# Appendix — Crawford-El v. Britton

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0037%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 574

## Text

GQ eoriLieDd
96 827 NOV 251996.

No.

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

LEONARD ROLLON CRAWFORD-EL,

Petitioner,

PATRICIA BRITTON,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI

DANIEL M. SCHEMBER

GAFFNEY & SCHEMBER, P.C.

1666 Connecticut Avenue, N.W.
Suite 225

Washington, D.C. 20009

(202) 328-2244

November 25, 1996 Counsel of Record for Petitioner

Washington, 0.C. * THIEL PRESS + (202) 328-3286

TABLE OF CONTENTS

A Opinions of the En Banc Court of Appeals
August 27, 1996 (remanding First
Amendment retaliation claim against
Britton) la

Opinion for the court (Williams, J.)
(holding that qualified immunity doctrine
requires "clear and convincing"evidence of
unconstitutional motive, presented

prior to discovery, and rejecting "direct

evidence" rule) 2a
Concurring opinion (Silberman, J.) 35a
Concurring opinion (Ginsburg, J.) 58a
Concurring opinion (Henderson, J.) 72a

Opinion concurring in judgment to

remand (Edwards, C.J., with whom Wald,

Randolph, Rogers, and Tatel, JJ., concur)

(rejecting both "clear and convincing"

evidence and "direct evidence" requirements) 78a

B Judgment and Memorandum of Court of
Appeals August 28, 1996 (Edwards, C.J.,
Wald and Randolph, JJ.) (remanding First
Amendment retaliation claim against District
of Columbia) 96a

Judgment and Memorandum of Court of
Appeals November 28, 1995 (Edwards, C.J.,
Wald and Randolph, JJ.) (affirming dismissal

of all claims except First Amendment retaliation
claims against Britton and District of Columbia)

Order of the En Banc Court of Appeals
November 28, 1995 (ordering en banc
review of First Amendment retaliation
claim against Britton)

District Court Memorandum Opinion and
Order August 31, 1994 (Lamberth, J.)
(denying reconsideration of dismissal of
Fourth Amended Complaint)

District Court Memorandum Opinion
February 15, 1994 (Lamberth, J.)
(dismissing Fourth Amended Complaint, but
finding First Amendment retaliation claim
valid except for failure to present "direct
evidence" of unconstitutional motive)

District Court Order February 15, 1994
(Lamberth, J.) (dismissing Fourth Amended
Complaint)

Supreme Court Order October 5, 1992
(denying petition for writ of certiorari after
first appeal concerning right of court access
claim)

107a

110a

115a

142a

144a

Opinion by Court of Appeals December 27,
1991 (Williams, J., joined by Buckley, J. and
Lourie, J., sitting by designation) (reversing on
Britton’s interlocutory appeal district court's
refusal to dismiss right of court access claim)

District Court Order May 10, 1990

(Lamberth, J.) (denying Britton’s motion
to dismiss)

District Court Order August 31, 1990
(Lamberth, J.) (granting Britton's motion
for reconsideration)

District Court Order December 21, 1990

(Lamberth, J.) (denying Britton’s motion
to dismiss second amended complaint)

Order by Court of Appeals February |4,
1992 ( Buckley, Williams, and Lourie, JJ )
(denying petition for rehearing in first
appeal)

Fourth Amended Complaint

145a

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163a

168a

er

APPENDIX A

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 1996 Decided August 27, 1996
No. 94-7203
LEONARD ROLLON CRAWFORD-EL,
APPELLANT
Vv.

PATRICIA BRITTON AND THE DISTRICT OF COLUMBIA,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 89cv03076)

Daniel M. Schember argued the cause and filed the briefs
for appellant.

Charles L. Reischel, Deputy Corporation Counsel, argued
the cause for appellees. With him on the brief were Charles
F. Ruff, Corporation Counsel, and Edward E. Schwab,
Assistant Corporation Counsel. Garland Pinkston, Jr.,
Principal Deputy Corporation Counsel and Erias A. Hyman,
Counsel, entered appearances.

2a

Stephen W. Preston, Deputy Assistant Attorney General,
United States Department of Justice, argued the cause for
amicus curiae the United States. With him on the brief were
Frank W. Hunger, Assistant Attorney General, Barbara L.
Herwig, Assistant Director, Robert M. Loeb, Attorney and
Eric H. Holder, Jr., United States Attorney.

Michael L. Martinez and William J. Dempster were on the
brief for amici curiae J. Michael Quinlan and Loye W. Miller,
Jr.

Arthur B. Spitzer was on the brief for amicus curiae
American Civil Liberties Union of the National Capital Area.

Before: EDWARDS, Chief Judge, WALD, SILBERMAN,
BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON,
RANDOLPH, ROGERS and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge WILLIAMS.
Concurring opinion filed by Circuit Judge SILBERMAN.
Concurring opinion filed by Circuit Judge GINSBURG.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion filed by Chief Judge EDWARDS, concurring in the
judgment to remand.

WILLIAMS, Circuit Judge: We decided to hear this case en
banc on our own initiative in order to resolve
disputes as to how a government official's assertion of
qualified immunity, as a defense to a damage action for a
constitutional tort, may affect pleading and
way 8 REE
official's act turns on his motive. Our inquiry is framed by the

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competing goals described by the Supreme Court in Harlow
v. Fitzgerald, 457 U.S. 800, 816-18 (1982)—vindicating
constitutional rights but at the same time protecting officials
from exposure to discovery and trial that would unduly chill
their readiness to exercise discretion in the public interest.
We here discard our former solution—a requirement that the
plaintiff allege "direct" evidence of unconstitutional motive.
See, e.g., Siegert v. Gilley, 895 F.2d 797 (D.C. Cir. 1990),
aff'd on other grounds, 500 U.S. 226 (1991). But we read
Harlow as calling for alternative rules to protect officials.
First, we think Harlow allows an official to get summary
judgment resolution of the qualified immunity issue, including
the question of the official's state of mind, before the plaintiff
has engaged in discovery on that issue. Second, we believe
that unless the plaintiff offers clear and convincing evidence
on the state-of-mind issue at summary judgment and trial,
judgment or directed verdict (as appropriate) should be
granted for the individual defendant.

Crawford-El is a prisoner in the District of Columbia's
correctional system serving a life sentence for murder. He
filed the present lawsuit in 1989, claiming that the individual
defendant, Patricia Britton, a D.C. correctional official, and
the District of Columbia had misdelivered boxes belonging to
him containing legal papers, clothes and other personal items,
thereby violating his constitutional right of access to the
courts. When Britton moved for dismissal and for summary
judgment on grounds of qualified immunity, the district court
denied the motion and Britton appealed. We reviewed
Crawford-El's allegations under a “heightened pleading"
requirement, insisting that the plaintiff in such a case advance
"nonconclusory allegations that are sufficiently precise to put
defendants on notice of the nature of the claim and enable
them to prepare a response and, where appropriate, a
summary judgment motion on qualified immunity grounds."

7

4a

Crawford-El v. Britton, 951 F.2d 1314, 1317 (D.C. Cir.
1991) (quotations omitted). By this standard we found his
pleading doctrine had become clearer in ways adverse to
plaintiff since his pleading, however, we remanded the case to
the district court in case that court, in its discretion, should
decide to permit repleading. /d. at 1322.

and Crawford-E] filed his Fourth Amended Complaint. There
he repleaded the access-to-courts claim, but without adding
material to fill the gap identified in our first opinion. He also
pleaded a due process claim. The district court dismissed
both claims, and a panel of this court affirmed. Crawford-El
v. Britton, No. 94-7203, mem. op. at 1-2 (D.C. Cir. Nov. 28,
1995). In addition, Crawford-El charged that the defendants’
alleged misdelivery of his belongings was in retaliation for
various feisty communications with the press and thus in
violation of the First Amendment. (This claim had initially
appeared in his briefing on the first round in this court. See
Crawford-El, 951 F.2d at 1716.) The district court granted
the defendants’ motion to dismiss the First Amendment claim
as well, saying that the complaint did not allege "direct"
evidence of unconstitutional motivation and citing Siegert v.
Gilley, 895 F.2d 797, 800-802 (D.C. Cir. 1990), aff'd on
pee opm 500 U.S. 226, 231 (1991), our court's most
emphatic statement of the "direct" evidence requirement.
Crawford-El v. Britton, No. 89-3076, mem. op. at 14-15
(D.D.C. Feb. 15, 1994). After affirming dismissal of the first
two claims, the panel suggested, and the court en banc
agreed, that the dismissal of the First Amendment retaliation
claim should be heard by the court en banc.!

Our order for rehearing en banc relates only to the qualified
immunity raised by plaintiff's action against Britton. But the
District of Columbia is, as noted in the text, still in the case.

a a ti

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Sa

The background law on subjective motivation and qualified
immunity.

In Jarlow v. Fitzgerald the Court reformulated its test for
officials’ qualified immunity in constitutional tort actions. For
acts to which qualified immunity may apply,” it held that the
plaintiff can prevail only by showing not just that there was a
violation, but that defendant's acts violated "clearly
established statutory or constitutional rights of which a
reasonable person would have known." 457 U.S. at 818. It
thus excluded liability where there was a violation (but not of
a right so clearly established that a reasonable person would

The district court had dismissed it as a defendant, but since in
his successive amended complaints Crawford-El repeatedly
named the District as a defendant and the District did not
object, the district court held that the District had waived a
law-of-the-case argument and therefore reinstated it as
defendant. Crawford-El v. Britton, No. 89-3076, mem. op. at
1 n.1 (D.DC. Feb. 15, 1994). Because Crawford-El's claims
against the District do not concern the questions for which we
granted rehearing en banc, they are to be resolved by the

panel.

Another extant part of the complaint is a pendant District
law claim for conversion of Crawford-El's property. The
survival of this claim (in the federal courts) turns on whether,
after the remand ordered here, there is any federal claim to
which it may be appended.

2 The qualified immunity defense is unavailable for ministerial
acts, see Harlow, 457 U.S. at 816; see also Davis v. Scherer,
468 U.S. 183, 196 n.14 (1984), and unnecessary for acts for
which the officer enjoys absolute immunity, see Harlow, 457
U.S. at 807.

6a

have known of it) even when the official acted “with the
malicious intention to cause a deprivation of constitutional
rights or other injury." /d at 815 (quoting Wood yv.
Strickland, 420 U.S. 308, 322 (1975)).

The Court was quite explicit as to the purpose of its
change. It noted that claims against officers necessarily
included ones "against the innocent as well as the guilty,” and
that among the "social costs" of such suits were "the expenses
of litigation, the diversion of official energy from pressing
public issues, and the deterrence of able citizens from
acceptance of public office." /d. at 814. Last but not least, it
invoked Judge Hand's opinion in Gregoire v. Biddle, 177 F.2d
579 (2d Cir. 1949), which had argued that the fear of being
sued would "dampen the ardor of all but the most resolute, or
the most irresponsible [public officials], in the unflinching
discharge of their duties." 177 F.2d at 581 (quoted in
Harlow, 457 U.S. at 814). It saw the inclusion of liability
based on subjective malice as greatly increasing all these
costs. Because such liability opened up a wide field of
inquiry, often with "no clear end to the relevant evidence"
bearing on the official's “experiences, values, and emotions,"
and typically not susceptible of disposition by summary
judgment, its resolution was "peculiarly disruptive of effective
government." /d. at 816-17. Most notably for our purposes,
the Court underscored the burdensome character of discovery
flowing from such liability. See id. at 817 (speaking of the
"broad-ranging discovery" that would result from allowing
such claims); id. at 818 (speaking of the resulting
"broad-reaching discovery"). Moreover, the Court said, such
liability would thwart what had been its assumption in its
earlier definition of qualified immunity—that "[i]nsubstantial
lawsuits" would be quickly terminated." /d. at 814 (quoting
Butz v. Economou, 438 U.S. 478, 507-508 (1978)).
Accordingly the Court held that qualified immunity could be
penetrated only on a _ showing of objective

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unreasonableness—the now familiar requirement of "clearly
established" rights. /d. at 818. Henceforth, "bare allegations
of malice should not suffice to subject government officials
either to the costs of trial or to the burdens of broad-reaching
discovery." /d. at 817-18. The Court later described Harlow
as having “purged qualified immunity doctrine of its
subjective components." Mitchell v. Forsyth, 472 U.S. 511,
517 (1985); see also Davis v. Scherer, 468 U.S. 183, 191
(1984).

