Justia Federal District Court Opinions

This case presents yet another chapter in the saga of the Federal Bureau of Investigation's notorious COINTELPRO operation. It is now clear that COINTELPRO has long been abandoned; but, as this case demonstrates, its victims have remained vigilant in seeking redress for past wrongs.

In 1976, several Washington area residents, who had been politically active in the late 1960s and early 1970s, brought suit in District Court claiming that certain of their constitutional rights had been violated. The plaintiffs sought damages and injunctive relief against numerous active and retired special agents of the Federal Bureau of Investigation (FBI) and members of the Metropolitan Police Department (MPD), as well as the District of Columbia itself. The amended complaint, filed October 28, 1977, alleged that each defendant had violated plaintiffs' constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful political protest against Government policies.¹

Following a 17-day trial, over which Judge Oberdorfer ably presided, a jury returned verdicts against most of the defendants and in favor of most of the plaintiffs. The jury also awarded substantial compensatory and punitive damages: awards to the eight prevailing plaintiffs, against the thirteen defendants found liable, totalled $711,937.50.²

On appeal, defendants have raised a number of arguments. We have given every argument thorough consideration and, following a painstaking effort--including examination of the record, verdicts and decisions from the trial court, review of the parties' briefs and study of the relevant statutory and case law--we have reached the following conclusions: (1) the claims of three of the prevailing plaintiffs against the FBI defendants were barred by the statute of limitations, and the judgments in their favor cannot stand; (2) the evidence was insufficient to support findings of liability against the individual MPD defendants and the District of Columbia, and the judgments against them cannot stand; (3) the evidence was insufficient to support findings that the FBI defendants participated in a conspiracy with MPD officials, and findings of liability for their participation in a joint FBI-MPD conspiracy are reversed; (4) consistent with our holdings herein, the damages issues are remanded for further consideration; and (5) in all other respects the judgments at trial--including the findings of individual and conspiratorial liability against the FBI defendants--are affirmed, except for our remand for reconsideration of one issue raised on cross-appeal.

BACKGROUND

We begin with a brief review of the parties to this action. Because each plaintiff brings an individual claim, as well as conspiracy claims, against each defendant, it is crucial that we set forth clearly the role that each played during the relevant time period.

In the late 1960s and early 1970s, each plaintiff engaged in a variety of activities--such as organizing meetings and demonstrations, and publishing newsletters--to express disagreement with, and rally support against, certain national and local Government policies. Generally, they focused their efforts on three issues: military involvement in Vietnam, proposals to build a superhighway through the District of Columbia, and equal rights for Black citizens of the District of Columbia. Each individual plaintiff played a leadership role in one or more of these efforts.

Plaintiff Sammie Abbott, a graphic artist, organized and was active in the Emergency Committee on the Transportation Crisis (ECTC), a coalition of Black and White neighborhood associations that opposed freeway construction through the District of Columbia. Plaintiff Abe Bloom, an engineer, was especially active in antiwar organizations, such as the Washington Mobilization Committee (WMC) and the Washington Area Peace Action Coalition (WAPAC), which organized major antiwar demonstrations in the District of Columbia. Plaintiff Reginald Booker, a federal employee, worked with Mr. Abbott on the freeway issue, helped to organize the Black United Front (BUF), and tried to foster local Black opposition to the Vietnam war.

Plaintiff Tina Hobson, a federal employee, participated in the organization of antiwar demonstrations and worked with her husband, the late Julius Hobson, who was active in the Black United Front. Plaintiff Richard Pollock, a college student at the relevant time, was principally involved in antiwar protest, and was active in the Student Mobilization Committee and other antiwar organizations. Plaintiff the Reverend David Eaton, minister of All Souls Church, was one of the founders and leaders of the Black United Front and participated in planning the 1968 Poor People's Campaign, a major civil rights demonstration.

Plaintiff Arthur Waskow, a Fellow at the Institute for Policy Studies--a research center whose scholars focused on public policy, race relations and foreign policy--organized and spoke at several antiwar demonstrations. Plaintiff Washington Peace Center, an organization affiliated with the Society of Friends, participated in the organization of several antiwar demonstrations during the relevant period.³

During the same period, defendants Brennan, Moore, Jones, Grimaldi and Pangburn were employed by the FBI. Defendant Charles D. Brennan was chief of the Internal Security Section in FBI headquarters from 1966 to 1970. From 1970 to 1971, Mr. Brennan was assistant director in charge of the Domestic Intelligence Division. In the former position, he was responsible for the FBI's COINTELPRO-New Left activity.⁴ In the latter job, he had overall responsibility both for COINTELPRONew Left and COINTELPRO-Black Nationalist.⁵ Mr. Brennan apparently authored an FBI memorandum announcing the creation of COINTELPRO-New Left in 1968, and another memorandum bearing his name recommended termination of the program in 1971.

Defendant George C. Moore was chief of the Racial Intelligence Section in FBI headquarters from 1967 to 1974. The section supervised field office implementation of COINTELPRO-Black Nationalist. The internal FBI memorandum announcing COINTELPRO-Black Nationalist went out over his name.

Defendant Courtland J. Jones held a liaison position between the Washington Field Office (WFO) of the FBI and FBI headquarters. From 1964 to 1974, he was WFO security coordinator and supervised nine squads, including Squad 5 and Squad 7. Squad 5 initially handled both New Left and racial matters but subsequently was divided into two squads. Squad 5 then handled racial matters and COINTELPRO-Black Nationalist, and Squad 7 was responsible for the New Left and COINTELPRO-New Left.

Defendant Gerald T. Grimaldi was a special agent in the WFO from 1956 to 1971. From the mid-1960s to 1970, he was a member of Squad 7, which investigated persons and individuals affiliated with the New Left; and from 1968 to 1970, he was the designated COINTELPRO-New Left Coordinator. In April 1971, he became supervisor of Squad 5, which handled racial matters and COINTELPRO-Black Nationalist.

Defendant Gerould W. Pangburn, a WFO Special Agent, was a member of Squad 7 in 1968, was then transferred to Squad 5, and was Squad 5 supervisor from 1972 to 1974. In both squads he handled investigations of alleged "racial extremists."

Plaintiffs also filed claims against MPD officials, as well as against the District of Columbia itself. Defendant Jerry V. Wilson was Chief of Police during the relevant period. Defendant Thomas J. Herlihy supervised the MPD Intelligence Division, and was responsible for its activities, until his retirement in 1973.

Sergeant Jack L. Acree and Lieutenant George R. Suter were successive supervisors in the MPD Security Information Unit of the Intelligence Division. Sergeant Acree was in the Unit from 1966 to 1972; Lieutenant Suter was assigned to the Unit from 1968 to 1970 and from 1972 to 1975.

