                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-1996

Grant v. City of Pittsburgh
Precedential or Non-Precedential:

Docket 95-3599,95-3600




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Grant v. City of Pittsburgh" (1996). 1996 Decisions. Paper 55.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/55


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT



                  Nos. 95-3599 and 95-3600


   WILLIAM GRANT; IKE HARRIS; AMBASSADOR DEVELOPMENT
      CORPORATION; LAZER DEVELOPMENT GROUP, INC.;
                    THE ASPEN GROUP

                            v.

    CITY OF PITTSBURGH; EUGENE RICCIARDI; JACK WAGNER;
       JAMES FERLO; DANIEL COHEN; MICHELLE MADOFF;
  DUANE DARKINS; BERNARD REGAN; PITTSBURGH CITY COUNCIL;
         CITY OF PITTSBURGH PLANNING COMMISSION;
      CITY OF PITTSBURGH HISTORIC REVIEW COMMISSION;
    JANE DOWNING; THOMAS W. ARMSTRONG; JOHN DESANTIS;
 MICHAEL EVERSMEYER; JOHN RAHAM; THE SOUTH SIDE PLANNING
       FORUM; THE SOUTH SIDE LOCAL DEVELOPMENT CO.;
  THE SOUTH SIDE COMMUNITY COUNCIL OF PITTSBURGH, INC.;
      THE BRASHEAR ASSOCIATION; SOUTH SIDE ANTIQUES;
ARTS & CRAFAX ASSOCIATION; GERALD MOROSCO; REBECCA FLORA;
  CYNTHIA ESSER; JOHN A. JOHNSTON; HUGH J. BRANNAN, III;
         THOMAS TRIPOLI; PRIVATE PARTY DEFENDANTS

               CITY OF PITTSBURGH; EUGENE RICCIARDI;
               JACK WAGNER, JAMES FERLO; DANIEL COHEN;
               MICHELLE MADOFF; DUANE DARKINS (deceased);
               BERNARD REGAN (deceased); PITTSBURGH CITY
               COUNCIL; CITY OF PITTSBURGH PLANING
               COMMISSION; CITY OF PITTSBURGH HISTORIC
               REVIEW COMMISSION; JANE DOWNING;
               THOMAS W. ARMSTRONG; JOHN DeSANTIS;
               MICHAEL EVERSMEYER and JOHN RAHAIM,
                                             Appellants



    On Appeal from the United States District Court
        for the Western District of Pennsylvania
                 (D.C. No. 92-cv-01837)



                    Argued July 17, 1996

     BEFORE:   SLOVITER, Chief Judge, COWEN and ROTH
                      Circuit Judges

                  (Filed October 18, 1996)
George R. Specter
City of Pittsburgh
Department of Law
313 City County Building
Pittsburgh, PA 15219

Joseph E. Linehan (argued)
Kevin F. McKeegan
Meyer, Unkovic & Scott
1300 Oliver Building
Pittsburgh, PA 15222

         COUNSEL FOR APPELLANTS

Charles H. Saul (argued)
Rosenberg & Kirshner
1500 Grant Building
Pittsburgh, PA 15219

Edwin J. Strassburger
Strassburger, McKenna, Gutnick & Potter
322 Boulevard of the Allies
Suite 700
Pittsburgh, PA 15222

