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Handling Civil Rights Liability and Immunities

Presented for The Southwestern Legal Foundation's
LAND USE LITIGATION SEMINAR
June 28, 2001
Municipal Legal Studies Center

This paper explores the law governing civil rights lawsuits brought against municipal officials, and the liabilities and immunities of those individual defendants. A main function of municipal government is the planning and zoning of property, and municipal officials are often faced with difficult land use decisions. City Councils and Planning and Zoning Commissions are key municipal players in land use matters, and it is not uncommon for land owners to become upset about decisions made regarding municipal land use. Therefore, municipalities and municipal officials sometimes become defendants in lawsuits that arise from landowners who feel they have been treated unfairly. Landowners and developers sometimes sue municipal officials in their personal capacities under 42 U.S.C.§ 1983 for unconstitutional takings of property, violations of substantive due process rights, denial of equal protection, and related claims. When these types of civil rights lawsuits are filed, immunity will become a key issue. Therefore, it is important for all parties involved to have an understanding of the different types of immunities available and what effects they will have.

§ 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Baker v. McCollen, 443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 2694 n.3, 61 L.Ed.2d 433 (1979). The first step in any such claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct.1865, 1870 104 L.Ed.2d 443 (1989). Plaintiffs suing under § 1983 must show that a constitutional right has been violated by the government, because § 1983 does not provide any substantive rights itself. To state a claim under § 1983, a plaintiff must allege (1) the violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988).

Land use cases usually involve alleged violations of the Fifth and Fourteenth Amendments to the United States Constitution, thus satisfying the § 1983 requirement of alleging an infringement of a specific constitutional right. The Fifth Amendment provides in relevant part:

U.S. Const. Amend. V. (emphasis added). Additionally, the Fourteenth Amendment states in relevant part:

U.S. Const. Amend. XIV, § 1 (emphasis added). These constitutional protections allow § 1983 land use case plaintiffs to assert takings, due process, and equal protection claims.

An aggrieved landowner may also sue for municipal land use decisions that violate state law. Article I, Section 17 of the Texas Constitution provides:

An important distinction between the U.S. and Texas Constitutions' takings clauses is that only the Texas Constitution requires compensation when property is "damaged" or "destroyed" for a public purpose without compensation.

The Texas Constitution also has a due process or "due course" clause. Article I, Section 19 of the Texas Constitution provides:

In order for a taking of real property to occur, a landowner must show that: (1) a property right existed, and (2) the property right was unreasonably interfered with. The Supreme Court has held that under the due process clause, property rights are not created by the Constitution, but arise from an independent source such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed. 2d 548 (1972); Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978). Whether a property interest exists, for purposes of establishing due process or equal protection violations, is determined by reference to state law. Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995).

Once the existence of a property right has been established, the plaintiff often alleges a violation of procedural due process and/or substantive due process. An essential principal of procedural due process is that a deprivation of life, liberty or property be preceded by notice and an opportunity to be heard appropriate to the nature of the case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). Individuals must be given an opportunity for a hearing before being deprived of any significant property interest. Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). In most land use cases, procedural due process is satisfied if the municipality provides notice and an opportunity to be heard. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 940 (Tex. 1998). Therefore, municipal officials that are defendants in § 1983 land use lawsuits should prevail against procedural due process claims as long as notice and an opportunity to be heard have been provided in accordance with the Zoning Enabling Act. Tex. Loc. Gov't Code Ch 211 et seq. (Vernon 2000).

In reviewing substantive due process challenges, courts will look merely at the objective of the regulation to determine if a rational relationship exists between the ordinance and its purpose. The ultimate effectiveness of the ordinance is not important under this analysis. Mayhew, 964 S.W.2d at 938. The only issue is whether or not the governing body could have rationally believed at the time of the enactment of the ordinance that it would promote its objective. Id. If it is at least debatable that the decision was rationally related to legitimate government interests, the decision must be upheld. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981). The ordinance will violate substantive due process only if it is clearly arbitrary and unreasonable. Mayhew, 964 S.W.2d at 938.