Defendants Christopher Scrapper, Edward Jagen and John W. Mahaney were officers in the MPD Intelligence Division. Officer Jagen served undercover after 1971 and attended meetings of the Washington Area Peace Action Coalition (WAPAC) and the Peoples Coalition for Peace and Justice (PCPJ). Sergeant Scrapper supervised officer Jagen and other informants in the antiwar movement. Officer Mahaney supervised at least two undercover officers, one of whom obtained information on BUF and ECTC, the other of whom was active in two antiwar groups.⁶

According to plaintiffs, the FBI defendants conspired with each other, with other FBI agents and with the District defendants⁷ to impede plaintiffs' efforts to associate with others for the purpose of publicly expressing opposition to the Vietnam War, national and local Government race relations policies, and other Government actions. Many of the defendants' activities from which plaintiffs alleged they were injured were related to COINTELPRO, an FBI program begun in 1967 and discontinued in the early 1970s.⁸ COINTELPRO had two components; one was COINTELPRO-New Left, which, as implemented, was a "vaguely defined and haphazard"⁹ operation targeting people who opposed American involvement in the Vietnam War and other related policies of the national Government; the second was COINTELPRO-Black Nationalist, which, as implemented, was directed at people seeking improvement of civil rights for Black people. The goal and strategy of these secret programs are not in doubt: a memorandum prepared and circulated by one of the FBI defendants described the COINTELPRO-New Left program as follows:

The purpose of this program is to expose, disrupt and otherwise neutralize the activities of this group and persons connected with it. It is hoped that with this new program their violent and illegal activities may be reduced if not curtailed.¹⁰

The lack of any FBI definition of "New Left" apparently resulted in the targeting of almost every antiwar group, including those involved in legitimate, non-violent activities. See Senate Report, note 8, supra, at 88.

The purpose of COINTELPRO-Black Nationalist basically was the same as the New Left program. An airtel dated August 25, 1967 set forth the goals as follows:

The purpose of this new counterintelligence endeavor is to expose, disrupt, misdirect, discredit, or otherwise neutralize the activities of black nationalist, hate-type organizations and groupings, their leadership, spokesmen, membership, and supporters, and to counter their propensity for violence and civil disorder.¹¹

The lack of standards restricting the scope of this program, as with the New Left program, apparently led the FBI to investigate and target persons involved in nonviolent political expression, regardless of their involvement in disorders. See Senate Report, note 8, supra, at 177.

Among the primary goals of COINTELPRO was the prevention of coalitions among Black Nationalist groups and between Black Nationalist groups and the predominantly White New Left. Thus, the COINTELPRO-Black Nationalist program was intended to "[p]revent the coalition of militant black nationalist groups,"¹² and to "[p]revent militant black nationalist groups and leaders from gaining respectability, by discrediting them to three separate segments of the community."¹³ Targets of these efforts included the Southern Christian Leadership Conference and the Student Nonviolent Coordinating Committee.¹⁴ At least two plaintiffs were identified as Black Nationalists by the FBI and listed in the Agitator list of violence-prone people.¹⁵ At the same time, the FBI sought to promote political differences within New Left organizations and between New Left and Black Nationalist organizations, and to exploit opportunities to foment animosity.¹⁶

Secrecy was of utmost importance to the programs, and memoranda establishing them and requesting specific suggestions from field offices for counterintelligence operations cautioned

that the nature of this new endeavor is such that under no circumstances should the existence of the program be made known outside the Bureau and appropriate within-office security should be afforded to sensitive operations and techniques considered under the program.¹⁷

FBI memoranda make clear that special security precautions were taken to avoid public exposure, criticism and embarrassment. Leaflets and divisive publications prepared by the FBI were intentionally printed on unwater-marked paper and distributed in unmarked envelopes.¹⁸ The Senate Report suggests that the FBI's recognition of the illegality of the COINTELPRO program merely led to a tightening of security, not termination of the program.¹⁹

COINTELPRO invited creative participation by agents in the field offices and spawned an extraordinary range of activities. The memorandum initiating COINTELPRO-Black Nationalist advised agents to whom it was addressed, "You are urged to take an enthusiastic and imaginative approach to this new counterintelligence endeavor and the Bureau will be pleased to entertain any suggestions or techniques you may recommend."²⁰ The result, as disclosed by the trial record, was at least four categories of activity interfering with plaintiffs' legitimate protest activities: (1) efforts to create racial animosity between Blacks and Whites; (2) interference with lawful demonstration logistics; (3) efforts to create discord within groups or to portray a group's motives or goals falsely to the public; and (4) direct efforts to intimidate the plaintiffs.²¹ We set out below examples of each of these four categories, to provide a sense of the activities of which plaintiffs complain:

--The WFO prepared and distributed to "friendly media" false press releases calculated to tarnish the reputation of Julius Hobson²² and create internal dissension within the ranks of BUF.²³

--The FBI wrote a racially-inflammatory leaflet entitled "Give Them Bananas!", which it sent anonymously to BUF members. The leaflet was the result of FBI efforts to engender animosity between BUF and the New Mobilization Committee ("New Mobe"), an antiwar group, after the New Mobe received from the Black community a demand for payment to support a November 1969 antiwar demonstration. The incident, referred to in the record as the "Head Tax" issue, began with a BUF suggestion that demonstrators each make a contribution; it escalated when the New Mobe received a letter from BUF demanding $25,000 to support the demonstration. Rev. Moore, whose typewritten name appeared at the bottom of the BUF letter, denied writing it. Whether the FBI forged the initial demand letter is in considerable dispute. No dispute exists, however, over the FBI's responsibility for the "Give Them Bananas!" leaflet, which purports to be the New Mobe's response. It bears a crude drawing of a black monkey with a banana, and reads in part,

We consider you [Rev. Moore, whose name appeared on the initial demand letter] and your kind as black bandits and the most dangerous of the elements eating away at the movement.... Suck on your bananas, brother, and someday you might learn how to make a fire or build a wheel.²⁴

--The FBI filled in with fictitious names and addresses WMC housing forms used by WMC to identify places to lodge visiting demonstrators; the goal was to have demonstrators at the 1969 Presidential inaugural ceremonies make "useless trips to locate nonexistent addresses" and create confusion.²⁵

--The FBI interfered with a "counterinaugural demonstration" by infiltrating the parade marshals' walkie-talkie radio communications, countermanding orders and sending marchers outside approved demonstration areas.²⁶

--The FBI encouraged sources to "undertake leadership roles in the various factions and stimulate dissension among them."²⁷

--The FBI published its own "student" newspaper, The Rational Observer, which attacked the American University student newspaper, The Eagle, as too radical. The FBI publication, which claimed to be published by students, urged students to seek an injunction against publication of The Eagle and to question the motives of those who opposed the war, and warned, "Remember, you will be faced with joining society upon completion of your academic training. Don't do anything in haste today which could cause you embarrassment tomorrow."²⁸

--The FBI engaged in an intensive campaign of harassing interviews to intimidate politically active people and heighten their concern about the consequences of political activity.²⁹

The record does not contain documentation of MPD activities during this period as extensive as that regarding FBI activities. The MPD Intelligence Division had informers in virtually every organization with which plaintiffs were involved--the New Mobe, WMC, BUF, ECTC, Institute for Policy Studies, WAPAC and both plaintiff organizations³⁰ --in furtherance of its stated mission to gather information on "persons, groups, and organizations whose activities might be detrimental to the proper functioning of local, state, or national governments."³¹ The record contains testimony about efforts of these informants to disrupt the organizations with which they were involved. For example, evidence at trial indicated that an MPD informant acted as an agent provocateur and attempted to disrupt a peaceful demonstration at the United States Capitol,³² that a vociferous demonstrator who was identified later as an MPD officer urged a crowd to disobey parade instructions given by plaintiff Abbott and instead to march to an area where police awaited,³³ and that MPD successfully encouraged informants to take private mailing lists and membership lists, and in one instance to break into an office at night to take a metal strong box.³⁴

At trial, plaintiffs asserted that they were victims of three conspiracies to violate their civil rights, all actionable under 42 U.S.C. Sec. 1985(3) (Supp. V 1981). They alleged that each of these conspiracies violated their First Amendment rights to assemble for peaceable political protest, to associate with others to engage in political expression, and to speak on public issues free of unreasonable Government interference.³⁵ The jury returned verdicts in favor of most plaintiffs on all three conspiracy claims. One civil conspiracy, the jury found, included the five FBI defendants; a second involved certain MPD defendants and the District of Columbia; a third implicated both FBI and District defendants.

