPEALS BELOW CREATES A

CONFLICT IN THE DECISIONS OF THE CIRCUIT COURTS OF APPE/.LS.

The Court of Appeals below held that because

public officials enjoy qualified immunity from suit

under §1983, "it follows that a plaintiff must allege

as well as prove that a public official acted in bad

faith to state a valid cause of action." 602 F.2d,at 1020.

Because the complaint failed to explicitly allege bad

faith, the Court of Appeals affirmed its dismissal.”

The First Circuit alone requires plaintiffs in civil

rights cases to plead malice or bad faith on the part

of all official defendants in order to state a claim under

42 U.S.C. §1983. However, the decision below is not

an isolated decision within the First Circuit, but reflects

the developing policy of this Court of Appeals, as reflected

in the series of decisions relied upon in the opinion of

2 The rigidity of this requirement is especially apparent

in the present case. As the Statement of the Case makes

clear, plaintiff alleged that the Superintendent of Police

discharged him for conduct which the Legal Division of

the Department had already found was blameless on his part,

and failed to hold a hearing prior to discharge

despite a specific statutory provision requiring one.

One might have thought that if any allegation of bad

faith were required it was suggested by the bare facts

themselves.

— a

the court below. There are decisions, discussed immediately

below, in every other circuit holding that the burden of

establishing qualified immunity is on the defendants in §1983

actions. Only in the Fifth Circuit is there any support

for the position that plaintiffs have the burden of negativing

qualified immunity, and there only in some cases.

Perhaps the most direct conflict is with the Third

Circuit Court of Appeals decision in Skehan v. Board of

Trustees of Bloomsburg State College, 538 F.2d 53 (3d Cir.,

en banc, 1976), cert. den. 429 U.S. 979 (1976). A

discharged state college teacher filed suit under §1983 for

failure to receive a hearing prior to his termination. The

court explicitly considered the question of which

side has the burden of going forward with evidence and

which side has the burden of proof with regard to the issue

of qualified immunity. The court analyzed the issue in

the light of this Court's decisions in Wood v. Strickland,

420 U.S. 308 (1975) and O'Connor v. Donaldson, 422 U.S.

563 (1975), and squarely held:

We therefore hold that in §1983 actions

the burden is on the defendant official

Claiming official immunity to come for-

ward and to convince the trier of fact

by a preponderance of the evidence that;

under the standards of Wood v. Strickland,

official immunity should attach.

538 F.2d at 61-62.

Other Third Circuit decisions are in accord. Safeguard

Mutual Insurance Co. v. Miller, 472 F.2d 732 (3d Cir.

1973); Thompson v. Burke, 556 F.2d 231, 239 (3d Cir.

1977). These decisions are squarely in conflict with the

First Circuit's rule that the plaintiff must plead and

prove bad faith or the absence of qualified immunity.

Probably the leading case on the good faith

defense in §1983 actions among lower federal

court decisions is Bivens v. Six Unknown Named Agents,

456 F.2d 1339 (2d Cir. 1972). After deciding that

federal police agents have no absolute immunity from

suit for constitutional deprivations, the court held

that such officers would have a defense of good faith:

And so we hold that it is a defense to

allege and prove good faith and

reasonable belief in the validity of

the arrest and search and in the

necessity for carrying out the arrest

and search in the way the arrest was

made and the search was conducted.

Id., at 1348. (emphasis supplied)

That case thus clearly places the burden of raising

the defense upon the official defendant. Laverne v. Corning,

522 F.2d 1144 (2d Cir. 1975) is in accord, and explicitly

recognizes that the good faith defense and qualified

immunity amount to the same thing in §1983 cases.

_ The Fourth Circuit held that qualified immunity

was a matter of defense and that the burden of proving

it was on official defendants in McCray v. Burrell,

516 F.2d 357, 370 (4th Cir., en banc, 1975), cert.

granted and later dismissed as improvidently granted on

other grounds, 423 U.S. 923, 426 U.S. 471 (1976).

In an addendum to the original opinion, the court

specifically considered the impact of Wood v. Strickland,

Supra, on their opinion and held that Wood constituted

additional authority for the conclusions of the court

on the subject of qualified immunity.

