582
Opinion of the Court
actor's unconstitutional motive." 4 The fifth was a catchall question that asked the parties whether there are "any alternative devices which protect defendants with qualified immunity, in cases of constitutional tort depending on the defendant's motive or intent, from the costs of litigation?" App. to Pet. for Cert. 109a.
The en banc court responded to these questions in five separate opinions. A majority of the judges appear to have agreed on these four propositions: (1) the case should be remanded to the District Court for further proceedings; (2) the plaintiff does not have to satisfy any heightened pleading requirement, and may rely on circumstantial as well as direct evidence; 5 (3) in order to prevail in an unconstitutional-motive case, the plaintiff must establish that motive by clear and convincing evidence; and (4) special procedures to protect defendants from the costs of litigation in
4 The questions regarding summary judgment asked: "3. In claims of constitutional tort where the unlawfulness depends on the actor's unconstitutional motive and the defendant enjoys qualified immunity, should the court grant a defense motion for summary judgment, made before plaintiff has conducted discovery, if the plaintiff has failed to adduce evidence from which the fact finder could reasonably infer the illicit motive? See Harlow v. Fitzgerald, 457 U. S. 800, 815-18 (1982); Elliott v. Thomas, 937 F. 2d 338, 345-46 (7th Cir. 1991)?
"4. In claims of constitutional tort where the unlawfulness depends on the actor's unconstitutional motive and the defendant enjoys qualified immunity, are there any circumstances, apart from national security issues of the sort at stake in Halperin v. Kissinger, 807 F. 2d 180, 184-85 (D. C. Cir. 1986), where the court should grant a defense motion for summary judgment on a showing by the defendant such that a reasonable jury would necessarily conclude that the defendant's stated motivation 'would have been reasonable'? Id. at 188; see also id. at 189 (summary judgment warranted where no reasonable jury could find that 'it was objectively unreasonable for the defendants' to be acting for stated, innocent motives)." Id., at 108a-109a.
5 On this point, the court disavowed its prior direct-evidence rule of Martin v. D. C. Metropolitan Police Department, 812 F. 2d 1425, 1435 (CADC 1987), and Siegert v. Gilley, 895 F. 2d 797, 800-802 (CADC 1990), aff'd on other grounds, 500 U. S. 226 (1991).
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