Petition for Writ of Certiorari — Burrell v. Board of Trustees of Georgia Military College

Supreme Court, U.S.

92-1262 FILED

JAN 27 1992

OFFICE OF THE CLERI

In The a a

Supreme Court of the United States

October Term, 1992

©

MELBA J. BURRELL,

Petitioner,

THE BOARD OF TRUSTEES OF GEORGIA MILITARY

COLLEGE; James E. Baugh, individually and in his offi-

cial capacities as Mayor of the City of Milledgeville,

Georgia and Chairman of the Board of Trustees of Geor-

gia Military College; Jacob L. Goldstein, individually and

in his official capacities as a member of the Board of

Directors of First Federal Savings and Loan Association

of Milledgeville and as a member of the Board of Trustees

of Georgia Military College; Alva L. Baggarly, individu-

ally and in his official capacities as Chief Executive

Officer, President and member of the Board of Directors

of First Federal Savings and Loan Association of

Milledgeville; The First Federal Savings and Loan Asso-

ciation of Milledgeville; The Mayor and Aldermen of the

City of Milledgeville; and Unknown Co-Conspirators,

Respondents.

.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

*

PETITION FOR WRIT OF CERTIORARI

a

CHRISTOPHER COATES

Georgia Bar No. 170980

111 West Washington Street

Milledgeville, Georgia 31061

(912) 453-9512

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

I. QUESTIONS PRESENTED FOR REVIEW

1. Whether local government officials are entitled to

the defense of qualified immunity, where they are alleged

to have encouraged and acted in concert with a private

employer to have a private employee discharged from

her private employment in retaliation for the employee's

exercise of constitutionally protected speech?

2. Whether the United States Court of Appeals for

the Eleventh Circuit misapplied this Court’s ruling in

Harlow v. Fitzgerald, 457 U.S. 800 (1982) by holding that

Respondent-government officials were entitled to quali-

fied immunity, where these government officials did not

demonstrate and could not have demonstrated that their

alleged unconstitutional acts were done within the sphere

of their official discretionary responsibilities?

Il. LIST OF ALL PARTIES BELOW

The caption contains the names of all current parties

to the proceeding.

iii

Ill. TABLE OF CONTENTS

Page

I. QUESTIONS PRESENTED FOR REVIEW..... i

il. List OF ALL PARTIES BELOW ............. ii

eS Be es yy | yb iii

PWn BOMMPURED GPE PRUE ETUPII LIES 2... cece eee iv

es ne l

gs | ee ee 1

i. Date of entry of opinion below .......... l

ii. Date of order respecting rehearing....... l

ili. Not under Rule 12.3 (No cross-petition)... 2

iv. Statutory provision allowing review..... 2

VII. PRIMARY CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED IN THE CASE. 2

i. U.S. Constitution Amendment !1.......... 2

ii. U.S. Constitutional Amendment XIV, Sec-

NE 2

i ae wae. oeceon 1965........... Seon 3

Vill. STATEMENT OF THE CASE AND FACTS

MATERIAL TO CONSIDERATION OF THE

gg eG os 1 2 0 3

i. Course of Proceedings and Jurisdiction

BO i . s

im mensement Of the Facts................... 5

iv

Ill. TABLE OF CONTENTS - Continued

IX. REASONS FOR GRANTING THE WRIT..... 6

i. The Court of Appeals decision allowing the

defense of qualified immunity was contrary

to this Court’s mandate in Harlow v.

Fitzgerald, 457 U.S. 800 (1982) and its prog-

eny, because Respondents could not have

been acting within the sphere of their offi-

cial discretionary responsibilities when

they allegedly conspired to have Petitioner

discharged from her private sector employ-

ment in retaliation for her exercise of pro-

GINS TIE x 6 6 nsec Be vicccinesspynccss 6

ii. Specific reasons exist for granting this writ

of certiorari that have importance beyond

6 veri eon cedaavinnvehaateuretcancas 10

Se a oa UA ey ccreeuceeecceanaees 11

Mo re rrr App. 1

District Court Order, March 14, 1990....... App. 1

District Court Order, May 23, 1990......... App. 5

Eleventh Circuit Decision.................. App. 11

Eleventh Circuit Denial of Rehearing....... App. 38

IV. TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ....... ,? 8, 9

Burns v. Reed, __ U.S. __, 111 S.Ct. 1934 (1991)..... 7

Burrell v. Bd. of Trustees of Ga. Military College, 970

Fae Pee CUE Ge BOs 6650 b ss Shak oe ewan eX passim

Forrester v. White, 484 U.S. 219 (1988) ................ 7

Harlow v. Fitzgerald, 457 U.S. 800 (1982)......... passim

Mitchell v. Forsyth, 472 U.S. 511 (1985) ............. 6

Westfall v. Erwin, 484 U.S. 292 (1988)..........0...... 7

STATUTES

20 U.SC.. Section T2561) CIGGE 6 cv cckcescewescccsens 2

25 USA. SeCiien TZGC) CEFGS). «wo ccc cece cee iences 4

ee es SOS BO 6 oN he koe h ee ch 4ke een eens ae

ee ets SD HED oo nb x cd vende evccksausewerves 4

ee EP. CUR TI 5 oc voce ccc cteccsweakcuac ese 4

ee Sets. SD BI 85 6s bce os acs do acudvehseenateus 4

ee Ses SN 5 cs cob cae ee ase Genus (2343.9

Ce Secs EE UII oo woe oc 6056 604 duds 5d Ke kaeees 5

U.S. Constitution Amendment |...................... 2

U.S. Constitutional Amendment XIV, Section 1.......2

V. OPINIONS BELOW

On September 2, 1992 the United States Court of

Appeals for the Eleventh Circuit, inter alia, reversed the

district court’s ruling which had denied Respondents’

motion for summary judgment, and in so doing the Court

of Appeals held that Respondents were immune to Peti-

tioner’s damage claim under 42 U.S.C. Section 1983 (1988)

on grounds of qualified immunity. The opinion of Court

of Appeals is reported at Burrell v. Bd. of Trustees of Ga.

Military College, 970 F.2d 785 (11th Cir. 1992). The district

court’s opinion denying Respondents’ motion to dismiss

is reported at Burrell v. Bd. of Trustees of Ga. Military

College, 696 F. Supp. 1522 (M.D.Ga. 1988). The two district

court opinions denying Respondents’ motions for sum-

mary judgment, including the motion for summary judg-

ment on qualified immunity grounds, are unreported and

are set forth at pages 1-4 and 5-9 in the appendix to this

petition for writ of certiorari.

¢

VI. JURISDICTION

i. Date of entry of opinion below

The opinion of the Court of Appeals was entered on

September 2, 1992. (Appendix, 10-37)

ii. Date of order respecting rehearing

On October 29, 1992, the Court of Appeals denied

Petitioner’s Petition for Rehearing and Suggestion of

Rehearing En Banc. (Appendix, 38-40) This petition for a

writ of certiorari has been brought within 90 days of the

date of the denial of rehearing as required by Supreme

Court Rule 13.1.

iii. Not under Rule 12.3 (No cross-petition)

This is not a Cross-Petition, and Petitioner hereby

asserts that she knows of no party who intends to file

such a petition, thus the provisions of Supreme Court

Rule 12.3 do not presently apply.

iv. Statutory provision allowing review

Review is sought pursuant to 28 U.S.C. Section

1254(1) (1988) since Petitioner is asking the Court to

review the decision of the United States Court of Appeals

for the Eleventh Circuit.

4

VII. PRIMARY CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED IN THE CASE

i. U.S. Constitution Amendment I

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and petition

the Government for a redress of grievances.

ii. U.S. Constitutional Amendment XIV, Section 1

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

iii. 42 U.S.C. Section 1983 (1988)

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory 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 Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. For purposes of this section, any Act of

Congress applicable exclusively to the District of Colum-

bia shall be considered a statute of the District of Colum-

bia.

VIII. STATEMENT OF THE CASE AND FACTS

MATERIAL TO CONSIDERATION OF THE

QUESTIONS PRESENTED

i. Course of Proceedings and Jurisdiction

Below

Petitioner Burreli filed this action on June 6, 1988

contending, inter alia, that she was discharged from her

private sector employment with Respondent First Federal

Savings and Loan Association of Milledgeville [hereinaf-

ter “First Federal”] in retaliation for her and her hus-

band’s public criticism of the Georgia Military College

Preparatory School [hereinafter “GMC”], and that

Respondents Baugh and Goldstein, under color of state

law as local government officials, encouraged and acted

in concert with First Federal officials in having her dis-

charged from her employment. (R1-18-3-18) Petitioner

claimed that this action by Respondents was in violation

of her clearly established right to freedom of speech

guaranteed under the First and Fourteenth Amendments

of the Constitution of the United States. Burrell v. Bd. of

Trustees of Ga. Military College, 970 F.2d 785, 792 (11th Cir.

1992); (Appendix, 26). Petitioner invoked the jurisdiction

of the district court under 28 U.S.C. Sections 1331, 1343(3)

and 1343(4) and 2201, the suit being authorized, inter alia,

by 42 U.S.C. Section 1983. Burrell v. Bd. of Trustees of Ga.

Military College, 970 F.2d at 787; (Appendix, 11-13).

On March 14, 1990, the district court, the Honorable

Duross Fitzpatrick presiding, held that Petitioner had

adduced sufficient evidence to make out a prima facie case

of civil conspiracy by Respondents Baugh and Goldstein

and First Federal officials and therefore denied Respon-

dents’ motion for summary judgment on that ground.