         COUNSEL FOR APPELLEES



                             OPINION



COWEN, Circuit Judge.
         The question presented in this appeal is whether the
district court properly applied the test set forth by the Supreme
Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727
(1982), as refined by Anderson v. Creighton, 483 U.S. 635, 107 S.
Ct. 3034 (1987), in denying summary judgment to twelve individual
defendants on qualified immunity grounds. Specifically, we must
determine whether the district court improperly failed to analyze
separately the specific conduct of each defendant in the context of
determining whether plaintiffs had adduced evidence sufficient for
a factfinder to conclude that a reasonable public official would
have known that his or her conduct had violated clearly established
constitutional rights. Because we conclude that the district
court's analysis was deficient, we will remand to the district
court for a redetermination of the qualified immunity issue as to
each individual City Defendant under the proper legal standard. We
also clarify the extent to which courts, in resolving qualified
immunity on summary judgment, should consider the motivations of
public officials when those motivations are an essential element of
the underlying substantive constitutional claim.
                                I.
         The instant civil rights action arises out of actions
taken by certain public officials in the City of Pittsburgh,
primarily members of the City Council, Historic Review Commission
and Planning Commission ("City Defendants"), and certain private
individuals and organizations, in nominating two buildings for
historic preservation under Pittsburgh's Historic Structures,
District, Sites and Objects Ordinance. Pittsburgh, Pa., Code Title
1007, § 513. That nomination prevented the buildings from being
demolished and, thereby, thwarted plaintiffs William Grant's and
Ike Harris' plans to develop the property on which the buildings
were located. Claiming to have lost $400,000 due to the
nomination, Grant sought protection under Chapter Eleven of the
Bankruptcy Code.
         On August 24, 1992, Grant and Harris filed a complaint in
the District Court for the Western District of Pennsylvania, which
was subsequently twice amended, alleging violations of their rights
to equal protection of the laws, procedural and substantive due
process, and asserting various theories of recovery under
Pennsylvania common law. They alleged, inter alia, that in acting
upon the proposed nomination, the City Defendants were motivated
not by the public interest but by partisan political or personal
reasons having nothing to do with historic preservation.
Specifically, the district court characterized the plaintiffs'
allegations in the following manner:
         Plaintiffs' central theory of the case is that
         the private party defendants and the city
         defendants orchestrated a scheme to thwart
         plaintiffs' project in order to keep the
         mayoral administration from receiving credit
         in the upcoming election for the project's
         projected economic revenue and jobs and to
         assure that the property was developed by a
         local developer.

Grant v. City of Pittsburgh, No. 92-CV-1837, slip op. at 24-25
(W.D. Pa. Sept. 28, 1995).
         The City Defendants initially moved to dismiss Grant's
complaint and amended complaint under Fed. R. Civ. P. 12(b)(6),
raising among other issues the defense of qualified immunity. On
August 17, 1993, the district court issued an opinion and order
granting in part and denying in part the City Defendants' motion;
the district court rejected their claim of qualified immunity, and
the City Defendants did not appeal that decision. After engaging
in considerable pretrial discovery, all defendants subsequently
moved for summary judgment, claiming that the plaintiffs' evidence
failed to demonstrate a disputed issue of material fact on
liability. Additionally, the City Defendants moved for summary
judgment on the issue of qualified immunity.
         On September 28, 1995, the district court issued an
opinion and order granting summary judgment to the City Defendants
on all theories of liability except substantive due process. As to
that theory of recovery, the district court stated that "[t]he
instant record contains sufficient evidence from which the finder
of fact could conclude that defendants' actions were undertaken for
improper political motives and partisan political reasons." Id. at
40. The court then cited evidence in the record suggesting that
some City Defendants may have acted for improper purposes. The
district court did not address the qualified immunity issue.
         The City Defendants therefore filed a motion requesting
that the district court clarify its summary judgment ruling with
respect to the issue of qualified immunity. Approximately three
weeks after handing down its summary judgment ruling, the district
court granted the City Defendants' motion for clarification, but
denied their claims of qualified immunity, ruling as follows:
              Here, the substantive due process rights
         allegedly violated by the City [D]efendants
         clearly were established at the time of the
         alleged violation. . . . At the time of the
         alleged violation, it was well-settled in this
         jurisdiction that the arbitrary and capricious
         application of applicable law by an
         administrative body violates an individual's
         substantive due process rights. Accordingly,
         a reasonably competent public official would
         have known that the alleged conduct violated
         Grant's and Harris' substantive due process
         rights. In addition, plaintiffs have produced
         affirmative evidence sufficient to create a
         genuine issue of material fact as to whether
         each City [D]efendant knowingly violated Grant
         and Harris' substantive due process rights by
         assisting in the administration of the
         relevant ordinances for political or personal
         motives unrelated to the merits of the matter
         under consideration.

