section 100

Citation: section 100
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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   The special concurrence advances the attractive proposition that since
the Civil War and the more recent “great crusade for civil rights,”
racial discrimination in rental practices is so inherently evil as to bar
an assertion of qualified immunity without the need for supporting case
law or legislation. Special Concurrence at __. Certainly, we agree that
racial discrimination, in any context, is evil and wish that the concept
was as universally acknowledged and readily accepted as the special
concurrence suggests. Regrettably however, in the years since the Civil
War and the adoption of the Thirteenth, Fourteenth, and Fifteenth
Amendments, the recognition of equality in all aspects of life has
neither been axiomatic nor obvious, see, e.g., Plessy v. Ferguson, 163
U.S. 537, 16 S. Ct. 1138 (1896) (establishing the separate but equal
doctrine almost 30 years after the ratification of the Fourteenth
Amendment), but has emerged only gradually, see, e.g., Brown v. Board of
Educ., 347 U.S. 483, 74 S. Ct. 686 (1954) (striking down segregation in
public schools more than 80 years after the Fourteenth Amendment); Loving
v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967) (striking down—only 30
years ago—a statute that criminalized interracial marriage). Indeed,
Congress has recognized the continuing need for legislation to eradicate
the cancer of racial discrimination by enacting measures such as the
Voting Rights Act, Title VII, and, in this context, the Fair Housing Act.
      We also have no quarrel with the special concurrence’s observation
that, in the appropriate case, a government official’s conduct might be
so egregious that the violation of federal law is obvious, even in the
absence of case law or legislation recognizing the illegality of
materially similar acts; deference to the Supreme Court’s holdings
requires nothing less. See Lanier, __ U.S. at __, 117 S. Ct. at 1225-26.
Unlike the conduct at issue in Lanier, which was so repugnant that it had
escaped prior contemplation in the relevant sources of authority, the
conduct in this case is both outrageous and specifically addressed in the
Fair Housing Act. Standing alone, or as further clarified by regulation
24 C.F.R. § 100.400(c)(3), the Fair Housing Act “stake[s] out a bright
line” such that the law prohibiting racial discrimination in rental
practices was clearly established in the “concrete and factually defined
context” we required in Lassiter, 28 F.3d at 1149-50.       As a result,
Moran’s assertion of qualified immunity must fail, and we need not
consider this additional teaching of Lanier. 33
                                       2.

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