Plaintiffs also filed Bivens³⁶ actions for damages directly under the Constitution, claiming that defendants had individually injured various plaintiffs in the exercise of their First Amendment rights.

The jury returned special verdicts and found most defendants to be liable to most plaintiffs on the basis both of individual and conspiratorial acts. All FBI and MPD defendants, as well as the District of Columbia, were found liable to plaintiffs Bloom, Abbott, Pollock, Waskow and Washington Peace Center. The five FBI defendants, the District, and Wilson and Herlihy of MPD were found liable to plaintiffs Hobson, Eaton and Booker. One plaintiff, Washington Area Women Strike for Peace, was found not to have been injured by any of defendants' activities.

All defendants were found liable for compensatory damages. In addition, all of the FBI defendants, and Wilson and Herlihy of MPD, were found liable for punitive damages.³⁷ Five plaintiffs recovered $93,750 each, and three recovered $81,062.50 each. Individual defendants' liability ranged from $75,000 to $9,375.³⁸

DISCUSSION

The FBI defendants, District of Columbia defendants and FBI agent Courtland Jones separately appeal the judgments against them. Each of the defendant groups raises issues particular to itself, as well as certain contentions that are common to all. We turn now to consider each argument.

As a threshold matter, all defendants challenge the applicability of section 1985(3) to this case, although on separate grounds. The D.C. defendants argue that the section does not apply to employees of the District of Columbia or to the municipality.³⁹ The FBI defendants contend that the class-based animus necessary to a section 1985(3) action was not established.⁴⁰ Finally, FBI defendant Jones argues that the section does not apply to federal officials or to acts occurring within the District of Columbia.⁴¹

We begin by considering the language of, and case law relevant to, section 1985(3). The provision reads,

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.⁴²

By its terms, therefore, the statute requires that a plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

It is by now well-established that the provision encompasses private conspiracies, and not just actions taken under color of state law. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). It is equally clear, in light of Griffin, that the provision does not apply to all conspiratorial tortious interferences with the rights of others, but only to those motivated by some class-based, invidiously discriminatory animus. Id. Thus, the Supreme Court has added a requirement of class-based animus to the list of elements set out above.

In Griffin, the seminal case establishing these principles, the complaint alleged that defendants, private persons, had conspired to carry out an assault "to prevent [the] plaintiffs and other Negro-Americans, through ... force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens." Id. at 103, 91 S.Ct. at 1799. Holding that the complaint stated a cause of action at the core of section 1985(3), the Court found it unnecessary to delineate the periphery of such actions. Consequently, because the alleged conspiracy in Griffin was motivated by racial basis, the Court did not have to consider whether non-racial discriminatory animus stated a cause of action under the statute.

Similarly, the Court identified two constitutional sources of congressional power to reach the private conspiracy alleged in the case before it. First, the Court observed that section 2 of the Thirteenth Amendment enables Congress to impose liability on private persons for conduct "far beyond the actual imposition of slavery or involuntary servitude," id. at 105, 91 S.Ct. at 1800, and concluded that "Congress was wholly within its powers under Sec. 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men." Id.⁴³ Second, the Court noted that the right of interstate travel "is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference," id. at 105, 91 S.Ct. at 1800, and that plaintiffs had alleged interference with that right. Congress therefore unquestionably had the particular power to protect the right of interstate travel from private interference. The Court made clear that, in identifying these two sources of power, it did not mean to imply the absence of any others. Id. at 107, 91 S.Ct. at 1801.

Quite recently the Supreme Court revisited section 1985(3) and offered some guidance on the outer limits of the provision. In United Brotherhood of Carpenters and Joiners v. Scott, --- U.S. ----, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), the Court reviewed an action brought by a construction company and two of its employees, principally against a number of unions and their members. The complaint alleged that defendants had conspired to deprive plaintiffs of their legally protected rights, contrary to 42 U.S.C. Sec. 1985(3) (Supp. V 1981), by planning and executing attacks on persons and property at a construction site known to employ non-union workers. The Court held, first, that an alleged conspiracy to infringe First Amendment rights is not a violation of section 1985(3) "unless it is proved that the state is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the state." Id. 103 S.Ct. at 3356-57. On this point, the Court observed that the First and Fourteenth Amendments protect the individual against state action, not against wrongs committed by individuals, and it made clear that a section 1985(3) conspiracy to violate either of these constitutional provisions is not made out without some proof of state involvement. At the same time, the Court reaffirmed that the interpretation of the section is not generally limited by the state action constraints of the Fourteenth Amendment; section 1985(3) in fact applies to wholly private conspiracies as long as they are aimed at interfering with rights constitutionally protected against private as well as official encroachment--such as the Thirteenth Amendment and the right to travel. In other words, the rights protected by section 1985(3) exist independently of the section and only to the extent that the Constitution creates them. Thus, when state action is involved, the whole spectrum of rights against state encroachment that the Constitution sets forth comes into play. When no state action is involved, only those constitutional rights that exist against private actors may be challenged under the section.

The Court in Scott also considered the kind of class-based animus that is encompassed by the section and rejected the notion that the section forbids conspiracies against workers who refuse to join a union. More generally, the Court held that the provision was not intended to reach conspiracies motivated by bias toward others on account of their economic views, status or activities, id. at 3360, or, put another way, motivated by economic or commercial animus.

At the same time, the Court in Scott reaffirmed, on the basis of the applicable legislative history, that section 1985(3) was intended at a minimum to reach animus against Blacks "and those who championed their cause, most notably Republicans," id. at 3359 (emphasis added). Whether it also reached "wholly non-racial, but politically motivated conspiracies," id. at 3359, was dubbed a difficult question and was not reached.⁴⁴

It is against this background that we consider defendants' arguments that the District Court erroneously permitted plaintiffs to proceed with their section 1985(3) claims.