Grant v. City of Pittsburgh, No. 92-CV-1837, slip op. at 3-4 (W.D.
Pa. Oct. 16, 1995) (citations omitted). This appeal followed.
                               II.
                                A.
         The district court had subject-matter jurisdiction over
plaintiffs' civil rights claims pursuant to 28 U.S.C. §§ 1331 and
1343(a)(3). To the extent that they turn on an issue of law,
decisions denying public officials qualified immunity are
considered final under the collateral order doctrine recognized in
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct.
1221 (1949). See Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct.
2806 (1985); see also Johnson v. Jones, ___ U.S. ___, 115 S. Ct.
2151 (1995). Because the question whether the district court
applied the correct legal standard is purely one of law, we
exercise appellate jurisdiction under 28 U.S.C. § 1291.
                                B.
         Plaintiffs contend, however, that the City Defendants'
failure to appeal from the district court's denial of their Rule
12(b)(6) motion, insofar as it rejected their claim of entitlement
to qualified immunity, somehow divests us of our appellate
jurisdiction. Plaintiffs' contention is essentially that a party
is not entitled to appeal the denial of a motion for summary
judgment where that motion raises the same legal arguments as a
prior motion to dismiss, and where that party has failed timely to
appeal the denial of the prior motion. This argument is without
merit.
         Plaintiffs cite three cases to support this proposition.
The first of those, Kenyatta v. Moore, 744 F.2d 1179 (5th Cir.
1984), is inapposite. In that case, the defendants had made two
motions for summary judgment that were both denied, the first based
on absolute immunity and the second, made several years later,
based on qualified immunity. See id. at 1181-82. The bulk of the
court's opinion is concerned with rejecting the defendants'
argument that the later ruling, on qualified immunity, is
appealable on an interlocutory basis pursuant to the collateral
order doctrine (Defendants' position ultimately was embraced, of
course, by the Supreme Court in Mitchell, 472 U.S. at 530, 105 S.
Ct. at 2817). See id. at 1182-86. In the remainder of the
opinion, the court rejected the defendants' argument that they
could appeal the denial of the earlier motion, even though that
appeal would otherwise be untimely, on the ground that
interlocutory appeals are not governed by the time provisions of
Fed. R. App. P. 4. See id. at 1186-87. Nowhere in that opinion does
the court intimate that it did not have jurisdiction over the later
ruling because the defendants had failed to appeal the earlier
ruling. Indeed, the case would be an inappropriate vehicle for
such a holding because the two rulings addressed different legal
theories.
         In Taylor v. Carter, 960 F.2d 763, 764 (8th Cir. 1992),
also cited by the plaintiffs, the defendants had attempted to
appeal from the denial of a motion for summary judgment that had
been made subsequent to a prior unsuccessful summary judgment
motion based on the same legal grounds, and had failed to appeal
the denial of the prior motion. No such successive Rule 56 motions
are at issue here.
         In the third case cited by the plaintiffs, Armstrong v.
Texas State Bd. of Barber Examiners, 30 F.3d 643, 644 (5th Cir.
1994), the defendants had filed a motion to dismiss, which was
denied, and the defendants declined to appeal. The defendants
subsequently filed a motion for summary judgment, but that motion
was brought before discovery had been completed and the motion
relied on no material outside the pleadings. See id. The Court of
Appeals for the Fifth Circuit concluded that, although "brought
under different rules and . . . guided by different standards of
review," the two motions were functionally equivalent to one
another because both were addressed solely to the pleadings and
both raised the same legal arguments. Id. The court concluded
that "[u]nder these unique circumstances" where "the two motions
are substantially the same," it would not allow an appeal of a
denial of the second motion. Id.
         Assuming without deciding that we would agree with the
Fifth Circuit's analysis in Armstrong in an appropriate case, the
"unique circumstances" identified in that case do not exist here.
The motion for summary judgment in this case differed from the
motion to dismiss in more than name only. Though both relied on
the same legal theory (qualified immunity), the second motion did
not merely address the pleadings but also relied on matters
obtained during extensive discovery. Thus, the two motions are not
