2. Requirement of clear and convincing evidence. There still remains the question whether the defendant's entitlement to summary judgment on qualified immunity before plaintiff's discovery achieves an adequate balance in light of Harlow's purposes. Conventional summary judgment principles supply
some protection to defendants. Plaintiff must do better than "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to block summary judgment for defendant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Here defendants argue that that is not enough. They propose a special standard, which they frame as a requirement of "strong evidence." The United States as amicus proposes a similar heightened standard; framing the proposal in terms of pleading, it suggests that plaintiff be required to "plead specific facts giving rise to a strong inference of the alleged improper motive before any discovery will be permitted." [5]
evidence of a more complete set of comparable ones, and extensive explanation by one or more decision-makers, will look fishy enough that a jury could reasonably find illicit motive by a preponderance.
Schneiderman v. United States, 320 U.S. 118, 123 (1943); civil commitment proceedings, Addington v. Texas, 441 U.S. 418, 423 (1979); cases involving termination of parental rights, Santosky v. Kramer, 455 U.S. 745, 756 (1982); defamation suits against public figures, New York Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964); and a variety of other civil cases such as civil fraud, lost wills, and oral contracts to make bequests, see Woodby, 385 U.S. at 285 n.18 (citing 9 Wigmore on Evidence § 2498 (3d ed. 1940)). Although we understand the specific standards urged by defendants and the United States ("strong evidence" and "strong inference") to be aimed at similar concerns, we do not pursue them because of their uncertainty compared to the familiar clear and convincing standard. [6]
regarding the increase in denials of recovery as an acceptable cost), or (2) a conclusion that errors in defendants' favor are independently to be preferred to errors in plaintiffs' favor, or (3) some combination of the two. If the holding of Harlow represented nothing else, it surely manifested either the first or third of those possibilities; after all, in one stroke it destroyed an entire group of claims for what was, by hypothesis, unconstitutional behavior.
think it is equally so in the cognate area of officer damage liability for constitutional torts based on improper motive.
for a more definite statement under Rule 12(e) may simplify and speed the process, but we do not see that protection of substantive rights requires any special rules.
appeals thus far has abandoned its special standards in constitutional motive cases in light of Johnson. See, e.g., Moore v. Valder, 65 F.3d 189, 195, 196 & n.13 (D.C. Cir. 1995); Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996); Veney v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995); Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995); Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995). And, of course, this court recognized the distinction drawn in Johnson before that case was decided, see Crawford-El v. Britton, 951 F.2d at 1317 (no immediate review available for district court's treatment of an "I didn't do it" defense on summary judgment); see also Johnson, 115 S. Ct. at 2154 (listing Crawford-El among the decisions on the side that Johnson found correct), yet nonetheless applied special standards. More generally, so far as we know, most if not all trial court proceedings over claims requiring clear and convincing proof plod along without any application of the collateral order doctrine. Limits on the reach of that doctrine of course mean delay in the correction of trial court error and a resulting increased exposure of officials to some adverse consequences, but we do not see why every fine-tuning that limits the immediacy of appeal should connote some anti-defendant shift in the principles to be applied by the district court. [9]
statement of the grounds") could be applied to the sort of complaints here at issue without violating 28 U.S.C. § 2072(b)'s ban on the exercise of rulemaking power to "abridge, enlarge or modify any substantive right." See Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S. at 166-67 (leaving open question of whether courts are to apply "heightened pleading" requirement to claims against government officials). But we see no reason why the government officials' insulation from discovery would not be amply protected by the principle we have already described, entitling officials to summary judgment resolution of their qualified immunity claims before discovery. That being so, it is unclear how application of conventional pleading standards could amount to the sort of substantive abridgement forbidden by § 2072(b). Accordingly, we think it was not correct for the district court to apply, literally, a heightened pleading standard, quite apart from the invalidity of our now-abandoned direct evidence rule.
ticular inmates designated by the press); Kimberlin, 6 F.3d at 791 n.6 (upholding under Turner warden's policy prohibiting prisoner press conferences and limiting prisoners' press access to settings expressly authorized under prison regulations). But no court has held that a total ban on communications to the press passes muster. Cf. Nolan v. Fitzpatrick, 451 F.2d 545, 547 (1st Cir. 1971) (striking down ban on prisoner letters to news media insofar as the letters concerned prison matters; emphasizing that prison conditions are "an important matter of public policy" about which prisoners are "peculiarly knowledgeable"). And in light of Turner and related cases, retaliation against Crawford-El for criticism of the prison administration that was truthful, and not otherwise offensive to some penological interest (so far as appears), would have violated a clearly established right of which a reasonable prison official would have known. Cf. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 571-72 (1968) (holding that First Amendment precludes dismissal of a school teacher who criticized Board of Education's handling of a bond issue; public employees should be able to speak freely on issues of public concern without fear of retaliation).
not be great in order to be actionable." Id.; cf. Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 306-311 (1986) (out-of-pocket and mental distress damages recoverable for violation of Due Process Clause and First Amendment right to academic freedom); Hobson v. Wilson, 737 F.2d at 61-62 (mental distress damages recoverable for violation of First Amendment right of political association); Frazier v. Dubois, 922 F.2d at 561 (transfer of prisoner in retaliation for exercise of First Amendment rights is unconstitutional injury; citing cases).
Williams Opinion Continued
Case Intro