or unsettled, a determination clearly beyond the jury's competence.
In the instant case, plaintiffs contend that the defendants participated in inflicting on them an illegal, unprovoked, and merciless beating. If plaintiffs are correct as a matter of fact, there cannot be any arguable claim that the officers' conduct was privileged - a policeman cannot defend by contending, for example, that he never heard of the Fourth or the Eighth Amendments. It is for the jury to determine the factual issue as to the conduct, not the legal issue as to the law. Unlike the typical negligence case, in which a jury can bring its collective human wisdom to bear in determining what is reasonable under a given set of circumstances, to suggest that Harlow did not mean what it said and what it implied is to suggest that a trial within a trial is required, with the jury hearing "evidence" of the state of the law, trends in the law, and clarity of the law.
The process of determining the clarity of the law at the time a cause of action purportedly arose is, moreover, most appropriately resolved by the court at a "pre-trial screening,"
a proposition inferred from the conclusions of Scheuer, Butz, and Harlow that insubstantial claims may be terminated on motions for summary judgment. In ruling on such motions, of course, the court's function is not to resolve factual issues but, rather, to determine whether any genuine material factual issue exists. Adickes v. Kress, 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The moving party has the burden of showing the absence of a genuine issue as to any material fact and of showing that it is entitled to judgment as a matter of law. In ruling on the motion, the court must draw all inferences of fact against the movant and in favor of the party opposing the motions. Id. To hold, as the Supreme Court has in Harlow, that summary judgment motions on the question of qualified immunity will be readily entertained, is to hold that absent exceptional circumstances that may have prevented an official from knowing the law relevant to his or her office, no genuine, material issue of fact ordinarily appears which might prevent or delay a ruling as to whether a defendant's actions were violative of clearly established law. See Forsyth v. Kleindienst (Forsyth II), 729 F.2d 267, Slip Op. at 17 (3rd Cir. 1984) (objective standard now permits summary judgment for official if law not clearly established or if extraordinary circumstances exist).
Courts that have applied Harlow in the context of summary judgment motions have concluded that the determination of whether a government official is entitled to immunity is solely a question of law. See Czurlanis v. Albanese, 721 F.2d 98, 108 (3d Cir. 1983); Bell v. Sellevold, 713 F.2d 1396, 1402 (8th Cir. 1983); Evans v. Dillahunty, 711 F.2d 828, 830 (8th Cir. 1983); Ellsberg v. Mitchell, 228 U.S. App. D.C. 225, 709 F.2d 51, 69 (D.C.Cir. 1983); Hauptmann v. Wilentz, 570 F. Supp. 351, 371 (D.N.J. 1983).
Thus far, courts have resolved questions as to whether the law at the time of actions challenged under § 1983 was clearly established with an almost equal number of decisions granting summary judgment when the law was not clearly established and denying summary judgment when it was.
In deciding whether to grant or deny summary judgment, courts are plainly concluding that they have before them pure questions of law which should never reach a jury. Not only is this true in the context of summary judgment motions, but also in the context of motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Hauptmann v. Wilentz, supra at 371; Jensen v. Conrad, supra at 101. In the latter context, courts have concluded that defendants either have or have not met their burden of establishing by a preponderance of the evidence that the relevant law was clearly established at the time of the actions to which a plaintiff objects. Alexander v. Alexander, 706 F.2d 751, 754 (6th Cir. 1983); Matje v. Leis, supra at 929; Dehorty v. New Castle County Council, supra at 891.
Prior to Harlow, the Wood test for qualified immunity presented a jury question not only in the case in which a plaintiff claimed that the official had been stripped of immunity because he undertook the action with the malicious intention to cause a constitutional deprivation or other injury, but also in the case in which a plaintiff claimed that a defendant knew or should have known that his action would violate plaintiff's rights. It seems abundantly clear, then, that because the Supreme Court's intention in Harlow was to promote the use of summary judgment whenever an appropriate immunity defense is raised in a § 1983 action, the Court has, with Harlow, not only eliminated the prong of the Wood test that considered the presence or absence of malice, but also has relegated the question of defendant's knowledge of the law to the "extraordinary circumstances" exception to the general Harlow rule with a jury question presented only when that knowledge is in dispute.