B. Applicability of Section 1985(3) to the District of Columbia and Its Employees

The District of Columbia argues that section 1985(3) does not apply to the District of Columbia or its employees. For this proposition it offers no analytical support, but rather rests on a passing and conclusory remark in an opinion from this Circuit to the effect that section 1985 "has never been applicable to District employees."⁴⁵ We disagree. Nothing in the statute or in Supreme Court opinions supports the view put forth by defendants. For the following reasons, we hold that the District and its employees may be sued for damages under section 1985(3).⁴⁶

The District defendants do not offer any rationale for their proposed limitation on the reach of section 1985(3), and we therefore must undertake an independent inquiry into the possible bases for that argument. The proposed limitation has two possible sources: either it is an interpretation of the geographical limit contained in that section--the section by its terms encompasses conspiracies acted upon "in any State or Territory"--which, arguably, was intended to eliminate from the scope of the statute all conspiracies formed in the District of Columbia; or it might be a confused analogy to section 1983 case law, holding that the District of Columbia is not a "State or Territory" within the meaning of 42 U.S.C. Sec. 1983.⁴⁷

The Supreme Court has twice construed the phrase "any [or every] State or Territory" as used in the civil statutes of the 1860s and early 1870s. In Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851, 92 L.Ed. 1187 (1948), the Court ruled that the phrase, as used in 42 U.S.C. Sec. 1982 (1976), includes the District of Columbia. That section, which first appeared as section 1 of the Civil Rights Act of 1866, provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.⁴⁸

In District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), the Court reached the opposite conclusion when construing 42 U.S.C. Sec. 1983 (current version at 42 U.S.C. Sec. 1983 (Supp. V 1981)). At the time,⁴⁹ that section provided in pertinent part, "Every person who, under color of any statute ... of any State or Territory ...." The Court concluded that the District of Columbia was not a "State or Territory" within the meaning of that language.

To determine the meaning of the phrase "State or Territory" as it is used in section 1985(3), we track the analysis in District of Columbia v. Carter and test for divergence. Initially, however, it is crucial to note that section 1985(3) is facially more akin to section 1982--which has been construed to encompass the District--than to section 1983. Sections 1982 and 1985(3) both use the "State or Territory" phrase as a geographical limit (unlike section 1983); consequently, to exclude the District of Columbia from their scope is to create an inexplicable safe haven in the District for persons--both private and official--who would be liable elsewhere. In contrast, the "color of law" requirement in section 1983 (which is not found in either sections 1982 or 1985(3)) implicates federalism issues not relevant to our inquiry; therefore the case law construing section 1983 offers a less compelling analogy. In other words, to draw lines on the basis of source of authority is to recognize a coherent distinction, whereas to draw lines on the basis of place of action is to be impractical, as Hurd v. Hodge made clear.

The issue is somewhat complicated, however, by the fact that sections 1982 and 1983 originated in two different acts, each with a different purpose. Section 1985(3) first appeared in the Ku Klux Klan Act of 1871,⁵⁰ as did section 1983, whereas section 1982 appeared earlier, in the Civil Rights Act of 1866.⁵¹ This difference in origin was central to the Carter Court's analysis of sections 1982 and 1983. Thus, after explaining that section 1982 was enacted to enforce the Thirteenth Amendment's nationwide prohibition against slavery and involuntary servitude, the Court explained,

The situation is wholly different, however, with respect to Sec. 1983. Unlike Sec. 1982, which derives from the Civil Rights Act of 1866, Sec. 1983 has its roots in Sec. 1 of the Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, Sec. 1, 17 Stat. 13. This distinction has great significance, for unlike the 1866 Act, which was passed as a means to enforce the Thirteenth Amendment, the primary purpose of the 1871 Act was "to enforce the Provisions of the Fourteenth Amendment." 17 Stat. 13; ... And it has long been recognized that "[d]ifferent problems of statutory meaning are presented by two enactments deriving from different constitutional sources."

409 U.S. at 423, 93 S.Ct. at 605. Since section 1985(3) also derives from the Ku Klux Klan Act of 1871, arguably the same limits apply to its interpretation as to that of section 1983, in particular the limits imposed by the Fourteenth Amendment. In that case, it might be contended that the District of Columbia would not be within section 1985(3)'s purview, as it was not within that of section 1983, simply because the District is not a State within the meaning of the Fourteenth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954); see also Morgan v. District of Columbia, 550 F.Supp. 465, 470 (D.D.C.1982) (reaching this conclusion), aff'd without opinion, 725 F.2d 125 (D.C.Cir.1983). If we were to read into section 1985(3) the limits imposed by Fourteenth Amendment analysis, as the Carter Court read them into section 1983, the result would be to remove from the scope of section 1985(3) all conspiracies acted upon in the District, by whomever planned, not simply or even necessarily conspiracies in which the District or its employees participate. The problem with this analysis is that there is no more reason to read the word "state" as being limited by the scope of the Fourteenth Amendment than there is to read the nature of the conspiracies described in section 1985(3) as limited by that concept--so that only conspiracies under color of state law would be covered. The two would seem to go pari passu. But the latter interpretation has been conclusively rejected by the Supreme Court. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

By interpreting section 1985(3) to encompass private conspiracies, the Court in Griffin necessarily eschewed an extension of the Fourteenth Amendment's limitations to section 1985(3). The holding in Griffin is wholly inconsistent with the limited commands of the Fourteenth Amendment, which constrain only the States and those acting under color of State authority. Similarly, in Scott the Court explicitly reaffirmed the proposition that section 1985(3) encompasses wholly private conspiracies and unequivocally stated that "the section is not limited by the constraints of the Fourteenth Amendment."⁵² Accordingly, while the Carter Court found persuasive section 1983's Fourteenth Amendment origins, and relied on those origins to read into section 1983 limitations on its reach, Supreme Court decisions construing section 1985(3) point in precisely the opposite direction. With express Supreme Court direction not to apply Fourteenth Amendment analysis to the construction of section 1985(3), we can perceive no reason to interpret the provision as the Court interpreted section 1983, where a contrary rule controlled.

Nor do we find persuasive for our purposes any other argument put forth in Carter to limit section 1983's reach in the District. In fact, the remaining factors point toward construing section 1985(3) to cover District employees. The Carter Court observed that unlike section 1983, section 1982 was intended to reach private parties, to act as "an 'absolute' bar to all such discrimination, private as well as public, federal as well as state." 409 U.S. at 422, 93 S.Ct. at 605. "With this in mind," the Court concluded, "it would be anomalous indeed if Congress chose to carve out the District of Columbia as the sole exception to an act of otherwise universal application," id., particularly when the "dangers of private discrimination ... were, and are, as present in the District of Columbia as in the States." Id. Precisely the same analysis applies to section 1985(3), which applies to all conspiracies, whether public or private, and the Carter argument quite clearly counsels against "carving out" the District of Columbia. We have no reason to believe private persons in the District are any less capable than persons elsewhere of participating in conspiracies of the kind addressed in section 1985(3).

On the basis of the Court's analysis in Carter, we conclude that none of the reasons offered for eliminating the District from the scope of section 1983 applies to section 1985(3) or counsels reaching the same result. In light of the Supreme Court's direction not to read Fourteenth Amendment restraints into section 1985(3), we would be remiss to limit the reach of that section and exempt the District and its employees. In the firm belief that Hurd v. Hodge and the analysis contained therein controls this case, we reject defendants' proposed limitation on section 1985(3).