Immunity is often available to those public officials that are involved in making land use decisions, in the event they are sued personally for actions they take as government officials, or under color of law. The United States Supreme Court recognizes three main types of common law immunities that are available to officials who are sued in their individual capacities - legislative, judicial and official. Legislators are entitled to immunity for acts taken while discharging their duties. Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). The Supreme Court has recently expanded this immunity by holding that local legislators are entitled to the same absolute immunity from civil liability under § 1983 for their legislative activities as has been accorded to federal, state, and regional legislators. Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S.Ct. 966, 970, 140 L.Ed.2d 79 (1998). The Supreme Court first recognized that judges are immune from liability for damages for acts committed within their judicial discretion in Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). Finally, the Court has recognized the defense of qualified immunity, also referred to as official immunity, for government officials. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,2738, 73 L.Ed.2d 396 (1982). Municipal officials often assert this defense of official immunity.

The official immunity defense is sometimes referred to as qualified immunity, good faith immunity, discretionary immunity, or official immunity. Although the majority of Texas case law regarding official immunity involves police liability, the defense of official immunity is just as applicable in land use cases.
(Since Justice Brennan's famous dissent in San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 661, 101 S.Ct. 1287, 1309, 67 L.Ed.2d 551 (1981), where he queried, "After all, a policeman must know the Constitution, then why not a planner?", courts have consistently held that an unconstitutional regulatory taking may impute liability to local government entities, as well as local officials implementing those decisions, in the absence of immunity.)
Therefore, a good understanding of official immunity can be essential in defending and pursuing lawsuits where government officials and employees are sued in their personal capacities for actions they take regarding land use.

The Texas Supreme Court has stated that the purpose of the doctrine of official immunity is to protect public officers from civil liability that would otherwise be actionable. City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54 (Tex. 1994). Official immunity is an affirmative defense. Perry v. Texas A & I Univ., 737 S.W.2d 106, 110 (Tex. App.B Corpus Christi 1987, writ ref'd n.r.e.). Thus the burden is on the public official to establish all elements of the defense. Montgomery v. Kennedy 669 S.W.2d 309, 310-11 (Tex. 1984). In order for a government official to be entitled to official immunity from suit, the official must show three elements. The official must show that he was (1) performing discretionary duties, (2) in good faith, and (3) was acting within the scope of his authority. Chambers, 883 S.W.2d at 653.

In deciding whether or not to allow the official immunity defense, a court will first determine whether or not the defendant was performing discretionary or ministerial duties. To be entitled to official immunity the defendant must have been performing discretionary duties. If the court finds that the defendant was performing ministerial acts or duties, then the official immunity defense will be unavailable to the defendant. Therefore, it is important to know the difference between a discretionary act and a ministerial act. If an action involves personal deliberation, decision and judgment, it is discretionary. Ministerial actions are those actions which require obedience to orders or the performance of a duty to which the actor has no choice, Wyse v. Department of Pub. Safety, 733 S.W.2d 224, 227 (Tex.App.BWaco 1986, writ ref'd n.r.e.), or acts that are prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Chambers, 883 S.W.2d at 654.

The Chambers Court noted the difficulty in applying the good faith element of official immunity. Chambers 883 S.W.2d at 655. In Chambers, police officers had been involved in a high speed pursuit of a motorcyclist. The police officers in Chambers were driving police cars in pursuit of two individuals on a motorcycle, and the chase ended with the motorcycle crashing. The crash killed the driver of the motorcycle, and left the passenger seriously injured. Id. at 652. The Texas Supreme Court held that an officer acts in good faith in a pursuit case if:

a reasonably prudent officer, under the same or similar circumstances, could have reasonably believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit.

Id. at 656.

Although Chambers involved a police pursuit case, the Texas Supreme Court noted that the test it derived is substantially similar to the test that has emerged under federal immunity law for claims of qualified immunity in § 1983 cases. Id.