Even where there are such "extraordinary circumstances" claimed, the court has instructed that the defense would still turn primarily on objective factors. 457 U.S. at 819. While it is not clear whether any officials actually invoked the "extraordinary circumstances" exception in any of the post-Harlow cases cited above, in certain of those cases such an invocation would have been appropriate. Yet, even in those cases, the courts were faithful to Harlow's prescription of adherence to an objective standard throughout.
For example, in Muzychka v. Tyler, supra, summary judgment on the ground of qualified immunity was denied where policemen, searching for chemicals which they had probable cause to believe were in plaintiff's car, seized documents as to which a privilege was claimed. The court explicitly found that there was "clearly established" law at the time of the alleged action because, three weeks before the search, Justice Stevens had explained in United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982), that the scope of a warrantless search of a vehicle is defined by the object searched out and the places in which there is probable cause to believe it to be and not by the nature of the container in which the object might be found. See also Smith v. Montgomery County, supra (law became clearly established and qualified immunity evaporated with controlling decision of court of appeals).
If even the exception to the objective standard is itself largely objective, then the instance in which a determination concerning qualified immunity involves a jury issue would be rare indeed. The jury's role is still critical, however. It determines whether the official did, in fact, violate the law that the court has previously declared to have been clearly established. Only when the "extraordinary circumstances" exception has been properly invoked and there is an issue of what the official knew that has not been resolved by discovery, see Harlow, supra at 821 (Brennan, J., concurring), would the jury's role extend to actually resolving a question implicating a claimed immunity.
In that connection, it should be noted that those courts which, after Harlow, have treated the allocation to judge or jury of questions concerning immunity, have done so largely on the basis of pre-Harlow decisions. For example, in Tuttle v. City of Oklahoma City, 728 F.2d 456, Slip Op. at 2 (10th Cir. 1984), the widow of a man who a police officer had "fatally shot . . . without the least justifiable provocation," Id. at 461, sued the policeman and the City under § 1983. The court stated, at 458 that
Under certain circumstances, the facts may negate the good faith defense as a matter of law. If the facts construed in the light most favorable to the defendant officer utterly belie his belief or the reasonableness of it, his defense should not be considered by the jury.
The court relied for this proposition on a 1978 Seventh Circuit case and, while acknowledging that Harlow "overruled earlier Supreme Court pronouncements that a subjective component existed (to the qualified immunity test)," Id., it nevertheless focused on the subjective test that had been employed under earlier Supreme Court decisions, that is, on the policeman's "belief" (essentially the test in Pierson v. Ray, and Scheuer v. Rhodes).
Similarly, in B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7 (1st Cir. 1984), a case in which a wrongful search and seizure was allegedly conducted by one officer Fontaine, it was stated that
the question of qualified immunity is one of reasonableness -- would a reasonable person in the shoes of Fontaine have known that he was violating another's constitutional rights? . . . . This determination, being one turning on the reasonableness of Fontaine's conduct, was properly left for the jury to resolve.
Id. at 10 (citations omitted). The B.C.R. Transport court cited to Harlow, Pierson and a 1979 Fifth Circuit case. Again, the focus was on the pre-Harlow standard of the reasonableness of the defendant's belief in the legality of his actions.
What is evidenced by these decisions is a reluctance to recognize in the trial context what has been readily recognized in the summary judgment context, i.e. that the Supreme Court, which has zealously safeguarded and, indeed, enlarged the function of the jury as a factfinding body, has converted, what were largely factual determinations into a determination of law. Implicit in this reluctance is a conscious or subconscious unwillingness to take an issue from the jury, and a belief, albeit unexpressed, that to do so would in some manner derogate the right of trial by jury declared by the Seventh Amendment.
Moreover, and put more simply, old habits die hard, and it is easy enough to submit a "reasonableness" question to the jury with or without having provided the jury with any basis for knowing the law as to which it must decide the defendant reasonably should or should not have known. However, to the extent that courts - for whatever reason - continue to treat the issue of qualified immunity in much the same manner as it was treated pre-Harlow, the very purpose of Harlow, which was to "make an adjustment" so that a court would ordinarily determine whether the claimed violation involved clearly established law, is defeated.
