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. e du/thir dc ir c uit_1996/55UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-3599 and 95-3600

WILLIAM GRANT; IKE HARRIS; AMBASSADOR DEVEL OPMENT CORPORATION; LAZER DEVELOPMENT GROUP, IN C.;

THE ASPEN GROUP

v.

CITY OF PITTSBURGH; EUGENE RICCIARDI; JACK WAGNER; JAMES FERLO; DANIEL COHEN; MICHELLE MADO FF; DUANE DARKINS; BERNARD REGAN; PITTSBURGH CITY COUNCIL;

CITY OF PITTSBURGH PLANNING COMMISSION ;
CITY OF PITTSBURGH HISTORIC REVIEW COMMIS SION; JANE DOWNING; THOMAS W. ARMSTRONG; JOHN DES ANTIS; MICHAEL EVERSMEYER; JOHN RAHAM; THE SOUTH SIDE PLANNING FORUM; THE SOUTH SIDE LOCAL DEVELOPMENT CO.;

THE SOUTH SIDE COMMUNITY COUNCIL OF PITTSBURG H, INC.; THE BRASHEAR ASSOCIATION; SOUTH SIDE ANTI QUES; ARTS & CRAFAX ASSOCIATION; GERALD MOROSCO; REBE CCA FLORA; CYNTHIA ESSER; JOHN A. JOHNSTON; HUGH J. BRAN NAN, III; THOMAS TRIPOLI; PRIVATE PARTY DEFENDAN TS

CITY OF PITTSBURGH; EUGENE RICCI ARDI; JACK WAGNER, JAMES FERLO; DANIEL COHEN; MICHELLE MADOFF; DUANE DARKINS ( deceased); BERNARD REGAN (deceased); PITTSB URGH CITY COUNCIL; CITY OF PITTSBURGH PLAN ING COMMISSION; CITY OF PITTSBURGH H ISTORIC REVIEW COMMISSION; JANE DOWNING; THOMAS W. ARMSTRONG; JOHN DeSANT IS;
MICHAEL EVERSMEYER and JOHN RAHA IM, Ap pellants

On Appeal from the United States District Court for the Western District of Pennsylvan ia (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 w hether 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 twe lve individual defendants on qualified immunity grounds. Specific ally, we must determine whether the district court improperly fai led to analyze separately the specific conduct of each defendant i n the context of determining whether plaintiffs had adduced evidence sufficient for a factfinder to conclude that a reasonable public o fficial would
have known that his or her conduct had violated cle arly established constitutional rights. Because we conclude that th e district court's analysis was deficient, we will remand to t he district court for a redetermination of the qualified immuni ty issue as to each individual City Defendant under the proper leg al standard. We also clarify the extent to which courts, in resolvi ng qualified immunity on summary judgment, should consider the m otivations of public officials when those motivations are an esse ntial 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 Pi ttsburgh, primarily members of the City Council, Historic Rev iew Commission and Planning Commission ("City Defendants"), and ce rtain private individuals and organizations, in nominating two bu ildings for historic preservation under Pittsburgh's Historic S tructures, District, Sites and Objects Ordinance. Pittsburgh, Pa., Code Title 1007, § 513. That nomination prevented the buildin gs from being demolished and, thereby, thwarted plaintiffs Willia m Grant's and Ike Harris' plans to develop the property on which the buildings were located. Claiming to have lost $400,000 due t o the nomination, Grant sought protection under Chapter E leven of the Bankruptcy Code. On August 24, 1992, Grant and Harris filed a complaint in
the District Court for the Western District of Penn sylvania, which was subsequently twice amended, alleging violations of their rights to equal protection of the laws, procedural and sub stantive 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 w ere motivated not by the public interest but by partisan politica l or personal reasons having nothing to do with historic preserva tion. 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 cred it 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 o p. at 24-25 (W.D. Pa. Sept. 28, 1995). The City Defendants initially moved to dis miss 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 opini on and order granting in part and denying in part the City Defen dants' motion; the district court rejected their claim of qualifie d 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 plain tiffs' 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 wh ich the finder
of fact could conclude that defendants' actions wer e undertaken forimproper political motives and partisan political r easons." Id. at