Chambers, 883 S.W.2d at 656 quoting Swint v. City of Wadley 5 F.3d 1435, 1441-42 (11th Cir. 1993) (quoting Hardin v. Hayes, 957 F.2d 845, 848 (11th Cir. 1992), and Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)), respectively (citations omitted).

The Chambers Court then stated what a plaintiff must do to overcome the good faith requirement:

Government officials must also be acting within the scope of their authority in order to be entitled to official immunity. Id. at 658. An official acts within the scope of his authority if he is discharging the duties generally assigned to him. Id. In Chambers the Court held that police officers were acting within the scope of their authority when driving their police cars in pursuit of a suspect. Id. Obviously, the job of a police officer sometimes involves chasing down unwilling suspects.

Although Chambers did not deal with land use decisions, it lays out the general test for official immunity for government officials, and these immunities should be applicable for government officials that are personally sued over a land use decision. The San Antonio Court of Appeals recently applied the Chambers analysis to city board of adjustment members that were sued in their personal capacities for revoking a construction permit. Champion Builders v. City of Terrell Hills, 2001 WL 98356, at *1 (Tex.App. B San Antonio 2001, n.w.h.).

In Champion, the City of Terrell Hills Board of Adjustment issued Champion a building permit for the construction of a six-unit apartment complex, but later revoked the permit after strong objections from city residents. Id. at *2. The City also passed an ordinance (Ordinance No. 634) increasing minimum square footage requirements for apartments from 800 square feet to 1200 square feet, when Champion's plans called for 900 square feet per unit. Id. Champion sued the individual board members for a taking of its property because of a wrongful termination of the building permit. Id. The San Antonio Court of Appeals held that the Board members were entitled to official immunity. Id. at *4. Champion argued that its project complied with Ordinance No. 634, the source of the Board's authority. Id. Thus, Champion argued that the Board had no choice but to deny the residents' request to revoke the permit, and that failure to deny the request was a refusal to perform a ministerial function. Id.

The Court of Appeals noted that the Board was faced with two possible legal interpretations of Ordinance No. 634. Id. at *5. The interpretation advanced by the City Attorney was that the project was in compliance with the ordinance; but an interpretation advanced by an attorney representing the neighboring residents was that the project did not comply with frontage requirements of Ordinance No. 634. Id. Thus the Board had to choose between two different legal interpretations of the ordinance at issue. Id. The Court of Appeals stated, "Such a task - construction and application of a city ordinance - necessarily required of the Board members deliberation, decision, and judgment." Id. Therefore, the Court of Appeals held that the Board's action was discretionary in nature as opposed to ministerial. Id.

Next, the Champion Court held that the Board members acted in good faith. Id. at *6. To prove good faith, the Board members only had to show that their conduct was within the realm of what reasonably prudent public officials could have believed was the appropriate course of action at the time in question. Id. To defeat the Board members showing of good faith, Champion was required to show that no reasonable person in the Board members' position could have thought that the Board's decision was justified. Id.

Federal courts reviewing civil rights claims apply a test that is similar to the Texas law regarding qualified immunity. The elements in federal court are essentially the same as the elements of Texas law. Qualified immunity applies to public officials who were acting: 1) in the course and scope of their governmental duties, 2) pursuant to clearly established law, and 3) in good faith. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Therefore, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818, 2738. The Harlow Court elaborated on the good faith element of the defense of qualified immunity and said that qualified immunity prevents discovery until the issue of qualified immunity is resolved.

Under federal law, a presumption exists in favor of immunity for public officials. State of Louisiana v. Public Investors, Inc., 35 F.3d 216 (5th Cir. 1994). Therefore, the plaintiff inherits incredible burdens in trying to defeat the applicability of official immunity. First, the constitutional rights alleged to have been violated must have been clearly established in a particularized manner and to the extent that a reasonable official would clearly understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L.Ed.2d 523 (1987). Where this is a conflict in the courts over the applicability of the law to certain rights, it cannot be said that the rights have been clearly established. Hilliard v. City and County of Denver, 930 F.2d 1516, 1520 (10th Cir. 1991).