In fact, under the decisions of every circuit court
addressing the matter, Harlow has not accomplished the
stated purpose. This circuit and others have understood
Harlow to allow inquiry into subjective motivation where an
otherwise constitutional act becomes unconstitutional only
when performed with some sort of forbidden motive (such as,
here, the claim that Britton's decisions routing Crawford-El's
parcels were driven by a desire to penalize his exercise of free
speech rights). See, e.g., Siegert v. Gilley, 895 F.2d at 800-
801; Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir.
1989); Martin v. D.C. Metropolitan Police Dept., 812 F.2d
1425, 1431 (D.C. Cir. 1987); Gooden v. Howard County,
Ma., 954 F.2d 960, 969-70 (4th Cir. 1992) (en banc); Pueblo
Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642,
649 (10th Cir. 1988); Elliott v. Thomas, 937 F.2d 338, 344-
45 (7th Cir. 1991); Branch v. Tunneill, 14 F.3d 449, 452 (9th
Cir. 1994); cf. Halperin v. Kissinger, 807 F.2d 180, 186-87
(D.C. Cir. 1986) (noting this court's and others’ decisions to
allow unconstitutional motive claims in areas other than
national security). Even though it has entailed many of the
"social costs" of inquiry into subjective motivation stated in
Harlow, courts have concluded that the vindication of
constitutional rights calls for damages liability—often the only
device available for such vindication. Halperin, 807 F.2d at
186.

8a

In Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), we
recognized the problem, noting that a plaintiffs claim of
unconstitutional motive could easily lead to discovery and
trial, with no hope of success, and the “result would be
precisely the burden Harlow sought to prevent." Jd. at 29.
We decided that for claims of which unconstitutional intent
was an essential part, "nonconclusory allegations of evidence
of such intent must be present in a complaint for litigants to
proceed to discovery on the claim. The allegations on this
issue need not be extensive, but they will have to be
sufficiently precise to put defendants on notice of the nature
of the claim and enable them to prepare a response and,
where appropriate, a summary judgment motion on qualified
immunity grounds." Jd. This did not speak explicitly to the
issue of whether a plaintiff must surmount any particular
burden in order to secure discovery. But in Martin v. D.C.
Metropolitan Police we specifically took the view that the
substantive characteristics of cases involving qualified
immunity and unconstitutional motive required deviation from
garden-variety application of the Federal Rules of Civil
Procedure's liberal pleading and discovery rules. We quoted
at length and with evident approbation from a Fifth Circuit
decision:

What is a federal trial judge to do? One thing he may not
do: face it as just another lawsuit in which the notice
pleading’s liberal policy of F.R. Civ. P. 8 counts on pre-trial
discovery to ascertain the factual basis for the claim[.] ...
Allowing pretrial depositions, especially those taken
adversely of the government official to ferret all of his
actions and the reasons therefor .. would defeat and
frustrate the function and purpose of the ... immunity[.] ...
[U]se of liberal discovery to establish the basis of a claim is
directly at odds with the Court's direction in Harlow that
government officials entitled to immunity [are to] be freed

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9a

from the burdens, the stress, the anxieties and the
diversions of pretrial preparations.

Martin, $12 F.2d at 1437 (R.B. Ginsburg, J.) (quoting Elliott
v. Perez, 751 F.2d 1472, 1479 (Sth Cir. 1985)) (footnotes

omitted).

Our holding in Martin both imposed a “direct evidence"
requirement and related it to the problem of discovery. To
get to trial, we said, a plaintiff must produce "something more
than inferential or circumstantial support for his allegation of
unconstitutional motive. That is, some direct evidence [of
improper motivation] must be produced..." 812 F.2d at 1435
(emphasis added). But we formulated no explicit rule on
discovery. While we quoted Elliott's exhortation about
protecting officials from "the burdens, the stress, the anxieties
and the diversions of pretrial preparations," we also said that
a complete ban on plaintiffs discovery of defendant before
resolution of qualified immunity issues on summary judgment
might turn the prior decisions allowing plaintiffs to raise
claims of unconstitutional motive into an “empty gesture," id.
at 1437, and that we were “leaving some space for
discovery," id. We told district courts to employ "with
particular care and sensibility their large authority to exercise
control over discovery" in order to balance all the concerns
properly. /d. at 1436-373

3 Then-Judge Ginsburg later observed that in Martin the court
had "cut back allowable discovery severely, permitting only a
sharply limited, precisely defined line of inquiry, and even
then, only because of special exigencies in the particular
case." Bartlett v. Bowen, 824 F.2d 1240, 1245 (D.C. Cir.
1987) (R.B. Ginsburg, J., concurring in denial of rehearing en
banc in Martin and several other cases).

10a

In Whitacre v. Davey we read Martin to require allegations
of direct evidence of unconstitutional motive to survive a
motion to dismiss and get discovery, 890 F.2d at 1171 & n.4,
but the point was not necessary to the case because the
allegations of circumstantial evidence were inadequate even
under the less demanding standard of Title VII, see id. at
1172. Finally, in Siegert v. Gilley, 895 F.2d at 802, we
specifically held that "in order to obtain even limited
discovery, such [unconstitutional] intent must be pleaded with
specific, discernible facts or offers of proof that constitute
direct as opposed to merely circumstantial evidence of the
intent.". The pleading requirement entailed the discovery
consequence: if defendant was entitled to dismissal of the
case in the absence of specific assertions of direct evidence,
there would be no occasion for discovery. Although the
Supreme Court granted certiorari on the question whether "a
"heightened pleading’ standard which precludes limited
discovery prior to disposition on a summary judgment motion
violates applicable law," Pet. for Cert. i, quoted in Siegert v.
Gilley, 500 U.S. 226, 237 (1991) (Marshall, J., dissenting),
the Court in fact affirmed on a different, “preliminary” issue,
namely its conclusion that plaintiff had failed to allege a
constitutional violation at all. /d. at 232-35. In Kimberlin v.
Quinlan, 6 F.3d 789, 793-94 (D.C. Cir. 1993), we applied
our “direct evidence" requirement, and denied rehearing en
banc with a flurry of concurring and dissenting opinions, 17
F.3d 1525 (D.C. Cir. 1994). The Supreme Court granted
certiorari, 115 S. Ct. 929 (1995), but then vacated and
remanded, 115 S. Ct. 2552 (1995), for consideration in the
light of Johnson v. Jones, 115 S. Ct. 2151 (1995), which
clarified the circumstances permitting an interlocutory appeal
from denial of a summary judgment motion by a defendant
invoking qualified immunity, we then dismissed the
Kimberlin appeal. No. 91-5315, 1995 WL 759464 (D.C. Cir.
Nov. 8, 1995) (order remanding case to district court).

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lla

Because the district court here applied the “direct
evidence” rule, mem. op. at 5 n.4, and found Crawford-El's
complaint wanting, id. at 15-17, the present case calls on us
to decide whether the circuit should continue to apply that
rule, foreclosing discovery unless the pleadings assert “direct
evidence" of illicit motive. We find that question easy, at
least if, as we believe, there are adequate alternative means of
reconciling Harlow's twin purposes in the context of
constitutional torts dependent on the official's having an
improper motive. We first address the drawbacks of the
"direct evidence" rule, and then consider alternative
extrapolations from the logic of Harlow.

Deficiencies of the "direct evidence" requirement.

First, the distinction between direct and circumstantial
evidence has no direct correlation with the strength of the
plaintiff's case. While a perjured claim of having heard a
confession of unconstitutional motive would meet the test, a
massive circumstantial case would not. See Siegert v. Gilley,
500 U.S. at 236 (Kennedy, J., concurring) (rejecting D.C.
Circuit's direct/circumstantial test on this ground); Elliott v.
Thomas, 937 F.2d at 345 (same). Second, the distinction
does not appear calibrated in any other way to the trade-offs
found determinative by the Court in Harlow and qualified
immunity doctrine generally. Although the rule presumably
did reduce the incidence of motive-related damage suits
against officers, we have no reason to think that it did any
better as a screen than, say, a random rejection of nine out of
every ten claims. The abandonment of circuit precedent e”
banc is of course not to be lightly undertaken. Critical Mass
Energy Project v. NRC, 975 F.2d 871, 875 (D.C. Cir. 1992)
(en banc) (quoting Arizona v. Rumsey, 467 U.S. 203, 212
(1984)). We have noted in contemplating such overrulings
that treatment of the issue in other circuits is a factor to be
considered. /d. at 876. Here, the only courts to consider our

12a

direct evidence rule have rejected it emphatically, see Elliott
v. Thomas, Branch v. Tunnell, 937 F.2d 1382, 1386-87 (9th
Cir. 1991), as have the four Supreme Court justices who have
chosen to speak on the matter. Siegert v. Gilley, 500 U.S. at
235-36 (Kennedy, J., concurring); id. at 245-46 (Marshall, J.,

with whom Blackmun & Stevens, JJ., concurred, dissenting).
Under the circumstances, we think it readily justifiable to
overrule our precedents establishing the direct/circumstantial
distinction, without even addressing the question whether
formulation of the rule as a pleading requirement violates the
liberal pleading concepts established by the Federal Rules of
Civil Procedure. See Leatherman v. Tarrant Co. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163 (1993)
(invalidating heightened pleading requirement invoked by
municipal government unit as defense to constitutional tort, as
violation of Rules 8 and 9(b), but reserving issue of holding's
application to claims against individual government officials).

Alternative protections inferred from Harlow.

In Harlow the Supreme Court assumed that it had
established principles of officer liability that eliminated the
litigation burdens associated with an official's state of mind,
or, as it put the point in Mitchell v. Forsyth, that it had
"purged qualified immunity doctrine of its subjective
components." 472 U.S. at 517. For that proposition to be
literally true, it would be necessary to reject any officer
liability for constitutional torts in which the officer's intent is
an essential element in rendering the conduct unconstitutional.
See Elliott v. Thomas, 937 F.2d at 344 (carrying out "the
program of Harlow" would require imputing to defendants
the best intent they could possibly have); see also Silberman
Op., post (reading Harlow to extinguish liability for such
torts). As Elliott noted, however, that would eliminate any
damage remedy even for “egregious wrongdoing." 937 F.2d
at 344; see also Halperin, 807 F.2d at 186. What, then, does

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13a

Harlow suggest are appropriate devices to balance the interest
in providing remedies against the interest in protecting
officials from the undue litigation burdens, including, as
Harlow emphasized, discovery itself?

We think the crux of the answer lies at the summary
judgment phase of litigation. It divides into two questions:
First, what methods may plaintiff use to secure evidence to
resist the defendant's motion for summary judgment? Second,
must plaintiffs evidence substantively meet some /Aigher
standard than the conventional preponderance test?

1. Methods available to plaintiff for securing evidence for
purposes of summary judgment resolution of qualified
immunity. The primary burdens of litigation occur in
discovery and trial. If the plaintiff can defer summary
judgment while he uses discovery to extract evidence as to
defendant's state of mind, Harlow's concern about exposing
officials to debilitating discovery will generally be defeated in
constitutional tort cases dependent on improper motive.
After describing its objective test, the Court said, “Until this
threshold immunity question is resolved, discovery should not
be allowed." 457 U.S. at 818. We can protect the sequence
apparently insisted upon by Harlow—no discovery until there
has been at least one cut at the qualified immunity issue—by
the straightforward rule that plaintiff cannot defeat a summary
judgment motion unless, prior to discovery, he offers specific,
non-conclusory assertions of evidence, in affidavits or other
materials suitable for summary judgment, from which a fact
finder could infer the forbidden motive. In his concurring
opinion in Siegert, Justice Kennedy adumbrated this
approach. Observing that “heightened pleading" was
inconsistent with Federal Rules of Civil Procedure 8 and 9(b),
he said:

500 U.S. at 236 (emphasis added).

In Elliott v. Thomas, 937 F.2d at 344-46, Judge
Easterbrook spelled out the point in more detail. “Unless the
plaintiff has the kernel of a case in hand (specific,
mental state], the defendant wins on immunity grounds in
advance of ae Id. at 344-45. Because the
substantive law—the law of qualified immunity
Harlow—tells the court what is needed for no nn
judgment, there is no conflict with Rule 56's provision for
summary judgment:

If a rule of law crafted to carry out the promise of Harlow
requires the plaintiff to produce some evidence, and the
plaintiff fails to do so, then Rule 56(c) allows the court to
grant the motion for summary judgment without ado.

937 F.2d at 345 (emphasis added). This is, of course,
substantially similar in result to the imposition of a
“heightened pleading" standard, in that both prevert serious
invasion of the defendant's time unless the plaintiff can,
without discovery, offer specifics of his case as to defendant's
motivation. See, e.g., Elliott v. Perez, Sawyer v. County of
Creek, 908 F 2d 663, 665, 668 (10th Cir. 1990) (noting that

1Sa

because plaintiff conceded inability to amend complaint
without discovery, dismissal would be with prejudice).