(Appendix, 1-4) On May 23, 1990 the district court denied

Respondents’ motion for summary judgment on grounds

of qualified immunity. (Appendix, 5-9)

After granting Respondents’ motion for an interlocu-

tory appeal, pursuant to 28 U.S.C. Section 1292(b) (1988),

a panel of the Court of Appeals on September 2, 1992

reversed the ruling of the district court and dismissed

Petitioner’s Section 1983 claims against Respondents

Baugh and Goldstein in their individual capacity on

grounds of qualified immunity. Burrell, supra, 970 F.2d at

785-792; (Appendix, 19-28)! A timely suggestion for

rehearing en banc and petition for rehearing was denied

October 29, 1992. (Appendix, 38-40)

ii. Statement of the Facts

The facts material to consideration of the questions

presented are the following: (1) that Petitioner was

employed by First Federal, a private lending institution,

Burrell, supra, 970 F.2d at 790-91; (Appendix, 22); (2) that

in the period prior to her discharge, she, along with her

husband, was a vocal public critic of the GMC Prepara-

tory School, Burrell, at 791; (Appendix, 23-24); (3) that she

was discharged from her private sector employment, Bur-

rell, at 792; (Appendix, 25); (4) that Respondents Baugh

and Goldstein were local government officials and there

was no showing that their official discretionary duties in

any way related to employment decisions at First Federal,

Burrell, at 786; (Appendix, 11); and (5) that she contends

in this action that Respondents Baugh and Goldstein,

' Moreover, in its September 2, 1992 opinion, the Court of

Appeals affirmed the district court’s denial of qualified immu-

nity to Respondents Baugh and Goldstein against Petitioner's

claim brought under 42 U.S.C. Section 1985(3). Burrell, at 793-94;

(Appendix, 29-31). The panel affirmed the district court’s denial

of qualified immunity to Respondents Goldstein and Baggarly

in claims brought against them, pursuant to 42 U.S.C. Sections

1983 and 1985(3), in their capacities as officials of First Federal.

Burrell, at 794-96; (Appendix, 31-37). This petition for writ of

certiorari does not raise any questions concerning the validity of

the Court of Appeal’s rulings on these issues.

acting under the color of authority provided them by

their official positions, encouraged and acted in consert

with Petitioner’s private employer to have her discharged

in retaliation for her public criticism of GMC, Burrell, at

792; (Appendix, 26).

IX. REASONS FOR GRANTING THE WRIT

i. The Court of Appeals’ decision allowing the

defense of qualified immunity was contrary to

this Court’s mandate in Harlow v. Fitzgerald, 457

U.S. 800 (1982) and its progeny, because Respon-

dents could not have been acting within the

sphere of their official discretionary respon-

sibilities when they allegedly conspired to have

Petitioner discharged from her private sector

employment in retaliation for her exercise of

protected speech.

In Harlow v. Fitzgerald, 457 U.S. 800 (1982), this Court

held that before a government official is entitled to the

defense of qualified immunity, it must be shown that his

actions in question were “within his sphere of official

responsibility ... .” Id., at 815. “Immunity generally is

available only to officials performing discretionary func-

tions.” Id., at 816. Accord, Anderson v. Creighton, 483 U.S.

635, 638 (1987); and Mitchell v. Forsyth, 472 U.S. 511,

527-28 (1985). In the case sub judice, the Court of Appeals

correctly pointed to this Court’s decision in Harlow; how-

ever, it ironically omitted from its quotation from Harlow,

the very language that requires government officials to be

“performing discretionary functions” as a prerequisite to

their entitlement to qualified immunity. Cf. Harlow, supra,

at 818 with Burrell, supra, 970 F.2d at 789-90; (Appendix,

20).

In approaching both qualified and absolute immunity

issues, this Court has consistently, “ . . . examine[d] the

nature of the functions with which a particular offi-

cial... has been lawfully entrusted, and . . . [sought] to

evaluate the effect that exposure to particular forms of

liability would likely have on the appropriate exercise of

those functions.” Forrester v. White, 484 U.S. 219, 224

(1988). Accord, Westfall v. Erwin, 484 U.S. 292, 299-300

(1988); Harlow, supra, 457 U.S. at 819 (“where an official’s

duties legitimately require action”); and Burns v. Reed, __

U.S. __, 111 S.Ct. 1934, 1939 (1991). The decision by the

Court of Appeals in this case made absolutely no inquiry

into whether the alleged unconstitutional acts of Respon-

dents Baugh and Goldstein were within the sphere of

their official discretionary responsibilities.2 See Burrell,

supra, 970 F.2d at 790, n.12 and 13; (Appendix, 20-21).

Petitioner’s Section 1983 claim is against, inter alia,

Respondent Baugh for actions taken under color of his

office as the mayor of a municipality and chairman of the

board of a public educational institution. See Burrell,

supra, 970 F.2d at 789 and n.10; (Appendix, 18-19). Like-

wise, Respondent Goldstein is sued, inter alia, for actions

taken under color of his office as a member the board of

2 Before both the Court of Appeals and the district court,

Petitioner specifically contended that Respondents Baugh and

Goldstein were not entitled to qualified immunity because their

alleged unconstitutional acts could not have occurred within the

scope of their discretionary authority as governmental officials

See Brief of Appellee in the Court of Appeals, pp. 28-29.

the same educational institution. Id. These Respondents

did not make, and could not have made, any showing

that their official discretionary duties, as members of the

board of a public educational institution or as a mayor of

a city, included playing any part whatsoever in a private

lending institution’s decision to discharge one of its

employees. To apply qualified immunity, as did the Court

of Appeals here, to alleged unconstitutional actions

which undeniably did not fall within the sphere of official

discretionary duties constituted a clear misapplication of

the qualified immunity doctrine.

Indeed, it is difficult to imagine a more inappropriate

activity by government officials than involvement in a

private sector employment decision, wherein government

officials under color of their office are encouraging pri-

vate employers to discharge employees. Thus, these

Respondents were not entitled to the defense of qualified

immunity because they did not and could not satisfy

Harlow’s requirement that their actions be within the

sphere of their official discretionary duties. By ruling that

Respondents are entitled to qualified immunity, the Court

of Appeals radically departed from the decisions of this

Court concerning the circumstances under which govern-

ment officials may avail themselves of the qualified

immunity defense.

The purpose underlying the doctrine of qualified

immunity is to accommodate two fundamentally conflict-

ing interests. The first is the interest in providing a dam-

age remedy to individuals whose clearly established

constitutional rights have been violated. See Harlow,

supra, 457 U.S. at 819; and Anderson, supra, 483 U.S. at 638.

The second interest is ensuring that in circumstances

Ci iittala

where clearly established constitutional rights are not

implicated, government officials are free to carry out

their legitimate discretionary duties without fear of a

damage suit. See Harlow, supra and Anderson, supra. The

radical expansion of the doctrine of qualified immunity

by the Court of Appeals here to actions which have

nothing whatsoever to do with official discretionary

duties subverts the basic purpose underlying this immu-

nity. Quite simply, if the action in question by the govern-

ment official did not involve legitimate official duties,

there exists no good reason to provide the official with

immunity from suii.%

3 This erroneous application of the doctrine of qualified

immunity by the Court of Appeals was not rendered harmless

by its conclusion that Petitioner did not pretrial produce suffi-

cient evidence of a Section 1983 conspiracy. The appeal from a

non-final order in this case was permitted solely for the purpose

of determining whether the district court erred in denying

Respondents’ claim of qualified immunity. Burrell, supra, 970

F.2d at 787-88; (Appendix, 14-15) . On the basis of this limited

jurisdiction on appeal, the Court of Appeals correctly empha-

sized that it did not have the authority to decide whether Bur-

rell’s evidence was sufficient as to the merits of her conspiracy

claims. Burrell, supra, 970 F.2d at 787, n.6, 789, n.9, 793 , n.18;

(Appendix, 14, n.6, 18, n.9, and 28, n.18). Therefore, if the Court

of Appeals’s ruling that Respondents Baugh and Goldstein are

entitled to qualified immunity is, as argued herein, wrong as a

matter of law, then the judgment of the Court of Appeals should

be reversed, and this action should be remanded to the district

court in its entirety to proceed in the normal course.

10

ii. Specific reasons exist for granting this writ of

certiorari that have importance beyond this

case.

In the case sub judice, the Court of Appeals simply

ignored the requirement that the alleged unconstitutional

acts be within the scope of official discretionary duties

before the defense of qualified immunity is available. In

doing so it expanded the qualified immunity defense to

circumstances [i.e., where governmental officials uncon-

Sstitutionally involve themselves in private sector employ-

ment decisions] this Court never intended the doctrine of

qualified immunity to reach.

In light of the fact that the Court of Appeals’ decision

is reported, it is binding precedent in the Eleventh Cir-

cuit. As such it will obviously be utilized within that

circuit by other government official-defendants who are

attempting to shield themselves from liability for their

unconstitutional intrusion into private sector decisions

that are not legitimate concerns of government. Further-

more, the decision of the Court of Appeals will serve as

persuasive authority in other circuits for government offi-

cials seeking to invoke qualified immunity in cases where

their actions are undisputably not within the sphere of

official discretionary duties. Moreover, the Court of

Appeal’s erroneous application of the qualified immunity

doctrine will be incorrectly utilized in both private sector

employment cases and in other settings in which govern-

ment officials are alleged to have intruded unconstitu-

tionally in matters completely unrelated to their official

duties.

1]

X. CONCLUSION

For these reasons, Petitioner respectfully submits that

the decision by the United States Court of Appeals for the

Eleventh Circuit is of such importance that it should be

reviewed by this Court, and Petitioner respectfully

requests the Court to enter an order granting this petition

for a writ of certiorari.