"substantially the same," and the City Defendants' failure to
appeal the denial of their Rule 12(b)(6) motion does not prevent
this Court from exercising jurisdiction over their appeal from the
denial of their Rule 56 motion.
         This conclusion is bolstered by the Supreme Court's
decision last Term in Behrens v. Pelletier, ___ U.S. ___, 116 S.
Ct. 834 (1996). In Behrens, unlike this case, the defendants
hadunsuccessfully appealed the district court's denial of their Rule
12(b)(6) motion on qualified immunity grounds. When they took a
subsequent appeal from the district court's later denial of their
motion for summary judgment on qualified immunity grounds, the
Court of Appeals for the Ninth Circuit dismissed the appeal for
lack of appellate jurisdiction. Reversing, the Supreme Court held
that "Mitchell clearly establishes that an order rejecting the
defense of qualified immunity at either the dismissal stage or the
summary-judgment stage is a 'final' judgment subject to immediate
appeal." Id. at ___, 116 S. Ct. at 839.
         Although stated in terms of finality rather than
timeliness, Behrens' holding, that a defendant who raises the
defense of qualified immunity at both the dismissal and summary
judgment stage of the proceedings is entitled to appeal adverse
rulings each time, indicates a fortiori that there is nothing to
prevent a defendant from appealing an adverse ruling issued at one
stage but not the other.
         Furthermore, adopting plaintiffs' position would have the
effect of forcing every public official, as a prerequisite to
taking an appeal from a potential subsequent order denying summary
judgment, to appeal from the denial of a Rule 12(b)(6) motion. We
decline to give our imprimatur to a rule that would dramatically
increase the number of interlocutory appeals at the dismissal
stage.
         Accordingly, we hold that the City Defendants' failure to
appeal at the dismissal stage poses no impediment to our appellate
jurisdiction to review the district court's qualified immunity
determination at the summary judgment stage.
                                III.
         Although we have appellate jurisdiction to review the
district court's denial of the City Defendants' motion for summary
judgment on qualified immunity grounds, the district court's
failure to analyze the conduct of each individual defendant with
respect to the constitutional right alleged to have been violated
makes that task virtually impossible. For the reasons we set forth
in more detail below, we will remand this case to the district
court to redetermine the qualified immunity issue with respect to
the conduct of each individual defendant.
                                 A.
                                 1.
         In Harlow v. Fitzgerald, the Supreme Court set forth the
applicable legal standard for qualified immunity: "government
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known." 457 U.S. 800, 818,
102 S. Ct. 2727, 2738 (1982). Five years later, in Anderson v.
Creighton, 483 U.S. 635, 107 S. Ct. 3034 (1987), the Court
clarified the objective test it had propounded in Harlow. The
Court in Anderson held that to defeat qualified immunity it is not
sufficient that the right at issue be clearly established as a
general matter. Rather, the question is whether a reasonable
public official would know that his or her specific conductviolated
clearly established rights. Id. at 636-37, 107 S. Ct. at
3037 (A "law enforcement officer who participates in a search that
violates the Fourth Amendment may [not] be held personally liable
for money damages if a reasonable officer could have believed that
the search comported with the Fourth Amendment.").
         Taking heed of the narrower focus required by Anderson(i.e., at
the official's specific conduct, not just the right
allegedly violated) is critical, for it can mean the difference
between immunity from suit and being held personally liable for
money damages. We recognized the significance of Anderson for
qualified immunity determinations in Brown v. Grabowski, 922 F.2d
1097 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 111 S. Ct. 2827
(1991). There, we interpreted Anderson to
         require[] analysis not only of the clear
         establishment of the right that an official is
         alleged to have violated, but also of the
         specific official actions alleged to have
         violated the right. Anderson thus appears to
         require a court faced with whether a claim of
         qualified immunity properly was denied to
         engage in an analysis of the facts adduced
         concerning the conduct of the official who
         claims immunity.