Further, under federal law, the element of good faith has also been expanded to safeguard individual immunity. The Fifth Circuit Court of Appeals has interpreted Agood faith" to apply to all actions except those performed with specific malicious intent to harm. Schultea v. Woods, 27 F.3d 1112 (5th Cir. 1995).

Federal courts are therefore more likely to grant immunity from suit to defendants than Texas state courts. In federal court, immunities apply to protect public officials not only from potential liability, but also from the expense of litigating the matter. Hunter v. Bryant, 502 U.S.224, 229 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Therefore, any time a local official is sued in his personal capacity, the appropriate immunity defense should be raised as early as possible. A favorable ruling for the municipal official early in the case, may prevent the rigors of a lawsuit. In federal court, if the individual defendants are sued only in their personal capacities, an assertion of official immunity may prevent not only liability, but the expense and inconvenience of a lawsuit as well.

The Fifth Circuit has stated that a basic precept of the official immunity doctrine is to prevent subjecting officials to both trial and traditional discovery concerning acts for which they are likely immune. Elliot v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985), abrogated on other grounds by Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Whether the official's immunity is absolute or qualified, allowing any but perhaps the most preliminary proceedings on the immunity-barred claim runs squarely counter to the doctrine's basic protective purpose: that officials be free to exercise their duties and functions without fear of having their attentions distracted by the subsequent claims of unhappy or unsuccessful litigants. Elliot, 751 F.2d at 1478.

Local legislators are entitled to absolute immunity from suit under § 1983 for their legislative activities, Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S.Ct. 966, 970, 140 L.Ed. 2d 79 (1998), and for conduct in furtherance of their duties as a legislator. Hernandez v. City of Lafayette, 643 F.2d 1188, 1193 (5th Cir. 1981). Furthermore, legislative immunity not only protects legislators; it also protects officials fulfilling legislative functions. Minton v. St. Bernard Parish School Board, 803 F.2d 129, 135 (5th Cir. 1986). However, not all actions taken by an official with legislative duties are protected by absolute immunity. Minton, 803 F.2d at 135. Only those duties that are functionally legislative are protected by immunity. Id.

The Fifth Circuit Court of Appeals has adopted two tests to aid in determining whether an action is considered legislative. Hughes v. Tarrant County, 948 F.2d 918, 921 (5th Cir. 1991). The first test focuses on the nature of the facts used to reach a given decision. Under this test if the underlying facts on which a decision is based are Alegislative facts," such as generalizations concerning a policy or state of affairs, then the decision is legislative. If on the other hand, the facts used in the decision making are more specific, such as those that relate to particular individuals or situations, then the decision is administrative. Id. at 921. The second test focuses on the Aparticularity of the impact of the action." Under this test, if the action involves establishment of a general policy, it is legislative. If it singles out specific individuals and affects them differently from others, it is administrative. Id.

Other federal appellate courts have adopted the same or similar tests for determining the scope of absolute legislative immunity. See, e.g., Roberson v. Mullins, 29 F.3d 132, 135 (4th Cir. 1994); Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir. 1992); Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 23 (1st Cir. 1992); Crymes v. DeKalb County, Ga., 923 F.2d 1482, 1485 (11th Cir. 1991); Ryan v. Burlington County, N.J., 889 F.2d 1286, 1290-91 (3rd Cir. 1989); Haskell v. Washington Township, 864 F.2d 1266, 1278 (6th Cir. 1988); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984), cert denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985).