Respectfully submitted this 26th day of January, 1993.

CHRISTOPHER COATES

Attorney for Petitioner

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

MELBA J. BURRELL, CIV. NO.

ace > 88-169-1-MAC(DF)

Plaintiff ¢

VS.

THE BOARD OF

TRUSTEES OF GEORGIA

MILITARY COLLEGE,

St Ab.

Defendants

ORDER

(Filed March 14, 1990)

Pending before the court are defendants’ motions for

summary judgment in this civil rights action. Under Rule

56(c) of the Federal Rules of Civil Procedure, a party

moving for summary judgment must “show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.”

The Eleventh Circuit has held that “[t]he moving party

bears the burden of informing the district court of the

basis for its motion, after which the non-moving party

must make a showing sufficient to support finding the

existence of all essential elements with respect to which

the non-movant has the burden of proof at trial.”

N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990)

The court must inquire “whether reasonable jurors

could find by a preponderance of the eviderice that the

plaintiff is entitled to a verdict.” Langston v. Act, 890 F.2d

App. 2

380, 383 n. 7 (11th Cir. 1989) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)). The court believes

that a reasonable jury could so find and thus the court

finds that summary judgment is inappropriate in the

present action. Genuine issues of material fact exist which

can only be determined by the trier of fact: whether the

defendants acted under “color of state law” in connection

with the plaintiff's discharge (whether there is state

action) and the existence of a conspiracy under 42 U.S.C.

§ 1985(3).

The private actors’ conduct “is fairly attributable [to

the state] only when the state has had some affirmative

role, albeit one of encouragement short of compulsion, in

the particular conduct underlying a claimant’s civil rights

grievance.” Langston, 890 F.2d at 384 (quoting NBC v.

Communications Workers of America, AFL-CIO, 860 F.2d

1022, 1025 n. 4 (1988)). The Eleventh Circuit has estab-

lished three tests to determine when private action con-

stitutes state action: (1) the public function test; (2) the

state compulsion test; and (3) the nexus/joint action test.

See Langston, 890 F.2d at 384; NBC, 860 F.2d at 1026.

No party contends that the first test, the public func-

tion test is applicable. Under the second test, the state

compulsion test, the government “normally can be held

responsible for a private decision only when it has exer-

cised coercive power or has provided such significant

encouragement, either overt or covert, that the choice

must in law be deemed to be that of the [government].”

San Francisco Arts & Athletes, Inc. v. U.S. Olympic Commit-

tee, 483 U.S. 522, 546 (1987) (quoting Blum v. Yaretsky, 457

a

App. 3

U.S. 991, 1004 (1982)).! Under the third test, the nexus/

joint action test, the court addresses

the question as to whether “the State had so far

insinuated itself into a position of interdepen-

dence with the [private party] that it was a joint

participant in the enterprise.” To charge a pri-

vate party with state action under this standard,

the governmental body and private party must

be intertwined in a “symbiotic relationship.”

NBC, 860 F.2d at 1022 (quoting Jackson v. Metroplitan [sic]

Edison Company, 419 U.S. 345, 357-58 (1974)). Having con-

sidered the depositions and evidence submitted thus far,

the court finds that the plaintiff has presented enough

circumstantial evidence possibly to meet one of these two

tests at trial.

After reviewing the briefs submitted by the parties, it

appears to the court that a prima facie case of conspiracy

to commit unconstitutional acts under 42 U.S.C. §§ 1983

and 1985(3) can be based upon circumstantial evidence.

Circumstantial evidence has no less weight than direct

evidence as long as it reasonably establishes that fact

rather than anything else. The Supreme Court, in Adickes

v. S. H. Kress and Company, 398 U.S. 144, 158 (1970),

thought “it would be open to a jury, in light of the

sequence that followed, to infer from the circum-

stances ...” that the state actor and private party had a

“meeting of the minds.” The court finds that plaintiff has

submitted enough circumstantial evidence regarding the

| The instant case can be distinguished from Blum, in that

plaintiff Burrell alleges that the private actors responded to

governmental stimuli, and not vice versa.

App. 4

elements necessary for a conspiracy to withstand defen-

dants’ motions for summary judgment.

The defendants may be right or may be wrong in

their insistance that no conspiracy or joint action existed.

That determination, however, will have to await a full

hearing of the evidence both for and against the movants’

position at a trial where credibility, relevance of evidence,

burden of proof, and all the other elements of a trial on

the merits are aired before a jury. Accordingly, the court

hereby DENIES defendants’ motions for summary judg-

ment. The court understands that there are outstanding

issues of law dealing with the immunity of some of the

defendants and directs counsel to brief that issue within

the next ten days.

SO ORDERED, this 14 day of March, 1990.

/s/ Duross Fitzpatrick

DUROSS FITZPATRICK,

JUDGE UNITED STATES

DISTRICT COURT

App. 5

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

MELBA J. BURRELL,

Plaintiff CIV. NO.

vs. 88-169-1-MAC(DF)

THE BOARD OF

TRUSTEES OF

GEORGIA MILITARY

COLLEGE, ET AL.,

Defendants

ORDER

(Filed May 23, 1990)

Pending before the court are defendants’ motions for

summary judgment on grounds of qualified immunity. In

its order of March 14, 1990, denying defendants’ motion

for summary judgment, the court reserved ruling on the

issue of qualified immunity pending the submission of

further briefs. The court has reviewed the briefs, and, in

addition, heard oral argument on the issue on May 2,

1990.

In its March 14, 1990 order, the court found that

genuine issues of material fact existed with regard to

plaintiff’s 42 U.S.C. § 1983 claims and the existence of a

conspiracy under 42 U.S.C. § 1985(3). The court therefore

held that plaintiff had submitted enough circumstantial

evidence to withstand defendants’ motion for summary

judgment. The court finds that for the purposes of defen-

dants’ motion for summary judgment on the ground of

qualified immunity that the case requires “substantial

App. 6

factual development” before it can be determined with

finality that plaintiff has or has not been deprived of her

constitutional rights. See Riley v. Wainwright, 810 F.2d

1006, 1007 (11th Cir. 1986), reh. denied (1987); Goddard v.

Urrea, 847 F.2d 765 (11th Cir. 1988).

“[T]he parties’ actual allegations create a genuine

dispute which bears upon the good faith or reasonable-

ness” of defendants’ actions. Goddard, 847 F.2d at 768. The

Eleventh Circuit in Goddard explained that “[t]he district

court found that if the agents falsely informed Bonnie

Goddard that the subpoena was a search warrant, or only

partially explained to Dennis Goddard the nature of the

document and his compliance options, ‘a jury would be

entitled to find that the defendant’s search and seizure

violated clearly established constitutional rights of which

a reasonable person would have known.’ ” Id. at 767. A

similar situation exists in the case at bar. If the govern-

mental defendants encouraged and acted in concert with

First Federal Officials to have the plaintiff fired from her

employment, a jury would be entitled to find that such

acts violated clearly established constitutional rights of

which a reasonable person would have known.! There is

a factual dispute as to whether the defendants encour-

aged the private actor, First Federal, to discharge the

plaintiff, or whether the defendants jointly participated

with First Federal in her discharge, or whether the defen-

dants acted at all. “A litigant’s credibility and the weight

1 Plaintiff’s First Amendment right to speak on matters of

public concern is clearly established. See Connick v. Myers, 461

U.S. 138 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886

(1982).

ins nei

App. 7

to be given testimony are matters for the consideration of

a fact-finder.” Goddard, 847 F.2d at 768.

The private defendants, Jacob L. Goldstein? and Alva

Baggarly® have also moved for summary judgment on the

basis of qualified immunity.* The defendants cite Jones v.

2 Goldstein is a private defendant individually and in his

official capacity as a member of the board of Directors of First

Federal Savings and Loan Association of Milledgeville. He is a

public defendant in his official capacity as a member of the

Board of Trustees of Georgia Military College.

3 Plaintiff filed suit against Baggarly individually and in

his official capacity as Chief Executive Officer of First Federal.

4 See Letter from Carr G. Dodson [attorney for First Federal,

Baggarly, and Goldstein in his capacity of member of Board of

Directors of First Federal] to Judge Fitzpatrick (April 3, 1990).

The letter refers to a motion for qualified immunity on behalf of

these defendants. The court could not find any motion formally

filed regarding summary judgment on the grounds of qualified

immunity; nor did counsel file any supplementary pleadings as

directed by the court in its March 14th order. Counsel for these

defendants raised the issue, however obliquely, in their original

Brief in Support of Defendants Goldstein’s and Baggarly’s

Motion to Dismiss and/or Motion for Summary Judgment, p.

15. “Defendant Baggarly as a director has the same immunity as

defendant Goldstein. Defendant Baggarly as an officer has the

same immunity as a director.” In its order of September 28, 1988,

the court denied defendants’ motion to dismiss, the court left

open the opportunity for defendants to file a motion for sum-

mary judgment at a later date. The court granted defendants

permission to do so during a telephone conference call on Octo-

ber 23, 1989. During oral argument on the motions for summary

judgment held on February 28, 1989, counsel for the private

defendants raised the defense, arguing that if these defendants

are deemed to be state actors, they are entitled to a qualified

immunity defense. In light of the above, the court will address

the qualified immunity of the private defendants.

