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October 29, 1997

X-MEN SECURITY, INC., et al., Plaintiffs, against GOVERNOR GEORGE PATAKI, et al., Defendants.

The opinion of the court was delivered by: GLASSER


 GLASSER, United States District Judge:


 The allegations that make up the basis for the underlying litigation are set forth in detail in the Memorandum and Order issued by this Court on July 10, 1997 ("July 10th Order"). Familiarity with that document is assumed.

 The facts, briefly, are as follows: X-Men is a private corporation that provides security and protective services. Ocean Towers is a privately owned and operated apartment complex that receives public financing from both the federal and state governments. The development is regulated by the federal government through the Housing and Urban Development Agency ("HUD") and by the State of New York through the Division of Housing and Community Renewal ("DHCR"). The complaint alleges that shortly after X-Men began providing security at Ocean Towers, defendants Jules Polonetsky (a New York State Assemblyman) and Peter King (United States Representative for the Third Congressional District of New York), motivated by racial and religious prejudice, formed a conspiracy with three objectives: (1) terminating X-Men's contract with the owners and managing agent of Ocean Towers; (2) preventing X-Men and its owner from procuring future contracts; and (3) preventing the tenants of Ocean Towers from enjoying the benefits of X-Men's security services. Compl. at PP 36, 39, 41. Using their official positions to create a public frenzy, the conspirators made false allegations that: X-Men was controlled by Farrakhan; the Nation of Islam profited from the Ocean Towers contract; X-Men was a racist hate group; and X-Men and Richards were guilty of fraud, mismanagement, and unpaid debts. Id. at PP 40-44.

 Plaintiffs also allege that Polonetsky and King forwarded a letter under Polonetsky's signature dated September 24, 1994 to then-DHCR Commissioner Donald Halperin. The letter stated, in relevant part:


Since the Nation of Islam promotes hatred against whites, Jews, women, Catholics and others, it is difficult to understand how the X-Men are eligible for a state-supported contract -- which requires compliance with equal employment and nondiscrimination guidelines. It seems clear that state support for this contract subsidizes the activities of a hate group and helps fund the racist and anti-Semitic goals of Louis Farrakhan and the Nation of Islam.

 Id. at P 45. Later in the letter, Polonetsky urged the Commissioner to terminate the contract with X-Men. Id. at P 46. Plaintiffs claim that this conspiracy and letter led to the termination of X-Men's contract with Ocean Towers.

 As a result of these occurrences, plaintiffs brought the present action against Polonetsky, King, and others alleging various civil rights violations as well as tortious interference with a contract. In its Memorandum and Order dated July 10, 1997, this Court dismissed the tortious interference claims and all of plaintiffs' claims that were based on 42 U.S.C. § 1981. It also dismissed all of plaintiffs' § 1983 and § 1985 claims except for those brought against defendants Jules Polonetsky and Peter King.

 In this motion, Defendant King requests that this Court reconsider the portions of its Memorandum and Order that deny King's motion to dismiss the claims against him under §§ 1983 and 1985. He argues that


in permitting plaintiffs to proceed in this case against two legislator defendants while dismissing similar claims against the Private Defendants and the State Executive Defendants, the Court's memorandum (1) is inherently inconsistent and contradictory in its treatment of claims against the defendants; (2) adopts a wholly novel and expansive theory of liability for constitutional torts, potentially having a chilling effect on the ability of legislators (and others) to speak out on matters of public importance; and (3) fails to address the merits of defendant King's qualified immunity defense (which would include consideration of the prior two points) before discovery, as the Supreme Court has directed.

 Def's Mem. of Law 1. Although it is not entirely clear, it appears that defendant's motion for reconsideration is predicated on point (3) -- the contention that this Court overlooked controlling authority in declining to rule on the merits of King's claim of qualified immunity. See also id. at 6 ("The remaining civil rights claims against defendant King should be dismissed on the basis of his qualified immunity from suit.").


 Standard for Motion to Reconsider

 As a general principle, a motion to reconsider will be granted only if the movant "present[s] 'matters or controlling decisions the court overlooked that might materially have influenced its earlier decision.'" Calfed, Inc. v. Anglo American Ins. Co., 940 F. Supp. 554, 556 (S.D.N.Y. 1996)(quoting Morser v. AT&T Informational Systems, 715 F. Supp. 516, 517 (S.D.N.Y. 1989)). "Rule 3(j) [now Rule 6.3] is to be narrowly construed and strictly applied to avoid repetitive arguments on issues that have been considered fully by the court." Id. (citing Ades v. Deloitte & Touche, 843 F. Supp. 888, 892 (S.D.N.Y. 1992)). Thus, to persuade the court to reconsider its decision, it is not enough for a party to make a more convincing argument than was made the first time. "The law of the case will be disregarded only when the court has 'a clear conviction of error' with respect to a point of law on which its previous decision was predicated." Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981), cert. denied, 459 U.S. 828, 103 S. Ct. 65, 74 L. Ed. 2d 66 (1982)(citations omitted).

 Application to the Present Motion

 As noted in this court's July 10th Order, qualified immunity is a defense that, if proven, shields government agents 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." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). Even if the rights in question are not clearly established, a government actor may still be shielded by qualified immunity if "it was objectively reasonable for the public official to believe that his acts did not violate those rights." Kaminsky, 929 F.2d at 925. The purpose of the defense is to avoid "subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery," which includes the "distraction of officials from their government duties, inhibition of discretionary action, and deterrence of able people from public service." Harlow, 457 U.S. at 816-18. Generally speaking, "questions of immunity should be resolved at the earliest possible stage of the litigation so that an officer who is immune from suit will not have to proceed through a lengthy trial to establish that fact." Dempsey v. Town of Brighton, 749 F. Supp. 1215, 1226-27 (W.D.N.Y. 1990), aff'd, 940 F.2d 648 (2d Cir.), cert. denied, 502 U.S. 925, 116 L. Ed. 2d 278, 112 S. Ct. 338 (1990).

