Hampton v. Hanrahan

concurring.

I concur in the opinion written by Judge Swygert except as qualified by the following observations.

I agree that, viewing the evidence in the light most favorable to plaintiffs, and drawing all reasonable inferences in their favor, a jury verdict for them on one or more theories of liability could be sustained. I am sure that no more is meant by the frequent references in the opinion to a “pri-ma facie” case. Because so much depends upon the fact-finder’s choice among inferences, there was never any stage of this case (with the possible exception of the case against the shooters) at which the evidence compelled a verdict for plaintiffs unless rebutted.

I have some problem in analyzing the impact on plaintiffs’ case of the several possible findings with respect to a conspiracy. The main objective of plaintiffs appears to be recovery of damages arising from the events of the raid. Undeniably there was loss of life, loss of liberty (including bodily injury), and invasion of privacy. The § 1983 claim for those damages must rest upon establishing that life and liberty were taken without due process of law in violation of the Fourteenth Amendment (or that privacy was invaded in violation of the Fourth and Fourteenth Amendments). If the search warrant was valid and if the force used was not excessive under the circumstances, that § 1983 claim (and any corresponding § 1985(3) claim) must fail.

I agree that the jury could properly find a conspiracy by federal and state defendants to discredit and hamper BPP in its political activity and thus impair First Amendment rights. But it would not follow, without more, that the search, if found to be unconstitutional, or the use of force, if found to be excessive, was within the objects of that conspiracy. The activity of the federal defendants in surveillance of a group from whom violent, unlawful conduct was expected, and in informing state officers of the floor plan and possession of weapons could be found to have been legitimate activity and cooperation in law enforcement, and not wrongful acts pursuant to a conspiracy, even though the jury also found a conspiracy to disrupt or discredit BPP politically. In my view, there could be no recovery of damages, arising from the raid, based solely on a conspiracy theory, unless the jury was satisfied that the unlawful raid or the use of excessive force in carrying out a lawful raid was within the objects of the conspiracy.

In the discussion of immunity, Judge Swygert suggests that certain defendants may be liable for damages resulting from the generation of post-raid publicity misrepresenting the facts. Whatever course may be followed on retrial with respect to such a claim, it seems clear that plaintiffs cannot recover damages for injury to reputation, without more. See Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

I do not join in directing the imposition of sanctions under F.R.Civ.P. 37(b)(2), although I would favor directing the district court to give consideration to doing so, on remand.

I would limit the holding that a prosecutor is not entitled to full immunity while performing “investigative” functions to the investigative functions of the prosecutor defendants described in this case.