Id. 1111 (citations omitted). See also Erwin Chemerinsky, Federal
Jurisdiction § 8.6, at 478 (2d ed. 1994) ("The inquiry appears to be
whether the officer had reason to know that the specific conduct
was prohibited.").
         In strong tension with Anderson's requirement that a
court scrutinize the specific conduct at issue is the Supreme
Court's admonition that qualified immunity be resolved as early in
the litigation as possible. "The overriding problem is the Supreme
Court's insistence that the immunity defense be decided as a matter
of law, when the reality is that factual issues must frequently be
resolved in order to determine whether the defendant violated
clearly established federal law." Martin A. Schwartz, Section 1983
in the Second Circuit, 59 Brook. L. Rev. 285, 309 (1993). Thus,
crucial to the resolution of any assertion of qualified immunity is
a careful examination of the record (preferably by the district
court) to establish, for purposes of summary judgment, a detailed
factual description of the actions of each individual defendant
(viewed in a light most favorable to the plaintiff). See, e.g.,Johnson v.
Jones, ___ U.S. ___, ___, 115 S. Ct. 2151, 2155 (1995)
(the "issue appealed concern[s], not which facts the parties might
be able to prove, but, rather, whether or not certain given factsshowed a
violation of 'clearly established' law") (emphasis added).
                                2.
         In this case, the district court failed to rule on the
City Defendants' assertions of qualified immunity in its summary
judgment ruling. After the City Defendants filed a motion for
clarification, the district court addressed the qualified immunity
issue in a separate opinion and order. Although the district court
correctly recited the legal principles governing its resolution of
the qualified immunity issue under Harlow and Anderson, its
analysis fell short of the fact-intensive inquiry those cases
require.
         Specifically, the district court stated in conclusory
fashion that the right allegedly violated here--the substantive due
process right to be free from arbitrary and capricious
administrative action--was clearly established:
              Here, the substantive due process rights
         allegedly violated by the City [D]efendants
         clearly were established at the time of the
         alleged violation. . . . At the time of the
         alleged violation, it was well-settled in this
         jurisdiction that the arbitrary and capricious
         application of applicable law by an
         administrative body violates an individual's
         substantive due process rights.