The United States Supreme Court has not outlined any definitive test for determining when a particular action taken by a local official is considered legislative and when it is not. Nevertheless, the Supreme Court did state that in determining whether an act is legislative, a court may not look into the motive or intent of the official performing the act, but only at the nature of the act. Bogan, 523 U.S. at 54, 118 S.Ct. at 973. The court concluded that the adoption of a budget ordinance which eliminated the plaintiff's position with the city reflected a discretionary, policymaking decision that Abore all the hallmarks of traditional legislation." Id. at 55, 973. In doing so, the U.S. Supreme Court reversed the lower court which had reasoned that a city mayor's conduct was administrative rather than legislative because the mayor had relied on facts that related to a particular individual in making his decision. Id. at 48, 969. The Supreme Court stated that whether an act is legislative depends on the nature of the act, not the motive or intent of the official performing it. Id. at 54, 973. The Supreme Court ultimately determined that the adoption of a budget ordinance that eliminated several city positions, including the plaintiff's, was a traditional discretionary, policymaking, legislative decision irrespective of any allegations of individualized motive. Id. at 55, 973.

Several courts have held that zoning decisions by local legislative bodies are legislative functions. In Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 298 (Tex. App. - Dallas 1989, no writ) (cert. denied, 498 U.S. 1087, 111 S.Ct. 963, 112 L.Ed.2d 1049 (1991)), the Dallas Court of Appeals concluded that city council members acted in a legislative capacity when they voted to deny an application for a planned development. After several more years of litigation, the Sunnyvale case eventually ended up in the Texas Supreme Court, which agreed that zoning is ordinarily a legislative function. Mayhew v. Town of Sunnyvale, 964 S.W.2d. 922, 939-40 (Tex. 1998). Several federal courts have also determined that land use decisions may be legislative acts to which absolute immunity applies. See e.g. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S. Ct. 1171, 1179, 59 L.Ed.2d 401 (1979) (to the extent that members of a regional planning board were acting in a legislative capacity in adopting a land use ordinance and general plan, they were entitled to absolute immunity); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614 (8th Cir. 1980) (city board of directors who adopted rezoning ordinance which violated landowner's due process and equal protection rights were entitled to absolute legislative immunity); Acierno v. Cloutier, 40 F.3d. 597 (3rd Cir. 1994) (enactment or amendment of zoning legislation is legislative for immunity purposes).

Not all land use decisions by local public officials fall within the protection of legislative immunity. The Dallas Court of Appeals used the same two tests as the Fifth Circuit in Hughes, supra p.13, in holding that city council members who voted to reject a proposed development plan were not entitled to absolute legislative immunity in a § 1983 lawsuit. Bartlett v. Cinemark U.S.A., Inc., 908 S.W.2d 229, 235 (Tex.App.BDallas 1995, no writ). The Cinemark court concluded that zoning is not always legislative for purposes of immunity. Id. at 237. In the Cinemark case, the Dallas City Council denied a development plan for a proposed mega-theater, due in large part to neighborhood opposition. The Dallas Court of Appeals stated that the following facts before the Dallas City Council were not legislative facts;

whether the development plan was properly submitted within a six month window as required by the applicable ordinance;
whether a theater was a permitted use on a particular piece of property;
whether the development plan violated the applicable ordinance by authorizing construction of Afree-standing restaurants";
whether the development plan complied with the buildings and height restrictions included in the conceptual plan; and
whether the development plan adequately addressed the internal vehicular circulation requirements mandated by the applicable ordinance. Id. at 235.

The Court held that these facts were not the kind of facts that were of general applicability as to be considered Alegislative facts" for immunity purposes. Instead, the Court stated that these facts affected a specific situation and specific individuals, and were indicative of an administrative action under the first Hughes tests. Id.