In the Fifth Circuit, the Court of Appeals held

in Bryan v. Jones, 530 F.2d 1210, 1213, (5th Cir. ,

en banc, 1976), cert. den. 429 U.S. 865 (1976) that good

faith is a defense to a §1983 false imprisonment action

and that a plaintiff need not prove its absence to make out

a prima facie case. Reimer v. Short, 578 F.2d 621 (5th

Cir. 1978), cert. den. _U.S.__, 99 S.C. 1425 (1979)

a case involving the claim of deprivation of property

without due process of law, is in accord. There the

Court of Appeals approved a jury instruction placing the burden

of proving the good faith defense by a preponderance of

the evidence on the defendants.

~ 10 -

a

SN ol RN Tatar.

However, in the recent case of Cruz v. Beto,

603 F.2d 1178 (5th Cir. 1979), the court held that under some

circumstances the plaintiff would have the burden of

piercing qualified immunity by Pleading and proving

an abuse of authority where the defendant was the

director of a statewide prison system. The precise

impact of the case on pleading requirements is not clear.

The court indicated that this burden on the part of

plaintiff arose once the defendant had established

his qualified immunity by virtue of asserting that his

questioned decisions were made as director of the prison

based on what he perceived to be a security need of the

institution. Id.,at 1183. Thus it would seem that

plaintiff need not meet this burden in the initial

complaint. In addition, although the court held that the

burden shifts to the Plaintiff in a case of a statewide prison

director, it reaffirms that the burden is on the defendant

where he is a police officer. Exactly where the line is

drawn between these positions is not clear from this case.

To the extent that Cruz v. Beto has changed the

law in this area in the Fifth Circuit, the conZlict

between lower federal courts even more urgently requires

- ll -

definitive resolution by the Supreme Court.

In Glasson v. City of Louisville, 518 F.2d 899,

907-910 (6th Cir. 1975), cert. den. 423 U.S. 930 (1975), the

Sixth Circuit reviewed the decisions in Wood v.

Strickland, supra, and Scheuer v. Rhodes, 416 U.5. 232

(1974), and characterized qualified immunity as an

“affirmative defense." In accord, Jones v. Perrigan,

459 F.2d 81 (6th Cir. 1972).

The Seventh Circuit explicitly adopted the Second

Circuit's definition of the elements of the good faith

defense from Bivens v. Six Unknown Named Agents, supra,

in Tritsis v. Backer, 501 F.2d 1021 (7th Cir. 1974),

citing the language requiring the officer to "allege

and prove" the elements of the defense. 501 F.2d at

1022-1023. Other Seventh Circuit cases are in accord

in treating qualified immunity as a defense. Brubaker

v. King, 505 F.2d 534 (7th Cir. 1974); Boscarino v. Nelson,

518 F.2d 879 (7th Cir. 1975).

The Eighth Circuit has given a particularly

clear statement of the matter in Landrum v. Moats, 576

F. 2d 1320 (8th Cir. 1978) cert. den. 439 U.S. 912

» 12 «

a ee ee a

‘%

—

(1978):

Because good faith is dependent on

motivation and conduct of the defendant

as established at trial, the validity

of the defense is ordinarily a question

for the jury. Moreover, like the other

affirmative defenses originally

predicated on the common law, the burden

is on the defendant to prove each

element of the defense to the jury's

satisfaction. Id., at 1328.

In Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978),

the Ninth Circuit reversed the district court where

it had granted a motion to dismiss at the close of the

plaintiff's case. The court held that the plaintiff

need only make out a prima facie case of a constitutional

violation, and then the burden shifts to the defendant

to establish a good faith defense. Donovan v. Reinbold,

433 F.2d 738, 739 (9th Cir. 1970), is in accord,

holding that in a suit for an unconstitutional discharge

from public employment good faith would be a defense.

In Martin v. Duffie, 463 F.2d 464 (10th Cir.

1972), the Tenth Circuit explicitly considered whether

the plaintiff in a false arrest action must negative every

possible justification for an arrest without a warrant.

The court analyzes the issue in some detail, and squarely

holds that the plaintiff need only establish a prima

facie case of constitutional deprivation (in this case,

a warrentless arrest) and then the burden shifts to the

» 33»

the defendant to go forward with the evidence of

justification. The court held that good faith must

be put forward by the officer as a defense.

The District of Columbia Circuit has also explicitly

placed the burden of proving qualified immunity on the

defendants in §1983 actions. In Dellums v. Powell, 566

F.2d 167 (D.C. Cir. 1977), cert. den. 438 U.S. 916 (1978),

reh. den. 439 U.S. 886 (1978), the court held:

{[T]here can be no doubt that state and

federal police officers sued under

Section 1983 and Bivens, respectively,

have available to them a qualified

immunity defense, a privilege based on

good faith and reasonableness, but

that the burden is on the defendant

officers to prove it. Id., at 176.