App. 8

Preuit & Mauldin, 851 F.2d 1321 (11th Cir. 1988), vacated on

other grounds, __U.S.___, 109 S.Ct. 1105 (1989), wherein

the Eleventh Circuit held that “private defendants are

entitled to a defense of qualified immunity in wrongful

attachment actions under section 1983.” Preuit & Mauldin,

851 F.2d at 1324. Apparently, defendants would extend

this defense to private defendants who are deemed to be

state actors for the purposes of 42 U.S.C. §§ 1983 and

1985(3). This court holds that its finding above that the

case requires substantial factual development as to the

good faith and reasonableness of the public defendants as

state actors also goes to the private defendants as state

actors, thus the court denies the private defendants’ claim

for qualified immunity.°

The court finds that plaintiff has raised questions of

material fact “regarding defendant([s]’ commission of acts

in violation of plaintiff’s clearly established rights” to

defendants’ claim of qualified immunity. Peppers v. Coates,

887 F.2d 1493, 1496-97 n. 7 (11th Cir. 1989). There are too

many factual allegations that must be developed.

For the reasons stated above, the court hereby

DENIES defendants’ motion for summary judgment on

the ground of qualified immunity.

> The court therefore need not decide whether to extend

Preuit & Mauldin at this time. The court is inclined to oppose

such an extension, however, the argument has not been fully

briefed by either of the parties.

App. 9

SO ORDERED, this 23 day of May, 1990.

/s/ Duross Fitzpatrick

Duross Fitzpatrick, Judge

United States District Court

App. 10

Melba J. BURRELL, Plaintiff-Appellee,

v.

The BOARD OF TRUSTEES OF GA. MILITARY

COLLEGE, et al., Defendants,

Jacob L. Goldstein, etc., and

Alva L. Baggarly, etc.,

Defendants-Appellants.

Melba J. BURRELL, Plaintiff-Appellee,

v.

The BD. OF TRUSTEES OF GA. MILITARY COLLEGE,

Alva L. Baggarly, Individually & in his official

capcity as Chief Exec. Officer of First Fed. Sav. &

Loan Assn. of Milledgeville, the Mayor and Alder-

men of the City of Milledgeville and Unknown Co-

Conspirators, Defendants,

James E. Baugh, Indiv. & in his official capacities as

Mayor of the City of Milledgeville, Ga. & Chair-

man of the Bd. of Tr. of Ga. Military College, Jacob

L. Goldstein, Indiv. & in his official capactities as a

member of the Bd. of Dir. of First Fed. Sav. & Loan

Assn. of Milledgeville & as a member of the Bd. of

Tr. of Ga. Military College, Defendants-Appellants.

Melba J. BURRELL, Plaintiff-Appellee,

v.

The BOARD OF TRUSTEES OF GA. MILITARY COL-

LEGE, James E. Baugh, Chairman of the Board of

Trustees of Ga. Military College, Jacob L. Gold-

stein, as a member of the Board of Trustees of Ga.

Military College, and the Mayor and Alderman of

the City ci Milledgeville, Defendants-Appellants,

Alva L. Baggarly, etc., et al., Defendants.

App. 11

Nos. 90-8540, 90-8760 and 90-8930.

United States Court of Appeals,

Eleventh Circuit.

Sept. 2, 1992.

Appeals from the United States District Court for the

Middle District of Georgia.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge,

and HILL, Senior Circuit Judge.

TJOFLAT, Chief Judge:

This opinion consolidates three appeals, Nos.

90-8540, 90-8760, and 90-8930, from an order of the

United States District Court for the Middle District of

Georgia denying motions for summary judgment on the

ground of qualified immunity. Melba J. Burrell (Burrell)

has brought an action in the United States District Court

for the Middle District of Georgia against James E. Baugh,

mayor of Milledgeville, Georgia, and chairman of the

board of trustees of Georgia Military College (GMC);

Jacob L. Goldstein, a member of the board of directors of

First Federal Savings and Loan Association of Mille-

dgeville (First Federal) and of GMC’s board of trustees;!

Alva L. Baggarly, First Federal’s chief executive officer

and president, and a member of First Federal’s board of

directors; GMC’s board of trustees; the Mayor and Alder-

men of the City of Milledgeville; and unknown co-con-

spirators, alleging that she was fired from her job as First

? Burrell sues Baugh and Goldstein in their individual and

official capacities.

App. 12

Federal’s senior vice president in violation of 42 U.S.C.

§§ 19832 and 1985(3)° (1988).* Specifically, Burrell alleges

the following conspiracy in her complaint: “Baugh, Gold-

stein, Baggarly, and unknown co-conspirators . . . reached

2 Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State .. ., 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 proceed-

ing for redress... .

42 U.S.C. § 1983 (1988).

3 Section 1985(3) provides in relevant part:

If two or more persons .. . conspire . . . for the

purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of

the laws, or of equal privileges and immunities under

the laws; or for the purpose of preventing or hin-

dering the constituted authorities of any State

... from giving or securing to all persons within such

State... the equal protection of the laws... ; in any

case of conspiracy set forth in this section, if one or

more persons engaged therein do, or cause to be

done, any act in furtherance of the object of such

conspiracy, whereby another is... deprived of having

and exercising any right or privilege of a citizen of the

United States, the party so .. . deprived may have an

action for the recovery of damages occasioned by

such .. . deprivation, against any one or more of the

conspirators.

42 U.S.C. § 1985(3) (1988).

* Burrell also brought a Title VII claim against First Federal

under 42 U.S.C. §§ 2000e and 2000e-3 (1988), which is not at

issue in these appeals.

Ke

App. 13

an agreement and entered into a conspiracy, the object of

which was to discharge [Burrell] from her employment

with . . . First Federal in retaliation for her and her

husband’s public criticism of . . . GMC.” The complaint

further asserts that “[i]n concert[, Baugh, Goldstein, Bag-

garly, and unknown co-conspirators] participated in cer-

tain overt acts in furtherance of said conspiracy,

including but not limited to, conversations involving

themselves and employees of the City of Milledgeville

pertaining to how acts of retaliation might be carried out

against [Burrell] and her husband and how [Burrell]

could be discharged from her employment with . . . First

Federal for alleged job-related reasons.” Burrell seeks

reinstatement to her position as senior vice president

with backpay and compensatory and punitive damages.

Baugh, Goldstein, and Baggarly moved for summary

judgment on the ground of qualified immunity.*® The dis-

trict court denied their motions, and the three now appeal

5 In its order denying all motions for summary judgment

on the ground of qualified immunity, the district court deter-

mined that Goldstein, as a private defendant in his capacity as

member of First Federal’s board, and Baggarly “moved for sum-

mary judgment on the basis of qualified immunity.” As the

court remarked in a footnote, however, neither Goldstein, as a

private defendant, nor Baggarly ever “formally filed” a motion

“regarding summary judgment on the ground[] of qualified

immunity; nor did [they] file any supplementary pleadings [on

‘outstanding issues of law dealing with the immunity of some of

the defendants’) as directed by the court in its March 14th order

[denying summary judgment on other grounds].” The court

apparently decided that Goldstein and Baggarly had met their

burden of pleading qualified immunity by raising the issue at

oral argument on their motion for summary judgment on other

grounds. While we reemphasize that qualified immunity will be

unavailable to those who do not raise it, see Moore v. Morgan, 922

App. 14

sin Nos. 90-8540 and 90-8760. Baugh and Goldstein also

join the Mayor and Aldermen of Milledgeville and GMC’s

board in their appeal under 28 U.S.C. § 1292(b) (1988) in

No. 90-8930.

In appeal No. 90-8540, we reverse the denial of quali-

fied immunity to Baugh and Goldstein as public officials

against Burrell’s section 1983 claim, and affirm the denial

of qualified immunity to Baugh and Goldstein against

Burrell’s section 1985(3) claim and to all other appellants.

In appeal No. 90-8760, we affirm the denial of qualified

immunity to all appellants. We dismiss appeal No.

90-8930 for lack of jurisdiction. After disposing of the

jurisdictional issues, we will discuss the merits of appeals

Nos. 90-8760 and 90-8540 in order.®

I.

A.

We have jurisdiction to entertain appeals Nos.

90-8540 and 90-8760 under Mitchell v. Forsyth, 472 U.S.

511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985), which held

that a “denial of a claim of qualified immunity, to the

extent that it turns on an issue of law,” id. at 530, 105 S.

Ct. at 2817, constitutes an appealable collateral order as

defined by Cohen v. Beneficial Industrial Loan Corp., 337

F.2d 1553, 1557 (11th Cir.1991), we will not disturb the district

court’s determination that Goldstein and Baggarly met their

burden of pleading in this case.

¢ We emphasize that we express no opinion about the

merits of any of Burrell’s claims. We merely review the district

court’s denial of qualified immunity. See infra notes 9 and 18.

a

App. 15

U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). Even

assuming, without deciding, that some facts remain dis-

puted in this case, the mere existence of a factual quarrel

does not affect the appealability of a denial of qualified

immunity. See Howell v. Evans, 922 F.2d 712, 717-18 (11th

Cir.), vacated as moot, 931 F.2d 711 (11th Cir.1991); see also

Bennett v. Parker, 898 F.2d 1530, 1535-37 (11th Cir.1990)

(Tjoflat, C.J., concurring), cert. denied, __ U.S. __, 111 S.

Ct. 1003, 112 L. Ed. 2d 1085 (1991).

Appeals Nos. 90-8540 and 90-8760 do not escape our

jurisdictional grasp simply because Burrell seeks equita-

ble as well as legal relief. Qualified immunity does not

shield against equitable claims. Marx v. Gumbinner, 855

F.2d 783, 787 (11th Cir.1988). We recently have held, how-

ever, that a denial of qualified immunity remains imme-

diately appealable, even where the government official

would have to stand trial on the equitable claims left

undisturbed by a grant of qualified immunity as to the

legal claims. Id. at 786-88. Although Marx alone disposes

of the jurisdictional question, we point out that Baugh,

Goldstein, and Baggarly would not have to face the tribu-

lations of trial on the equitable claims even if they should

not be immune from the legal claims. With the possible

exception of Baggarly,” they could not provide Burrell

with the equitable relief she seeks because they would be

in no position to reinstate her as senior vice president at

First Federal.