 Nevertheless, defendant King's assertion that no discovery may be had until the question of qualified immunity is resolved is not correct. As support for this contention, King quotes Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)): "'until this threshold immunity question is resolved, discovery should not be allowed.'" Def.'s Mem. of Law 6. A careful reading of Harlow and Siegert, however, reveals that the "threshold question" referred to is whether the plaintiff has stated a violation of a clearly established constitutional right -- it is not whether qualified immunity is or is not available to the defendant. See Harlow at 818.

 It has already been determined that the plaintiffs have sufficiently pleaded several violations of their constitutional rights. See July 10th Order. It is true, however, that this court did not directly address whether under preexisting law defendant King would have understood that his acts were unlawful. To that end, it is noted that defendant has moved for dismissal on the pleadings and, therefore, all of plaintiffs' allegations are taken as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Plaintiffs have alleged that defendant, among other things, made false accusations that X-Men is a "hate group" and "racist" and that it engaged in "fraud, mismanagement, unpaid debts, and other irregularities," compl. P 44, and that, even after a Congressional investigation cleared X-Men of any wrongdoing, defendant continued to assert these and other false allegations in order to "create a public frenzy which would lead to the termination of the contract upon illegal discriminatory grounds". Id. at P 40. Given these allegations, this court cannot hold, at this stage of the proceedings, that as a matter of law it was objectively reasonable for King to believe that his conduct was lawful. See Kaminsky v. Rosenblum, 929 F.2d 922, 926 (2d Cir. 1991).

 Furthermore, even were it determined that defendant King's actions were objectively reasonable, such a finding would not resolve the question of qualified immunity. As noted in the July 10th Order, plaintiffs have alleged that defendant King's actions were animated by an unconstitutional motivation. "The defendants do not dispute that plaintiffs' have properly set forth a claim for retaliation in violation of their right of association. Instead, they argue that plaintiff's cannot 'prove' X-Men's religious affiliation was the motivating factor in the decision to terminate the contract as is required under Mount Healthy." July 10th Order at 16-17. Plaintiff's equal protection claim as well as their § 1985 claim are also predicated on defendant's unconstitutional motivation. Id. at 17-18.

 To the extent that this court's July 10th Order was ambiguous with respect to its reliance on the recent second circuit case, Sheppard v. Beerman, it is here clarified. Where an unconstitutional motivation is alleged, even if a defendant's conduct was objectively reasonable, he may, nevertheless, be denied the defense of qualified immunity. See Sheppard v. Beerman, 94 F.3d 823, 828 (2d. Cir. 1996). As the Second Circuit has stated,


where the subjective state of mind of the actor is part of the constitutional mix, we have developed a rule that balances the interests of the official claiming immunity against the interests of the employee asserting unconstitutional motive:


Upon a motion for summary judgment asserting a qualified immunity defense in an action in which an official's conduct is objectively reasonable but an unconstitutional subjective intent is alleged, the plaintiff must proffer particularized evidence of direct or circumstantial facts . . . supporting the claim of an improper motive in order to avoid summary judgment.

 Id. (quoting Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995)). See also Martin v. D.C. Metropolitan Police Dept., 259 U.S. App. D.C. 31, 812 F.2d 1425, 1437 (D.C. Cir. 1987) (A defendant's "qualified immunity claim[] can be defeated by direct evidence of [his] subjective intent -- evidence which . . . is now in the defendant['s] sole possession. We may . . . permit sharply limited discovery in [that] context.")

 It is, therefore, not possible for the court to resolve this issue on defendant's 12(b)(6) motion, as the court "would obviously have to consider matters outside the pleadings." 94 F.3d at 828. Plaintiffs have not yet had the opportunity to conduct discovery and cannot "proffer particularized evidence of direct or circumstantial facts . . . supporting the claim of an improper motive." Id. Thus, "the qualified immunity defense cannot be established on the pleadings alone where an unconstitutional motive is alleged." Hayes v. Sweeney, 961 F. Supp. 467, 476 (W.D.N.Y. 1997)(citing Sheppard v. Beerman, 94 F.3d 823, 828 (2d Cir. 1996); Blue v. Koren, 72 F.3d 1075, 1084 (2d. Cir. 1995)). See also Martin v. D.C. Metropolitan Police Dept., 259 U.S. App. D.C. 31, 812 F.2d 1425, 1437 (D.C. Cir. 1987)("We have noted that credible pleas of official immunity remove cases from the mine-run category . . . . Nonetheless we are alert to this reality: Allowing plaintiffs to raise certain claims of unconstitutional motive could become an empty gesture were we to impose a blanket restriction on all discovery prior to the resolution of the qualified immunity issue on summary judgment.")


 For the foregoing reasons, defendant King's motion for reconsideration is denied. In order to minimize the burdens imposed upon the government officials who remain as defendants in this case, the scope of plaintiffs' discovery is limited to the issue of defendant King's and defendant Polonetsky's subjective intent.


 Dated: October 29, 1997

 Brooklyn, New York

 I. Leo Glasser, U.S.D.J.


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