Although neither Elliott nor Justice Kennedy's concurrence
in Siegert expressly addressed Rule 56(f), which authorizes
the district judge to defer ruling on summary judgment and to
provide for depositions and other discovery, the solution
flows from their analysis of Harlow—its articulation of the
substantive right of qualified immunity. To allow the plaintiff
to engage in discovery, in order to carry his burden of
establishing a basis for inferring improper motive, would
violate Harlow’s determination to protect the official from
discovery until the qualified immunity issue has been resolved.
Under the Rules Enabling Act, the Federal Rules of Civil
Procedure “shall not abridge, enlarge or modify any
substantive right," 28 U.S.C. § 2072(b), so that any reading
of the Rules to trump officials’ substantive entitlements is

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illicit motivation does not bar discovery concerning 4
defendant official's state of mind for other purposes. A claim
for damages for an allegedly unreasonable search or seizure
will often turn on whether the defendant was in possession of
facts that would have led a reasonable officer to suppose he
had probable cause or exigent circumstances. See, ¢g.,
Anderson v. Creighton, 483 US. 635, 640-41 (1987)
(relevant question in that case was “the objective (albeit
fact-specific) question whether a reasonable officer could
have believed Anderson's warrantless search to be lawful, in
light of clearly established law and the information the
searching officers possessed") (emphasis added). Although
the Anderson Court appeared to discourage discovery even in
that context, see id. at 646-47 n.6, we do not understand its

message as remotely approaching an absolute bar Similarly,
in Billman v. Indiana Dep't of Corrections, 56 F 3d 785. 788-

16a

89 (7th Cir. 1995), the Seventh Circuit said it would permit
discovery to allow a prisoner to identify the proper defendants
in an Eighth Amendment case where a defendant would be
liable if it were shown that he Anew plaintiff's cellmate was
HIV-positive and had a tendency to rape cellmates, and was
the plaintiffs had to make in Anderson and Billman thus went
simply to the defendants’ acquisition of particular facts, not
the broader inquiry into motivation at stake here. Our case
would be equivalent if Crawford-El had simply to show that
Britton knew the boxes contained legal papers (or something

else of value to plaintiff) and was responsible for their
transfer

2 Requirement of clear and convincing evidence. There
still remains the question whether the defendant's entitlement
to summary judgment on qualified immunity before plaintiff's
discovery achieves an adequate balance in light of Harlow’s
purposes. Conventional summary judgment principles supply
some protection to defendants. Plaintiff must do better than
"show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “The mere existence of a
scintilla of evidence in support of the plaintiffs position will
be insufficient [to block summary judgment for defendant]."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

* Thus, unlike Judge Edwards, see Edwards at 7-8, we do not
see any schism in the Seventh Circuit, between Elliotts
requirement that plaintiff himself supply evidence of
defendant's illicit motivation in order to withstand defendant's
summary judgment motion, 937 F.2d at 345, and Billman's
allowing plaintiff discovery to develop evidence that
defendant was aware of facts that would, if known to
defendant, render his conduct violative of the 8th
Amendment.

17a

Here defendants argue that that is not enough. They propose
a special standard, which they frame as a requirement of
"strong evidence." The United States as amicus proposes a
similar heightened standard, framing the proposal in terms of
pleading, it suggests that plaintiff be required to “plead
specific facts giving rise to a strong inference of the alleged
improper motive before any discovery will be permitted."*

Two factors make us believe that the standard protection
of summary judgment (coupled with the limit on discovery
stated above) leave an exposure to both liability and litigation
that is impossible to square with Harlow. First,
unconstitutional motivation is, as is often said of civil fraud,
easy to allege and hard to disprove. Bower v. Jones, 978 F.2d
1004, 1012 (7th Cir. 1992) (citing Hollymatic Corp. v. Holly
Systems, Inc., 620 F. Supp. 1366, 1369 (N.D. Ill. 1985)
("{F]raud, focusing as it does on a subjective state of mind,
can be very easy to allege and very difficult to prove or
disprove.")); see also Ross v. Bolton, 904 F.2d 819, 823 (2d
Cir. 1990) (rationale behind heightened pleading requirement
for fraud in Rule 9(b) is preventing improvident charges of
wrongdoing and strike suits); Charles A. Wright & Arthur R.
Miller, 5 Federal Practice and Procedure § 1296 (1990)
(same). Even cut off from the fruit of depositions and other
discovery against the defendant and her colleagues, plaintiff
will often be able to depict a selective pattern of decisions
that, without evidence of a more complete set of comparable
ones, and extensive explanation by one or more

5 Judge Edwards is correct that neither the Solicitor General
nor the government defendants advocated the “clear and
convincing” standard, see Edwards Op. at 11, but the
difference between that and what the Solicitor General did
advocate appears to be mainly that his proposed standard is
formulated in language that has much less experience and
tradition behind it.

18a

decision-makers, will look fishy enough that a jury could
reasonably find illicit motive by a preponderance.

Second, Harlow plainly views the costs of error in the
grant or denial of relief in such cases as asymmetrical. The
decision expressed a strong concern about the social costs of
damages litigation against officials—namely (to repeat), the
conventional costs of litigation, ti.. diversion of the officials’
time, deterrence of able persons from even accepting public
office, and the chilling of officials’ readiness to exercise
discretion in the public good. Because of those costs the
Court adopted a rule categorically denying recovery where, if
the truth could be fully known, there was a malicious
perpetration of a constitutional violation (but not a violation
of a right so clearly established that a reasonable person
would have known he was crossing the line). This can only
mean that the Court regarded at least some kinds of officer
liability (those turning on subjective intent) as ones where,
everything else being equal, the social costs of erroneously
denying recovery in some cases were exceeded by the
combined social costs of (1) litigating and (2) erroneously
affording recovery in other cases.

A standard solution to such a difference in costs between
two types of error is to adjust the standard of proof. Criminal
law is the best known example, where it is seen as better to
allow quite a few actually guilty defendants—perhaps many,
in fact—to go free than for one innocent one to be convicted:
ergo, the reasonable doubt standard. See, e.g., /n re Winship,
397 U.S. 358, 372 (1970) (Harlan, J., concurring) ("{I]t is far
worse to convict an innocent man than to let a guilty man go
free."), cf. 4 William Blackstone, Commentaries *358
(explaining two-witness rule in perjury cases). But civil law
contains frequent applications of a more modest tilt, a
requirement that the party seeking to mobilize the state to
alter the status quo prove his case by clear and convincing

19a

evidence. Courts have set that hurdle in deportation

Woodby v. Immigration and Naturalization
Service, 385 U.S. 276, 285 (1966); denaturalization
proceedings, Schneiderman v. United States, 320 U.S. 118,
123 (1943); civil commitment proceedings, Addington v.
Texas, 441 U.S. 418, 423 (1979); cases involving termination
of parental rights, Santosky v. Kramer, 455 U.S. 745, 756
(1982); defamation suits against public “gures, New York
Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964); and a
variety of other civil cases such as civil fraud, lost wills, and
oral contracts to make bequests, see Woodby, 385 U.S. at 285
n.18 (citing 9 Wigmore on Evidence § 2498 (3d ed. 1940)).
Although we understand the specific standards urged by
defendants and the United States ("strong evidence” and
"strong inference") to be aimed at similar concerns, we do not
pursue them because of their uncertainty compared to the
familiar clear and convincing standard.°

We pause to note a relationship between (1) the costs of
litigation regardless of outcome and (2) a different societal
valuation of the two types of error. Where the social costs of
litigation itself are exceptionally high, assuming no difference
at all in societal valuation of the two different types of error,
that alone could be a ground for a tilt against the party
seeking to alter the status quo. Because a reduction in the
probability of success reduces the incentives to bring suit
(everything else being equal), such a tilt will automatically
reduce the aggregate costs of the affected class of
lawsuits—at some cost in increasing the number of good

6 The "strong inference" standard is used by the Second
Circuit in securities fraud cases under Fed. R. Civ. P. 9b).
See, e.g., Acito v. Imcera Group, 47 F.3d 47, 52 (2d Cir.
1995); Shields v. Citytrust Bancorp, 25 F.3d 1124, 1127-28
(2d Cir. 1994).

20a

claims that go uncompensated.’ Accordingly, imposition of a
clear and convincing standard may imply (1) simply a
perception that the type of litigation involves unusually high
costs (so that a tilt against its initiators will decrease its
incidence, the court regarding the increase in denials of
recovery as an acceptable cost), or (2) a conclusion that
errors in defendants’ favor are independently to be preferred
to errors in plaintiffs’ favor, or (3) some combination of the
two. If the holding of Harlow represented nothing else, it
surely manifested either the first or third of those possibilities;
after all, in one stroke it destroyed an entire group of claims
for what was, by hypothesis, unconstitutional behavior.

The cases applying a clear and convincing evidence
standard frequently allude to the second of these rationales
(which of course is encompassed in the third). As the Court
observed in Addington, a standard of proof both “indicate{s]
the relative importance attached to the ultimate decision" and
also "serves to allocate the risk of error between the litigants."
441 U.S. at 423; see also Santosky, 455 U.S. at 755 (citing
Addington), Cruzan v. Director, Missouri Dep't of Health,
497 U.S. 261, 283 (1990) (same). The Court illustrated this
rationale in New York Times Co. v. Sullivan, quoting a Kansas
Supreme Court case to support its actual malice standard: "
"[O]ccasional injury to the reputations of individuals must
yield to the public welfare, although at times such injury may
be great.'" 376 U.S. at 281 (quoting Coleman v. MacLennan,
78 Kan. 711, 724 (1908)). The Supreme Court has used such

” Of course, many plaintiffs in civil rights actions against
public officials know that their chances of success on the
merits are minimal and may be motivated by purposes other
than achieving that success. The tilt makes it easier for
district judges to end such cases quickly, thereby reducing the
burdens on the defendant and the court that concerned the
Court in Harlow.

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2la

terms in discussing special gradations of proof. Woodby, 385
U.S. at 284-85; Addington, 441 U.S. at 423-25; Santosky,
455 U.S. at 755.

In developing the New York Times rule of clear and
convincing evidence, the Court explicitly drew on the
reasoning of Barr v. Matteo, 360 U.S. 564, 571, 575 (1959),
in which it had extended and explicated absolute officer
immunity for certain types of official acts. 376 U.S. at 282.
It recited Barr's entire litany of social costs of officer
liability—essentially those later invoked in Harlow—as a
parallel justifying its adoption of the New York Times rule. Id.
If a heightened standard of proof—clear and convincing
evidence—was a sound remedy in the area of public figure
defamation, we think it is equally so in the cognate area of
officer damage liability for constitutional torts based on
improper motive.

Heightened standards of proof of course apply equivalently
at summary judgment and at trial, as a seamless web. In
Anderson v. Liberty Lobby, Inc. the Court made clear that
just as the reasonable doubt standard for criminal trials implies
its use in judicial evaluation of motions for acquittal, the clear
and convincing standard for trial of malice for purposes of
public figure defamation must imply "a corresponding effect"
for motions for a directed verdict and for summary judgment.
477 U.S. at 252-54.8

® Once the plaintiff has come forward with evidence that a
jury could regard as clear and convincing proof of the
defendant's unconstitutional motive, his access to discovery
on all issues (including motive) would be, in the view of the
judges in the plurality, a matter for the district court to
determine as in ordinary civil litigation. In other words,
although the plaintiff would get no discovery unless he had in
hand evidence that would support a jury finding in his favor

22a

What of the pleadings? The label "heightened pleading" for
special requirements for constitutional torts involving
improper motive was always a misnomer. A plaintiff is not
required to anticipate the defense of qualified immunity in his
complaint, Gomez v. Toledo, 446 U.S. 635, 640 (1980), and
under the Federal Rules of Civil Procedure is required to file a
reply to the defendant's answer only if the district court
exercises its authority under Rule 7(a) to order one. At stake
has always been the ability of the plaintiff to inflict on the
defendant officer liability and the serious burdens of litigation
itself—discovery and trial. Although we understand the
arguments of the court in Schultea v. Wood, 47 F.3d 1427,
1432-34 (Sth Cir. 1995), supporting a rule that where
qualified immunity is raised in a case involving illicit motive
the district court's discretion not to order a reply "is narrow
indeed," we do not see why the limit on discovery and the
standard of proof discussed above would not adequately fulfill
the implications of Harlow. Of course court-ordered replies
and motions for a more definite statement under Rule 12(e)
may simplify and speed the process, but we do not see that
protection of substantive rights requires any special rules.

/ We note briefly the argument of the American Civil
Liberties Union as amicus, drawing on the recent decision in
Johnson v. Jones, 115 §. Ct. 2151 (1995). In Mitchell v.
Forsyth the Supreme Court applied the "collateral order"
doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541 (1949), to hold that immediate appeal was available for
“denial of a defendant's motion for dismissal or summary
judgment on the ground of qualified immunity." 472 U.S. at
527. In Johnson the Court expressly limited Mitchell to pure
issues of law, id. at 2156, such as the determination that a set

on the motive issue, if he did have that evidence he could use
discovery to obtain additional evidence that might help him
win the battle of persuasion at trial.

Ae tet

—_a,

23a

of given facts constituted a violation of clearly established
law, id. at 2159. This made clear that appeals from denials of
summary judgment were not available for questions of
evidentiary sufficiency. /d. at 2156; see also Behrens v.
Pelletier, 116 S. Ct. 834, 842 (1996) (explicating Johnson).
The Court was especially concerned that allowing
interlocutory appeals of factual questions about intent "may
require reading a vast pretrial record, with numerous
conflicting affidavits, depositions and other discovery
materials" and would result in unjustifiable delay for the
plaintiff. Johnson, 115 S. Ct. at 2158.

