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PROPST, Senior District Judge, specially concurring:

     I join the court’s opinion on petition for rehearing.      I

write separately to address broader issues relating to qualified

immunity.

     At a recent Eleventh Circuit Judges’ Workshop, a speaker

remarked that “Keeping up with qualified immunity law is a full-

time job.”   As a trial judge, I can well see how one might reach

that conclusion.   I concur in the denial of rehearing as to

federal qualified immunity asserted by the defendants in their

individual capacities.    In doing so, I humbly make some

suggestions which may reduce the workload of the followers of

this still developing law.    Although I, as a trial judge, granted

qualified immunity to the two individual defendants in Jenkins v.

Talladega City Board of Education, 95 F.3d 1036 (11th Cir. 1996)

, and later concurred in the denial of qualified immunity in this

case, I submit that there is no inconsistency.1

     Our holding in this case is premised on the holding in Bell

v. Wolfish, 441 U.S. 520 (1979).       Bell clearly holds that “under

the Due Process Clause, a detainee may not be punished prior to

an adjudication of guilt in accordance with due process of law.”

Id., 441 U.S. at 535.    Having held that punishment of pretrial



     1
      Ironically, the majority in Jenkins partially relied upon
this case in arriving at its holding. That opinion has now been
vacated because of the granting of an en banc rehearing by the
court.

                                   1
detainees violates the Due Process Clause, the Court proceeded to

determine what factors are considered in determining whether

conduct constitutes “punishment.”

     The Court, after stating that factors identified in Kennedy

v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), “[provide]

useful guideposts in determining whether particular restrictions

and conditions accompanying pretrial detention amount to

punishment in the constitutional sense of that word,” concluded

that, “A court must decide whether the disability is imposed for

the purpose of punishment or whether it is but an incident of

some other legitimate governmental purpose. . . .    Absent a

showing of an expressed intent to punish on the part of detention

facility officials, that determination will generally turn ‘on

whether an alternative purpose to which [the restriction] may

rationally be connected is assignable for it, and whether it

appears excessive in relation to the alternative purpose assigned

[to it].’   Kennedy v. Mendoza Martinez, supra, at 168-69. . . .”

(emphasis added).    Id., 441 U.S. at 538.   The Court added,

     Thus, if a particular condition or restriction is

     reasonably related to a legitimate governmental

     objective, it does not, without more, amount to

     ‘punishment.’   Conversely, if a restriction or

     condition is not reasonably related to a legitimate

     goal -- if it is arbitrary or purposeless -- a court

     may infer that the purpose of the governmental action
     is punishment that may not constitutionally be


                                  2
     inflicted upon detainees qua detainees (emphasis

     added).



Id., 441 U.S. at 539.

     Whether discussed in the context of “expressed intent” to

punish, or in the context of determining the existence of a

legitimate governmental goal, the purpose of the conduct is

significant, and the purpose may be inferred from the total

evidence.   Both purpose and intent are fact related and it is

difficult for me to see how such issues can be determined as a

matter of law; particularly when the claim is that it was

necessary to place a pretrial detainee on death row in order to

protect him.   Such is the issue in this case.2

     On the other hand, Jenkins, supra, is not a case involving

the Due Process Clause nor the subjective intent or purpose of

the alleged violators.   The Jenkins claims are Fourth Amendment

claims which are properly analyzed under the Fourth Amendment’s

“objective reasonableness” standard rather than under a

subjective due process standard.       See Graham v. Connor, 490 U.S.

386 (1989).    While the Bell Due Process Clause analysis requires,
as an essential element, proof of expressed intent or at least

circumstantial evidence of an unlawful purpose, the Fourth

     2
      In this case, the underlying issue is intentional or
purposeful punishment, vel non. The means of punishment, if it
occurred, would appear to be incidental. While perhaps not
raised by the plaintiff as a Fifth Amendment claim, one could
argue that the purpose of the death row placement was to induce a
confession. I will leave it to others to determine if a Fifth
Amendment inquiry is purely objective.

                                   3
Amendment analysis does not require any inquiry into subjective

state of mind or purpose.   Graham, supra, 490 U.S. at 398.

     Having noted this distinction, I further suggest that the

holding in Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150

(11th Cir. 1994) (en banc), that “Courts must not permit

plaintiffs to discharge their burden by referring to general

rules and to the violation of ‘abstract rights,’” is more easily

applied in cases, such as Fourth Amendment cases, where the

underlying inquiry is one of objective reasonableness.   I thus

distinguish the facts and issues of this case from those in

Jenkins.   In Jenkins the issue is whether reasonable officials

would know that their conduct was objectively unreasonable.3

Such inquiries require more than an abstract consideration of

Fourth Amendment law.   If the inquiry in Jenkins had involved an

element of intent or purpose, the intent or purpose, not the

specific conduct, may have been the appropriate issue to focus

upon if the inappropriateness of such intent or purpose had been

     3
      See Foy v. Holston, 94 F.3d 1528 where the Court stated:
          To prevail on a claim about family privacy, parents
          need to prove that a state actor interfered with a
          protected liberty interest without sufficient
          justification. This constitutional tort requires no
          element of intent. . . . Violations of the right to
          family association are determined by a balancing of
          competing interests. . . so, state officials who act
          to investigate or to protect children where there are
          allegations of abuse almost never act within the
          contours of “clearly established law.”