40. The court then cited evidence in the record su ggesting that some City Defendants may have acted for improper pu rposes. The district court did not address the qualified immuni ty issue. The City Defendants therefore filed a moti on requesting that the district court clarify its summary judgmen t ruling with respect to the issue of qualified immunity. Approx imately three weeks after handing down its summary judgment rulin g, the district court granted the City Defendants' motion for clari fication, but denied their claims of qualified immunity, ruling a s follows: Here, the substantive due process rig hts allegedly violated by the City [D]efendant s clearly were established at the time of th e alleged violation. . . . At the time of th e alleged violation, it was well-settled in this jurisdiction that the arbitrary and capric ious application of applicable law by an administrative body violates an individual 's substantive due process rights. According ly, a reasonably competent public official wou ld have known that the alleged conduct violat ed Grant's and Harris' substantive due proces s rights. In addition, plaintiffs have prod uced
affirmative evidence sufficient to create a genuine issue of material fact as to wheth er each City [D]efendant knowingly violated G rant and Harris' substantive due process rights by assisting in the administration of the relevant ordinances for political or perso nal
motives unrelated to the merits of the mat ter
under consideration.

Grant v. City of Pittsburgh, No. 92-CV-1837, slip o p. at 3-4 (W.D. Pa. Oct. 16, 1995) (citations omitted). This appea l followed.

II.

A. The district court had subject-matter juri sdiction over plaintiffs' civil rights claims pursuant to 28 U.S. C. §§ 1331 and 1343(a)(3). To the extent that they turn on an iss ue of law, decisions denying public officials qualified immuni ty are
considered final under the collateral order doctrin e 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 dist rict court applied the correct legal standard is purely one of law, we exercise appellate jurisdiction under 28 U.S.C. § 1 291.

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 ap pellate jurisdiction. Plaintiffs' contention is essentiall y that a party is not entitled to appeal the denial of a motion fo r summaryjudgment where that motion raises the same legal ar guments as a

prior motion to dismiss, and where that party has f ailed timely to appeal the denial of the prior motion. This argume nt is without
merit. Plaintiffs cite three cases to support thi s proposition. The first of those, Kenyatta v. Moore, 744 F.2d 117 9 (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 y ears later, based on qualified immunity. See id. at 1181-82. The bulk of the court's opinion is concerned with rejecting the def endants' argument that the later ruling, on qualified immuni ty, is appealable on an interlocutory basis pursuant to th e 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 remainde r of the opinion, the court rejected the defendants' argumen t that they could appeal the denial of the earlier motion, even though that appeal would otherwise be untimely, on the ground t hat 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 jurisdictio n 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 di fferent legal
theories. In Taylor v. Carter, 960 F.2d 763, 764 (8t h Cir. 1992), also cited by the plaintiffs, the defendants had at tempted to appeal from the denial of a motion for summary judg ment that had been made subsequent to a prior unsuccessful summar y judgment motion based on the same legal grounds, and had fai led 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, 6 44 (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, b ut that motion was brought before discovery had been completed and the motion relied on no material outside the pleadings. See i d. The Court of Appeals for the Fifth Circuit concluded that, altho ugh "brought under different rules and . . . guided by different standards of review," the two motions were functionally equivale nt to one another because both were addressed solely to the p leadings and both raised the same legal arguments. Id. The cou rt concluded that "[u]nder these unique circumstances" where "th e 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 ag ree with the Fifth Circuit's analysis in Armstrong in an appropr iate case, the "unique circumstances" identified in that case do n ot exist here. The motion for summary judgment in this case differ ed from the motion to dismiss in more than name only. Though b oth relied on the same legal theory (qualified immunity), the sec ond motion didnot 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 doe s not prevent this Court from exercising jurisdiction over their appeal from the
denial of their Rule 56 motion. This conclusion is bolstered by the Suprem e 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 den ial of their Rule 12(b)(6) motion on qualified immunity grounds. Whe n they took a subsequent appeal from the district court's later d enial of their motion for summary judgment on qualified immunity g rounds, the Court of Appeals for the Ninth Circuit dismissed th e appeal for lack of appellate jurisdiction. Reversing, the Sup reme Court held that "Mitchell clearly establishes that an order re jecting the defense of qualified immunity at either the dismiss al stage or the summary-judgment stage is a 'final' judgment subjec t to immediate appeal." Id. at ___, 116 S. Ct. at 839. Although stated in terms of finality rathe r 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 ap peal adverse rulings each time, indicates a fortiori that there is nothing to prevent a defendant from appealing an adverse rulin g issued at one stage but not the other. Furthermore, adopting plaintiffs' position would have the effect of forcing every public official, as a prere quisite 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 Defenda nts' failure to appeal at the dismissal stage poses no impediment t o our appellate jurisdiction to review the district court's qualifi ed immunity determination at the summary judgment stage.