Grant v. City of Pittsburgh, No. 92-CV-1837, slip op. at 3-4 (W.D.
Pa. Oct. 16, 1995). But nowhere in its decision denying qualified
immunity did the district court analyze the specific conduct of
each City Defendant with respect to the constitutional right at
issue. See Brown, 922 F.2d at 1111.
         At oral argument plaintiffs maintained that the district
court's earlier decision denying summary judgment on the
substantive due process claim contains a description of the
individual City Defendants' specific conduct sufficiently detailed
to support the district court's later decision denying qualified
immunity en masse. We disagree. With respect to eight of the City
Defendants--Raham, Armstrong, DeSantis, Eversmeyer, Downing,
Wagner, Ferlo, and Ricciardi--the summary judgment ruling fails to
set forth with enough specificity the conduct of each defendant
that the district court thought sufficient to defeat qualified
immunity. See Grant v. City of Pittsburgh, No. 92-CV-1837, slip
op. at 22-24 (W.D. Pa. Sept. 28, 1995). With respect to four other
City Defendants--Cohen, Darkins, Madoff and Regan (members of the
City Council who voted in favor of the designation)--the district
court announced no findings whatsoever. We will therefore remand
this matter to the district court to reevaluate the City
Defendants' claims of qualified immunity consistent with the
Supreme Court's decision in Anderson and our decision in Brown.
Cf. Vadino v. A. Valey Eng'rs, 903 F.2d 253, 257-59 (3d Cir. 1990)
(recognizing our supervisory authority to remand unexplained grants
of summary judgment for statement of reasons); Brown v. United
States, 851 F.2d 615, 620 (3d Cir. 1988) ("[A]lthough it is within
our power to do so, it would be inappropriate for us to decide this
question on appeal, even if the record provided a sufficient basis
for its resolution."). On remand the district court should analyze
separately the conduct of each City Defendant against the
constitutional right allegedly violated, i.e., the substantive due
process right to be free from arbitrary and capricious
administrative decisionmaking.
         We recognize, of course, that appeals from decisions
denying summary judgment are subject to plenary review. Thus, in
the usual case a district court's failure to apply the correct
legal standard would not preclude us from performing a de novoreview of
the summary judgment record to determine whether there
are material issues of fact in dispute. Cf. Vadino, 903 F.2d at
253 (recognizing supervisory authority to remand unexplained grants
of summary judgment but reviewing decision de novo). But with
regard to appeals from denials of summary judgment on qualified
immunity grounds our review is limited to determining "whether or
not certain given facts showed a violation of 'clearly established'
law." Johnson v. Jones, ___ U.S. at ___, 115 S. Ct. at 2155
(emphasis added). That standard presupposes that we have been
provided with a set of "certain given facts" against which to
measure the clearly established right allegedly violated. Cf.
Brown v. United States, 851 F.2d at 620. We think that the
district court, which has had this matter before it since August of
1992, is in far better position than we are to review the record
for evidence as to the specific conduct of each of the twelve City
Defendants. See Harlow v. Fitzgerald, 457 U.S. at 819-20, 102 S.
Ct. at 2739 ("We think it appropriate . . . to remand the case to
the District Court for its reconsideration of this issue in light
of this opinion. The trial court is more familiar with the record
so far developed and also is better situated to make any such
further findings as may be necessary.") (footnote omitted); Hare v.
City of Corinth, Mississippi, 74 F.3d 633, 638 (5th Cir. 1996) (en
banc) ("We leave to the district court the question whether there
are genuine issues of material fact measured by the correct [legal]
standard"); but see Johnson, ___ U.S. at ___, 115 S. Ct. at 2159
("[W]e concede that a court of appeals may have to undertake a
cumbersome review of the record to determine what facts the
district court, in the light most favorable to the nonmoving party,
likely assumed.").
                                B.
         Another issue requires our attention. The parties have
devoted substantial briefing to the question whether, in applying
Harlow's objective test for qualified immunity, a court may
"consider" evidence of a defendant's state of mind when motivation
is an essential element of the civil rights claim. We hold that it
can.
         Harlow teaches that whether the City Defendants in fact
knew that they were violating plaintiffs' constitutional rights is
simply irrelevant to that analysis. Harlow, 457 U.S. at 815-16,
102 S. Ct. at 2736-37. See also Mitchell v. Forsyth, 472 U.S. 511,
517, 105 S. Ct. 2806, 2810 (1985) (describing Harlow as having
"purged qualified immunity of its subjective components"). It is
now widely understood that a public official who knows he or she is
violating the constitution nevertheless will be shielded by
