L.R. Bretz v. Zollie Kelman, Jack R. Lande, Eugene R. Welborn, Donald Zeman, James Cook, and the City of Great Falls, Montana, a Municipal Corporation , 722 F.2d 503 ( 1983 )

FLETCHER, Circuit Judge,

dissenting:

I respectfully dissent. Contrary to the majority’s view,. I find the result in this case controlled by this court’s decision in Cline v. Brusett 661 F.2d 108, 112 (9th Cir.1981).

In Cline, we squarely held that police officers’ conduct in bribing witnesses and knowingly presenting false evidence against an accused gave rise to a cause of action under 42 U.S.C. § 1983 because such conduct impaired a liberty interest protected by the Fourteenth Amendment. 661 F.2d at 112. This court stated in Cline that a section 1983 action “exists for malicious prosecution[ ] conducted with the intent of denying a person equal protection or which otherwise subject a person to a denial of constitutional rights.” Id. (emphasis added). Bretz has alleged such intent. We are compelled by Cline to find that Bretz has alleged a cause of action under section 1983.

The distinctions the majority would make between this case and Cline are unsupportable. The majority states that Cline alleged deprivation of a fair trial, whereas Bretz does not. The majority ignores the point that the facts alleged by Cline to support the claim of deprivation of a fair trial are substantially identical to those alleged by Bretz to support his due process claim and that the Cline court based its decision on a denial of due process.

The majority also relies on the fact that Bretz was cleared in his trial, while Cline was not cleared until his appeal, and thus, the majority asserts, the trial accomplished .its intended purpose. The same could be said in Cline — that the appellate process accomplished its intended purpose. This, I submit, is a distinction without relevance. The fact that state remedies exist is not determinative. The Supreme Court “has not interpreted § 1983 to require a litigant to pursue state remedies prior to commencing an action under this section .... ‘It is no answer that the state has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.’ ” Board of Regents v. Tomano, 446 U.S. 478, 491, 100 S.Ct. 1790, 1798, 64 L.Ed.2d 440 (1981), quoting Monroe v. Pape, 365 U.S. 167, 188, 81 S.Ct. 473, 481, 5 L.Ed.2d 492 (1961).

The majority places great reliance in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and the presence of post-deprivation remedies. Parratt is simply inapposite.¹ The majority implies that the Cline court may have failed to consider Parratt. This assertion gives the Cline panel far too little credit for its scholarship. Judge Sneed, a member of the Cline panel, found Parratt to control the result in Rutledge, decided a few months earlier. I think that we can presume that the panel would have discussed Parratt had they thought it even might be applicable. I am likewise persuaded that Parratt was inapplicable to Cline, and I find it inapplicable here. This case is a paradigmatic example of a section 1983 violation. Bretz as plaintiff, alleges intentional conduct of the police officers that invaded his rights by their abuse of official power and attempted subversion of the judicial system.

This type of conduct is so outrageous that no post-deprivation hearing could set it right. The alleged conduct violates substantive as well as procedural due process. Parratt and the considerations which underlie it are inapplicable to violations of substantive due process. Substantive due process protects the fundamental rights Bretz asserts regardless of whether a hearing is provided since no compelling state interest justifies the intrusion. See Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1972). See also Ingraham v. Wright, 430 U.S. 651, 679 n. 47, 97 S.Ct. 1401, 1416 n. 47, 51 L.Ed.2d 711 (1977). We simply do not need to reach the inquiry the majority makes. The majority cites no case to support its view — indeed the failure of a federal court to provide a forum under the facts alleged here is unprecedented. The majority acknowledges that other circuits disagree with its view. It acknowledges the existence of Cline, which should control in our circuit, but dispatches it by seeking to distinguish the indistinguishable.

The majority refuses to follow the clear precedent of this circuit. I submit this can be done only by an en banc court.

1 . This circuit’s decisions are in conflict and disarray regarding whether Parratt applies to deprivation of liberty as well as property and intentional as well as negligent conduct. Compare Haygood v. Younger, 718 F.2d 1472 (9th Cir.1983) (Parratt applies to deprivation of liberty); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1352 (9th Cir.1981) (implied same), aff’d on other grounds sub nom. Kush v. Rutledge, - U.S. -, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983) with Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981) (Parratt inapplicable to deprivation of liberty), rev’d on other grounds, -U.S. -, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) and compare Weiss v. Lehman, 676 F.2d 1320, 1323 (9th Cir.1982) (Par-ratt inapplicable where intentional conduct alleged) with Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir.1983) (where intentional conduct is alleged, Parratt requires defendant to establish that a predeprivation hearing is not required). Regardless of how these issues are resolved, Parratt would not deny a federal forum to the victim of the egregious conduct alleged in this case.