III. Although we have appellate jurisdiction to review the district court's denial of the City Defendants' mot ion for summary judgment on qualified immunity grounds, the distric t court's failure to analyze the conduct of each individual d efendant with respect to the constitutional right alleged to have been violated makes that task virtually impossible. For the reas ons we set forth in more detail below, we will remand this case to t he district court to redetermine the qualified immunity issue w ith 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 genera lly are shielded from liability for civil damages insofar as their c onduct does not violate clearly established statutory or constituti onal rights ofwhich 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), th e Court clarified the objective test it had propounded in H arlow. The Court in Anderson held that to defeat qualified imm unity it is not sufficient that the right at issue be clearly estab lished 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 i n a search that violates the Fourth Amendment may [not] be held per sonally liable for money damages if a reasonable officer could hav e 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 th e difference between immunity from suit and being held personall y liable for money damages. We recognized the significance of A nderson for qualified immunity determinations in Brown v. Grabo wski, 922 F.2d 1097 (3d Cir. 1990), cert. denied, 501 U.S. 1218, 1 11 S. Ct. 2827 (1991). There, we interpreted Anderson to require[] analysis not only of the clear establishment of the right that an officia l 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 Cheme rinsky, Federal Jurisdiction § 8.6, at 478 (2d ed. 1994) ("The inqu iry appears to be whether the officer had reason to know that the spe cific conduct was prohibited."). In strong tension with Anderson's requirem ent that a court scrutinize the specific conduct at issue is t he Supreme Court's admonition that qualified immunity be resol ved as early in the litigation as possible. "The overriding proble m is the Supreme Court's insistence that the immunity defense be dec ided as a matter of law, when the reality is that factual issues mus t frequently be
resolved in order to determine whether the defendan t violated clearly established federal law." Martin A. Schwar tz, Section 1983 in the Second Circuit, 59 Brook. L. Rev. 285, 309 ( 1993). Thus, crucial to the resolution of any assertion of quali fied immunity is a careful examination of the record (preferably by the district court) to establish, for purposes of summary judgme nt, a detailed factual description of the actions of each individu al defendant (viewed in a light most favorable to the plaintiff) . See, e.g.,Johnson v. Jones, ___ U.S. ___, ___, 115 S. Ct. 2151, 2155 (19 95) (the "issue appealed concern[s], not which facts th e parties might be able to prove, but, rather, whether or not certa in 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 i n its summary judgment ruling. After the City Defendants filed a motion for clarification, the district court addressed the qua lified immunity issue in a separate opinion and order. Although th e district court correctly recited the legal principles governing it s resolution of the qualified immunity issue under Harlow and Ander son, its analysis fell short of the fact-intensive inquiry t hose 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 caprici ous administrative action--was clearly established: Here, the substantive due process rig hts allegedly violated by the City [D]efendant s clearly were established at the time of th e alleged violation. . . . At the time of th e alleged violation, it was well-settled in this jurisdiction that the arbitrary and capric ious 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 o p. at 3-4 (W.D. Pa. Oct. 16, 1995). But nowhere in its decision de nying qualified immunity did the district court analyze the specifi c conduct of each City Defendant with respect to the constitutio nal right at issue. See Brown, 922 F.2d at 1111. At oral argument plaintiffs maintained tha t the district court's earlier decision denying summary judgment o n the substantive due process claim contains a descriptio n of the individual City Defendants' specific conduct suffic iently detailed to support the district court's later decision deny ing qualified immunity en masse. We disagree. With respect to e ight 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 ea ch defendant that the district court thought sufficient to defea t qualified immunity. See Grant v. City of Pittsburgh, No. 92- CV-1837, slip op. at 22-24 (W.D. Pa. Sept. 28, 1995). With respe ct 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 th erefore 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 decisi on in Brown. Cf. Vadino v. A. Valey Eng'rs, 903 F.2d 253, 257-59 (3d Cir. 1990) (recognizing our supervisory authority to remand un explained grants of summary judgment for statement of reasons); Brow n v. United States, 851 F.2d 615, 620 (3d Cir. 1988) ("[A]lthou gh it is within our power to do so, it would be inappropriate for u s to decide this question on appeal, even if the record provided a s ufficient basis for its resolution."). On remand the district cour t should analyzeseparately the conduct of each City Defendant again st the