The Jenkins majority would apparently require the defendants, in
the acknowledged absence of clearly established Eleventh Circuit
law, to, by inductive consideration of a factually distinct
Supreme Court case and one Associate Justice’s dicta, decide what
the Eleventh Circuit would likely hold.

                                 4
clearly established.    The Jenkins majority relied upon a Supreme

Court case which states that searches must be reasonable under

the circumstances.4    This is little more direction than the

insight that the Fourth Amendment itself provides.5    Apparently,

the Jenkins majority would hold that public officials must

determine whether a controlling appellate court will determine

that certain conduct is egregious enough to qualify as being

unreasonable even though none has specifically so held.

     Perhaps no case provides a better example of the requirement

of prior concrete law in Fourth Amendment cases that does Wright

v. Whiddon, 951 F.2d 297 (11th Cir. 1992).    Tennessee v. Garner,

471 U.S. 1 (1985) clearly established that the use of deadly

force to apprehend a fleeing, non-dangerous felony suspect is a

constitutionally unreasonable seizure under the Fourth

Amendment.6   Garner was decided six months before the incident in

Wright.   In Wright, a person who had been arrested on a charge of

armed robbery and had confessed to the crime ran from a

courthouse while awaiting a probation revocation hearing.       The

escapee was admittedly unarmed, but was fatally wounded as he ran

down an alley.   The court held that Garner did not clearly
establish that deadly force cannot be used against a fleeing,


     4
      "[w]hether there was a reasonable relationship between the
scope of the search (the measures adopted and the objectives of
the search”).
     5
      "The right of the people to be secure in their persons
. . . against unreasonable search and seizures. . . .”
     6
      See also Acoff v. Abston, 762 F.2d 1543 (11th Cir. 1985).

                                  5
previously arrested, non-dangerous felon.   Thus, the police

officer who shot the fleeing felon was entitled to qualified

immunity.7

     Since this case, unlike Jenkins and Wright, implicates

subjective intent or motive, the issue remains as to how such

intent claims are to be considered during the course of a

qualified immunity analysis.   In Ratliff v. DeKalb County, Ga.,

62 F.3d 338, 341 (11th Cir. 1995), the court stated, “We are

bound by our earlier holding that, in qualified immunity cases,

intent is a relevant inquiry if discriminatory intent is a

specific element of the constitutional tort; and, we follow that

rule here.”   Compare, however, Hansen v. Solden-Wagner, 19 F.3d

573, 578 (11th Cir. 1994)(“For qualified immunity purposes, the

subjective motivation of the defendant official is immaterial

. . . Harlow’s objective standard would be rendered meaningless

if a plaintiff could overcome a summary judgment motion based on

qualified immunity by injecting the defendant’s state of mind

into the pleadings.”)8

     7
      Of interest as it relates to the facts of this case is the
following dictum in Wright: “At a minimum, ‘[i]t is clear . . .
that the Due Process Clause protects a pretrial detainee from the
use of excessive force that amounts to punishment.’ Graham [v.
Garner, 471 U.S. 1 (1985)], 109 S.Ct. at 1871 n. 10.” This
dictum clearly distinguishes the appropriate analysis here from
that in Jenkins.
     8
      This holding was made in even a First Amendment case where
an element of the Mt. Healthy analysis includes a determination
of whether the defendant’s conduct was substantially motivated by
a consideration of the plaintiff’s protected speech. See Mt.
Healthy v. Doyle, 429 U.S. 274 (1979). Compare Hansen’s holding
to that in Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir.
1996).

                                 6
    In the recent case of Foy v. Holston, cited supra, the court

attempted to strike a balance in cases in which intent is an

element of the underlying claim. The court in Foy stated,
     One trigger to the doctrine’s application depends upon
     whether the record establishes that the defendant, in
     fact, did possess a substantial lawful motive for
     acting as he did act. At least when an adequate lawful
     motive is present, that a discriminatory motive might
     also exist does not sweep qualified immunity from the
     field even at the summary judgment stage. Unless it,
     as a legal matter, is plain under the specific facts
     and circumstances of the case that the defendant’s
     conduct--despite his having adequate lawful reasons to
     support the act--was the result of his unlawful motive,
     the defendant is entitled to immunity. Where the facts
     assumed for summary judgment purposes in a case
     involving qualified immunity show mixed motives (lawful
     and unlawful motivations) and pre-existing law does not
     dictate that the merits of the case must be decided in
     plaintiff’s favor, the defendant is entitled to
     immunity.



In note 9, the court added:

          We know that matters of intent are often jury
          questions. But, even at summary judgment,
          “where the defendant’s justification evidence
          completely overcomes any inference to be
          drawn from the evidence submitted by the
          plaintiff the [] court may properly
          acknowledge that fact. . . .” Young v.
          General Foods Corp., 840 F.2d 825, 830 (11th
          Cir. 1988)(quoting Grigsby v. Reynolds Metals
          Co., 821 F.2d 590, 597 (11th Cir.
          1987)). . . . Here the record, in fact,
          shows substantial lawful intent, while not
          ruling out some unlawful intent, too. Unlike
          McMillian and Ratliff (which involved pointed
          district court fact findings--that we did not
          review--about the intent of the defendants
          and in which the Mt. Healthy doctrine was not
          discussed), we are deciding the qualified
          immunity question based on circumstances
          which include indisputable and sufficient
          lawful motivations on the part of
          Defendants.”.


                                7
     Crawford, El v. Britton, 93 F.3d 813 (D.C. Cir. 1996) (en

banc), proposes another solution, in cases involving the intent

or motive of public officials, to preserving the holding in

Harlow v. Fitzgerald, 457 U.S. 800 (1982) that requires some

protection to such officials from the costs of lawsuits that

unduly chill their exercise of discretion in the performance of

their public duties. The apparent majority of the court held that

when motive or intent is an essential element of a constitutional

tort claim, the plaintiff, in opposition to a motion for summary

judgment based on qualified immunity, has to present clear and

convincing evidence that the defendant acted with an

unconstitutional motive.   The court split with regard to the

amount of discovery to be allowed to plaintiffs on the intent or

motive issue before the trial court rules on such motions.    While

the number of concurring opinions makes it difficult to ascertain

the holdings of the court, at least one commentator has stated

that while Judge Williams’ “opinion for the court” adopted the

clear and convincing standard, Judge Ginsburg’s opinion prevailed

as to the amount of discovery allowed.   Judge Ginsburg wrote that

“a plaintiff [should be allowed] to pursue limited discovery only

upon a showing that he has a reasonable likelihood of turning up

evidence that a jury could consider clear and convincing proof of

the defendant’s unconstitutional motive. . . .”   It appears that

Judge Silberman apparently stood alone in his view that there

should be only an objective inquiry into the pretext of an

                                 8
asserted legitimate motive.     Judge Silberman would apparently

hold that if a defendant articulates any reasonable motive for

his actions, he is entitled to summary judgment unless a jury

might find that such a suggested motive, whether true or false,

would be unreasonable.     Apparently a jury would not be allowed to

determine the true motive.     Judge Silberman’s view is close to

the holding in Foy.

     In note 5 of Foy, the court remarked on the difference

between constitutional torts which require proof of intent or

motive and those that don’t.     The court stated:

             But, many constitutional torts do not require
             the plaintiff to prove that the defendant
             possessed discriminatory intent in acting.
             For qualified immunity in such cases, no
             court doubts that Harlow’s test of objective
             reasonableness applies: The subjective intent
             of the government actor is unimportant to the
             resolution of the qualified immunity issue.
             The sole question is whether any reasonable
             official (regardless of subjective motive)
             could have acted as the defendant acted
             without violating clearly established law.

Jenkins involves the type case discussed in note 5 in Foy.      Our

instant case does implicate the subjective intent of the

defendant.    An issue is whether claims involving subjective

intent are appropriate for summary judgment based upon qualified

immunity if a legitimate motive is simply posited.    I find it

difficult to see how such cases can be determined at the summary

judgment stage if there is any substantial evidence of an illegal

motive in view of the established law which precludes a trial

court’s making credibility determinations, weighing the evidence,

and interfering with a jury’s drawing of legitimate inferences
                                   9
from the evidence.   See Welch v. Celotex Corp., 951 F.2d 1235,

1237 (11th Cir. 1992).

     I fully agree with the concerns expressed by various judges

about the exponential growth of such claims against public

officials.9   I am simply concerned that the rules be “clearly

established” so that neither parties nor trial courts will have

to continue to play panel roulette and can avoid unnecessary and

costly appeals.   For an indication of the difficulty facing trial

courts, compare the holding in Foy, supra, with that in Ratliff,

supra, and the vacated Jenkins majority opinion with the opinion

in Wright. Also consider the above quoted statement in Hansen.

While our holding in this case appears to be consistent with that

in Ratliff, it may be somewhat inconsistent with that in Foy,

although Foy purports to distinguish our holding.

     I suggest that the qualified immunity issues cry out for

further en banc consideration, especially as to the claims

involving intent or motive as an element vis a vis those which do

not.10




     9
      See Judge Silberman’s opinion in Crawford-El, supra, for a
historical and statistical analysis.
     10
      Crawford-El, supra, recognizes that trial courts are
caught in a “vortex of changing standards.”

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