qualified immunity if a "reasonable public official" would not have
known that his or her actions violated clearly established law.
         The subjective inquiry that Harlow proscribes, however,
is distinct from the question whether a public official, in taking
official action that but for an improper motive would not be
legally proscribed, in fact harbored the improper motive. For
purposes of clarity, when we use the terms "state of mind" and
"motivation," we are referring to the state of mind element of the
underlying offense, rather than to the question whether the public
officials knew they were violating clearly established rights.
         The City Defendants claim that under Harlow their
subjective "political or personal motives" are irrelevant to the
qualified immunity analysis. The plaintiffs counter that the City
Defendants' formulation of the qualified immunity standard would
effectively prevent any plaintiff whose constitutional claim has as
an essential element the state of mind of the public officials from
ever getting past qualified immunity.
         Although we have not directly addressed this issue, cf.Losch v.
Borough of Parkesburg, Pennsylvania., 736 F.2d 903, 910
(3d Cir. 1984) (defendants' reasonableness and good faith go to
merits of plaintiff's retaliatory malicious prosecution claim),
several of our sister circuits have. Those courts have held, with
virtual unanimity, that, despite the broad language of Harlow,
courts are not barred from examining evidence of a defendant's
state of mind in considering whether a plaintiff has adduced
sufficient evidence to withstand summary judgment on the issue of
qualified immunity, where such state of mind is an essential
element of the constitutional violation itself. See Crawford-El v.
Britton, No. 94-7203, 1996 WL 480432 *3 (D.C. Cir. 1996) (en banc)
("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 . . .."); Broderick v. Roache, 996 F.2d 1294, 1298
(1st Cir. 1993); F.E. Trotter, Inc. v. Watkins, 879 F.2d 1312, 1316
(9th Cir. 1989); Auriemma v. Rice, 910 F.2d 1449, 1453-55 (7th Cir.
1990) (en banc), cert. denied. 501 U.S. 1204, 111 S. Ct. 2796
(1991); Poe v. Haydon, 853 F.2d 418, 430-32 (6th Cir. 1988), cert.
denied, 488 U.S. 1007, 109 S. Ct. 788 (1989); Pueblo Neighborhood
Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 647-48 (10th Cir.
1988); Musso v. Hourigan, 836 F.2d 736, 743 (2d Cir. 1988).
         In Halperin v. Kissinger, 807 F.2d 180 (D.C. Cir. 1986),
the District of Columbia Circuit created an minor exception to this
general rule. Plaintiffs in Halperin alleged that a wiretap of
their home violated the Fourth Amendment. Defendants claimed
qualified immunity on the basis that their actions were motivated
by national security interests. The court held that if the
national security justification was reasonable, defendants'
qualified immunity defense would prevail regardless of the
defendants' actual states of mind. In creating this exception, the
D.C. Circuit explicitly justified its holding by referring to the
special nature of national security cases. The national security
exception has not been expanded by the D.C. Circuit or by any other
court ruling on this matter.
         The substantive due process violation alleged in this
case is precisely the sort of claim where "clearly established law
makes the conduct legal or illegal depending upon the intent with
which it is performed." Id. at 184. By their very nature,
substantive due process claims of this kind involve the application
of otherwise legitimate government machinery to achieve an
illegitimate end. When public officials invoke administrative
processes for a legitimate purpose, they are acting in conformity
with the Constitution and cannot be violating "clearly established"
law (because they are not violating the law at all). But when the
same officials invoke administrative processes with an illicit
purpose, they are violating substantive due process guarantees and,
at the same time, "clearly established" law. Qualified immunity
is defeated not because the officials "in fact knew" that they were
violating the Constitution, id. at 186, but because "reasonably
competent public official[s]" who act with certain improper motives
"should know the law [proscribes their] conduct." Harlow, 457 U.S.
at 819, 102 S. Ct. at 2738 (emphasis added).
         The purely objective inquiry advocated by the City
Defendants would essentially insulate government officials from
liability for the very harm our substantive due process precedents
have sought to redress: using government authority to take actions
that, because of the improper motives of public officials, have no
rational relationship to a legitimate government purpose. See
generally Stephanie E. Balcerzak, Note, Qualified Immunity for
Government Officials: The Problem of Unconstitutional Purpose in
Civil Rights Litigation, 95 Yale L.J. 126, 127 (1985) ("[B]ecause
these suits often involve the intentional abuse of government
power, the Harlow standard would deny redress to victims of
precisely the kind of official misconduct that the civil rights
remedy was primarily intended to address.").