constitutional right allegedly violated, i.e., the substantive due process right to be free from arbitrary and caprici ous administrative decisionmaking. We recognize, of course, that appeals from decisions denying summary judgment are subject to plenary rev iew. Thus, in the usual case a district court's failure to apply the correct legal standard would not preclude us from performin g a de novoreview of the summary judgment record to determine whether th ere are material issues of fact in dispute. Cf. Vadino , 903 F.2d at 253 (recognizing supervisory authority to remand un explained 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 determini ng "whether or not certain given facts showed a violation of 'clea rly established' law." Johnson v. Jones, ___ U.S. at ___, 115 S. Ct . at 2155 (emphasis added). That standard presupposes that w e have been provided with a set of "certain given facts" agains t which to measure the clearly established right allegedly vio lated. 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 revi ew 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 rema nd 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 mak e any such further findings as may be necessary.") (footnote o mitted); 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 f acts 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 whethe r, in applying Harlow's objective test for qualified immunity, a c ourt 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 Defen dants in fact knew that they were violating plaintiffs' constitut ional rights is simply irrelevant to that analysis. Harlow, 457 U. S. at 815-16, 102 S. Ct. at 2736-37. See also Mitchell v. Forsyt h, 472 U.S. 511, 517, 105 S. Ct. 2806, 2810 (1985) (describing Harlo w as having "purged qualified immunity of its subjective compon ents"). It is now widely understood that a public official who kn ows he or she is violating the constitution nevertheless will be shi elded by qualified immunity if a "reasonable public official " would not have known that his or her actions violated clearly esta blished law.The subjective inquiry that Harlow proscri bes, however,

is distinct from the question whether a public offi cial, in taking official action that but for an improper motive wou ld not be legally proscribed, in fact harbored the improper m otive. For purposes of clarity, when we use the terms "state o f mind" and "motivation," we are referring to the state of mind element of the underlying offense, rather than to the question whe ther the public officials knew they were violating clearly establis hed rights. The City Defendants claim that under Harlo w their subjective "political or personal motives" are irre levant to the qualified immunity analysis. The plaintiffs counte r that the City Defendants' formulation of the qualified immunity s tandard would effectively prevent any plaintiff whose constitutio nal claim has as an essential element the state of mind of the publi c officials from ever getting past qualified immunity. Although we have not directly addressed th is 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 prosecu tion 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 ha s adduced sufficient evidence to withstand summary judgment o n the issue of qualified immunity, where such state of mind is an essential
element of the constitutional violation itself. Se e 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 const itutional act becomes unconstitutional only when performed with s ome 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, 1 453-55 (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 Ci r. 1988), cert. denied, 488 U.S. 1007, 109 S. Ct. 788 (1989); Puebl o 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 e xception to this general rule. Plaintiffs in Halperin alleged that a wiretap of
their home violated the Fourth Amendment. Defendan ts claimed qualified immunity on the basis that their actions were motivated by national security interests. The court held tha t if the national security justification was reasonable, def endants' qualified immunity defense would prevail regardless of the defendants' actual states of mind. In creating thi s exception, the D.C. Circuit explicitly justified its holding by re ferring to the special nature of national security cases. The nat ional 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 alle ged in this case is precisely the sort of claim where "clearly established law makes the conduct legal or illegal depending upon t he intent withwhich 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 ach ieve an illegitimate end. When public officials invoke adm inistrative processes for a legitimate purpose, they are acting in conformity with the Constitution and cannot be violating "clea rly 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. Quali fied 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 of ficials from liability for the very harm our substantive due pro cess precedents have sought to redress: using government authority to take actions that, because of the improper motives of public off icials, have no rational relationship to a legitimate government pu rpose. See generally Stephanie E. Balcerzak, Note, Qualified I mmunity for
Government Officials: The Problem of Unconstitution al Purpose in Civil Rights Litigation, 95 Yale L.J. 126, 127 (198 5) ("[B]ecause
these suits often involve the intentional abuse of government power, the Harlow standard would deny redress to vi ctims of precisely the kind of official misconduct that the civil rights remedy was primarily intended to address."). We therefore join our sister circuits in a dopting the narrower view of Harlow. Accordingly, in evaluatin g 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, tha t 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 "inextric ably bound up with the merits," Bolden v. Alston, 810 F.2d 353, 3 56 (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. Accordingl y, the City