7 It is not entirely clear from the record whether Baggarly

would be authorized to rehire Burrell without obtaining the

approval of First Federal’s board.

App. 16

Our jurisdiction over appeals Nos. 90-8540 and

90-8760 also remains untainted by our ultimate conclu-

sion that certain defendants were not entitled to raise the

qualified immunity defense in the first place. If we have

jurisdiction to determine whether a particular defendant

generally eligible to raise qualified immunity may benefit

from it in the particular case at hand, we surely have

jurisdiction to determine whether qualified immunity

may shield that defendant as a general matter.

B.

Appeal No. 90-8930 reaches us from an order entered

by the district court pursuant to 28 U.S.C. § 1292(b)

(1988). An administrative panel of this court granted

GMC’s board, Baugh, Goldstein as a member of GMC’s

board, and the Mayor and Aldermen of Milledgeville

leave to appeal pursuant to section 1292(b). We have

concluded that their motion for leave to appeal was

improvidently granted and vacate the order allowing this

appeal to proceed. Under section 1292(b), a district court

may certify for appeal a non-final order if the court finds

that the order “involves a controlling question of law as

to which there is substantial ground for difference of

opinion” and that resolution of the question “may mate-

rially advance the ultimate termination of the litigation.”®

8 28 U.S.C. § 1292(b) (1988) provides that:

When a district judge, in making in a civil action

an order not otherwise appealable under this section,

shall be of the opinion that such order involves a

controlling question of law as to which there is sub-

stantial ground for difference of opinion and that an

App. 17

The district court certified the following issue for appeal

pursuant to section 1292(b):

After reviewing the briefs submitted by the par-

ties, it appears to the court that a prima facie

case of conspiracy to commit unconstitutional

acts under 42 U.S.C. §§ 1983 and 1985(3) can be

based upon circumstantial evidence. Circum-

stantial evidence has no less weight than direct

evidence as long as it reasonably establishes that

fact rather than anything else. The Supreme

Court, in Adickes v. S.H. Kress & Company, 398

U.S. 144, 158, 90 S. Ct. 1598, 1609, 26 L. Ed. 142

(1970), thought “it would be open to a jury, in

light of the sequence that followed, to infer from

the circumstances...” that the state actor and

private party had a “meeting of the minds.” The

court finds that plaintiff has submitted enough

circumstantial evidence regarding the elements

necessary for a conspiracy to withstand defen-

dants’ motions for summary judgment.

This passage identifies one question of law: whether

a prima facie case of conspiracy under 42 U.S.C. §§ 1983

and 1985(3) may rely on circumstantial evidence. We fully

agree with the district court that this question must be

immediate appeal from the order may materially

advance the ultimate termination of the litigation, he

shall so state in writing in such order. The Court of

Appeals which would have jurisdiction of an appeal

of such action may thereupon, in its discretion, permit

an appeal to be taken from such order, if application is

made to it within ten days after the entry of the order:

Provided, however, that application for an appeal here-

under shall not stay proceedings in the district court

unless the district judge or the Court of Appeals or a

judge thereof shall so order.

App. 18

answered in the affirmative. Indeed, our agreement with

the district court is so complete and unequivocal that we

cannot make out the “substantial ground for difference of

opinion” required by section 1292(b). Accordingly, we

dismiss appeal No. 90-8930.9 Cf. In re Grand Jury Proceed-

ings, 832 F.2d 554, 557 (11th Cir.1987) (no jurisdiction to

entertain 1292(b) appeal in non-civil action); Church of

Scientology Flag Serv. Org., Inc. v. City of Clearwater, 777

F.2d 598, 607 (11th Cir.1985) (leave to appeal pursuant to

section 1292(b) improvidently granted), cert. denied, 476

U.S. 1116, 106 S. Ct. 1973, 90 L. Ed. 2d 656 (1986).

Having settled the jurisdictional question, we now

address appeals Nos. 90-8760 and 90-8540 in turn.

Baugh and Goldstein bring appeal No. 90-8760 indi-

vidually and in their official capacities as mayor of Mil-

ledgeville and chairman of GMC’s board of trustees, and

9 The parties mistakenly treated the permission to appeal

pursuant to the district court’s 1292(b) certification as an invita-

tion to challenge the court’s denial of summary judgment on

grounds other than qualified immunity. In fact, the appellants in

No. 90-8930 make no effort to address the purportedly “control-

ling” legal issue certified by the district court under § 1292(b).

Accordingly, they argue that Burrell failed to make out a claim

under §§ 1983 or 1985(3). We have no jurisdiction to consider

these arguments. First, we have no jurisdiction to entertain an

appeal from a denial of summary judgment on grounds other

than qualified immunity. See Marx v. Gumbinner, 855 F.2d 783,

791 n. 15 (11th Cir.1988). Second, we have no jurisdiction to

consider attacks on a non-final order unrelated to the resolution

of the specific legal question identified by the district court in its

§ 1292(b) order.

App. 19

member of GMC’s board of trustees, respectively.!° We

reverse the district court’s denial of their motion for

summary judgment on the ground of qualified immunity

as to Burrell’s section 1983 claim and affirm it as to

Burrell’s section 1985(3) claim. We first turn to the section

1983 claim.

10 We discuss only whether Baugh or Goldstein were enti-

tled to qualified immunity in their individual capacities. It is

clear that neither of them could be qualifiedly immune in their

official capacities. “[SJuits against an official in his or her official

capacity are suits against the entity the individual represents.”

Parker v. Williams, 862 F.2d 1471, 1476 n. 4 (11th Cir.1989). We

therefore treat Burrell’s claims against Baugh and Goldstein in

their official capacities as claims against the City of Mille-

dgeville and GMC. As qualified immunity does not shield

municipal entities, Baugh in his official capacity as mayor of

Milledgeville is not entitled to qualified immunity. See Owen v.

City of Independence, 445 U.S. 622, 100S. Ct. 1398, 63 L. Ed. 2d 673

(1980); see also Tittle v. Jefferson County Comm’‘n, 966 F.2d 606, 611

(11th Cir.1992); Moore v. Morgan, 922 F.2d 1553, 1556 (11th

Cir.1991). We do not decide whether Baugh or Goldstein are

state officials because they serve on the board of GMC, an

institution established and funded primarily by the State of

Georgia, or municipal officials because they hold their board

positions on account of their mayoral office and a direct vote by

the city electorate, respectively. See Robinson v. Georgia Dep’t of

Transp., 966 F.2d 637 (11th Cir.1992) (outlining and applying test

for determining whether an entity is an “arm of the State” for

Eleventh Amendment purposes). In the first case, Baugh and

Goldstein in their official capacities would be entitled to com-

plete Eleventh Amendment, not qualified, immunity. See Parker,

862 F.2d at 1475-76. We could not consider this issue, however,

because this appeal lies from a denial of qualified, not Eleventh

Amendment, immunity. In the latter case, neither Baugh nor

Goldstein would enjoy qualified immunity for the same reasons

that deprive Baugh of this type of limited immunity in his

official capacity as mayor of Milledgeville.

App. 20

A.

“[G]overnment officials . . . generally are shielded

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396 (1982). It is assumed for

purposes of this appeal that Baugh and Goldstein" are

government officials for qualified immunity purposes. '!?

11 Goldstein, unlike Baugh, is also a private defendant in

his capacity as a member of First Federal’s board of directors.

See infra part III.

2 This assumption, however, should not obscure our

serious doubts about the presence of state action under the First

and Fourteenth Amendments and action under color of state

law for Section 1983 purposes, even assuming counterfactually

that Burrell had managed to fill the record with inferable facts

supporting a finding that Baugh, Goldstein, and Baggarly con-

spired to have Burrell fired. While absence of state authoriza-

tion does not dispose of either question, a public official not

authorized to engage in the allegedly unconstitutional activity

will only act under color of state law if the act was accomplished

by “ ‘[m]isuse of power, possessed by virtue of state law and

made possible only because the alleged wrongdoer was clothed

with the authority of state law.’ ” See Brown v. Miller, 631 F.2d

408, 411 (Sth Cir.1980) (citing Monroe v. Pape, 365 U.S. 167, 184,

81 S. Ct. 473, 482, 5 L. Ed. 2d 492 (1961), overruied on other

grounds by Monell v. Department of Social Servs., 436 U.S. 658, 98 S.

Ct. 2018, 56 L. Ed. 2d 611 (1978)). Similarly, state action will only

be present if “an officer or other representative of a state, in the

exercise of the authority with which he is clothed, misuses the

power possessed to do a wrong.” Home Tel. & Tel. Co. v. City of

Los Angeles, 227 U.S. 278,287, 33 S. Ct. 312, 315, 57 L. Ed. 510

(1913).

App. 21

Otherwise neither Baugh nor Goldstein could raise quali-

fied immunity.’ Our review of the district court’s denial

of qualified immunity therefore scrutinizes the district

court’s determination that, “consider[ing] in the light

most favorable to the plaintiff all facts fairly inferable

from the record[,] the inferable facts, if true, constitute a

violation of clearly established law by the defendant[s].”

Bennett, 898 F.2d at 1535 n. 2 (Tjoflat, C.J., concurring);

Greason v. Kemp, 891 F.2d 829, 831 (11th Cir.1990).