C. Applicability of Section 1985(3) to Federal Officers

We turn next to consider defendant Jones' contention that section 1985(3) does not contemplate actions against federal officers. The apparent source of this argument is an antiquated decision of the Second Circuit, whose holding has repeatedly been read out of context by District Courts, and has now effectively been overruled by the Supreme Court. Accordingly, we reject Mr. Jones' argument and hold that section 1985(3) encompasses actions against federal officers, subject, of course, to considerations of qualified immunity.

Initially, we note that this Circuit has previously permitted actions to be brought under section 1985(3) against federal officers. See Fitzgerald v. Seamans, 553 F.2d 220 (D.C.Cir.1977) (White House official may be liable in section 1985(3) action). As a result, we pause here only to resolve any lingering doubts about the rationale of the law of this Circuit, not to decide what the law should be. Because the law in this area for years was based on conclusory, unsupported statements, and misguided interpretations of an unfortunately cryptic opinion, we want to make absolutely clear the basis of our decision.

The source of confusion is Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), a delphic opinion by Judge Learned Hand, which has repeatedly been cited for the proposition that section 1985(3) does not contemplate suits against federal officers. See, e.g., Lofland v. Meyers, 442 F.Supp. 955, 957 (S.D.N.Y.1977); Williams v. Halperin, 360 F.Supp. 554, 556 (S.D.N.Y.1973). In Gregoire, the Second Circuit affirmed the dismissal of a complaint against Francis Biddle, the Attorney General, and other federal officials, to recover for false arrest as an enemy alien. The complaint was grounded, inter alia, on the Civil Rights Act, including section 47(3), now 1985(3). The court began its analysis by summarizing a decision of that Circuit, affirmed by the Supreme Court, which had held United States Attorneys absolutely immune from a civil action for malicious prosecution. The Supreme Court, in affirming, cited to earlier cases establishing absolute immunity for judges for acts done in the exercise of their judicial function.⁵³ Judge Hand concluded that the Court's affirmance of the circuit court established absolute immunity for officers of the Department of Justice, when engaged in prosecuting private persons. 177 F.2d at 580. Defendants in Gregoire were officers of the Justice Department engaged in prosecuting a private person. Accordingly, Gregoire held only that the common law grants executive officers engaged in prosecution an absolute privilege from civil actions, not that all federal officers are thus sheltered. It concluded that, absent any indication that Congress intended to remove that immunity, the complaint required dismissal.

It was in this context that Gregoire turned to consider the Civil Rights Acts, presumably to determine whether they were meant to waive prosecutorial immunity. Judge Hand rejected plaintiff's argument that then-section 47(3), currently section 1985(3), created a claim against any two people, including federal officers, who conspire to injure another for spite or improper motives, or, in other words, rejected a reading of the section that would transform it into a general federal tort law. He remarked, "it is apparent that [the words] could not have had such a scope without destroying their validity constitutionally." Id. at 581. Regardless whether Judge Hand was more concerned with the idea of private conspiracies under the statute or federalization of tort law, it is now clear that neither of these factors necessarily poses any obstacle to the section's constitutionality. In light of Griffin, which both established the constitutionality of the very statutory construction rejected by Judge Hand--that the conspiracy statute applies to wholly private conspiracies--and read into the statute a requirement of class-based discriminatory animus to assure the statute was not a general tort provision, Judge Hand's construction of the statute on these issues no longer merits consideration.

It is therefore apparent that cases relying on Gregoire to preclude suits against federal officials under section 1985(3) have no present force. First, these cases always have been in error to the extent they read into Gregoire an absolute privilege for persons other than prosecutors. Second, these cases have in any event been superseded in their analysis of section 1985(3), along with Gregoire itself, by Griffin. We have not found either in case law or in the language of the statute any reason to exclude all federal officers from the meaning of the word "persons" in section 1985(3). Pre-Griffin cases therefore are of no precedential weight on this point, and post-Griffin cases that rely only on Gregoire, or on other cases citing only Gregoire, without any mention of Griffin, similarly should not be followed.

Considerable recent case law rejects the proposed limitation on section 1985(3) and supports our conclusion. See Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982) (section 1985(3) action against federal officer states cause of action); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir.1980) (same); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th Cir.1975) (same); Bergman v. United States, 551 F.Supp. 407, 414-15 (W.D.Mich.1982) (same); Peck v. United States, 470 F.Supp. 1003, 1008-12 (S.D.N.Y.1979) (construing section 1985(3) to permit suits against federal officers, rejecting contrary decisions in the district); Founding Church of Scientology v. Director, Federal Bureau of Investigation, 459 F.Supp. 748 (D.D.C.1978) (allowing section 1985(3) action against federal officer). As one Southern District of New York judge explained, in rejecting Gregoire and the cases that followed,

Unless there is a rationale, unknown to the past cases, for holding that federal officers are not "persons" under Sec. 1985(3), there is no longer any reason to exclude from coverage federal officers acting under color of federal law. Since such a rationale is inconceivable, Griffin 's holding that Sec. 1985(3) applies to any person requires that it apply to federal officers.

Moriani v. Hunter, 462 F.Supp. 353, 356 (S.D.N.Y.1978). We agree and hold that plaintiffs did not fail to state a claim upon which relief could be granted by naming either federal officers as defendants or, for reasons stated in section I(B), for naming as defendants the District of Columbia and its employees.

FBI defendants also contend that plaintiffs failed to establish the existence of the "racial, or perhaps otherwise class-based, invidiously discriminatory animus"⁵⁴ requisite to recovery under section 1985(3). Their challenge is not directed at the trial judge's instructions on the matter, which were not challenged below,⁵⁵ but at the sufficiency of the evidence on this element of plaintiffs' case. We hold that there was sufficient evidence to permit a jury to find that the FBI defendants acted with the requisite animus, and that the claim must therefore fail.

We note at the outset the existence of some debate over the kinds of class-based discriminatory animus that section 1985(3) requires. Scott sought to break down the potential scope of the provision into three categories of animus--economic and commercial, purely political (meaning wholly non-racial), and racial (including the traditional supporters of civil rights)--and held that the first category was not within the reach of the section. Griffin, on the other hand, had squarely placed the third category (i.e., "racial") within the section's reach. Both cases left unanswered whether "political activity" simpliciter defines a class of people covered by section 1985(3). At the same time, several circuits have ruled that politics and religion define such a class. See, e.g., Keating v. Carey, 706 F.2d 377, 386-88 (2d Cir.1983) (discrimination on basis of political affiliation constitutes class-based discriminatory animus); Ward v. Connor, 657 F.2d 45, 47-48 (4th Cir.1981) (discrimination against members of Unification Church), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982); Hampton v. Hanrahan, 600 F.2d 600, 623 & n. 22 (7th Cir.1979) (discrimination based on political affiliation with racial overtones), modified on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Means v. Wilson, 522 F.2d 833, 839-40 (8th Cir.1975) (discrimination against supporters of insurgent candidate for tribal council presidency), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Glasson v. City of Louisville, 518 F.2d 899, 911-12 (6th Cir.) (discrimination against critics of the President), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Marlowe v. Fisher Body, 489 F.2d 1057, 1064-65 (6th Cir.1973) (discrimination against Jews); Action v. Gannon, 450 F.2d 1227, 1232 (8th Cir.1971) (en banc) (worshippers at predominantly White parish disrupted by Black civil rights workers); see also Comment, Private Conspiracies to Violate Civil Rights, 90 HARV.L.REV. 1721, 1728 (1977) ("[T]he legislative history behind section 1985(3) points unmistakably to the conclusion that discrimination [on the basis of political affiliations or beliefs] was intended to be actionable."); cf. Wilhelm v. Continental Title Co., 720 F.2d 1173, 1176 (10th Cir.1983) (handicapped persons not a class within meaning of section 1985(3)), cert. denied, --- U.S. ----, 104 S.Ct. 1601, 80 L.Ed.2d 131 (1984); DeSantis v. Pacific Telephone and Telegraph Co., 608 F.2d 327, 333 (9th Cir.1979) (homosexuals not a protected class).