Defendants ask us to follow the lead of several of our sister circuits by imposing on civil rights plaintiffs som e sort of "heightened" procedural burden in §1983 claims in w hich improper
motive or intent is an essential element of the sub stantive constitutional claim. See, e.g., Crawford-El, 1996 WL 480432, at
*3. We initially observe that the City Defenda nts are incorrect to the extent they argue that the issue o f qualified immunity could never be determined as a matter of l aw without an increased procedural burden. A district court coul d conclude (as could a court of appeals) that, even assuming that the publicofficial acted with the improper intent, a reasonab le public

official would not have known that his or her speci fic conduct, taken with that intent, violated clearly establishe d law. Indeed, it is precisely because of this possibility that we are remanding this matter to the district court for a conduct-spe cific analysis of the qualified immunity issue as it applies to ea ch defendant. Nevertheless, we agree that a per se denia l of qualified immunity, whenever a plaintiff has alleged improper motive or intent, might inadequately cloak officials from vex atious lawsuits and unnecessary interference with the exercise of t heir public duties. We further recognize that intent-based cla ims are particularly vulnerable to groundless allegations b y the plaintiff which in turn might lead to time-consuming discover y. We believe nevertheless that Fed. R. Civ. P. 56, as well as t he principles expounded by the Supreme Court in Celotex v. Catret t, 477 U.S. 317, 106 S. Ct. 2548 (1986), adequately protect defendan ts from unfounded claims. We are, after all, attempting to balance the defendants' need for protection from unfounded clai ms and vexatious litigation, with the plaintiff's rights to vindicat e his or her constitutionally guaranteed rights. We think that Rule 56 strikes the best compromise between these two competing int erests. First, Celotex clearly states that the mov ing party bears no burden of disproving unsupported claims. See Ce lotex, 477 U.S. at 324, 106 S. Ct. at 2553. Thus, the defendant of ficer need only identify those claims that are deficient within the complaint, without engaging in a lengthy defense of his conduc t. Coupled with
a district court's reasonable limitation on discove ry, Celotex adequately protects public officials from groundles s allegations of "bad" intent. The Fifth Circuit agreed with this p osition in Tompkins v. Vickers, 26 F.3d 603, 608 (5th Cir. 199 4), in which it held that a teacher could rely on circumstantial as well as direct evidence to prove unconstitutional motive in opposi ng 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 accommod ate the interests of public officials seeking protection fr om groundless claims as well as the interests of plaintiffs seeki ng vindication of constitutional rights." Other circuits have tak en this approach as well. See Cuyahoga Valley Bd. of Education, 926 F.2d 505, 512 (6th Cir. 1991); Feliciano-Angulo v. Rivera Cruz, 8 58 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 noti ng court's doubt that standard "imposes a burden greater than is alr eady required under Fed. R. Civ. P. 56"). Finally, we note that a heightened summary judgment standard is not only unnecessary, but also undesira ble 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 th at the burden of proof at the summary judgment stage and the trial s tage are
identical.

IV.
We will remand this case to the district c ourt to reevaluate the City Defendants' claims of qualified immunity consistent with this opinion. The district court s hould take careto analyze separately, and state findings with resp ect to, the

specific conduct of each individual City Defendant, including his
or her motives. Each party to bear its own costs.