(emphasis in original)

In accord, Apton v. Wilson, 506 F.2d 83 (D.C.Cir. 1974);

Zweibon v. Mitchell, 516 F.2d 594, o-th (1975), cert. den.

425 U.S. 944 (1976).

The cited cases establish that the nearly unanimous

rule outside the First Circuit is that the burden of

establishing a good faith defense and of asserting

qualified immunity is on the defendants in civil rights cases.

The decision below is thus in conflict with the other

circuits and constitutes an aberration in an extrememly

significant area of constitutional law. To the extent

the decision below is supported by the Fifth Circuit

o 24 «

decision in Cruz v. Beto, Supra, the need for Supreme

Court resolution of the conflict is even greater,

This Court should grant the petition for certiorari

and reverse the decision below so that pleading requirements

in civil rights cases will be uniform throughout the

circuits.

- 15 -

II. THE DECISION OF THE COURT OF APPEALS BELOW IS IN

eading was reaffirmed in Pierson v.

CONFLICT WITH THE APPLICABLE DECISIONS OF THE SUPREME This rule of pl g

COURT. Ray, 386 U.S. 547 (1967), where the Court held that

The question of «hether a plaintiff in a civil defendants in a §1983 action for false arrest would

rights action must plead bad faith or maliciousness have available to them the defense of good faith and

on the part of the defendant is an importan: federal probable cause. The Court noted the difference

ORES HE RETENE Che PEney oe steetaineteed between this matter of defense and the plaintiff's

thousands of complaints filed every year. The First burdens in the drafting of the complaint, with

Circuit has now held that every plaintiff in an action specific reference to Monroe v. Pape:

under 42 U.S.C. §1983 must allege bad faith or the We also held that the complaint should not

be dismissed for failure to state that the

officers had ‘a specific intent to deprive

a person of a federal right,' but this

holdins, which related to the requirements

of pleading, carried no implications as to

which defenses would be available to

3 police officers. 386 U.S. at. 556.

complaint will be dismissed. This position is a complete

departure from the prior decisions of the Supreme Court

and certiorari should be granted so that the decision

of the First Circuit can be reversed.

£ of good faith

The Supreme Court held in Monroe v. Pape, The Court then held that the defense g

was available to the defendant officers, but

365 U.S. 167, 187 (1961), that a civil rights plaintiff

ifi t in question should

did not have to allege a wilful violation of specifically ruled that the coun q

: : . omens. ‘ ismi d the issue of good faith should be

constitutional rights or a specific intent to violate not be dismissed an g

i i i i : i j » 2, at S57.

constitutional rights in order to state a cause of action. submitted to the jury. Id.,

The court below nonetheless held that the

3 Petitioner is of the opinion that the prior decisions of

this Court clearly compel the conclusion that the burden of

establishing qualified immunity is on a defendant in a §1983

action. In the event the Court disagrees and is of the opinion

this issue has not been resolved, the need to grant certiorari

and settle the issue is even more apparent.

plaintiff must negative the existence of the defendant's

qualified immunity in the complaint. In so doing, the

court mistakenly granted the defendant a presumption,

o 17 «

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;

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= .. mite

SS a > = p —-——

LO LE a LE Se ee ae ee ee ee

in effect, that he had acted in good faith:

Where, as here, a public official is

being sued for action taken in his

official capacity, it is assumed that

he wears a cloak of qualified immunity

and the complaint must allege and specify

facts that show bad faith or state why

in this particular case the cloak was

shed. 456 F.2d, at 1020.

This proposition is in direct conflict with the decision

of the Supreme Court in Scheuer v. Rhodes, 416 U.S.

232 (1974), in which the Court held there is no

automatic assumption that defendant officials in §1983

actions have acted in good faith. There, the Court

reversed the dismissal of a §1983 case on the pleadings,

specifically holding that the good faith of the defendant

officials could not be taken for granted:

‘In dismissing the complaints, the District

Court and the Court of Appeals erroneously

accepted as a fact the good faith of the

Governor . . . There was no evidence before

the courts from which such a finding of

good faith could be properly made and, in

the circumstances of these cases, such a

dispositive conclusion could not be

judicially noticed. Id., at 250-251.

The decision of the Court of Appeals below is in flat

contradiction to this language from Scheuer v. Rhodes.