Given the facts of this case, it is unnecessary to decide whether purely political or other activity without any racial overtones falls within section 1985(3). The FBI conspiracy allegedly targeted plaintiffs in significant part because of their involvement in and support of civil rights. At a minimum, according to Griffin, section 1985(3) reaches conspiracies motivated by animus against Blacks and those who support them. As the Court in Scott explained,

The central theme of the bill's proponents was that the [Ku Klux] Klan and others were forcibly resisting efforts to emancipate Negroes and give them equal access to political power. The predominate purpose of Sec. 1985(3) was to combat the prevalent animus against Negroes and their supporters. The latter included Republicans generally, as well as others, such as Northerners who came South with sympathetic views towards the Negro.⁵⁶

Thus, in Griffin, the Court found an alleged conspiracy against Blacks (and against a non-party who was mistaken to be a civil rights worker), designed to prevent them from seeking equal rights under the laws, to satisfy the requisite animus requirement. Similarly, we find that the uncontroverted evidence plaintiffs offered to prove the requisite animus discloses that defendants' actions were undoubtedly aimed at plaintiffs at least in part on account of their racial politics --that is, their participation in and support of civil rights protest, so as to take the conspiracy out of the purely political, wholly non-racial category. The evidence strongly supports the conclusion that the COINTELPRO conspiracy was "impelled by a commingling of racial and political motives,"⁵⁷ and is far removed from the kind of purely political disputes that seemingly have troubled the Supreme Court in its reading of section 1985(3).⁵⁸ The blatant racial overtone of the FBI program, coupled with plaintiffs' various organizational efforts, make clear the entanglement of race and politics that characterized the implementation of the COINTELPRO conspiracy.

First, the plaintiffs clearly constitute a class of Black and White civil rights workers and White supporters of their efforts and, thus, fall at the core of section 1985(3)'s concern. Plaintiffs Abbott and Booker were prominent in the Emergency Committee on the Transportation Crisis, a coalition of Black and White neighborhood groups opposed to construction of superhighways through the District's residential areas, because of the consequent displacement of many poor Blacks; plaintiffs Booker and Eaton were involved in organization of the Black United Front, a civil rights group. Plaintiff Hobson, an active member of the peace movement, also worked for and supported the civil rights efforts of her husband, Julius Hobson. Many of these plaintiffs also participated in protests against the Vietnam War, in part "to heighten the awareness of the public on particularly the racial miseries of the war ... [meaning] that minority youths were disproportionately being drafted and fighting for the war."⁵⁹ At the same time, the plaintiffs who were primarily involved with antiwar groups, such as the Washington Mobilization Committee and the New Mobilization Committee, worked with Black civil rights groups on peace marches⁶⁰ and otherwise, both to support civil rights generally and to increase Black awareness of the high casualty figures among Black soldiers and the perceived need, as a result, to participate in antiwar protest. Given the undisputed evidence that the antiwar plaintiffs and civil rights plaintiffs joined together to seek common goals of concern to each, we find they represent, at a minimum, a class of civil rights workers and their supporters at the core of section 1985(3)'s concerns.

It is equally clear that the FBI defendants' conspiracy was directed against plaintiffs because of their participation in these very activities. Considerable testimony described efforts by the FBI to drive a wedge into this alliance between civil rights groups and peace groups.

The FBI's COINTELPRO program sought not only to "neutralize" and "disrupt" Black groups and antiwar groups separately, but also to exploit any dissention between them in an effort to deter formation of an alliance. One of the most shocking examples of this effort is found in an FBI document, written in August 1969, relating to the BUF head tax demand on the New Mobilization Committee. It discloses that an aim of COINTELPRO-New Left, to which it is referenced, was to split the antiwar and civil rights groups:

The Washington Field Office has recommended and the Bureau concurs in that recommendation that this is an ideal situation to exploit through the Counterintelligence Program.

Recipient offices are to furnish recommendations for such action to the Bureau by 8/29/69 without fail. Consideration is to be given to utilizing informants in both racial and nonracial protest groups in this matter. It is noted that the nonracial protest groups, particularly the NMC, can be accused of racism in refusing to go along with this demand. At the same time, such groups could be split further by some individuals calling the Front's demands extortion while other individuals in the group support the demands.

....

The NMC has called for a massive demonstration at Washington, D.C., on 11/15/69. This demonstration may result in confrontation with authorities. The BUF is demanding that it be paid to let this demonstration go on in Washington, D.C. Committee members are upset over these demands and this situation offers an opportunity to divide and to embarrass them. This airtel requests recommendations from the field.⁶¹

An October 1969 memorandum from the Special Agent in Charge (SAC) in New York to the FBI Director, also referenced to COINTELPRO-New Left, followed:

Enclosed are two copies of a suggested leaflet entitled "Give Them Bananas!", designed to widen the rift between the New Mobilization Committee To End The War in Vietnam (NMC) and the Black United Front (BUF) over the BUF demand that the NMC "pay" for their planned March on Washington 11/15/69.

Enclosed leaflet has been written in the jargon of the New Left, necessitating the use of a certain amount of profanity.

It is realized this material is racial in tone but it is believed this is the one point of vulnerability in the NMC-BUF combination.

Bureau authority is requested to prepare and mail anonymously the enclosed leaflet to selected individuals active in the NMC and BUF both in the New York and Washington areas.⁶²

Subsequent documents reveal that Bureau authority was granted, with the caution, "Take all necessary steps to protect the identity of the Bureau as the source of these leaflets,"⁶³ and that copies of the leaflet were forwarded to WFO fordistribution.⁶⁴ Rev. Moore, purported author of the BUF head tax demand, testified that he in fact received the FBI's leaflet.⁶⁵ As distributed, it was titled, "Give Them Bananas!", was "decorated" with a drawing of a monkey, and contained a string of profane, racist and degrading remarks that our senses of propriety and revulsion prevent us from reprinting in full.⁶⁶

We believe the foregoing amply discloses that the FBI actions were sufficiently related to matters of race to place the FBI conspiracy solidly within even the narrowest reading of section 1985(3).⁶⁷ Section 1985(3) was "intended, perhaps more than anything else, to provide redress for victims of conspiracies impelled by a commingling of racial and political motives."⁶⁸ We would be hard pressed to imagine a case with evidence stronger than we find here of precisely such commingled motives. Accordingly, we reject the FBI defendants' contention that plaintiffs' evidence on this element of their claim did not support the verdict.