Milledgeville is a town of about 18,000 in the heart of

Georgia. Georgia Military College is a military school in

13 True, Harlow restricts qualified immunity to “govern-

ment officials,” while the constitution requires “state action.”

Since § 1983 requires action “under color of state law,” only

government officials acting under color of state law may assert

qualified immunity. Accordingly, there remains the theoretical

possibility that a government official acting under color of state

law might not satisfy the state action requirement. The concepts

of action under color of state law and state action, however, are

coterminous. See Chester J. Antineau, 1 Federal Civil Rights

Acts § 56 at 103 (2d ed. 1980). Nevertheless, while the Supreme

Court has held that every act that meets the state action require-

ment also constitutes action under color of state law, it has not

held the converse. The situation identified by the Supreme

Court in which action under color of state law would not consti-

tute state action, however, has little relevance to the present

case. The Court gave the example of a private individual apply-

ing a state statute, which was held to constitute action under

color of state law, but which might not constitute state action.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 n. 18, 102 S. Ct.

2744, 2752, n. 18 (1982). In contrast, the Court pointed out that

“it is clear that in a § 1983 action brought against a state official,

[as in the present case,] the statutory requirement of action

‘under color of state law’ and the ‘state action’ requirement

...are identical.” Id. at 929, 102 S. Ct. at 2744.

App. 22

Milledgeville which operates a preparatory school with

grades six through twelve and a junior college. Although

GMC charges some tuition, it is a public institution cre-

ated by state law and relies heavily on state funds. GMC

is run by its board of trustees, which has seven members,

one of whom, the chairperson, is the mayor of Mille-

dgeville, while the remaining six are elected by the voting

population of Milledgeville. Baugh is the mayor of Mille-

dgeville and the chairperson of GMC’s board of trustees.

Goldstein is a member of GMC’s. board.

First Federal is a savings and loan association in

Milledgeville. At the time of Burrell’s discharge, First

Federal’s board of directors had eight members, includ-

ing Goldstein, Baggarly, and Burrell. Baggarly also serves

as First Federal’s chief executive officer.

Burrell began working at First Federal as a teller in

1972. She worked herself up through the ranks and on

January 1, 1986 was promoted to the position of senior

vice president. In September of that year she also was

appointed to First Federal’s board of directors, and

between January and July 1987 she served as acting chief

executive officer (CEO). Declining the board’s invitation

to apply for the permanent CEO position, Burrell assisted

the board in its selection of a new CEO.

On July 1, 1987, Baggarly joined First Federal as

president and CEO. Burrell stayed on as senior vice presi-

dent. Shortly after Baggarly’s arrival on the job, conflicts

over their respective responsibilities arose between Bur-

rell and Baggarly. These conflicts escalated to the point

where both Burrell and Baggarly decided to place their

App. 23

grievances before First Federal’s board. The board meet-

ing was set for April 20, 1988.

Before we turn to the board meeting, we temporarily

pick up a parallel story line which will lead us on a

different path to the same meeting. In early 1987, an

anonymous letter critical of the level of public assistance

received by GMC appeared in The Atlanta Constitution.

This letter created a big stir in Milledgeville. On account

of their previous public criticisms of GMC, Burrell and

her husband, Charles Burrell, were among those sus-

pected of having written the letter. Shortly after the anon-

ymous letter appeared, Goldstein, who had known

Burrell since 1972 and habitually dropped by First Fed-

eral to chat with her, visited Burrell at her office and

informed her that Baugh apparently thought Burrell

might have written the letter. Goldstein also told Burrell

that “we would hope that you would not be doing any-

thing against G.M.C.”!4 Burrell denied having authored

the letter. Some weeks later, Goldstein again brought up

the anonymous letter during another visit to Burrell at

First Federal. He reported to Burrell that a fellow GMC

trustee defended her in a discussion about possible

authors of the anonymous letter.

On March 12, 1988, The Milledgeville Union Recorder

published a letter to the editor signed by Burrell which

accused GMC of improperly charging tuition while

receiving public funds, of discriminating against poor

students by charging tuition, of advancing the goal of

M4 During the course of her two depositions in this case,

Burrell at times testified that Goldstein did not speak in the

plural, but referred only to his own wishes.

App. 24

racial segregation, and of practicing racial discrimination

in its hiring practices. Some days later, The Macon Tele-

graph picked up the letter and The Atlanta Constitution

printed an article about GMC based on an interview with

Burrell.'5 In the wake of Burrell’s public indictment of

GMC, First Federal lost around $100,000 in deposits, with

Sonny Goldstein, defendant Goldstein’s brother, with-

drawing approximately ninety percent of that amount.'®

15 Around the end of March and the beginning of April,

Baggarly met Baugh for the first and last time in Baugh’s office

at City Hall. Both Baggarly and Baugh flatly deny that, at that

meeting or at any other time, they discussed Burrell, her criti-

cism of GMC, or any plans to have her fired. Burrell admitted at

deposition that she did not know what Baugh and Baggarly

discussed at the meeting. Baggarly testified on deposition that

he tried to convince Baugh to participate in a chamber of com-

merce membership drive he headed. According to Baggarly, he

asked Baugh to speak at a kickoff campaign the next day and

publicly to join the chamber of commerce at that campaign.

Baugh confirms that they did not discuss Burrell and that Bag-

garly asked him for a private donation to the chamber of com-

merce. Considering that Burrell cannot offer evidence of the

contents of Baugh’s and Baggarly’s meeting, that Baugh and

Baggarly provide a reasonable and consistent explanation for

their meeting, that Baugh and Baggarly flatly deny to have

discussed Burrell, only one fact can be inferred from their meet-

ing: that the meeting took place. Any conclusion about the

content of their discussion in contradiction to their testimony

would qualify as speculation, not inference. In sum, the naked

fact of Baugh’s and Baggarly’s meeting, considered indepen-

dently or in conjunction with all other inferable facts in the

record, does not permit the inference that Baugh and Baggarly

conspired to have Burrell fired.

16 Burrell and her husband also testified on deposition that

Howard Pounds, the Milledgeville fire chief, told them about at

least one meeting at City Hall involving Baugh, Goldstein, and

App. 25

On April 20, 1988, First Federal’s board met to seitle

the conflict between Burrell and Baggarly. Burrell and

Baggarly separately addressed the board. After a discus-

sion that centered on Burrell’s and Baggarly’s inability to

cooperate but also touched on the loss of deposits caused

by Burrell’s criticism of GMC, the board authorized Bag-

garly to exercise his power as CEO to take whatever

action he deemed appropriate regarding any employee of

First Federal. Baggarly then requested Burrell’s resigna-

tion, but Burrell refused to step down. Baggarly fired her

the next day.!”

at least one other member of the board of aldermen. According

to Charles Burrell, Pounds alerted them to “retaliation measures

[that are] being planned, taken by persons who are in places of

power in the City.” Specifically, Charles Burrell testified about

meetings Pounds overheard, or participated in, during which a

conspiracy to have his wife fired was discussed. The Burrells’

testimony regarding Pounds’ statements about the meetings at

City Hall would be inadmissible in court as hearsay. Pounds,

moreover, categorically denied ever having made any of the

statements the Burrells attribute to him or ever having over-

heard or participated in any conspiratorial meetings at City

Hall. The Burrells’ statements therefore cannot form the basis on

which we can infer facts in support of their claims. The same

applies to the barrage of other statements and acts the Burrells

attribute to Pounds, in particular statements regarding Baugh’s

alleged support for a petition introduced after the letter of

March 12, 1988, at a deacons’ meeting of the Burrells’ and

Pounds’ baptist church, which called for the personnel commit-

tee and the pastor to request paid staff members to “refrain from

expressing their views on political issues in public media.”

Charles Burrell was a paid staff member of the church.

17 According to the deposition testimony of a member of

First Federal’s board of directors, Lee Dickens, Baugh, at a party

at Baugh’s country home after Burrell’s discharge, expressed to

a group of people including Dickens his dissatisfaction with

a

App. 26

In a nutshell, Burrell asserts that Baugh, Goldstein,

and Baggarly conspired to have her fired in retaliation for

her and her husband’s public criticism of GMC and

thereby violated her First Amendment right to freedom of

speech. A review of the facts inferable from the record

before the district court reveals, however, that they can-

not support a claim that either Baugh or Goldstein

engaged in acts which a reasonable public official in

Baugh’s or Goldstein’s shoes would have recognized as

violations of Burrell’s free speech right. See Parker v.

Williams, 862 F.2d 1471, 1476 (11th Cir.1989) (citing Ander-

son v. Creighton, 483 U.S. 635, 639-41, 107 S. Ct. 3034,

3039-40, 97 L. Ed. 2d 523 (1987)). Assuming, without

deciding, that Baugh and Goldstein would have violated

a clearly established constitutional right by conspiring

with Baggarly to have Burrell fired for speaking out

against GMC, the record does not contain inferable facts

that could support a finding that either Baugh or Golds-

tein in any way conspired with Baggarly to discharge her

for her public criticism of GMC. Without a conspiracy,

there obviously is no constitutional violation. Without a

constitutional violation, there can be no violation of a

clearly established constitutional right. See Oladeinde v.

City of Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992)

(citing Siegert v. Gilley, US. 0 aus 10S CO TP,

1793, 114 L. Ed. 2d 277 (1991)).

Burrell’s criticism of GMC. While this statement after Burrell’s

discharge to a group of people including a member of First

Federal’s board further supports the inference that Baugh was

upset about Burrell’s criticism of GMC, it does not permit the

inference that Baugh sought to influence members of First Fed-

eral’s board to fire Burrell.