The nature of the qualified immunity defense was

» 36 «

elaborated upon by the Court in Wood v. Strickland,

420 U.S. 308 (1975). That case held that, although

malice may be a sufficient basis for liability ina

case in which the constitutional law applicebis to the

conduct complained of was unclear, where the applicable

constitutional principles were settled a plaintiff need

not show malice on the part of an official defendant to prove

a claim. Thus the Court reversed the directed verdicts

that had been granted by the district court on the

ground of immunity, despite the district court's

conclusion that there was no evidence of malice.

The two most recent cases by the Court on the

question of qualified immunity specifically denominate

the matter as one of defense. In Procunier v. Navarette,

434 U.S. 555 (1978), the Court affirmed the granting

of a summary judgment in a case where the defendants

had raised the defense by motions supported with affidavits.

Both the majority opinion of the Court, id., at 566

and the dissenting opinion of Justice Stevens, id., at

569 ,refer to qualified immunity as a defense, with Justice

~ 19 «

Stevens labelling it as an "affirmative defense. "4

Finally, in Butz v. Economou, 438 U.S. 478 (1978),

the Court, in the context of a lengthy historical analysis

of the immunity defense, specifically explains that

qualified immunity has historically developed as a

judicially created defense to the statutory cause of

4 In Procunier the Court was considering only the negligence

count of the complaint. The allegation of negligence, and

hence a lack of malice, was insufficient to overcome the

defense raised by the officials in this case because the

constitutional right in issue was not clear at the time the

alleged acts took place. Thus Procunier is an application

of only one branch of Wood V. Strickland, supra. In the

present case, the constitutional right was clear and thus

proof of malice is unnecessary. Plaintiff alleged a

specific statute which gave him the right to a pre-termination

hearing. Thus, local law had clearly given him enough of an

entitlement to his continued employment to implicate

due process protections. Board of Regents v. Roth, 408

U.S. 564 (1972); Perry v. Sindermann, 408 U.S. 564

(1972); Arnett v. Kennedy, 416 U.S. 134 (1974); Goss

v. Lopez, 419 U.S. 565, 573 (1975). There is nothing

in this record to suggest that Puerto Rican law in any

way contravened the clear implication of the statute

cited in plaintiff's complaint. Cf.Bishop v. Wood, 426 U.S.

341 (1976). In addition, although the petitioner did not

specifically mention the First Amendment in his complaint,

the facts pleaded establish that the discharge was in

retaliation for his public testimony against other

police officers and thus in violation of his First

Amendment rights. This was well settled law by the time

of the events complained of in this case. Pickering v.

Board of Education, 391 U.S. 563 (1968).

=20-

action under §1983:

It has been observed more than once that

the law of privilege as a defense to

damage actions against officers of

Government has ‘in large part been of

judicial making.'. . .Section 1 of the

.Civil Rights Act of 1871--the predecessor

of §1983--said nothing about immunity

for state officials. It mandated

that any person who under color of

state law subjected another to the

deprivation of his constitutional rights

would be liable to the injured party in

an action at law. This Court nevertheless

ascertained and announced what it deemed

to be the appropriate type of immunity

from §1983 liability in a variety of

contexts. Id., at 502-503.

These cases make abundantly clear that qualified

immunity is a matter of defense. If there is any

obligation to mention it in the pleadings at all, it

is on the defendant under Rule 8(c) of the Federal

Rules of Civil Procedure. Thus this Court should grant

ceritorari to reverse the decision of the First Circuit

and remove this substantial and improper pleading hurdle

from plaintiffs in that Circuit.

» 2] «

CONCLUSION

For the foregoing reasons, it is respectfully requested

that this Honorable Court issue a writ of certiorari to

review the judgment of the United States Court of Appeals |

for the First Circuit. |

Respectfully submitted,

Michael Avery

Two Park Square

Boston, Massachusetts 02116

(617) 426-2020

David Rudovsky

1425 Walnut Street

Philadelphia, Pennsylvania 19102

Jose L. Rodriguez Mangual

Condominio Le Mans

Avenue Munoz Rivera 602

Hato Rey, Puerto Rico 00918

een eens Aes meee

;

James A. Toro

P.O. Box 3952

Old San Juan Station

San Juan, Puerto Rico 00904

APPENDIX

THE DOCUMENTS LISTED AS APPENDICES

TO THIS PETITION HAVE BEEN REPRINTED

AND APPEAR IN THE APPENDIX VOLUME

ITSELF, i

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