Plaintiffs allege that three of the police defendants, who were off-duty in a bar at the time, administered an unprovoked beating to plaintiff Marcos Skevofilax and punched plaintiff Michael Michaels, and that one of them struck Michaels in the face when Michaels tried to aid Skevofilax. Plaintiffs also contend that uniformed officers, who were called to the scene by Skevofilax, not only did not aid plaintiffs, but contributed to a merciless second beating of Skevofilax, one of them by striking Skevofilax on the head with a nightstick and the others by watching the beating and failing to intervene. Furthermore, plaintiffs assert that they were then falsely arrested and imprisoned and maliciously prosecuted, but not before there were additional attempted assaults by one of the defendants and a failure to administer needed medical treatment to Skevofilax within a reasonable time.
It is beyond cavil that if such a course of conduct were proven, those found to be liable for such actions would be devoid of any qualified immunity for the laws of which defendants' actions are alleged to be violative are clearly established. If what the ancients said of the law remains true, that lex nemini operatur iniquum - the law will not work an iniquity on anyone - then the law will not shield an official who flagrantly violates the Constitutional rights of another in the manner asserted here. Indeed, the case law is uniform that no vestige of official immunity will serve to fend off liability in damages when the gravamen of a complaint is official use of unwarranted force in violation of the Fourth, Eighth and Fourteenth Amendments, and the claims are proven. See Haygood v. Younger, 718 F.2d 1472, 1484 (9th Cir. 1983); Jackson v. Hollowell, supra, at 1376; Stokes v. Delcambre, supra, 710 F.2d 1120, 1125-26 (5th Cir. 1983); McQurter v. City of Atlanta, 572 F. Supp. 1401, 1415 (N.D.Ga. 1983); Ladnier v. Murray, 572 F. Supp. 544, 546-47 (D.Md. 1983).
While use of excessive force by police may create § 1983 liability, see Black v. Stephens, 662 F.2d 181 (3d Cir.1981), cert. denied, 455 U.S. 1008, 71 L. Ed. 2d 876, 102 S. Ct. 1646, reh. denied, 456 U.S. 950, 102 S. Ct. 2022, 72 L. Ed. 2d 475 (1982); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972), § 1983 is not, of course, a general tort statute. Plaintiffs must show that the injury inflicted rose to the level of a constitutional tort, i.e. that it was so egregious as to exceed the boundaries of wrongful injuries redressable under tort law and deprived the victim of a Fourteenth Amendment liberty interest without due process of law. Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Shillingford v. Holmes, 634 F.2d 263 (5th Cir. 1981). The test employed by the Third Circuit is whether the police conduct "shocks the conscience." Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir. 1979), quoting Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952). If the assaults alleged here so "shock the conscience" that liability is found, the assaults would, of necessity, be in violation of clearly established law, and, as a matter of law, the defendants would not be entitled to qualified immunity.
The same result obtains for both the supervisory and non-supervisory policemen present during the alleged beatings and the alleged denial of medical care. Supervisory officials may not be held liable under § 1983 under the doctrine of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). However, if a plaintiff shows that the official was personally involved in the unlawful action or that there was some causal connection between an act of the official and the alleged violation, the supervisor might be held liable. Wanger v. Bonner, 621 F.2d 675 (5th Cir. 1980); Baskin v. Parker, 602 F.2d 1205, 1208-09 (5th Cir. 1979).
Furthermore, if a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under § 1983. See Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982), cert. denied, 459 U.S. 1171, 103 S. Ct. 816, 74 L. Ed. 2d 1014 (1983); Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981); Harris v. Chanclor, 537 F.2d 203, 206 (5th Cir. 1976); McQurter v. City of Atlanta, supra at 1415; Davidson v. Dixon, 386 F. Supp. 482 (D.Del. 1974), aff'd 529 F.2d 511 (3d Cir. 1975). In the leading case on the duty to intervene, Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972), the Seventh Circuit stated:
We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction misfeasor officers are committed. So, too, the same responsibility must exist as to nonsupervisory officers who are present at the scene of such summary punishment, for to hold otherwise would be to insulate nonsupervisory officers from liability for reasonably foreseeable consequences of the neglect of their duty to enforce the laws and preserve the peace.