The Court then focused on the second Hughes test, and held that the council members actions in voting to deny the development plan did not look to the future or establish some new rule applicable to all who might desire to develop property covered by the particular ordinance in question. Id. at 236. The council vote singled out the developers in the case and made a decision that only affected the developers individually. Id. Thus the council members actions could not be considered legislative. Since the council members actions were not legislative, the defense of absolute immunity was lost. Even courts that have held that zoning is ordinarily a legislative activity, acknowledge that it is not always legislative for purposes of immunity. See, Haskell, 864 F.2d at 1278. When local zoning officials do more than adopt prospective legislative-type rules and instead take the next step into the area of enforcement, they can claim only the executive qualified immunity appropriate to the activity. Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir. 1983). When the actions of municipal officials more closely resemble enforcement or administration of an existing policy, act, or law, then courts are more likely to conclude that the action is not legislative in nature. Acierno, 40 F.3d 597. Thus, the action will not be subject to the defense of absolute immunity.

The United States Supreme Court has held that federal district judges have two primary options prior to permitting discovery when a plaintiff files a complaint against a public official alleging a claim that requires proof of a wrongful motive. Crawford v. Britton, 523 U.S. 574, 597-98, 118 S.Ct. 1584, 1596, 140 L.Ed.2d 759 (1998). The district judge must exercise discretion in a way that protects the substance of the qualified immunity defense. Id at 597, 1596. First, the court may order a reply to the defendant's answer under Fed. R. Civ. P. 7(a), or grant the defendant's motion for a more definite statement under Fed. R. Civ. P. 12(e). Thus, the court may insist that the plaintiff Aput forward specific, nonconclusory factual allegations" that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment. Id. at 598, 1596-97. This option exists even if the official chooses not to plead the affirmative defense of qualified immunity. Id. at 598, 1597.

Second, if the defendant does plead the immunity defense, the district court should resolve that threshold question before permitting discovery, Harlow, 457 U.S., at 818, 102 S.Ct., at 2738, effectively treating the defense as an immunity from suit. At this stage, the court must determine whether, assuming the truth of the plaintiff's allegations, the official's conduct violated clearly established law. Crawford, 523 U.S., at 598, 118 S.Ct., at 1597. The emphasis under federal law focuses on determining whether the law guiding the land use official's actions was clear, not on whether he acted in good faith as emphasized under state law. However, the federal court may still choose the first option of demanding more specific allegations of intent, thereby placing no burden on the defendant-official. Id.

Several federal courts of appeal, including the 5th Circuit, have adopted a Aheightened pleading" standard for civil rights complaints against public entities and/or officials. See Elliot 751 F.2d 1472.

Whether they have articulated the rule as a "heightened pleading" standard, or simply as application of the requirements of Rule 8, all of the Circuits have applied a similar pleading requirement in civil rights cases. See e.g., Siegert v. Gilley, 895 F.2d 797 (D.C. Cir. 1990), affirmed, 111 S. Ct. 1789 (1991) (adopting heightened pleading requirement); Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir. 1979) (civil rights complaints must do more than state simple conclusions); Spear v. Town of West Hartford, 954 F.2d 551, 63 (2nd Cir. 1992) (civil rights complaints containing only bare assertions that are conclusory and speculative will be dismissed); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3rd Cir. 1978) (complaint must be sufficiently precise to give notice of claims asserted); Collinson v. Gott, 895 F.2d 994 (4th Cir. 1990) (adopting heightened pleading requirement); Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985) (adopting heightened pleading requirement); Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348 (6th Cir. 1989) (adopting heightened pleading requirement); Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988), cert. denied, 488 U.S. 968 (1988) (mere conclusory allegations are insufficient to state claim); Arnold v. Jones, 891 F.2d 1370 (8th Cir. 1989) (adopting heightened pleading requirement); Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) (adopting heightened pleading requirement); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642 (10th Cir. 1988) (adopting heightened pleading requirement); Arnold v. Board of Education, 880 F.2d 305 (11th Cir. 1989) (Rule 8 is applied more rigidly to claims alleging official policy or custom of a local government).

