from the larger demonstrations. He later met with Dinkins to discuss the problem of the continuing violence and, as noted above, approved implementation of the strategy that effectively brought the violence to a close.
E. The Complaint
As amended, plaintiffs' complaint contains their 42 U.S.C. §§ 1983, 1985, and 1986 claims,
and eight supplemental State causes of action.
Plaintiffs specifically allege in respect to their federal claims that during the Crown Heights disturbances, defendants "adopted and pursued a policy, practice, custom and usage of discriminatorily and selectively denying police protective and investigative services to Jews and other non-Black persons." Amended Complaint at P 144. On February 1, 1993, defendants moved for dismissal of the complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Federal Rule 56. Defendants also then raised the issue of qualified immunity in respect to Dinkins and Brown.
The Court (Raggi, J.) denied the motion, determining implicitly that plaintiffs had pleaded cognizable claims, and commenting that the case was not ripe for summary judgment at that early stage because of the need for discovery.
See Transcript of Proceedings of April 30, 1993 at 88. Approximately four years of discovery followed. Dinkins and Brown now again seek dismissal of the federal claims on the ground of qualified immunity.
A. Qualified Immunity Under § 1983
1. General principles
It is well established that the elements of a claim under § 1983 are: (1) that the conduct in question deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States: and (2) that the conduct complained of was committed by a person acting under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The Supreme Court has indicated that qualified immunity is not relevant to the existence of a claim arising under § 1983; rather, qualified immunity is simply an affirmative defense to a § 1983 action that must be pleaded by the defendant. Gomez, 446 U.S. at 640. "A decision on qualified immunity is separate and distinct from the merits of the case . . . . Immunity contemplates exemption from liability that would otherwise exist on the merits." Lassiter v. Alabama A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1151 (11th Cir. 1994).
Qualified immunity "generally shields governmental officials from liability for damages on account of their performance of discretionary official functions 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" McEvoy v. Spencer, 124 F.3d 92, 1997 WL 451387, at *4 (2d Cir. Aug. 11, 1997) as amended, 124 F.3d 92, 1997 U.S. App. LEXIS 33976, *10 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). Qualified immunity protects government officials from the burdens of defending expensive, but ultimately insubstantial, lawsuits and also guards against the risk that "fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties." Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); see also Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
In Harlow, the United States Supreme Court defined the limits of qualified immunity in essentially objective terms by focusing on the objective reasonableness of the government official's acts, assessed in respect to the legal rules that were "clearly established" at the time that the official action was taken. 457 U.S. at 818-819; see also Anderson, 483 U.S. at 639. Thus, even if the scope of the plaintiff's rights and the defendant's conduct were established at the time of the alleged violation, a government officer will still be protected from liability if it was objectively reasonable for the officer to believe that his or her conduct was lawful at the time of the challenged act -- that is to say, if "'officers of reasonable competence could disagree' on the legality of the defendant's actions." Lennon, 66 F.3d at 420 (quoting Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986)). The Court of Appeals for the Second Circuit has specifically noted that in qualified immunity cases, "we are not concerned about the correctness of the defendants' conduct, but rather the 'objective reasonableness of their chosen course of action given the circumstances confronting them at the scene." Lennon, 66 F.3d at 421.
2. Qualified Immunity and Summary Judgment
Although reasonableness is ordinarily a question of fact for the jury, this rule does not hold true when evaluating the affirmative defense of qualified immunity. See Lennon, 66 F.3d at 421. Provided that there are no material issues of fact, the question of whether a reasonable officer should have known that he or she acted unlawfully is a question for the Court and not for the jury and is properly resolved on a motion for summary judgment. See Hunter v. Bryant, 502 U.S. 224, 227-228, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991); Davidson v. Scully, 114 F.3d 12, 14 (2d Cir. 1997); Lennon, 66 F.3d at 421-422; Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994), cert. denied, 513 U.S. 1076, 115 S. Ct. 721, 722, 130 L. Ed. 2d 627, 115 S. Ct. 722 (1995); Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). Summary judgment is therefore appropriate if:
the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiffs and with all permissible inferences drawn in their favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right.