The ACLU argues that Johnson concluded that where a
dispute about material facts exists in a constitutional tort case,
"the goal of shielding defendants from discovery or trial yields
to the usual goals of resolving cases on their merits through
normal procedures." But Johnson is not remotely so
sweeping. As the Court observed in Behrens, “Every denial
of summary judgment ultimately rests upon a determination
that there are controverted issues of material fact." 116 S. Ct.
at 842. The question for purposes of immediate appealability
is whether the point at issue is mere sufficiency of the
evidence or “more abstract issues of law." Johnson, 115 S.
Ct. at 2158; Behrens, 116 S. Ct. at 842. The Court never
addressed (or even hinted at) any adjustment in the summary
judgment standards for constitutional torts involving improper
motive under Harlow. Indeed, no court of appeals thus far
has abandoned its special standards in constitutional motive
cases in light of Johnson. See, e.g., Moore v. Valder, 65 F.3d
189, 195, 196 & n.13 (D.C. Cir. 1995); Morin v. Caire, 77
F.3d 116, 121 (Sth Cir. 1996); Veney v. Hogan, 70 F.3d 917,
922 (6th Cir. 1995); Hervey v. Estes, 65 F.3d 784, 788-89
(9th Cir. 1995); Gehl Group v. Koby, 63 F.3d 1528, 1535
(10th Cir. 1995). And, of course, this court recognized the
distinction drawn in Johnson before that case was decided,
see Crawford-El v. Britton, 951 F.2d at 1317 (no immediate

24a

review available for district court's treatment of an “I didn't do
it” defense on summary judgment); see also Johnson, 115 S.
Ct. at 2154 (listing Crawford-E/ among the decisions on the
side that Johnson found correct), yet nonetheless applied
special standards. More generally, so far as we know, most if
not all trial court proceedings over claims requiring clear and
convincing proof plod along without any application of the
collateral order doctrine. Limits on the reach of that doctrine
of course mean delay in the correction of trial court error and
a resulting increased exposure of officials to some adverse
consequences, but we do not see why every fine-tuning that
limits the immediacy of appeal should connote some
anti-defendant shift in the principles to be applied by the
district court.?

Application to Crawford-El

As we have seen, the district court dismissed Crawford-
El's Fourth Amended Complaint under the “heightened
pleading" requirement. If dismissal of the complaint were the
sole means available to protect defendants from discovery
barred by Harlow, then we would confront the issue of
whether Rule 8's minimalist standard ("a short and plain
statement of the grounds") could be applied to the sort of
complaints here at issue without violating 28 U.S.C. §
2072(b)'s ban on the exercise of rulemaking power to

* Judge Edwards accuses the plurality of insufficient "judicial
restraint," Edwards Op. at 14, but it is not clear by what
standard one resolution of a question unanswered by Harlow
is more or less "restrained" than another. Nor is it clear why
one should view a book review by a member of the plurality,
see id., Suggesting that courts take a modest role in
monitoring the judgments of the political branches, as
contradicting an opinion whose tendency (among the various
plausible alternatives) is to do exactly that.

25a

"abridge, enlarge or modify any substantive right." See
Leatherman v. Tarrant Co. Narcotics Intelligence &
Coordination Unit, 507 U.S. at 166-67 (leaving open
question of whether courts are to apply “heightened pleading"
requirement to claims against government officials). But we
see no reason why the government officials’ insulation from
discovery would not be amply protected by the principle we
have already described, entitling officials to summary
judgment resolution of their qualified immunity claims before
discovery. That being so, it is unclear how application of
conventional pleading standards could amount to the sort of
substantive abridgement forbidden by § 2072(b).
Accordingly, we think it was not correct for the district court
to apply, literally, a heightened pleading standard, quite apart
from the invalidity of our now-abandoned direct evidence
rule.

Quite obviously, however, the court and the litigants have
been caught in a vortex of changing standards. And although
the defendants have not moved for summary judgment since
the filing of the Fourth Amended Complaint, it seems sure
that they will do so. Moreover, plaintiff has been on notice at
least since our 1991 decision of the need for "nonconclusory
allegations that are sufficiently precise to put defendants on
notice of the nature of the claim and enable them to prepare a
response and, where appropriate, a summary judgment
motion on qualified immunity grounds." Crawford-El, 951
F.2d at 1317 (quotations and citations omitted). Accordingly,
it seems overwhelmingly likely that the Fourth Amended
Complaint represents at least a very close approximation of
what Crawford-El can advance in resistance to the motion for
summary judgment. In the unusual context of this case, then,
we are hardly giving an advisory opinion when we consider
whether affidavits embodying the assertions of the Fourth
Amended Complaint could successfully withstand Britton’s

26a

motion for summary judgment, backed by the affidavit she has
already filed.

1. Whether Crawford-El Has Alleged a First Amendment
Violation. We first examine whether Crawford-El's
allegations could possibly constitute a violation of a clearly
established constitutional right. See Siegert, 500 U.S. at 227
(question whether the conduct complained of constitutes
violation of clearly established law is at an "analytically earlier
stage" than question of heightened pleading standard); see
also Kartseva v. Dep't of State, 37 F.3d 1524, 1530 (D.C.
Cir. 1994) (same); Moore v. Valder, 65 F.3d at 195 (same).
Although the question is close, we hold that withholding
Crawford-E!'s property in retaliation for exercise of his First
Amendment speech rights would indeed be a violation of
clearly established law. 2

We must answer two questions here: (1) whether
Crawford-El’s speech was protected under the First
Amendment such that retaliation would be violation of a
clearly established mght and (2) how great the retaliatory
injury must be. We start with the first. The Supreme Court's
decision in Turner v. Safley, 482 U.S. 78, 88 (1987),
summarized existing precedent—including Procunier v.
Martinez, 416 U.S. 396, 413-14 (1974), and Pell v.
Procunier, 417 U.S. 817, 822 (1974)—and set out the test
controlling here: "[W]hen a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests."
Although on its face 7urner applies only to regulations,
several other courts have applied the test to other prison
actions, including those in retaliation cases. Frazier v.
Dubois, 922 F.2d 560, 562 (10th Cir. 1990) (applying Turner
in a First Amendment retaliation case); Jackson v. Cain, 864
F.2d 1235, 1248 (Sth Cir. 1989) (same); cf. Cornell v.
Woods, 69 F.3d 1383, 1388 (8th Cir. 1995) (in First

27a

Amendment retaliation case, applying Pell v. Procunier, 417
U.S. at 822 ("[A] prison inmate retains those First
Amendment rights that are not inconsistent with his status as
a prisoner or with the legitimate penological objectives of the
corrections system.")). Several cases have held that a
prisoner's right to have access to the press may be limited.
Pell v. Procunier, 417 U.S. at 835 (upholding prison
regulation prohibiting face-to-face media interviews with
particular inmates designated by the press), Kimberlin, 6
F.3d at 791 n6 (upholding under 7urner warden's policy
prohibiting prisoner press conferences and limiting prisoners’
press access to settings expressly authorized under prison
regulations). But no court has held that a total ban on
communications to the press passes muster. Cf. Nolan v.
Fitzpatrick, 45\ F.2d 545, 547 (ist Cir. 1971) (striking down
ban on prisoner letters to news media insofar as the letters
concerned prison matters, emphasizing that prison conditions
are “an important matter of public policy" about which
prisoners are “peculiarly knowledgeable"). And in light of
Turner and related cases, retaliation against Crawford-E! for
criticism of the prison administration that was truthful, and
not otherwise offensive to some penological interest (so far as
appears), would have violated a clearly established right of
which a reasonable prison official would have known. Cf
Pickering v. Bd. of Educ., 391 U.S. $63, 568, 571-72 (1968)
(holding thet “irst Amendment precludes dismissal of a school
teacher whe criticized Board of Education's handling of a
bond issue; public employees should be able to speak freely
on issues of public concern without fear of retaliation).

As to the sort of injury cognizable under the First
Amendment, Crawford-El here alleges the costs of replacing
underwear, tennis shoes, soft shoes, and other items, shipping
charges to get his papers back; and mental and emotional
distress. In our earlier opinion in this case, we noted that
some non-de minimis showing of injury is necessary in a

28a

constitutional tort action, 951 F.2d at 1321, 1322, and cited
Ingraham v. Wright, 430 U.S. 651, 674 (1978) ("There is, of
course, a de minimis \evel of imposition with which the
Constitution is not concerned."), and Bart v. Telford, 677
F.2d 622, 625 (7th Cir. 1982). Bart stated that “even in the
field of constitutional torts de minimis non curat lex." Id. “It
would trivialize the First Amendment to hold that harassment
for exercising the right of free speech was always actionable
no matter how unlikely to deter a person of ordinary firmness
from that exercise"—for example, a supervisor frowning at an
employee in retaliation would not constitute sufficient injury.
Id. Still, the effect on freedom of speech of retaliations “need
not be great in order to be actionable." /d; cf. Memphis
Community Sch. Dist. v. Stachura, 477 U.S. 299, 306-311
(1986) (out-of-pocket and mental distress damages
recoverable for violation of Due Process Clause and First
amendment nght to academic freedom); Hobson v. Wilson,
737 F.2d at 61-62 (mental distress damages recoverable for
violation of First Amendment right of political association);
Frazier v. Dubois, 922 F.2d at 561 (transfer of prisoner in
retaliation for exercise of First Amendment rights is
unconstitutional injury, citing cases).

The district court commendably latched onto our approval
of Bart and applied a sensible standard—whether an official's
acts “would chill or silence a “person of ordinary firmness’
from future First Amendment activities." Mem. op. at 13
(quoting Bart). The court then found that the pecuniary losses
Crawford-El sustained in the form of the costs of shipping his
boxes and replacing clothing, though small, might well deter a
person of ordinary firmness in Crawford-E!'s position from
speaking again. We agree that the acts asserted pass that test.

2. Whether a Jury Could Reasonably Find Clear and
Convincing Evidence of Retaliaiory Action. The Fourth
Amended Complaint alleges a variety of encounters between

29a
Crawford-El and Britton from which plaintiff believes it can
be inferred that the misdelivery of his goods must have been
in retaliation for various activities that are protected by the
First Amendment.

Crawford-El sets the stage with allegations that Britton
was hostile to him because of his actions on behalf of fellow
prisoners even before his contacts with the press. While he
was Clerk for the Occoquan Facility Housing and Ac «:.ment
Board at Lorton (from about October 1985 to April 1986), he
had frequent contact with Britton since she often served on
that Board and Crawford-El often went to the nearby block
containing Britton’s office to photocopy. He claims that
Britton, while despising all prisoners, was particularly hostile
to him because he had been in charge of the law library when
housed at the central facility at Lorton and hed helped many
prisoners prepare administrative grievanc... According to
Crawford-El, Britton deemed him "too big for his britches."

In April 1986 Crawford-El apparently invited reporters
from the Washington Post to visit the prison, correctly noting
on the visitor application form submitted to Britton that the
proposed visitors’ address was 1150 iSth Street, NW,
Washington, DC 20071, but discreetly omitting that this was
the Post's address. Britton approved the application. A
reporter came, and on April 20, 1986 the Post published a
front-page article under the headline “Jail Crisis Spills Into
Occoquan Unit," subheaded “Crowding, Anger Grow as D.C.
Inmates are Shifted to Va. Facility." It quoted Crawford-El's
account of an alleged irregularity—that on his arrival at
Occoquan a correctional officer had obtained trousers for him
by searching in other prisoners’ lockers for an extra pair. The
next day, says Crawford-El, Britton called him into her office
and told him he had “tricked” her and that “so long as
(Crawford-El] was incarcerated she was going to do
everything she had to to make it as hard for him as possible."

30a
Between April 1986 and Crawford-E!'s next successful use

officials’ negligence, he recovered about $500; in three others
he complained on behalf of himself and a class about the lack

Shortly after arrival at Spokane, Crawford-El again spoke
with a reporter from the Post. On December 18, 1988,
another front-page article appeared, "Sudden Move Severs
Inmates’ Ties to D.C.; Isolation of Spokane County Jail Puts
Prisoners “In a Firecracker Mood.'" It credited Crawford-El
with the firecracker metaphor and also quoted him as claiming
that the prisoners sent to Spokane were “the civil litigants of
Lorton who have been put here to get us out of their hair so
our lawsuits will be dismissed on procedural grounds."
Shortly after the publication of this article, according to
Crawford-El, Britton told a Spokane County Jail official that
Crawford-El was “a legal troublemaker,” meaning, according
to the complaint, “a prisoner who asserts her or his legal
nghts, or seeks administrative or judicial redress of

as an apt moniker." Crawford-El, 951 F.2d at 1319.