In Leatherman, 507 U.S. at 168, 113 S.Ct. at 1163, the United States Supreme Court held that a federal court may not apply a heightened pleading standard that is more stringent than usual Rule 8 pleading requirements in civil rights cases alleging municipal liability under § 1983. However, the Leatherman court did not address heightened pleading requirements for civil rights lawsuits against individuals. The Fifth Circuit has held that an Elliot heightened pleading standard applies to all civil rights actions where the defense of qualified immunity is asserted. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995). The Fifth Circuit in Schultea, 47 F.3d at 1433, distinguished Leatherman's pronouncement that a Ashort and plain" statement of the allegations is required by Rule 8 of the Federal Rules of Civil Procedure. The Fifth Circuit noted that Rule 8 pleading standards do not apply to Rule 7 replies. Therefore, the court announced a two-step pleading procedure which is applicable to civil rights litigation against individual officials:

This procedure does not require the plaintiff to fully anticipate the defense of qualified immunity in his original complaint. It does however, place a burden on the plaintiff to negate an immunity defense once plead. Schultea makes it clear that this two-step process B requiring the plaintiff to file a short and plain statement of his claim pursuant to Fed. R. Civ. P. 8(a)(2), followed by a more particularized reply pursuant to Fed. R. Civ. P. 7B is the preferred procedure preceding consideration of a motion to dismiss on grounds of qualified immunity. Todd, 72 F.3d at 446.

Under Schultea, the district court may, on the official's motion or on its own, require the plaintiff to reply to the qualified immunity defense in detail. Schultea, 47 F.3d at 1433. By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. Id. Therefore, a defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply. Id.

Under state and federal law, official immunity should be affirmatively plead or it may be deemed waived. However, courts effectively review individual immunity defenses as both immunity from liability and immunity from suit, which in its true context would allow for the filing of a plea to the jurisdiction. When the affirmative defense is plead under state law, it would also be appropriate to file special exceptions to the plaintiff's pleadings to clarify the nature of any allegations which seek to pierce the veil of immunity. Most Texas authorities require that the plaintiff be given a reasonable opportunity to replead with more particularity prior to entertaining a motion for summary judgment or plea to the jurisdiction. See, Texas Dept. of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974); Godley Indep. Sch. Dist. v. Woods, 21 S.W.3d 656, 658 (Tex.App.BWaco 2000, petition for review filed); Tsumi v. Texas Parks and Wildlife Dept., 23 S.W.3d 58 (Tex.App.BAustin 2000, writ denied).

If a plaintiff can survive the precise Schultea pleading requirements, a municipal official will then have the option of pursuing an immunity ruling through a summary judgment motion. An individual's entitlement to qualified immunity can be determined as a matter of law. Under a summary judgment motion, the key elements of qualified immunity are whether the law was clearly established and whether the official acted in good faith. Good faith is typically established by the filing of affidavit testimony.

To be entitled to summary judgment under Texas law, the public official must show that a reasonably prudent official in the same or similar circumstances could have believed that the actions taken were justified. City of Beverly Hills v. Guevara, 911 S.W.2d 901, 903 (Tex.App.BWaco 1995, no writ). Alternatively, the official can offer evidence that no reasonable official in the same position would have taken an action that the plaintiff has alleged was required to be taken. Murillo v. Vasquez, 949 S.W.2d 13 (Tex.App.BSan Antonio 1997, writ denied). Upon submission of an affidavit meeting this requirement, the plaintiff then has the burden of submitting proof that shows that no reasonable public official could have thought the facts justified the actions taken. Id. Proof of negligence is not sufficient to show bad faith, or a lack of good faith. Chapa v. Aguilar, 962 S.W.2d 111 (Tex.App.BHouston [1st Dist] 1997, no writ).

The Texas Supreme Court has recently determined how an official may establish good faith as a matter of law in the context of police pursuits. University of Houston v. Clark, 38 S.W.3d 578 (Tex. 2000). The Supreme Court recognized the competing interests in good faith cases:

Id. at 580-81. The court also noted that the test for good faith is analogous to the abuse of discretion standard which would allow an official to be guilty of bad faith only if no reasonable person could have reached the decision in question. Id. at 581. Therefore, if an official offers proof that a reasonably prudent official could have or might have believed that his actions were acceptable, summary judgment should be granted. Id.