App. 27

We emphasize that we do not mean to require section

1983 plaintiffs to produce a “smoking gun” to overcome

the qualified immunity hurdle. See Bendiburg v. Dempsey,

909 F.2d 463, 469 (11th Cir.1990) (smoking gun not

required to establish state action in section 1983 suit),

cert. denied, ___ U.S. __, 111 S. Ct. 2053, 114 L. Ed. 2d 459

(1991). Burrell’s section 1983 claim against Baugh and

Goldstein, however, lacks far more than a smoking gun.

Burrell’s complaint is made of insinuations that collapsed

under the weight of depositions. Pure hearsay allegations

evaporated when the purported hearsayers flatly denied

having made the statements attributed to them. See supra

note 13. Evidentiary leads simply did not pan out when

put to the deposition test. A cloud of allegations of

intense controversy over GMC in Milledgeville could not

conceal the absence of any admissible evidence of the

alleged conspiracy between Baugh, Goldstein, and Bag-

garly. Even well-founded allegations of widespread dis-

approval of the Burrells’ criticism of GMC do not permit

us to make the quantum leap to inferring the conspir-

atorial acts that could maneuver Burrell’s section 1983

claim against Baugh and Goldstein past the qualified

immunity coral.

As the district court correctly noted, see supra slip op.

at p. 3795, a section 1983 conspiracy may be proved by

circumstantial evidence and, in this sense alone, the law

does not require the plaintiff to produce a smoking gun.

This observation does not relieve us of our duty, however,

to scrutinize each piece of admissible circumstantial evi-

dence in isolation and then in combination with all other

pieces of admissible circumstantial evidence to determine

whether all admissible pieces for a conspiracy make.

PS ae

App. 28

Burrell points out that we have recognized a “strong

policy reflected in the decisions of the Supreme Court

and this Circuit against resolving complex First Amend-

ment issues on a motion for summary judgment.” Harden

v. Adams, 760 F.2d 1158, 1166 (11th Cir.), cert. denied sub

nom. Grimmer v. Harden, 474 U.S. 1007, 106 S. Ct. 530, 88 L.

Ed. 2d 462 (1985). There is nothing complex about the

First Amendment issue in this case. Our conclusion that

Baugh and Goldstein are entitled to qualified immunity

against Burrell’s section 1983 claim does not depend on

the complexity or simplicity of the constitutional right in

question. It turns solely on the absence of facts inferable

from the record that support the allegation that Baugh

and Goldstein violated any constitutional right, however

complex.

Even giving Burrell the benefit of all inferences, the

pieces in Burrell’s section 1983 puzzle simply do not fit

together to create the image of a conspiracy between

Baugh, Goldstein, and Baggarly to have her fired for

exercising her free speech right. Baugh and Goldstein

therefore are immune to Burrell’s section 1983 claim.'®

18 We stress that we have jurisdiction only to determine

whether Baugh and Goldstein are entitled to qualified immu-

nity against Burrell’s § 1983 claim. As we pointed out earlier, see

supra note 9, we do not decide whether Burrell’s § 1983 or

1985(3) claims would survive a summary judgment motion on

grounds other than qualified immunity. We merely hold that the

record does not permit the inference of facts that, if proved,

would establish that Baugh or Goldstein engaged in acts which

a reasonable public official in Baugh’s or Goldstein’s shoes

would have recognized as violations of Burrell’s free speech

right.

App. 29

B.

Before deciding whether Baugh and Goldstein are

entitled to summary judgment against Burrell’s section

1985(3) claim, we must determine whether public officials

in general can claim qualified immunity to avoid liability

under section 1985(3). We hold that they may not and

therefore affirm the district court’s denial of Baugh’s and

Goldstein’s motion for summary judgment on the ground

of qualified immunity as to Burrell’s section 1985(3)

claim.

While only state actors are subject to a section 1983

claim, a section 1985(3) action may be brought against

anyone conspiring to deprive another of the equal protec-

tion of the laws, or of equal privileges and immunities

under the laws.!9 Unlike a claim under section 1983,2°

which does not need to assert a specific intent to deprive

another of a federal right, see Monroe v. Pape, 365 U.S. 167,

81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled on other

grounds by Monell v. Department of Social Sevs., 436 U.S.

658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), a claim under

section 1985(3) must allege a class-based, invidiously dis-

criminatory purpose behind the defendants’ action. We

recently had occasion to comment on the elements of a

cause of action under section 1985(3):

The elements of a cause of action under

section 1985(3) are “(1) a conspiracy; (2) for the

purpose of depriving, either directly or indi-

rectly, any person or class of persons of the

19 See supra note 3.

20 See supra note 2.

EE —

App. 30

equal protection of the laws, or of equal privi-

leges and immunities under the laws; and (3) an

act in furtherance of the conspiracy; (4) whereby

a person is either injured in his person or prop-

erty or deprived of any right or privilege of a

citizen of the United States.” United Brotherhood

of Carpenters & Joiners of America, Local 610 v.

Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 3356,

77 L. Ed. 2d 1049 (1983). More specifically, the

second element requires a showing of “some

racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the

conspirators’ action.” Id. at 829, 103 S. Ct. at

3356 (quoting Griffin, 403 U.S. at 102, 91 S. Ct. at

1798).

Lucero v. Operation Rescue of Birmingham, 954 F.2d 624,

627-28 (11th Cir.1992) (footnote omitted).

Unlike in section 1983 actions, public officials there-

fore will not be subject to liability under section 1985(3)

unless their actions were motivated by “some racial, or

perhaps otherwise class-based, invidiously discrimina-

tory animus.” Id. This narrow intent requirement erects a

significant hurdle for section 1985(3) plaintiffs. Section

1985(3) actions often stand or fall on the plaintiff’s ability

to establish the specific type of discriminatory animus

behind the conspirators’ actions. See, e.g., Scott, 463 U.S.

at 835-39, 103 S. Ct. at 3359-61 (plaintiffs failed to identify

requisite class-based animus); Lucero, 954 F.2d at 627-29

(same); Mississippi Women’s Medical Clinic v. McMillan, 866

F.2d 788, 794 (Sth Cir.1989) (same). Public officials thereby

enjoy an additional protection against section 1985(3)

actions not available to them in section 1983 actions. We

hold that this additional safeguard obviates the need for

granting public officials qualified immunity in section

App. 31

1985(3) actions. Exposing public officials to section 1983

liability for good faith violations of constitutional rights

not clearly established would excessively chill their will-

ingness to make the discretionary calls their office

requires of them. There exists, however, no analogue to

this convincing policy consideration in the section 1985(3)

context. Thre can be no mistake, good faith or otherwise,

that acting upon “some racial, or perhaps otherwise class-

based, invidiously discriminatory animus” does not fall

within the scope of a public official’s discretion. Denying

public officials qualified immunity under section 1985(3)

therefore does not threaten the breathing space they need

for making discretionary decisions. On the contrary,

“racial, or perhaps otherwise class-based, invidiously dis-

criminatory animus” has no place in public policy and

any actions by public officials based on such an animus

deserve to be chilled with the full force of federal law.

Accordingly, public officials cannot raise a qualified

immunity defense to a section 1985(3) claim. Baugh and

Goldstein therefore are not immune to Burrell’s section

1985(3) claim.?!

ITT.

Goldstein and Baggarly bring appeal No. 90-8540

individually and in their capacities as member of First

21 Our conclusion that qualified immunity does not protect

public officials from § 1985(3) liability should not be mis-

construed as an intimation that we find all the elements of a

§ 1985(3) claim present in this case. On the contrary, we express

serious doubt whether Burrell has alleged facts sufficient to

satisfy § 1985(3)’s requirement of “some racial, or perhaps oth-

erwise class-based, invidiously discriminatory animus.”

App. 32

Federal’s board of directors, and board member, presi-

dent, and CEO of First Federal, respectively. We affirm

the district court’s denial of summary judgment on Bur-

rell’s section 1983 and 1985(3) claims. Again, we first

address the section 1983 claim.

A.

Settling an issue it had left open in Lugar uv.

Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed.

2d 482 (1982), the Supreme Court recently held that pri-

vate defendants faced with section 1983 liability for

invoking a state replevin, garnishment or attachment stat-

ute may not avail themselves of qualified immunity.

Wyatt v. Cole,__ U.S.__,__, 112 S. Ct. 1827, 1829, 118 L.

Ed. 2d 504 (1992). The Court thereby directly overruled

contrary decisions in three circuits, including our own.

See Jones v. Preuit & Mauldin, 851 F.2d 1321, 1323-24 (11th

Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002,

109 S. Ct. 1105, 103 L. Ed. 2d 170 (1989); see also Buller v.

Buechler, 706 F.2d 844, 850-53 (8th Cir.1983); Folsom Inv.

Co. v. Moore, 681 F.2d 1032, 1036-38 (Sth Cir. Unit A 1982).

Although the Court did not explicitly overrule decisions

holding that qualified immunity is available to private

defendants in other circumstances, the Court’s analysis

does not bode well for the continued vitality of these

decisions. Instead of restricting its holding to attachment

cases, the Court merely left open “the possibility that

private defendants faced with [section] 1983 liability

under Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct.

2744, 73 L. Ed. 2d 482 (1982), could be entitled to an

affirmative defense based on good faith and/or probable

cause or that [section] 1983 suits against private, rather

App. 33

than governmental parties could require plaintiffs to

carry additional burdens.” Wyatt, US. at __, 112 5S.

Ct. at 1834.

