section 1983

Citation: section 1983
Parent Document: Gonzalez v. Lee County Housing Authority, 161 F.3d 1290 (1998)
Jurisdiction: United States (federal)
Effective Date: 1998-12-02
Original Source: https://www.courtlistener.com/opinion/73387/gonzalez-v-lee-county-housing-authority/ ↗
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   In Burrell, this court held that a public official sued in an
individual capacity under 42 U.S.C. § 1985(3) may not assert a defense
of qualified immunity. The court reasoned:
      Unlike in section 1983 actions, public officials . . . will
      not be subject to liability under section 1985(3) unless their
      actions were motivated by ‘some racial, or perhaps otherwise
      class-based, invidiously discriminatory animus.’ . . . We hold
      that this additional safeguard obviates the need for granting
      public officials qualified immunity in section 1985(3)
      actions.
970 F.2d at 794.      Because section 3617, like 42 U.S.C. § 1985(3),
requires a showing of discriminatory intent, see Sofarelli v. Pinellas
County, 931 F.2d 718, 722-23 (11th Cir. 1991), Burrell might suggest that
the qualified immunity defense is not available in a § 3617 action.
      For several reasons, we decline to extend Burrell’s holding to
section 3617 actions.      Initially, we note that this court has not
extended Burrell to 42 U.S.C. § 1981 actions even though § 1981, under
General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 386-91,
102 S. Ct. 3141, 3147-50 (1982), requires a showing of purposeful
discrimination. See Johnson v. City of Fort Lauderdale, 126 F.3d 1372,
1379-80 (11th Cir. 1997) (holding that defendant officials were entitled
to qualified immunity on § 1981 claim but, under Burrell, could not
assert qualified immunity on § 1985(3) claim). In light of the Johnson
court’s implicit decision to limit Burrell, we hesitate to extend Burrell
here.
      Furthermore, our research reveals no case other than Burrell in
which a court of appeals or the Supreme Court has barred the qualified
immunity defense on the ground that the statute creating liability
requires a showing of discriminatory intent.      In other circuits, for
example, public officials may assert the qualified immunity defense in
a § 1985(3) action. See Southard v. Texas Bd. of Criminal Justice, 114
F.3d 539, 555 (5th Cir. 1997); Brown v. City of Oneonta, N.Y., Police
Dep’t, 106 F.3d 1125, 1133 (2d Cir. 1997); Vaughn v. U.S. Small Business
Admin., 65 F.3d 1322, 1324-30 (6th Cir. 1995); Simmons v. Poe, 47 F.3d
1370, 1376-78 (4th Cir. 1995); Bisbee v. Bey, 39 F.3d 1096, 1101-02 (10th
Cir. 1994); Howard v. Suskie, 26 F.3d 84, 87 (8th Cir. 1994); Prokey v.
Watkins, 942 F.2d 67, 71-74 (1st Cir. 1991); Auriemma v. Rice, 910 F.2d
1449, 1457-59 (7th Cir. 1990); Hobson v. Wilson, 737 F.2d 1, 24 (D.C.
Cir. 1984).
      Finally, although we do not question Burrell’s result, we are not
convinced of one of its premises.       Contrary to the Burrell court’s
statement that plaintiffs in § 1983 actions need not demonstrate
discriminatory intent, see 970 F.2d at 793-94, discriminatory intent is
a requisite element of § 1983 claims based on equal protection, see
Mencer v. Hammonds, 134 F.3d 1066, 1070 (11th Cir. 1998), cert. denied,
__ U.S. __, __ S. Ct. __, 67 U.S.L.W. 3177 (U.S. Nov. 9, 1998)(No. 98-
403); see also Edwards v. Wallace Community College, 49 F.3d 1517, 1524
(11th Cir. 1995) (“[A]lthough intent is irrelevant for a qualified
immunity inquiry per se, it is relevant if intent is an element of the
underlying alleged constitutional violation.”) (citations omitted). For 22
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