Mere conclusory affidavits are not sufficient to establish an official's entitlement to summary judgment. Clement v. City of Plano, 26 S.W.3d 544 (Tex.App.BDallas 2000, n.w.h.). The Clark court discussed in some detail the type of affidavit testimony necessary to establish good faith. In the context of a police pursuit, the testimony must discuss:

In the context of land use decisions, this would likely include an analysis of what a reasonably well trained official would know about the current state of the law and the constitutional rights of landowners. Appropriate testimony would include a discussion of the official's analysis of the land use application and landowner's constitutional right to use his property, how the decision made was in the public interest, or how the landowner's rights might be protected under alternative development applications. The Clark discussion emphasizes the importance of acknowledging through affidavit testimony that in reviewing the land use decision, due consideration was given to the rights of the developer but the official made a discretionary decision that he reasonably believed would promote the public interest.

Both Texas and federal law allow for interlocutory appeals from a denial of a summary judgment based on immunity. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5) (Vernon 2001) states that a person may appeal from an interlocutory order of a district court, county court at law, or county court that denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. Tex. Gov't Code Ann. § 22.225(c) (Vernon Supp. 2000) and Tex. Gov't Code Ann. § 22.001(a)(2) (Vernon 1988) provide that a decision of the court of appeals on an interlocutory immunity appeal is final and the Texas Supreme Court has no jurisdiction over interlocutory appeals unless there is a dissenting opinion in the courts of appeals or if the decision of the court of appeals conflicts with a previous decision of a different court of appeals or of the Supreme Court on a question of law material to a decision of the case. Gonzales v. Avalos, 907 S.W.2d 443, 444 (Tex. 1995).

In federal court, a denial of a motion for summary judgment based on the defense of official immunity is also subject to an interlocutory appeal. The United States Supreme Court has held that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).

The general rule in Texas is that individual council members may not be deposed to determine their subjective intent in making a land use decision. Individual review of legislative actions is restricted to examination of the language of the law in question and official legislative records. Sosa v. City of Corpus Christi, 739 S.W.2d 397, 405 (Tex. App.BCorpus Christi 1987, no writ). Therefore, individual legislators may not be questioned to determine the basis for their decisions. Id. The subjective knowledge, motive or mental process of an individual legislator may not be discovered because it is irrelevant to a determination of the validity of a legislative act which expresses the collective will of the governmental body. Id. Therefore, a plaintiff may not depose a city official regarding a legislative land use decision. Mayhew, 774 S.W.2d at 298-99.

Because local legislators are entitled to absolute immunity from civil rights lawsuits, the U.S. Supreme Court has also noted that historically the motives of municipal officials may not be inquired into. Bogan, 523 U.S. at 51, 118 S.Ct. at 971. One of the principles behind affording legislative immunity to city officials is that legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. Id. at 52, 971.

In federal court, if the plaintiff's action survives the initial hurdles of pleading and is otherwise viable, the plaintiff ordinarily will be entitled to some discovery. Crawford, 523 U.S. at 598, 118 S.Ct. at 1597. Fed. R. Civ. P. 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery. Id. The judge should give priority to discovery concerning issues that bear upon the qualified immunity defense, such as the actions that the official actually took, since the defense should be resolved as early as possible. Id. at 599-600, 1597.

The Schultea court also elaborated on discovery in qualified immunity cases. At the threshold stages of pleading, federal district courts may ban discovery and may limit any necessary discovery to the defense of qualified immunity unless it finds that the plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts. Schultea, 47 F.3d at 1434. Even if such limited discovery is allowed, at its end, the court can again determine whether the case can proceed and consider any motions for summary judgment under Fed. R. Civ. P. 56. Id.

When Land Use Cases Get Personal: