1996 Decisions

Opinions of the United

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Precedential or Non-Precedential: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

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Recommended Citation

"Grant v. City of Pittsburgh" (1996). 1996 Decisions. Paper 55.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/55
 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.