The alleged —_ retaliatory act—the misdelivery of
boxes—occurred in the course of Crawford-E!'s transfer back
from Spokane to Lorton and thence on to a federal prison in

3la

Marianna, Florida, a transfer over which Britton had charge.
At Spokane, Crawford-El was instructed to give his property
to officials there for forwarding to him. Crawford-E! alleges
Britton was aware of the boxes’ importance to him, saying
that when he and two other prisoners met Britton on August
18, 1989 at the Western Missouri Correctional Center en
route back to Lorton, they told her that their boxes contained
legal papers needed for ongoing cases. She allegedly said that
she understood Crawford-El's need for the personal property
and legal materials and that the boxes would be sent to her
office.'° (In her affidavit Britton contests the claim that she
was ever told of the papers: "I do not recall plaintiff telling me
that there were legal documents in his personal property, nor
did I have knowledge of the contents of the three sealed
boxes." She said she had the boxes sent to her office to keep
them from being lost.)

In late August, after arriving back at Lorton, Crawford-El
allegedly wrote to Britton requesting that his property be sent
to him as soon as she received it. Shortly afterward, he
noticed that some other prisoners returning from Washington
State had got their property. Just before he was transferred,
he checked with a Lorton “Property Officer" named Ward,
who told him that he could have hs property sent to him at
his final destination by writing a request to that effect after
arrival at that final destination. At still another intermediate
stop, the federal prison in Petersburg, Virginia, Crawford-El
learned from other D.C. prisoners that Britton had been
calling their families asking them to pick up the prisoners’
property because otherwise she would throw it away. He

10 On the trip back to Lorton, supervised by Britton, the
property Crawford-El was carrying with him (and that of
other prisoners as well) was put into storage on the bus and
apparently lost. Crawford-El won an uncontested small
claims court suit against Britton for $72.50 based on this loss.

32a

called his parents, who told him his brother-in-law Jesse
Carter had picked up his boxes. (Crawford-El was "upset" at
this, since he believed he would have difficulty getting
permission to receive the property once it had left the prison
system.) According to Crawford-El's own allegation in the
Fourth Amended Complaint, Carter told Crawford-El that
Britton had told him that she was concerned about Crawford-
El's legal materials and other property and was afraid the
boxes would be lost if she sent them to the Lorton Property
Officer for mailing to Crawford-El, and that federal prisons
would not accept shipments of D.C. prisoner property. That
account meshes with Britton's affidavit, which says that she
asked Carter to take Crawford-El's property "only to insure
its safety and protection from loss, and for no other reason
whatsoever." (Britton also stated that "we had been advised
by the Federal Bureau of Prisons that they would not accept
the personal property of the prisoners.") But Crawford-El
also says that Britton told Carter that Crawford-El “should be
happy she did not throw [his property] in the trash."

In the course of Crawford-El's attempts to get his property
back, his lawyer received a copy of a letter from the
Corporation Counsel's office, stating:

As has been our past practice, inmates transferring from
DCDOC [the D.C. Department of Corrections] to BOP
[the federal Bureau of Prisons] custody are permitted only
a small amount of personal property which should be
limited to personal care items and legal documents.

The letter also said that there were "significant differences
among DCDOC and BOP property policies and differences
between individual BOP facilities" and noted that "{i]n special
cases, we ask that DCDOC contact individual facility Inmate
Systems staff for permission prior to mailing any inmate
personal property to a BOP facility". Though Crawford-El's

33a

mother forwarded the boxes on to him at the prison at
Marianna, Florida, Crawford-El had some difficulty getting
them, as he had expected. Crawford-El asserts that this was
because they arrivec utside prison channels.

The allegations supplying the strongest evidence of
Britton's alleged malign intent are her threat to Crawford-El
after the 1986 Post article to make things "as hard as possible
for him" and her remark to Carter about throwing the boxes
in the trash. But those comments—for both of which
Crawford-El is the only source mentioned—are suspect as
self-serving assertions. The complaint undermines the "trash"
comment by affirmatively asserting that Carter said Britton
told him she was giving him the property out of concern
about its getting lost, an account that Britton's affidavit
supports. As for the allegation that Britton told a Spokane
County Jail official that Crawford-El was “a legal
troublemaker," the complaint itself defines that term in such a
way as to make it impossible to deny that the description is
apt. The letter by Corporation Counsel on its face suggests
some confusion about the federal Bureau of Prisons policy
concerning transfer of D.C. inmate's personal property,
reducing the likelihood that Britton's handing the property to
his brother-in-law was a deliberate scheme to keep it away
from Crawford-El. Indeed, in the absence of some reason to
believe Britton thought Carter had it in for Crawford-El or
was hopelessly incompetent (neither of which is claimed by
Crawford-El), or thought that federal prison officials would
much more readily allow Crawford-El to receive the property
if sent by the D.C. Department of Corrections than if sent
from outside the prison system, transfer of the boxes to the
brother-in-law makes an awkward fit with any serious
purpose to keep them from Crawford-El. In addition,
Crawford-El's own complaint states that Britton had
telephoned other D.C. prisoners’ families to ask them to pick
up those prisoners’ property at Lorton—behavior further

34a

reducing the chance that Britton's treatment of Crawford-El
had any retaliatory purpose. In short, a jury could not
reasonably find that Crawford's nonconclusory assertions
constitute clear and convincing evidence of unconstitutional

a “common denominator" of the reasoning of the majority, see
King v. Palmer, 950 F.2d 771, 780-81 (D.C. Cir. 1991) (en
banc)). If he adds ne evidence, the district court should grant
any future motion for summary judgment by Britton on the
federal claims against her.

Accordingly we vacate the dismissal of Crawford-El's First
Amendment retaliation claim against Britton, and the pendent
conversion claim (see supra note 1), and, once the panel has
resolved the issues between Crawford-El and the District (see
id.), remand the case to the district court for further
proceedings.

So ordered.

35a

SILBERMAN, Circuit Judge, concurring. Crawford-El, a
D.C. prisoner serving a life sentence for murder and a chronic
litigant whom we have previously described as a “trouble
maker," Crawford-El v. Britton, 951 F.2d 1314, 1320 (D.C.
Cir. 1991), cert. denied, 906 U.S. 818 (1992), has brought a
damage claim (now amended four times) against a prison
official who allegedly retaliated against him for the exercise of
his constitutional rights to bring innumerable law suits (and
talk to the press) by allowing his boxes of "legal material" to
be picked up by his brother-in-law (horrors!) when the
plaintiff was transferred from one prison to another.

There was a time, not too many years ago, when any
American lawyer or judge hearing that such a case was the
subject of an en banc hearing in a federal court of appeals,
even that it plausibly could be brought as a claim in a federal
district court, would have been incredulous. Before I discuss
what I believe to be the appropriate resolution of the
case—given the state of present law on qualified immunity of
government officials—I think it worthwhile to trace the
jurisprudential steps that have led us to this situation.
Particularly is this so because some justices have expressed
legitimate concerns about the degree of judicial
"policymaking" implicated in fashioning the substantive and
procedural framework of qualified immunity, see Wyatt v.
Cole, 504 U.S. 158, 171-72 (1992) (Kennedy, J., concurring,
joined by Justice Scalia);' see also Chief Judge Edwards’ Sep.

' Qualified immunity is not a new innovation and some have
expressed concern insofar as it has been extended beyond its
common-law boundaries. But at common law, we did not
have constitutional torts as such. Moreover, pre-trial
discovery in the nineteenth century was not burdensome (in
sharp contrast to our current system) due to the severe
restrictions placed on it, if it was allowed at all, even in the
most permissive of states. See Wolfson, Addressing the

36a

Op. at 14-15, overlooking the much more fundamental—and
bi ‘udicial poli Stee Sitteall he ak che
causes of action that have given us the problem.

L
Federal damage actions that typically raise qualified
immunity concerns are those brought against federal officials
as Bivens actions or against state officers under § 1 of the
1871 Civil Rights Act (hereinafter § 1983). Section 1983
reads:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or 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.

42 U.S.C. § 1983 (1994). Ironically, § 1983 was the least
controversial provision in the 1871 Act, attracting little
attention or debate. And for almost 100 years the federal
courts read that statute as it was clearly intended, to attack
the so-called "Black Codes" passed by Southern states after
the civil war, not private torts. See, e.g., Lane v. Wilson, 307
U.S. 268 (1939); Brawner v. Irvin, 169 F. 964, 968
(C.C.N.D. Ga. 1909) (dismissing case that alleged that the
police chief had whipped petitioner for striking his relative
since it alleged only a private tort). But in 1961 in Monroe v.
Pape, 365 U.S. 167, the Supreme Court extended the statute
to reach the behavior of Chicago police officers who did not

Adversarial Dilemma of Civil Discovery, 36 CLEV. ST. L.
REV. 17, 25-27 (1987).

37a

claim their actions were sanctioned under state law. Indeed,
there was little doubt that the plaintiffs had a tort remedy
under Illinois law. But as is so often true when the Supreme
Court hands down a decision that substantially expands
federal judicial power, the facts were dramatic: thirteen
Chicago police officers broke into the Monroes' apartment,
forced the Monroes to stand naked at gunpoint in the middle
of their living room, struck their children, and called Mr.
Monroe “nigger” and “black boy." /d. at 203 (Frankfurter, J.,
dissenting in part). The Court overrode what seems to me to
be the characteristically impeccable reasoning of Justice
Frankfurter (when he was relying on reasoning rather than
rhetoric) in dissent, and turned § 1983 into a provision that
ihe post-civil war Congress could not possibly have
visualized. See Zagrans, “Under Color Of" What Law: A
Reconstructed Model of Section 1983 Liability, 71 VA. L.
REV. 499 (1985). The Court's construction effectively read
out of the statute the “under color of law" limitation, making
it synonymous with the Fourteenth Amendment's state action
requirement.? Subsequently, the Court discovered a whole
series of new constitutional rights and applied the Bill of

? The Court's interpretation of "under color of law" has not
been its only creative interpretation of § 1983. It has allowed
litigants to use § 1983 to enforce statutes that have no
connection to the Fourteenth Amendment or the post-civil
war civil rights legislation. See Maine v. Thiboutot, 448 U.S.
1 (1980). The Court was not discomforted that its
interpretation would result in the scope of § 1983 being vastly
greater than its jurisdictional counterpart (which was the only
conceivable basis for § 1983 suits until § 1331 was passed
some years later). The dissent in 7hiboutot indicated that it is
"idiotic" to interpret § 1983 in this fashion. /d. at 21 n.9.

eer

Rights to the states. As a result, the 296 federal civil rights
actions against government officials filed in 1961 have
exploded into over 40,000 by 1988, over half of which were
filed by prisoners. In just the period between 1975 and 1984,
the number of prisoner civil rights cases increased by
approximately 200%, from 6,606 to a staggering 18,856. See
Eisenberg & Schwab, The Reality of Constitutional Tort
Litigation, 72 CORNELL L. REV. 641, 667 (1987). In
contrast, there were only 21 cases decided under § 1983 in its
first 50 years. See Comment, The Civil Rights Act:
Emergence of an Adequate Federal Civil Remedy?, 26 IND.
L.J. 361, 363 (1951).

Then, in 1971 the Court, in perhaps an even more stunning
exercise of judicial policymaking, fashioned a federal cause of
action for damages against federal officials for a
“constitutional tort." In Bivens v. Six Unkown Named Agents
of Federal Bureau of Narcotics, 403 US. 388 (1971), the
facts were again grim; six federal law enforcement Officials
without a warrant broke into the apartment of the plaintiff to
conduct a search. He was arrested in front of his wife and
children—who were also threatened with arrest—for a
narcotics violation and was subsequently interrogated,
searched, and booked. The case against him was ultimately
dismissed. Bivens reflected the Court's policy proclivity to
"equalize" the obligations of constitutional law imposed on
state government to those imposed on federal government.
See, e.g., Bolling v. Sharpe, 347 U.S. 497, 500 (1954); Butz
v. Economou, 438 U.S. 478, 501-03 (1978).

> In fairness, "incorporation" of the Bill of Rights had begun a .

long time before. See, e.g., Smyth v. Ames, 169 U.S. 466,

525-26 (1898) (applying the "Takings Clause" to state rate
regulation of railroads).

39a

To be sure, prior to 1875 and the passage of the general
federal question jurisdiction statute, an injured party could
bring a common-law suit in state court against a governmental
actor. The governmental official would then raise as a
defense that he was acting pursuant to a statute or authority
vested in him—a defense which could be defeated by showing
that the statute or delegated authority was unconstitutional.
For instance, the Fourth Amendment's prohibition against
unreasonable searches and seizures was enforced by bringing
a common-law trespass action against a governmental official,
an action which an official could not defeat by invoking a
claim of authority violative of the Fourth Amendment.* See
Boyd v. United States, 116 U.S. 616, 626-27 (1886). Of
course, there was no a priori assurance that there would
always be a common-law right guaranteeing a remedy for an
official's unconstitutional action (although there normally
would be), but this is only a problem if one thinks that there is
an @ priori reason to believe that every constitutional
violation must be remedied. Our historical practice simply
does not support the proposition that the Constitution is
self-executing. Cf Webster v. Doe, 486 U.S. 592, 613 (1988)
(Scalia, J. dissenting) (explaining that it is “untenable that
there must be a judicial remedy for every constitutional
violation").*

* In actions for trespass, the defendant would typically seek
damages against the trespasser. See, e.g., Huckle v. Money,
95 Eng.Rep. 768 (1763). While one might be tempted to
argue that since the framers envisioned the Fourth
Amendment being enforced through actions for
damages—where the Fourth Amendment negated the
government official's defense—the important point is that the
underlying cause of action was a creature of state law.