We need not diagnose the current vitality of court of

appeals decisions allowing private defendants to assert

qualified immunity in non-attachment cases, however,

since they would clearly be distinguishable from the pre-

sent case even in the event they should survive Wyatt

intact. Even if Wyatt were to permit us to consider these

opinions, we would have to conclude that the numerous

cases barring private defendants from relying on quali-

fied immunity in section 1983 actions speak more closely

to the present case.

A cursory review of the decisions permitting private

defendants to claim qualified immunity easily reveals

their irrelevance. The Tenth Circuit, in DeVargas v. Mason

& Hanger-Silas Mason Co., 844 F.2d 714 (10th Cir.1988),

held that the qualified immunity doctrine protects a pri-

vate defendant who acted in accordance with the duties

imposed by a government contract, performed a govern-

mental function, and is sued solely on the basis of acts

performed pursuant to the contract. Id. at 722. In Frazier v.

Bailey, 957 F.2d 920, 929 (1st Cir.1992), the First Circuit

held that “private parties under contract to perform stat-

utorily mandated governmental duties are entitled to

qualified immunity as functionally governmental

employees.” Id. at 928. In another case, Rodrigues v. Fur-

tado, 950 F.2d 805 (1st Cir.1991), the First Circuit similarly

ruled that a physician under court order to perform a

vaginal cavity search was entitled to raise a qualified

immunity defense on the ground that she was “invested

with [and ha[d] accepted] the responsibilities of a public

App. 34

official in the public interest.” Id. at 815 (quoting Duncan

v. Peck, 844 F.2d 1261, 1264 (6th Cir.1988)).

Next, we turn to the decisions prohibiting private

defendants from asserting qualified immunity. The Ninth

Circuit, in Howerton v. Gabica, 708 F.2d 380 (9th Cir.1983),

withheld qualified immunity from a private landlord who

had enlisted the services of a police officer to effect an

allegedly unconstitutional eviction. Id. at 385 n.10. In so

holding, the Howerton court suggested that Lugar could

be read as permitting defendants to raise compliance

with a state statute as an affirmative defense. Id. (citing

Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 n. 23, 102 S.

Ct. 2744, 2757 n. 23, 73 L. Ed. 2d 482 (1982)). In the recent

case of Felix de Santana v. Velez, 956 F.2d 16 (1st Cir.1992),

the First Circuit refused to extend qualified immunity to a

private defendant who conspired with a district attorney

to indict a co-worker for perjury. Id. at 19-20. Fourteen

years earlier, the First Circuit, in Downs v. Sawtelle, 574

F.2d 1, 15-16 (1st Cir.), cert. denied, 439 U.S. 910, 99 S. Ct.

278, 58 L. Ed. 2d 255 (1978), denied qualified immunity to

the plaintiff's sister and spendthrift guardian who was

alleged to have conspired with government officials to

sterilize the plaintiff against her will, to delay her mar-

riage, and to remove her second child from her custody.

Id. at 3-4, 15-16. Finally, the Sixth Circuit, in Duncan v.

Peck, 844 F.2d 1261 (6th Cir.1988), refused to grant private

defendants qualified immunity, id. at 1263-67, but then

went on to find that the private defendant in the case at

hand was entitled to summary judgment on the basis of

the common law good faith defense to malicious prosecu-

tion and wrongful attachment, as opposed to a good faith

immunity, id. at 1267-68.

App. 35

This latter set of decisions speaks more meaningfully

to the present case. Goldstein and Baggarly did not fulfill

their duties under a government contract, cf. DeVargas,

844 F.2d at 722; Frazier, 957 F.2d at 929, nor were they

under a court order to assume the “responsibilities of a

public official in the public interest,” cf. Rodrigues, 950

F.2d at 814 (quoting Duncan, 844 F.2d at 1264). Goldstein

and Baggarly instead are alleged to have conspired with

public officials to deprive Burrell of her constitutional

rights. These alleged activities are of the same cloth as the

conspiracies alleged in Santana, where the private defen-

dant allegedly conspired with a district attorney to indict

the plaintiff for perjury, 956 F.2d at 19-20, and in Downs,

where the private defendant allegedly conspired with

public officials to deprive the plaintiff of certain constitu-

tional rights, 574 F.2d at 15-16. Needless to say, the First

Circuit held that the defendants in neither case could

seek the cover of qualified immunity.

In a case like the present one, where the private

defendants are not alleged simply to have fulfilled their

duties under a government contract, or have assumed

under court order the responsibilities of a public official,

but are alleged to have acted in concert with public

officials for the sole purpose of depriving another of her

constitutional rights, private defendants cannot claim the

protection of qualified immunity. We not only have no

intention of encouraging this kind of conduct,” but most

22 Our now defunct decision in Jones relied in part on the

consideration that private individuals should be encouraged to

avail themselves of state procedures to settle their personal

disputes. See Jones v. Preuit & Mauldin, 851 F.2d 1321, 1326 (11th

App. 36

certainly intend to punish it. Private individuals who

associate themselves with a public official to encroach on

another’s constitutional rights must bear the risk of trial.

The qualified immunity defense serves to give public

officials the peace of mind required for their day-to-day

discretionary decisions. Accordingly, it shields the public

official from liability for wrong discretionary calls, pro-

vided they were made in good faith. The adoption of the

qualified immunity for public officials therefore reflects a

policy determination that it is better to have public offi-

cials make mistaken decisions based on a good faith

interpretation of the law, than not to make any decisions

at all. See Wyatt, __ U.S. at __, 112 S. Ct. at 1833.

In contrast, public policy clearly counsels against

employing the qualified immunity defense to encourage

private individuals to redress their differences with

another by conspiring with public officials to deprive that

person of his or her constitutional rights. At any rate, if

qualified immunity is not available to “private citizens

who rely unsuspectingly on state laws they did not create

and may have no reason to believe are invalid[,]” id., it

surely does not protect those who are alleged to have

acted in concert with public officials for the sole purpose

of violating another’s constitutional rights.

Private defendants who allegedly conspired with

public officials to deprive another of her constitutional

rights therefore are not entitled to qualified immunity

under section 1983. Accordingly, qualified immunity does

Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002, 109 S.

Ct. 1105, 103 L. Ed. 2d 170 (1989).

a

Oe nti Maer san

App. 37

: not shield Baggarly and Goldstein against Burrell’s sec-

tion 1983 claim.

B.

In part II B., we established that public officials can-

not assert qualified immunity against a section 1985(3)

claim. If qualified immunity to section 1985(3) liability is

unavailable to public officials, it must also elude private

defendants, including Baggarly and Goldstein.?5

IV.

For the reasons stated above we reverse the denial of

summary judgment on the ground of qualified immunity

to Baugh and Goldstein as public officials against Bur-

rell’s section 1983 claim, and affirm the denial of sum-

mary judgment on the ground of qualified immunity

against Burrell’s section 1983 claim to Goldstein and Bag-

garly as private defendants. Finally, we affirm the denial

of summary judgment on the ground of qualified immu-

nity against Burrell’s section 1985(3) claim to Baugh,

Goldstein, and Baggarly.

AFFIRMED in part and REVERSED in part.

23 As pointed out above, Goldstein brings this appeal, No.

90-8540, individually and in his capacity as First Federal

boardmember. See supra slip. op. at p. 3802.

hatin

App. 38

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-8540

MELBA J. BURRELL,

Plaintiff-Appellee,

versus

THE BOARD OF TRUSTEES

OF GA. MILITARY

COLLEGE, ET AL.,

Defendants,

JACOB L. GOLDSTEIN, ETC., and

ALVA L. BAGGARLY, ETC.,

Defendants-Appellants.

No. 90-8760

MELBA J. BURRELL,

Plaintiff-Appellee

versus

THE BOARD OF TRUSTEES OF GA. MILITARY COL-

LEGE, ALVA L. BAGGARLY, Individually and in his offi-

cial capacity as Chief Exec. Officer of First Fed. Sav. and

Loan Assn. of Milledgeville, THE MAYOR and ALDER-

MAN OF THE CITY OF MILLEDGEVILLE and Unknown

Co-Conspirators,

Defendants

JAMES E. BAUGH, Indiv. and in his official capacities as

Mayor of the City of Milledgeville, Ga. and Chairman of

v= RRR 4.71 AS wht

App. 39

the Board of Trustees of Ga. Military College, JACOB L.

GOLDSTEIN, Indiv. and in his official capacities as a

member of the Bd. of Dir. of First Fed. Sav. and Loan

Assoc. of Milledgeville and as a member of the Bd. of Tr.

of Ga. Military College,

Defendants-Appellants.

No. 90-8930

MELBA J. BURRELL,

Plaintiff-Appellee,

versus

THE BOARD OF TRUSTEES OF GA. MILITARY COL-

LEGE, JAMES E. BAUGH, Chairman of the Board of

Trustees of GA Military College, JACOB L. GOLDSTEIN,

As a member of the Board of Trustees of GA Military

college, and the MAYOR and ALDERMAN OF THE CITY

OF MILLEDGEVILLE,

Defendants-Appellants,

ALVA L. BAGGARLY, ETC., ET AL.,

Defendants.

Appeals from the United States District

Court for the District of

Middle District of Georgia

App. 40

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC

(Filed Oct 29, 1992)

Before: TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and

HILL, Senior Circuit Judge.

PER CURIAM:

(“) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are DENIED.

( ) The Petition(s) for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit

Judges who are in regular active service not having voted

in favor of it (Rule 35, Federal Rules of Appellate Pro-

cedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of

Rehearing En Banc are also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor of it, Rehearing En Banc is

DENIED. ;

ENTERED FOR THE COURT:

/s/ Gernald Tjoflat

UNITED STATES CIRCUIT JUDGE

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3