         We therefore join our sister circuits in adopting the
narrower view of Harlow. Accordingly, in evaluating a defense of
qualified immunity, an inquiry into the defendant's state of mind
is proper where such state of mind is an essential element of the
underlying civil rights claim.
                                2.
         The City Defendants complain, however, that such a test
is insufficient to weed out insubstantial claims at an early point
in the litigation, in direct tension with the Court's decisions in
Harlow, Mitchell, and Anderson. Since the issue of state of mind
will always be a question of fact that is "inextricably bound up
with the merits," Bolden v. Alston, 810 F.2d 353, 356 (2d Cir.),
cert. denied, 484 U.S. 896, 108 S. Ct. 229 (1987), allegations of
improper motive would mean that qualified immunity rarely, if ever,
could be determined as a matter of law. Accordingly, the City
Defendants ask us to follow the lead of several of our sister
circuits by imposing on civil rights plaintiffs some sort of
"heightened" procedural burden in §1983 claims in which improper
motive or intent is an essential element of the substantive
constitutional claim. See, e.g., Crawford-El, 1996 WL 480432, at
*3.
         We initially observe that the City Defendants are
incorrect to the extent they argue that the issue of qualified
immunity could never be determined as a matter of law without an
increased procedural burden. A district court could conclude (as
could a court of appeals) that, even assuming that the public
official acted with the improper intent, a reasonable public
official would not have known that his or her specific conduct,
taken with that intent, violated clearly established law. Indeed,
it is precisely because of this possibility that we are remanding
this matter to the district court for a conduct-specific analysis
of the qualified immunity issue as it applies to each defendant.
         Nevertheless, we agree that a per se denial of qualified
immunity, whenever a plaintiff has alleged improper motive or
intent, might inadequately cloak officials from vexatious lawsuits
and unnecessary interference with the exercise of their public
duties. We further recognize that intent-based claims are
particularly vulnerable to groundless allegations by the plaintiff
which in turn might lead to time-consuming discovery. We believe
nevertheless that Fed. R. Civ. P. 56, as well as the principles
expounded by the Supreme Court in Celotex v. Catrett, 477 U.S. 317,
106 S. Ct. 2548 (1986), adequately protect defendants from
unfounded claims. We are, after all, attempting to balance the
defendants' need for protection from unfounded claims and vexatious
litigation, with the plaintiff's rights to vindicate his or her
constitutionally guaranteed rights. We think that Rule 56 strikes
the best compromise between these two competing interests.
         First, Celotex clearly states that the moving party bears
no burden of disproving unsupported claims. See Celotex, 477 U.S.
at 324, 106 S. Ct. at 2553. Thus, the defendant officer need only
identify those claims that are deficient within the complaint,
without engaging in a lengthy defense of his conduct. Coupled with
a district court's reasonable limitation on discovery, Celotex
adequately protects public officials from groundless allegations of
"bad" intent. The Fifth Circuit agreed with this position in
Tompkins v. Vickers, 26 F.3d 603, 608 (5th Cir. 1994), in which it
held that a teacher could rely on circumstantial as well as direct
evidence to prove unconstitutional motive in opposing a summary
judgment motion, thereby rejecting the defendant's request for a
heightened standard of proof for summary judgment: "[W]e are
convinced that the requirements of Rule 56 accommodate the
interests of public officials seeking protection from groundless
claims as well as the interests of plaintiffs seeking vindication
of constitutional rights." Other circuits have taken this approach
as well. See Cuyahoga Valley Bd. of Education, 926 F.2d 505, 512
(6th Cir. 1991); Feliciano-Angulo v. Rivera Cruz, 858 F.2d 40, 47-
48 (1st Cir. 1988); cf. Blue v. Koren, 72 F.3d 1075, 1083-1084 (2d
Cir. 1995) (adopting "heightened" standard but noting court's doubt
that standard "imposes a burden greater than is already required
under Fed. R. Civ. P. 56").
         Finally, we note that a heightened summary judgment
standard is not only unnecessary, but also undesirable in light of
the Supreme Court's decision in Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S. Ct. 2505 (1986), which held that the burden of
proof at the summary judgment stage and the trial stage are
identical.
                               IV.
         We will remand this case to the district court to
reevaluate the City Defendants' claims of qualified immunity
consistent with this opinion. The district court should take care
to analyze separately, and state findings with respect to, the
specific conduct of each individual City Defendant, including his
or her motives.
         Each party to bear its own costs.