* One should keep in mind that even under the most 1.arrow
construction of Harlow v. Fitzgerald, 457 U.S. 800 (1982), it

40a

After 1875, the Court started down a different path. It
gradually concluded that an implied cause of action under the
Constitution existed where the remedy sought was an
injunction. The Court by “almost imperceptible steps ...
appears to have come to treat the remedy of injunction as
conferred directly by federal law for any abuse of state
authority which in the view of federal law ought to be
remediable." Hart, The Relations Between State and Federal
Law, 54 COLUM. L. REV. 489, 524 (1954). This process
culminated in Ex Parte Young, 209 U.S. 123 (1908), in which
the Court upheld an injunction of a state official where the
alleged wrong was the threat of future prosecutions.
Whatever the validity of this reasoning in an era when the
courts had license to create general federal common law, see
Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), there is no
question that the Court's finding of an implied right to an
injunction against a government official in his official capacity
is on far more solid ground than the creation of an implied
right to damages against a governmental official as an
individual. After all, the Constitution (with a few exceptions
such as the Thirteenth Amendment) is concerned with
limitations on the power of government. Individuals are
implicated only insofar as they act as agents of the
government as opposed to private tortfeasors. Moreover, the
Court has for the last hundred years consistently followed this
line of reasoning in finding an implied right to an injunction;
Bivens suits lack such a pedigree® See, e.g., Davis v.

is inevitable that some meritorious suits will be barred. This
should not be surprising since the very notion of an
"immunity" from suit, as opposed to a "defense," entails that
valid constitutional claims will be barred.

° The Court has implied a damages remedy in order to enforce
the Fifth Amendment's prohibition on the taking of private
property for public use without just compensation. See

4la

Passman, 442 U.S. 228, 241-43 (1979) (explaining this
tradition), Chamber of Commerce v. Reich, 74 F.3d 1322,
1327-28 (D.C. Cir. 1996); Collins, “Economic Rights,"
Implied Constitutional Actions, and the Scope of Section
1983, 77 GEO. L.J. 1493, 1510 (1989). ge eran es
historically recognized right to injunctive reli viates:

need for a judicially-created damages remedy. As Justices
Frankfurter and Brandeis explained (and as _ implicitly
recognized by Justice Harlan in his Bivens concurrence)
“remedies” are independent of “rights.” Remedies can vary
based on the weighing of numerous policy considerations

Jacobs v. United States, 290 U.S. 13 (1933). However, the
damages remedy was against the government and has explicit
textual support in the Amendment's requirement that “just
compensation” be paid. See First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles, 482
U.S. 304, 316 n.9 (1987) (citing cases that “make clear that it
is the Constitution that dictates the remedy for interference

with property rights amounting to a taking").

Some have argued that the Court after 1875, even if rarely,
also implied a personal damages remedy In most of these
cases, the Court seems to have conceived of the cause of
action, although admittedly sometimes artificially, as based
upon the common law. In Wiley v. Sinkler, 179 US. 58
(1900), and Swafford v. Templeton, 185 U.S. 487 (1902), the
two most cited examples of this implied damages remedy, the
Court concluded that the lower federal court had federal
question jurisdiction to entertain a suit for damages against
state officials for their interference with the plaintiffs’ mght to
vote in federal elections since it involved the construction and
application of the Constitution. The Court in these cases was
focused on whether the suits raised federal questions, not the

legitimacy of the damages remedy, although the two
questions admittedly do overlap

42a
Truax v. Corrigan, 257 U.S. 312, 354-57 (1921) (Brandeis,
J., dissenting); F. FRANKFURTER & N. GREENE, THE LABOR
INJUNCTION 205-223 (1930). The lack of a damages remedy
She en ws cage Gn mause of tie entesiing

Rehnquist pointed out in dissent i Ce

” To the extent that the Bivens Court relied on
authority to infer private damages remedies in

43a

J. BUCHANAN & G. TULLOCH, THE CALCULUS OF CONSENT
(1962) (arguing that all rational actors, including those in
government, pursue power), follows its own version of the
Breznev Doctrine—no significant retreat from extensions of
federal constitutional power (unless perhaps, if confronted by
Congress )—that is a vain hope.*

IL

As I have indicated, shocking factual allegations played no
small part in the development of the law in Pape and Bivens.
(Many journalists and lawyers describe as a virtue a
hypothetical Supreme Court justice's disposition to decide in
accordance with the facts of a particular case, they mean the
justice should decide how the dispute should be resolved
using a Solomonic policy-oriented methodology and then the
law should be fashioned to accommodate that resolution.) It
is hard to imagine a similar outcome in either case if facts akin
to Crawford-El's had been presented. In other words, if Pape
or Bivens had involved constitutional tort claims that
depended on allegations that the actor's motive was
proscribed, I am confident that the Supreme Court would not
have gone down either path, especially in light of the
involve, because virtually any ostensibly legal action taken by
a government official can be thought unconstitutional if
prompted by an unconstitutional motive.

Viewed in this light, Judge (now Justice) Ginsburg's
“heightened pleading” requirement that a plaintiff allege direct
evidence to show an unconstitutional motive for actions that
would otherwise be perfectly legal might be thought an effort
to keep a Bivens claim close to the kinds of facts that moved

* It could be argued that the Supreme Court's withdrawal
from Lochner is an exception, but of course substantive due
process grew back anew in “politically correct" gardens.

44a

rejection
of nine out of every ten claims." Judge Williams’ Op. at 10.
Since direct evidence of an unconstitutional motive for an
ostensible legal act is virtually never available (I do not recall
ever seeing such a case since Martin was decided), the Martin
heightened pleading requirement effectively kept Bivens
unconstitutional motive cases from going to discovery and
trial in our circuit for 10 years. That result, no matter how
reached, is not only desirable, it is implicitly contemplated, as

In actual practice, Judge Williams’ clear and convincing
test applied at the summary judgment stage may well have the
same ultimate impact as the Martin test. Under both

discovery." Elliott v. Thomas, 937 F.2d 338, 345 (1991).

promise a good deal of further litigation with very little return

* I quite agree with Judge Williams’ discussion of Leatherman
v. Tarrant Co. Narcotics Intelligence & Coordination Unit
507 U.S. 163 (1993), and also agree that a plaintiff is entitled
to discovery for certain other purposes. Judge Williams’ Op.
at 13-14.

46a

perhaps one of the simplest axioms of law and economics that
overdeterrence as well as underdeterrence yields inefficient
results. See P. SCHUCK, SUING GOVERNMENT 68-75 (1983).

( think the more straightforward solution, following
Harlow’'s reasoning, is to hold that when the defendant asserts
a legitimate motive for his or her action, only an objective
inquiry into the pretextuality of the assertion is allowed. If
the facts establish that the purported motivation would have
been reasonable, the defendant is entitled to qualified
immunity. Cf Halperin v. Kissinger, 807 F.2d 180, 188
(D.C. Cir. 1986). Although Harlow dealt specifically with a
different subjective aspect of an official's motivation—his
knowledge or appreciation of governing constitutional
law—as Judge Williams notes, the Court in Mitchell v.
Forsyth, 472 U.S. 511, 517 (1985), read Harlow as having
“purged qualified immunity doctrine of its subjective
components." See also Anderson v. Creighton, 483 U.S. 635,
645 (1987) (explaining that the Harlow Court “completely
reformulated qualified immunity along principles not at all
embodied in the common law, replacing the inquiry into
subjective malice so frequently required at common law with
an objective inquiry into the legal reasonableness of the
official action"). More important, Harlow itself unequivocally
states that “[uJntil this threshold immunity question is
resolved, discovery should not be allowed." 457 U'S. at 818.
That thought certainly strongly suggests that a factual dispute
over whether the defendant's otherwise legal action is
rendered illegal because of an unconstitutional motive cannot
defeat a qualified immunity defense. The Harlow Court
manifested a clear awareness of the peculiar difficulties that
litigation over any kind of motivational disputes entail:

There are special costs to “subjective” inquiries... In

contrast with the thought processes accompanying
“ministerial” tasks, the judgments surrounding

47a

discretionary action almost inevitably are influenced by the
decision maker's experiences, values, and emotions. These
variables explain in part why questions of subjective intent
so rarely can be decided by summary judgment ...

Id. at 816. The Court specifically noted that “petitioners
advance persuasive arguments that the dismissal of
insubstantial lawsuits without trial—a factor presupposed in
the balance of competing interests struck by our prior
cases—requires an adjustment of the “good faith’ standard
established by our decisions." /d. at 814-15. The gravamen
of the petitioners’ argument was that the qualified immunity
available under Butz was undermined by district courts which
"routinely denied motions for summary judgment on the
ground that the claim of malice or bad faith automatically
raised a triable issue of fact as to the defendant's state of
mind." It would be odd if the Court found this concern
persuasive and yet reformulated the qualified immunity
inquiry in a way that was not responsive to the difficulty of
defeating at summary judgment intent-based constitutional
suits. Nor is it at all clear that allowing a government official,
as Judge Williams puts it, Judge Williams’ Op. at 16, to
maliciously perpetrate a constitutional violation (so long as
the constitutional right was not so clearly established that a
"merely reasonable person" would not have known it) is less
"egregious," Judge Williams’ Op. at 11, than allowing the
same official to take an objectively reasonable action that
would be blameless if the defendant's motives were benign.
The very logic that leads my colleagues to reject the
distinction between direct and circumstantial evidence, it
seems to me, could lead to a similar rejection of the
distinction between two subjective elements (knowledge of
the law and actual motivation) of the constitutional
tort/qualified immunity analysis.

48a

Yet, as Judge Williams correctly notes, the circuit courts
have shrunk from that interpretation of Harlow. They have
done so, it appears, because of a concern that has driven
much of American jurisprudence in the latter half of the
twentieth century, the prospect of a racially discriminatory
act. See, e.g., Kennedy, The State, Criminal Law, and Racial
Discrimination: A Comment, 107 HARV. L. REV.1255
(1994) (discussing the impact of race on the evolution of
criminal law). Thus in Elliott, the Seventh Circuit recognized
that:

[cJarrying out the program of Harlow seems to imply
attributing to the defendants the best intent they
(objectively) could have under the circumstances, and
asking whether the law at the time clearly establishes that
persons with such an intent violate the Constitution. Yet
that would be the functional equivalent of eliminating all
recoveries when a mental state is part of the definition of
the wrong—as it is in cases of racial discrimination,
excessive punishment, and many other constitutional torts.

937 F.2d at 344 (emphasis added). Similarly, in Halperin,
where we actually so applied Harlow, at least to “national
security cases," see 807 F.2d at 187-88, we revealingly
suggested that to conclude that Harlow meant to preclude
inquiry into all intent would permit a defendant "to
discriminate on the basis of race." /d. at 186.

Giving Harlow its logical extension does not, in my view,
present any special problems of encouraging racial
discrimination, because, as I will discuss shortly, there are
other restraints on discriminatory official action. Therefore, I
would extend to all unconstitutional motive actions the
principle adopted in Halperin, where we held that if the
government defendants’ actions (wiretaps) in a Bivens case
would be "validated" by a legitimate national security motive,

49a

the defendants are entitled to immunity if they purport to act
for national security reasons, unless a jury could conclude that
it was objectively unreasonable for the defendants to so act.
A simple hypothetical illustrates its ease of application.
Suppose a plaintiff claims that a defendant (perhaps a judicial
official not covered by Civil Service or Title VII legislation),
see Whitacre v. Davey, 890 F.2d 1168 (D.C. Cir. 1989), cert.
denied, 497 U.S. 1038 (1990), impermissibly fired her
because of her race. The defendant claims that the plaintiff
was discharged because of budget constraints. If the
defendant's rationale would have been objectively reasonable
under the circumstances, the defendant wins on summary
judgment. In contrast, if a reasonable trier of fact could find
that budget constraints were objectively unreasonable under
the circumstances (if, for instance, the official's division
recently received a windfall of funds or hired a number of
additional workers), the case would proceed to trial.'° Cf
Halperin, 807 F.3d at 189 (noting that the defendants win on
summary judgment if they “adduce sufficient facts that no
reasonable jury ... could conclude that it was objectively
unreasonable for the defendants to be acting for national
security reasons"). To be sure, as I have noted, in Halperin we
limited our holding to national security cases, perceiving a
particular need to protect the executive branch from probing
into motivations that touch such sensitive issues. There the
government's wiretap was thought to be unconstitutional
unless it was motivated by national security concerns—so it
appeared as if it was the government that put motivation at
issue. But, I think that formulation is deceptive. Any action,
the discharge of a government employee say, could be
phrased the same way; as either illegal if motivated by
unconstitutional discrimination or constitutional if not.