II. Harlow v. Fitzgerald and Defendants' Qualified Immunity

After trial and entry of judgment in this case, the Supreme Court issued its opinion in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), which altered the law of qualified immunity.⁶⁹ All defendants claim that the rule announced in Harlow applies to this case and requires judgment in their favor. While we agree that the principle announced in Harlow controls this case, we find that it does not require entry of judgment in favor of defendants.

A. Qualified Immunity and the Harlow Standard

Prior to Harlow, qualified immunity had both subjective and objective elements. The objective element involved a presumptive knowledge of and respect for "basic, unquestioned constitutional rights." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975). The subjective element addressed the "permissible intentions," id., or good faith of the Government actor. In other words, an official would not receive qualified immunity if he

knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff] or if [the official] took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.

Wood, 420 U.S. at 322, 95 S.Ct. at 1001.

The Supreme Court's decision to grant state⁷⁰ and federal⁷¹ officers qualified, instead of absolute immunity "reflected an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens ... but also 'the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.' " Harlow, 457 U.S. at 807, 102 S.Ct. at 2733 (quoting Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978)). By striking the balance in this manner, the Court determined that the need for damage remedies required rejection of an absolute immunity for federal officers. Yet, the fears remained that Government officials might be chary in the exercise of their most important public functions if constantly subject to discovery and trial over their discretionary decisions. To shield Government officers from undue interference, the Court admonished lower courts applying the qualified immunity standard to engage in "firm application of the Federal Rules of Civil Procedure [to] ensure that federal officials are not harassed by frivolous lawsuits,"⁷² and endorsed the idea of resolving the immunity issue of damage suits at the summary judgment stage.⁷³

Experience with the qualified immunity defense proved it to be often ineffective in resolving suits on summary judgment. If any factual dispute existed as to whether the official acted with malicious intent, or with a belief that a clear standard prohibited his conduct, that dispute required a subjective determination necessitating a trial. "The need for such determinations thus frustrated the goal of terminating insubstantial lawsuits on summary judgment." National Black Police Association, Inc. v. Velde, 712 F.2d 569, 574 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984).

Harlow redefined the qualified immunity defense to eliminate the subjective element. Under the new standard, "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." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The Court further explained,

If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.

Id. at 818-19, 102 S.Ct. at 2739. In other words, if the trial judge determines that the law was not clearly established at the time the conduct occurred, the inquiry ceases and the official is entitled to summary judgment. If the law was clearly established, the Government actor is presumed to have known about it; unless he can bring forward undisputed facts establishing that because of extraordinary circumstances he neither knew nor should have known of the unlawfulness, summary judgment in his favor must be denied.

In applying the foregoing principles to this case, we conclude that the acts defendants were alleged to have committed violated fundamental and well-established constitutional rights, and that defendants are entitled neither to immunity nor, consequently, to reversal of the verdicts against them on this ground.

Our task, in applying Harlow, is to measure the constitutionality of the acts alleged in this action by reference to clearly established rights at the time the acts occurred. At first blush, the task as so stated appears simple and straightforward. A moment of reflection, however, reveals various uncertainties in the Harlow decision and exposes a test of some imprecision. It is not clear, for example, how a court should determine well-established rights: should our reference point be the opinions of the Supreme Court, the Courts of Appeals, District Courts, the state courts, or all of the foregoing?⁷⁴ Furthermore, it is unclear whether we must assure ourselves only of the existence of a constitutional right, such as the constitutional right of freedom of speech, or religion, at the relevant time. Alternatively, it might be claimed that a court must inquire more deeply into the constitutionality of the particular conduct of the Government actor, such as the legality of domestic national security warrantless wiretaps,⁷⁵ at a given time. Put another way, how broadly or narrowly defined is the right that must be well-established?

At the extremes, the answers are clear. Supreme Court precedent "establishes" the law; to the extent that the Court's opinions give guidance we obviously do not doubt that the law is well-established. It is equally clear that the right at issue can be defined neither so broadly as to parrot the language in the Bill of Rights, nor so narrowly as to require that there be no distinguishing facts between the instant case and existing precedent. The former reading of Harlow would, of course, undermine the premise of qualified immunity that the Government actors reasonably should know that their conduct is problematic. The latter reading, on the other hand, would unquestionably turn qualified into absolute immunity by requiring immunity in any new fact situation. In future cases, courts will of course work through the area between these extremes and answer these and other questions. On the facts of this case, however, these broad parameters suffice, because the illegality of the conduct alleged was well-established "by any reasonable definition of the phrase."⁷⁶

In an effort to overcome the obvious, defendants focus on the trial evidence and argue that each individual act that they were shown to have committed was lawful, and that they consequently are immune. This argument seriously misconstrues the nature of the qualified immunity defense, and in particular the separate questions of fact and law. We pause here to address the proper course of pleadings and proof on this issue, to make clear why we find defendants' argument irrelevant to this element of our review.

The difficulty, we presume, stems from the bipartite nature of Harlow 's inquiry. First, a district court must determine whether the right alleged to have been violated was well-established; it then must determine whether the defendant reasonably should have known of its existence. While Harlow asserted that a "reasonably competent public official should know the law governing his conduct," 457 U.S. at 819, 102 S.Ct. at 2739, in some extraordinary instances "what a reasonable person in like circumstances should have known"⁷⁷ has been held to create a question of fact. Step-by-step, the inquiry proceeds as follows: assume plaintiff alleges that defendant violated Right X, and defendant moves for summary judgment on grounds of qualified immunity, claiming Right X was not well-established when the alleged acts were committed and, alternatively, that extraordinary circumstances prevented him both from knowing and having reason to know the relevant legal standard. If the district court judge determines as a matter of law that Right X was well-established, a question of fact might still remain as to whether defendant reasonably neither knew nor should have known of it. The first issue is purely legal and should be susceptible to initial determination on the complaint and summary judgment papers. The latter is potentially an issue for trial, depending upon the unique circumstances of each case.⁷⁸

Applying these principles, we must consider in this action only whether the right that plaintiffs alleged to have been violated was well-established at the time the alleged acts occurred. We consider irrelevant to this inquiry defendants' assertions that the evidence does not support those allegations; such evidence is properly considered as an element of our inquiry into the sufficiency of the evidence, not qualified immunity. Because no defendant argues that exceptional circumstances exist to demonstrate that he reasonably neither knew nor should have known of the relevant legal standard, our inquiry is finished following our determination whether the applicable law was well-established.⁷⁹

Plaintiffs alleged in their complaint⁸⁰ that from 1967 or 1968 to 1974 the District and FBI defendants engaged in a variety of legal and illegal activities in a specific effort "to disrupt and interfere with the plaintiffs' political activities, [,including] urging violent or unlawful actions, and supplying the public and/or news media with false information about the plaintiffs and their plans."⁸¹ Plaintiffs also alleged that "[s]ome or all of the activities of defendants"⁸² were conducted pursuant to a plan, known as COINTELPRO-New Left, which, they contended, was "designed to conduct surveillance upon and to cause disruption of the activities of what the defendants regarded as the 'New Left.' "⁸³ Plaintiffs claimed that because these actions were undertaken expressly to disrupt their lawful activities, they violated, inter alia, plaintiffs' First and Fifth Amendment rights.⁸⁴

The extraordinary nature of these charges makes this an easy case. Whatever authority the Government may have to interfere with a group engaged in unlawful activity, and however it may be permitted to impede or deter rights of lawful association as a by-product of legitimate Government actions, it is never permissible to impede or deter lawful civil rights/political organization, expression or protest with no other direct purpose and no other immediate objective than to counter the influence of the target associations.