‘0 Of course, if the government official (or the government)
does not deny that the defendant acted with an
unconstitutional motive, that is another matter.

50a

the Halperin panel meant by the notion of a
"validating" intent ent is that, as a matter of substantive law, the
re.

affected by this en banc proceeding.) Halperin's reasoning
avoids this analytical difficulty: if the challenged defendants’
actions, without regard to their actual intent, are consistent
with an objectively reasonably intent, the defendants are
entitled to immunity. And even if the defendants are not able
to meet this burden, they are still entitled to immunity if they
are able to prove thai their actual motivation was legitimate.'!

Judge Ginsburg (and to a lesser extent Judge Williams),
although assiduously avoiding a reference to Halperin,

can be made against either of their positions insofar as they
strengthen a defendant's hand even fractionally over Judge
Edwards’ position. There is simply no escape from a

'! Harlow allows the use of evidence concerning subjective
motivation if it benefits the government. "“[I]f the official
pleading the defense claims extraordinary circumstances and
can prove that he neither knew nor should have known of the
relevant legal standard, the defense should be sustained." 457
U.S. at 819. The Court then notes, somewhat cryptically,
that “[bjut again, the defense would turn primarily on
objective factors."

Sla

judgment, without any empirical data, as to where along the
spectrum to draw the line between the interests of

discouraging unconstitutional behavior and avoiding the
peculiar difficulties that the threat of personal damage suits

In any event, I do not think the matter is quite as simple or
self-evident as Judge Ginsburg's downward sloping demand
curve. We should bear in mind that in these cases, which
often arise in an employment context, the defendant, even if
he or she acts in part with a proscribed motive, that motive
typically is only a contributing factor to a decision. This has
led to terribly complicated jurisprudential efforts to develop
techniques to measure the relative importance of the
proscribed motive. Cf NLRB v. Wright Line, 662 F.2d 899
(Ist Cir. 1981), cert. denied, 455 U.S. 989 (1982), Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), as modified by
the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1071 (1991) (codified and amended in scattered sections of
42 U.S.C. (Supp. V 1993). Take the present case. How
would we really distinguish between the defendant's hard
feelings (if they could be established) toward the plaintiff
because he is a self-evident pest as opposed to the more
grandly phrased “because of his exercise of his First
Amendment rights"?

The truth of the matter—as most practitioners in the labor
and EEO field well know—is that a determination as to the
existence and relative importance of an illegal motive is
difficult, often artificially relying on certain presumptions.
And the behavior of the potential defendant ex ante is
typically directed at avoiding those indicia of the proscribed
motive that will tend to be relied upon in that substantive area
of the law. (Can one imagine an employer deciding whether
to discharge a employee for theft attempting, perhaps through

52a

yoga, to cleanse his mind of any hostility because of the
employee's union status?)

Still, it is difficult to deny that, at least theoretically, Judge
Williams’ view and even more Judge Ginsburg’s position
creates a greater disincentive to government officials taking
personal damage suits are decidedly not the only disincentive.
We should bear in mind of what my colleagues fail to take
behavior other than § 1983 or Bivens damage suits. When
officials violate citizens’ rights, they expose themselves to
disciplinary sanctions, harm to their professional reputations,
and reduced opportunities for advancement. See, ¢.g.,
SCHUCK, supra, at 69. Unlike normal tort law, federal and
state Officials are sworn to uphold the Constitution; violating
one's oath may mean a reputation for deceit and unreliability.
Certainly a rational actor would avoid this result, if only to
avoid a decrease in his or her value as an employee. C/
Epstein, Jn Defense of the Contract at Will, 51 U. CHI. L.
REV. 947, 967 (1984); R. POSNER, OVERCOMING LAW 109-
44 (1995). To the extent an individual fears moral
retribution, the oath will further induce proper behavior. |
hope I will be forgiven for assuming that such an oath, like a
monetary disincentive, can affect the behavior of government
officials. See Edward J. DeBartolo Corp. v. Florida Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988); Webster, 486 U.S. at 613 (Scalia, J., dissenting).
Individuals who fear divine punishment also face a
downward-sloping demand curve: as the level of sin rises, the
punishment increases.

Moreover, a number of federal statutes are aimed at
governmental unconstitutional conduct. Even in the absence

53a

of suits for money damages,'? government officials will be
deterred by the threat of criminal prosecution.'? Government
officials possess no general immunity from such actions. See,
e.g., Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (noting
that the Court has "never suggested that the policy
considerations which compel civil immunity for certain
government officials also place them beyond the reach of the
criminal law. Even judges, who have long been cloaked with
absolute immunity from damages, could be punished
criminally for willful deprivations of constitutional rights on
the strength of 18 U.S.C. § 242, the criminal analog of §
1983").

Federal statutes providing causes of action against the
government _itself—particularly those targeted at

12 In addition to § 1983, plaintiffs can sue officials for
monetary relief under 42 U.S.C. § 1981 (1994) (civil action
for denying persons the "full and equal benefit of all laws and
proceedings” guaranteeing security of persons and property),
§ 1982 (civil action for interference with citizens’ property
rights on the basis of race); § 1985 (civil action for
conspiracy to deprive persons of equal protection of the
laws); and § 1986 (civil action for failure to prevent a
conspiracy to interfere with § 1985 rights).

Admittedly, as Judge Ginsburg notes, qualified immunity may
apply to these actions for money damages as well.

13 See, e.g, 18 U.S.C. § 241 (1994) (criminal action for
conspiracy to “injure, oppress, threaten, or intimidate" a
person in the exercise of his constitutional rights); § 242
(criminal action for deprivation of a person's constitutional
rights on account of a person being an alien or by reason of
his race).

S4a

discrimination—provide additional deterrence.'* The
government undoubtedly looks askance to official misconduct
that subjects it to liability. See, e.g., Laura Oren, /mmunity
and Accountability in Civil Rights Litigation: Who Should
Pay?, 50 Pritt. L. REV. 935, 1003 (1989) ("Deterrence ... is
most effective at the level where control lies. It is the
government and not the individual employee, which has the
ability to change policy, discipline misconduct, and require 4
different kind of training."). And with respect to the actions
of state or D.C. officials, there are, as Justice Frankfurter
noted, state causes of action for damages.

Insofar as this panoply of remedies contains lacunae, I
would leave it to Congress to fill them.'* The gaps tolerated

4 See, e.g., Federal Tort Claims Act, 28 U.S.C. § 2674
(1994) (providing for a cause of action for some federal
governmental activity that constitutes a tort under state law),
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. (1988 & Supp. V 1993); Civil Service Reform Act of
1978, Pub. L. No. 95-454, 92 Stat. 111 (codified as amended
in scattered sections of 5 U.S.C. (1994)) (establishing the
Office of Special Counsel to investigate and prosecute
allegations of supervisory abuse within the civil service
disciplinary structure). Age Discrimination and Employment
Act, 29 USC. §§ 621-634 (1994) (civil action for
employment discrimination based on age); Rehabilitation Act,
29 U.S.C. § 794 (1988) (civil action for discrimination on the
basis of disability).

'S See, eg., Bush v. Lucas, 462 U.S. 367, 390 (1983)
(declining to extend Bivens’ action to civil service employees,
even while assuming that existing remedies do not provide
complete relief for plaintiffs, “because we are convinced that
Congress is in a better position to decide whether or not the
public interest would be served by creating it"); Schweiker v.

Chilicky, 487 U.S. 412, 429 (1988) (refusing to create a
Bivens’ remedy in light of an elaborate scheme devised by
Congress and noting "{wJhether or not we believe that its
response was the best response, Congress is the body charged
with making the inevitable compromises requived in the
design of a massive and complex ... program"), Spagnola v.
Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (en banc)
(holding that “courts must withhold their power to fashion
damages remedies when Congress has put in place a
comprehensive system to administer public rights, has “not
inadvertently” omitted damages remedies for certain
claimants and has not plainly expressed an intention that the
courts preserve Bivens’ remedies" (citation omitted)
(emphasis added)).

'© See, e.g., Bush, 462 U.S. at 389 ("Not only has Congress
developed considerable familiarity with balancing

56a

In any event, that there are real gaps is doubtful: by 1985
only 30 Bivens suits out of more than 12,000 resulted in a
monetary judgment for the plaintiff at the trial level with only
four judgments actually having been paid. See Written
Statement of John J. Farley, III, Director, Torts Branch, Civil
Division, U.S. Department of Justice, to the Litigation
Section of the Bar of the District of Columbia (May 1985) at
1. Obviously, the vast majority of these suits are meritless.
See Fallon, Meltzer & Shapiro, HART AND WECHSLER'S THE

FEDERAL COURTS AND THE FEDERAL SYSTEM 1122 (4th ed.

1996) ("The view that constitutional tort actions are less
confirmed as to both prisoner and nonprisoner actions ...,
although it is in the former class that the general lack of
substance is most striking.”). Prisoner suits serve less as a
necessary deterrent to unconstitutional conduct (to put it
mildly) than as a diversion from the monotony of prison life to
plaintiffs such as Crawford-El, whose injury is the
inconvenience of having some boxes being turned over to his
brother-in-law. Perhaps all sides in this dispute would have
been better off if the prison officials had agreed to provide an
alternative form of entertainment to Crawford-El, maybe free

governmental efficiency and the rights of employees, but it
also may inform itself through factfinding procedures such as
hearings that are not available to the courts."); United States
v. Gilman, 347 U.S. 507, 511-513 (1954) ("The selection of
that policy which is most advantageous to the whole involves
a host of considerations that must be weighed and appraised.
That function is more appropriately for those who write the
laws, rather than for those who interpret them.").

57a

cable, in return for not having to go through the expense and
hassle of this lawsuit.!'7

Although my reading of Harlow will reduce the costs to
government officials—and the public—caused by Bivens
actions and the impact of Pape on § 1983, much the better
would be for Congress to legislate on the whole subject as it
has on certain aspects of prisoner suits. The Supreme Court
has recognized that when and if it does, the federal judiciary
should beat a hasty retreat. See Bush, 462 U.S. at 368, 390.

'7 Congress has already taken steps to limit prisoner suits.
See Prison Litigation Reform Act of 1995, Pub. L. No. 104-
134, § 801 ef al., 110 Stat. 1321 (1996).

59a
I. General Principles

In relating this case to Harlow, we must consider not only
the compensatory role of constitutional tort liability but also
its deterrent purpose. The rule announced in Harlow
officials knowingly violate someone's constitutional rights.
An official who knows that the action he is contemplating
would violate an individual's constitutional rights can hardly
be confident that a court will later disagree—more precisely,
that the court will conclude that the official's action was
objectively reasonable under the law as clearly established at
the time. Harlow is cold comfort, ex ante, to that official.
This is why the Court could say in Harlow that the rule
announced there would “provide no license to lawless
conduct." 457 U.S. at 819.

We cannot make the same statement about the requirement
that the plaintiff prove his case by clear and convincing
evidence; as sure as we are that demand curves slope
downward and that there will be more of a behavior when the
price (or penalty) goes down, we can be confident that raising
the plaintiffs burden of persuasion will embolden some
additional Government officials to take actions that they
know are unconstitutional. Although we cannot know the
magnitude of that effect (i.e. the slope of the demand curve
for tortious conduct), | agree with Judge Williams that we are
justified in taking this step to contain the social cost of
litigating constitutional torts that turn upon the defendant's
motive.

My colleague, however, would take not only this but a
second step beyond Harlow; he would not only raise the
plaintiff's burden of persuasion but also require the plaintiff to
obtain evidence without the ability to compel its production
from those most likely to have it. No matter whether the

60a

plaintiff can demonstrate that he has a reasonable chance—or
for that matter a virtual certainty—of obtaining such evidence
from the defendant or even a third party, such as one of the
defendant's coworkers, Judge Williams would deny him any
discovery. This would further reduce the deterrent effect of
constitutional tort liability, perhaps to a point below what is

Judge Williams overlooks the point, Judge Silberman faces

conduct. hn ten ol Be rey
justify the balance that he or Judge Wiliams would strike
between the interests of injured plaintiffs and the public
interest in avoiding unfounded litigation against government
officials. First, those statutes do not reach all the
motive-based constitutional torts for which a plaintiff can seek
redress under Bivens or § 1983. Second, a plaintiff who

1983; ” eedihad Winning eaatiae iad alla toe

action brought against him. See Todd v. Hawk, 72 F.3d 443,
445 n.7 (Sth Cir. 1995) ("Racial discrimination claims brought
under § 1981 are subjec: to the defense of qualified
immunity"); Hobson v. Wilson, 737 F.2d 1, 19 (D.C. Cir.
1994) ("section 1985(3) encompasses actions against federal
Officers, subject, of course, to considerations of qualified
immunity").