As of 1967, the existence of a First Amendment right of association for lawful purposes was beyond dispute and its broad contours were quite clear.⁸⁵ A line of Supreme Court cases had expressly established first, that Government cannot constitutionally punish membership in or association with any organization, absent clear proof that a person specifically intends to accomplish the illegal aims of the organization, see Scales v. United States, 367 U.S. 203, 228-30, 81 S.Ct. 1469, 1485-86, 6 L.Ed.2d 782 (1961); Noto v. United States, 367 U.S. 290, 299-30, 81 S.Ct. 1517, 1521-22, 6 L.Ed.2d 836 (1961); second, that Government cannot constitutionally punish individual or group advocacy of any position, unless it amounts to incitement to lawless action, see Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); and third, that lawful associations and their members have the right to be protected from facially legitimate Government actions that would deter membership or otherwise thwart their efforts to associate and petition the Government for redress of their grievances. The first two principles at a minimum rendered absolutely unconstitutional any direct Government interference with persons because they participated in organizations, if those organizations did not advocate violence or other lawless action, or because they held certain views, if those views were not accompanied by incitement to illegal action or a specific intent to accomplish illegal ends by force and violence. The third principle was not absolute, but made unconstitutional Government action taken for legitimate purposes if it significantly interfered with protected rights of association, unless the Government could demonstrate a substantial, NAACP v. Button, 371 U.S. 415, 444, 83 S.Ct. 328, 343, 9 L.Ed.2d 405 (1963), or compelling, Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960), interest to justify the infringement, and that the interest could not more narrowly be accommodated. See Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) ("In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.").

These principles leave no doubt that Government action, taken with the intent to disrupt or destroy lawful organizations, or to deter membership in those groups, is absolutely unconstitutional. The Government could not constitutionally make such participation unlawful; consequently, it may not surreptitiously undertake to do what it cannot do publicly. Nor can we fathom any conceivably legitimate governmental interest in such an undertaking. If the targets act unlawfully, criminal laws are available. Nor do we accept any argument that proper law enforcement requires systematic disruption and neutralization of lawful organizations.

It is therefore absolutely clear that the actions defendants were alleged to have taken violated well-established rights. The defendants allegedly directed and participated in a program designed to obstruct plaintiffs' efforts to work peaceably for political change and civil rights, and to splinter and neutralize plaintiffs' organizations. The constitutional right of association of the kind in which plaintiffs were engaged was well known, as was the degree of protection from direct interference that such lawful association was to be accorded. Additionally, while the associational right was not absolute, permissible limits of Government intrusion in various contexts were sufficiently defined. In a case such as this one, in which the pleadings and proof disclose a program that at its tamest violated the narrowly defined associational rights expressly discussed in these cases, and which in fact extended beyond violations previously contemplated, the law was undoubtedly "well-established." In such circumstances, to require a prior Supreme Court holding on the particular facts of this case would not only immunize but actually reward the Government for inventing and pursuing ever more egregious conduct. Indeed, there never could be such a ruling from the Court, because Harlow would always immunize the Government actors. Simply put, where it is apparent that less direct, and facially legitimate intrusions on plaintiffs' rights violate the Constitution, it is beyond question that sweeping, intentional intrusions do so as well.

Harlow focused on the need to enable courts to dismiss "insubstantial" lawsuits before discovery and trial, and it adjusted the qualified immunity defense to facilitate that goal. The kind of case we confront today, involving allegations of unconstitutional motive, offers to litigants a possible means to circumvent the new rule, simply by pleading that any act was performed with an intent to violate clearly established constitutional rights and thereby surmounting the threshold test set out in Harlow. We recognize that in some instances, plaintiffs might allege facts demonstrating that defendants have acted lawfully, append a claim that they did so with an unconstitutional motive, and as a consequence usher defendants into discovery, and perhaps trial, with no hope of success on the merits. The result would be precisely the burden Harlow sought to prevent. Accordingly, in cases involving a claim that defendants acted with an unconstitutional motive, we will require that nonconclusory allegations of evidence of such intent must be present in a complaint for litigants to proceed to discovery on the claim. The allegations on this issue need not be extensive, but they will have to be sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds.

As a general proposition, the problem we address is not a new one. In Butz v. Economou the Supreme Court apparently recognized that general conclusory allegations that Government actors had breached constitutional rights could unduly enmesh them in burdensome litigation, and it called for a firm application of the Federal Rules of Civil Procedure and for dismissal of insubstantial claims on summary judgment.⁸⁶ Similarly, every other circuit has articulated a requirement of particularity in pleading for civil rights complaints. In one formulation, the Second Circuit adheres to the following rule:

[C]omplaints containing only "conclusory," "vague," or "general allegations" of a conspiracy to deprive a person of constitutional rights will be dismissed.... Diffuse and expansive allegations are insufficient.... In this case, appellants' unsupported allegations, which fail to specify in detail the factual basis necessary to enable appellees intelligently to prepare their defense, will not suffice to sustain a claim of governmental conspiracy to deprive appellants of their constitutional rights.

Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977) (citations omitted); see also Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 106-07 (2d Cir.1981) ("Where a plaintiff fails to produce any specific facts whatsoever to support a conspiracy allegation, a district court may, in its discretion, refuse to permit discovery and grant summary judgment.... Courts must be particularly cautious to protect public officials from protracted litigation involving specious claims."). Moreover, every other circuit follows suit in requiring that civil rights complaints be pleaded with at least a minimum of specificity.⁸⁷ Nor is the principle unknown in this Circuit. See Lombard v. United States, 690 F.2d 215, 227 (D.C.Cir.1982) (applying the Second Circuit's Ostrer rule to claims under the Federal Tort Claims Act), cert. denied, --- U.S. ----, 103 S.Ct. 3086, 77 L.Ed.2d 1347 (1983).

The test articulated by the Second Circuit is more than adequate to address the Harlow concerns to which we have referred. We simply remind our trial courts that some factual allegations must support claims of unconstitutional motive. Plaintiffs who fail to allege any specific facts to support a claim of unconstitutional motive cannot expect to involve Government actors in protracted discovery and trial. On receipt of such a complaint, Government defendants might move for dismissal or, alternatively, for summary judgment. Then plaintiffs must produce some factual support for their claim to avert dismissal.

In so holding we do not forget that in some circumstances plaintiffs are able to paint only with a very broad and speculative brush at the pre-discovery stage, and that overly rigid application of the rule we articulate could lead to dismissal of meritorious claims.⁸⁸ Thus, while we hasten to add that district court judges must act cautiously in this regard, and freely give leave to amend an inadequate complaint, we conclude that Harlow requires that merely conclusory allegations of unconstitutional motive, devoid of factual support, must be found lacking and be dismissed.

Applying these principles, we find plaintiffs' complaint⁸⁹ was drafted with sufficient specificity to