Effective deterrence of unconstitutional conduct depends
unavoidably upon exposing public officials to some risks that
might also chill them in the proper exercise of their discretion.
In order to obtain any other remedy or impose any sanction,
the plaintiff or prosecutor respectively will have to show that

6la

ic official acted with a prohibited motive—racial,
religious, or gender discrimination, retaliation for protected
speech, or what have you. Although the public official will be
shielded from personal liability and, perhaps, from the cost of
retaining counsel, he will not be shielded from the demands
upon his time, the

Silberman suggests, based upon the low success-rate of
Bivens and § 1983 actions, that there is not much out there to
deter. He does not consider, however, that the low-success
rate is, in part, a result of the qualified immunity doctrine and
other legal rules. We cannot know how much additional
unconstitutional mischief the rules proposed by Judges
Silberman and Williams would elicit, but that seems reason
enough to proceed with more caution than either of them
displays. A more prudent and discriminating approach—one
that may preserve the desired deterrent while still lessening
the burden now placed upon defendant public
officials—would be to provide more guidance than we have
heretofore given to district judges faced with the task of
balancing, case by case, the competing values accommodated
by the institution of qualified immunity. We could then rely
upon them, as we normally do, to manage the fact-finding
process that my colleagues would truncate with clear but
Draconian rules.

62a

When a defendant files a motion for summary judgment
and the plaintiff argues that he needs discovery in order to
withstand the motion, Rule 56(f) invests the district court
with discretion to (1) deny the motion for summary judgment,
(2) continue the motion pending discovery, or (3) "make such
other order as is just." In a case involving qualified immunity,
the district court abuses this discretion if it fails duly to
consider not only the competing interests of the parties—as in
discovery had against a government official.

mine-run of cases" summary judgment is generally
inappropriate until all discovery has been completed, Martin,
812 F.2d at 1436, we have also recognized that "creditable
pleas of official immunity remove cases from the mine-run
category," id at 1436-37. Although we now reject
then-Judge Ruth Bader Ginsburg's elevation of direct over
circumstantial evidence, see id. at 1435, we ought not forget
her description of our task in a case such as this—to “leav(e]
some space for discovery" while “minimiz[ing] the burdens
imposed upon government officials." /d. at 1437.

In Martin we required the plaintiff to make factual
allegations sufficiently precise to enable the district court to
“employ with particular care and sensibility [its] large
authority to exercise control over discovery." /d. at 1437.
We expected that district courts would protect government
officials from “unnecessary involvement in [ } litigation" by
“permit([ting] particularized interrogation of the defendants for
the circumscribed purpose of ascertaining whether there is
any substance” to the plaintiff's specific factual allegations.
Id. at 1438.

Rather than looking further back, as Chief Judge Edwards
does, to the concern expressed in Hobson, 737 F.2d at 30-31,

63a

that “in some circumstances plaintiffs are able to paint only
with a very broad and speculative brush at the pre-discovery
stage," we should go forward along the path to which Justice
Ginsburg pointed us in Martin. Consideration of the social
costs associated with litigation against public officials (which,
as Harlow teaches, weighs heavily against discovery) should
constrain to this extent the district court's discretion to
continue a summary judgment motion pending discovery: If,
when the defendant moves for summary judgment, the
plaintiff cannot present evidence that would support a jury in
finding that the defendant acted with an unconstitutional
motive, then the district court should grant the motion for
summary judgment unless the plaintiff can establish, based
upon such evidence as he may have without the benefit of
discovery and any facts to which he can credibly attest, a
reasonable likelihood that he would discover evidence
sufficient to support his specific factual allegations regarding
the defendant's motive.

Chief Judge Edwards too speaks of requiring a "reasonable
likelihood that additional discovery will uncover evidence to
buttress the claim," but that is not the same as requiring a
reasonable likelihood, based upon specific evidence within the
plaintiffs command, that discovery will uncover evidence
sufficient to sustain a jury finding in the plaintiffs favor.
Moreover, the Chief Judge's emphasis upon some plaintiffs’
ability to “paint only with a broad and speculative brush," and
upon the district court's almost unfettered discretion (in the
mine-run of cases, that is) to continue a summary judgment
motion pending discovery, suggests a substantial difference in
our expectations of the district court.

Permitting a plaintiff to pursue limited discovery only upon
showing that he has a reasonable likelihood of turning up
evidence that a jury could consider clear and convincing proof
of the defendant's unconstitutional motive would leave more

:
E
$f
:
:

Silberman, would still protect the public from the costs of
pointless discovery against Government officials, and would
not usurp the district court's authority over the course of the
litigation. Moreover, I see no reason to doubt the district
court's willingness or ability to strike anew in each case the
balance that underlies the doctrine of qualified immunity.
Indeed, a district judge, whose experience with the
management of discovery is far more extensive than ours,
whose familiarity with the case and with the litigants is more

immediate, and whose tools for controlling the course of
litigation are more subtle and precise, is eminently qualified
for this task.

II. Application to this Case

I agree with my colleagues who conclude that Crawford-El

then it would be an abuse of discretion for the district court to
deny the motion or to continue it pending discovery.

A. The Summary Judgment Standard

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56
(1986), the Supreme Court explained how a district court
should determine whether a plaintiff has submitted evidence
sufficient to withstand a summary judgment motion when the
plaintiff must prove an element of his claim—in that libel case
it was actual malice—by clear and convincing evidence.

[T]}here is no genuine issue if the evidence presented in the
opposing affidavits is of insufficient caliber or quantity to

65a

allow a rational finder of fact to find actual malice by clear

Thus, in ruling on a motion for summary judgment, the
judge must view the evidence presented through the prism
of the substantive evidentiary burden.... It makes no sense
to say that a jury could reasonably find for either party
without some benchmark as to what standards govern its
deliberations and within what boundaries its ultimate
in fact provided by the applicable evidentiary standards.

Our holding that the clear-and- convincing standard of
proof should be taken into account in ruling on summary
judgment motions does not denigrate the role of the jury.
It by no means authorizes trial on affidavits. Credibility
determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a
motion for summary judgment or for a directed verdict.
The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor...

In sum, we conclude that the determination of whether a
given factual dispute requires submission to a jury must be
guided by the substantive evidentiary standards that apply
to the case.... Thus, where the factual dispute concerns
actual malice, clearly a material issue in a New York Times
case, the appropriate summary judgment question will be
whether the evidence in the record could support a
reasonable jury finding either that the plaintiff has shown
actual malice by clear and convincing evidence or that the
plaintiff has not.

Thus, although the plaintiff is entitled to have all rational
inferences drawn in his favor on intermediate facts—such as

66a
hostility, in this case—those facts must add
convincing evidence of the ultimate facts that
prove—here, that Britton (1) in order to retaliate against

B. Crawford-El's Complaint

Let us now look at Crawford-El's sworn declarations to
see whether they are sufficient to withstand Britton's no doubt

imminent motion for summary judgment. In paragraph 6 of
his fourth amended complaint, Crawford-E] declares that

[1] Ms. Britton persistently displayed toward prisoners a
cavalier attitude—manifesting a view that prisoners were
beneath her, disentitled to dignity, and unworthy of civil
treatment. [2] Ms. Britton was hostile to plaintiff, in
particular, because she knew plaintiff ... had been in charge
of the law library [and] had helped many prisoners prepare
... grievance forms or appeals of disciplinary actions, and
had a reputation for asserting legal rights and knowing the
administrative procedures for doing so. [3] Ms. Britton
deemed plaintiff "too big for his britches."

The first sentence establishes merely that Britton did not like
prisoners generally, it says nothing specific about her alleged
unconstitutional motive. The second sentence states a fact
about Britton's state of mind, to which Crawford-E] may not
testify without laying a foundation. See Fed.R.Civ.Pro. 56(e)
("affidavits shall be maz on personal knowledge"), and
Fed.R. Evid. 602 (accord) and 701 ("testimony in the form of
Opinions or inferences is limited to those opinions or
inferences which are ... rationally based on the perception of
the witness"). The third sentence, provided without context,
does not tell us why Britton said that Crawford-El was “too

67a

big for his britches" or even whether the statement manifests
hostility.

In paragraph 9 of the complaint, Crawford-El declares that

Ms. Britton was among those who were hostile to the
Inmate Grievance Committee and to plaintiff's efforts to
seek redress of prisoner grievances. On one occasion
when plaintiff was typing [Housing and Adjustment] Board
papers in the Q Block office, Ms. Britton came in and said
to Cpt. (then Lt.) Brummell in a caustic manner that she
(Cpt. Brummell) should watch out for plaintiff and make
sure he wasn't using the typewriter to write up [grievance
forms] or lawsuits. As Ms. Britton said this she stood over
plaintiff to see what he was typing.

Britton's concern, even if caustically expressed, that
Crawford-El not conduct his jailhouse law practice when he
was supposed to be performing administrative work is not
evidence of hostility to Crawford-El's efforts to seek redress
of prisoner grievances.

In paragraph 12 of the complaint, Crawford-El declares
that

The day after the [first Washington Post] article was
published [April 21, 1986], defendant Britton ordered
plaintiff into her office. Corporal Barrett, then Officer in
Charge of Dorm K2, escorted plaintiff there. Ms. Britton
was visibly upset. After ignoring plaintiff for a
considerable period, she asked him if he had arranged the
visit by the reporter. When plaintiff said that he had, she
asked him how he had done it. Plaintiff showed her the
visitor application naming the reporters invited and their
address and pointed out that Ms. Britton had approved the
application. [7] Ms. Britton became enraged and accused

68a

plaintiff of tricking her. Plaintiff denied tricking her. [9
Ms. Britton said plaintiff had embarrassed her before her
coworkers by having the reporter come. Ms. Britton made
a telephone call trying to get plaintiff placed in restrictive
confinement in Q Block. [11] When this effort failed she
said that so long as plaintiff was incarcerated she was
going to do everything she had to do to make it as hard for
him as possible. A few days later Ms. Britton had plaintiff
transferred to the Department's Central Facility.

ws

Crawford-El's statement (in the 7th sentence) that Britton
"became enraged" when she thought she had been duped by
Crawford-El does not help his case. On the contrary, that she
was angered at being tricked—Crawford-El has no
constitutional right to trick his keeper—provides a qualifying
context for Crawford-El's most significant declarations: that
Britton said that she was embarrassed by the article and that
she would make life hard for Crawford-El.

Judge Williams brushes the allegations aside as
"self-serving." Self-serving opinions, inferences, and
conclusions without a basis in perceptible fact may not be
sufficient to withstand a summary judgment motion even
under the mere preponderance standard; but neither is
summary judgment “a procedure for resolving a swearing
contest" over concrete facts, see Jackson v. Duckworth, 955
F.2d 21, 22 (7th Cir. 1992) (Posner, J.) (§ 1983 action against
prison officials), should such a contest arise—Britton has not
contradicted Crawford-El's declaration with her own sworn
statement. Recall Anderson, in which the Supreme Court
instructed, again on a summary judgment motion in a case
where the plaintiff must prove an element by clear and
convincing evidence, that "[c]redibility determinations ... are
jury functions, not those of a judge," and that "[t}he evidence
of the non-movant is to be believed."

69a

Suppose Britton (or Corporal Barrett) were to corroborate
the alleged threat, however; without more it would not
clearly and convincingly indicate that Britton's decision to
deliver Crawford-El's property to his brother-in-law was
unconstitutionally motivated. Britton allegedly made the
threat in a moment of anger in April 1986, she delivered
Crawford-El's property to his brother-in-law in September
1989, at the same time (according to Crawford-El's own
declaration) that she was calling the families of other
prisoners, who, like Crawford-El, were being sent to the
federal prison in Petersburg, Virginia and threatening to
discard the prisoner's property if a family member did not
come to collect it.

In paragraph 15 of the complaint, Crawford-El declares
that

{During a transfer to the Spokane County Jail in
Washington State] Correctional Officer Ballard, with Ms.
Britton's knowledge, made a videotape of [ ] prisoners
{including Crawford-El] while they were handcuffed,
leg-shackled, and chained about their waists. Plaintiff and
several others protested to Ms. Britton that the videotaping
violated thir privacy rights. Plaintiff said to her that the
videotaping could not be done without the prisoners’
written authorization. Ms. Britton responded, "You're a
prisoner, you don't have any rights."

What does this show? That Britton was generally insensitive
to the constitutional rights of prisoners? Maybe. More likely
it shows simply that she did not believe that a prisoner has a
right not to be videotaped. In either event, it is not very
probative on the question whether (nine months later) she
retaliated against Crawford-El for exercising his first
amendment rights.

70a

In paragraph 17 of his complaint, Crawford-E] alleges that
shortly after publication of a second Washington Post article
(December 1988) in which he was quoted on the topic of
jailhouse lawyers, Britton told one Captain Manning of the
Spokane County Jail (to which Crawford-El had been
transferred) that Crawford-El was a “legal troublemaker." As
Judge Williams observes, Britton's describing Crawford-El as
a “legal troublemaker" is scant evidence of hostilit

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0037%3A03. Public record. Not legal advice.