Unpublished Disposition, 900 F.2d 263 (9th Cir. 1987)

MEMORANDUM^* 

Defendants Edward Hubbard and John Banta appeal the district court's denial of their motions to dismiss on the ground of qualified immunity. The district court's order denying qualified immunity is appealable. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Baker v. Racansky, 887 F.2d 183, 185 (9th Cir. 1989). We affirm.

BACKGROUND

Because we are reviewing the denial of motions to dismiss, we must accept as true the allegations of the complaint. Schowengerdt v. General Dynamics Corp., 623 F.2d 1328, 1332 (9th Cir. 1987). The complaint alleges the following facts.

Plaintiffs and others were engaged in repeated protests of shipment of arms from the Concord Naval Weapons Station to Latin America. Prior to the incident in question, plaintiffs had advised authorities at the Station that they intended to conduct a 40-day fast on the railroad tracks leading from the Station. On September 1, 1987, plaintiffs were demonstrating outside the station while a loaded munitions train was preparing to leave.

Defendants Hubbard and Banta are civilian employees of the Navy; Hubbard was the railroad operations foreman and Banta the security manager at the Station. Banta had previously agreed with the Sheriff of Contra Costa County that he would notify the Sheriff one half-hour before any train movements, so that the Sheriff could arrest protestors who blocked the track.

Before the train left the Station on September 1, 1987, plaintiffs notified both Hubbard and Banta that they were going to remain on the tracks and block the movement of the train. They expected to be arrested. Instead, the defendants caused the train to proceed down the tracks toward the protestors. The Sheriff was not called. The train proceeded at 16 miles per hour, despite the fact that the applicable speed limit was 5 miles per hour. The demonstrators on the tracks were clearly visible from the train, but no attempt was made to warn the demonstrators or to slow or stop the train before it hit them. In the ensuing collision, plaintiffs received serious injuries; plaintiff Willson lost both his legs.

The complaint further alleges that the defendants caused the train to proceed against the plaintiffs to prevent and retaliate for plaintiffs' exercise of First Amendment rights in protesting the shipment of arms from the Station. It also alleges that the defendants caused the train to be driven at the plaintiffs "with the intent to injure [p]laintiffs, or with conscious disregard and deliberate indifference to the rights and safety of [p]laintiffs, or in a grossly negligent manner." The complaint asserts claims of violation of plaintiffs' First, Fourth and Fifth Amendment rights, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

ANALYSIS

We review de novo the denial of qualified immunity. Baker v. Racansky, 887 F.2d at 185.

This appeal is before us in a very early stage in the litigation and our review is limited. We need not consider the truth of the plaintiffs' allegations or even whether they state a claim, just "whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions." Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). The defendants have failed to demonstrate "beyond doubt that the plaintiff [s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, (1957)).

The defendants contend that they are entitled to qualified immunity because: (1) the complaint failed to allege that the defendants intended to deprive plaintiffs of their constitutional rights; (2) whatever allegations of intent were made were conclusory and unsupported by facts; and (3) alternative allegations asserted only that the conduct of the defendants was reckless or negligent. We reject all three contentions.

It is no longer necessary, in order to defeat a qualified immunity defense, to plead and prove a malicious intent to deprive the plaintiffs of their constitutional rights. A major purpose of the ruling in Harlow v. Fitzgerald, 457 U.S. 800 (1982), was to eliminate such issues of subjective intent and to replace them with the inquiry whether the defendants' conduct violates "clearly established ... constitutional rights of which a reasonable person would have known." Id. at 818; see Tribble v. Gardner, 860 F.2d 321, 326 (9th Cir. 1988), cert. denied, 109 S. Ct. 2087 (1989).

It is true that when the underlying constitutional violation contains an essential element of intent, as in a claim of racial discrimination, the intent to discriminate must be alleged. See Gutierrez v. Municipal Court, 838 F.2d 1031, 1047 (9th Cir. 1988), vac. as moot, 109 S. Ct. 1736 (1989). The allegation must be reasonably specific, so that an otherwise neutral and lawful act, such as the discharge of an employee, is not too easily converted into a triable constitutional violation by a conclusory allegation of improper motive. Id. at 1050.

These principles are not applicable in the situation presented by this case. There is no subjective intent requirement inherent in claims of violation of constitutional rights under the Fourth or Fifth Amendments. See Graham v. Connor, 109 S. Ct. 1865, 1872 (1989); Fargo v. City of San Juan Bautista, 857 F.2d 638, 639-41 (9th Cir. 1988). The First Amendment claim, however, may require some allegation of purpose or intent to connect the use of excessive force to plaintiffs' exercise of free speech rights. The complaint alleges that the defendants caused the train to run into plaintiffs in "retaliation" for plaintiffs' exercise of first amendment rights. A claim of retaliation clearly involves a necessary element of intent. We need not decide, however, whether the mere allegation of retaliatory motive is sufficient to withstand a claim of qualified immunity, because plaintiffs also alleged that the action of the defendants was intended to intimidate them in the exercise of their first amendment rights and actually interrupted that exercise. This allegation, with the supporting allegations that defendants could see plaintiffs demonstrating on the railroad tracks and nevertheless sent the train into them, is sufficient to assert an intentional violation of plaintiffs' first amendment rights. See Tribble v. Gardner, 860 F.2d at 327 (requirement of direct evidence to support allegation of improper purpose "would effectively insulate arbitrary governmental action from judicial scrutiny"). Plaintiffs, of course, have yet to establish that they had a First Amendment right to demonstrate on the railroad tracks in the manner that they did; that issue will be resolved in further proceedings. But if they had such a right, they have sufficiently alleged that the defendants purposefully interfered with it.

We return, then, to application of the Harlow standard. Have plaintiffs alleged actions by the defendants that violated "clearly established ... constitutional rights of which a reasonable person would have known"? This test must not be applied at too high a level of abstraction; it is not enough that the defendants should have known that plaintiffs have rights of free speech, freedom from unreasonable seizure, and due process of law. Anderson v. Creighton, 483 U.S. 635, 639 (1987). The question is whether a reasonable official, in the circumstances shown here and with the knowledge that was available to the defendants, could have known that the action he was taking violated clearly established law. Id. at 640. We agree with the district court that, on the allegations of the complaint alone, the answer to that question is "yes."

A reasonable official would know that sending a train crashing into a group of demonstrators constitutes excessive force in violation of substantive due process of law. See Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir.), cert. denied, 484 U.S. 935 (1987); Rutherford v. City of Berkeley, 780 F.2d 1444 (9th Cir. 1986).¹  Alternatively, if sending the train into the demonstrators constituted a seizure, the force used was clearly excessive for the accomplishment of that purpose. See Graham v. Connor, 109 S. Ct. at 1871-72. Any reasonable official would know that such force exceeded Fourth Amendment limits. Finally, a reasonable official would know that it violated the First Amendment to send a train into demonstrators in order to stop the demonstration.

None of these conclusions are disturbed by the fact that plaintiffs alleged that the defendants sent the train into plaintiffs either intentionally or with callous disregard or reckless indifference to plaintiff's safety. The pleading of alternatives is authorized by Fed. R. Civ. P. 8(e) (2), and the alternative that was pleaded is sufficient in any event. By the time of the events involved in this case, this circuit had made clear that gross negligence was sufficient to give rise to a constitutional tort.²  Bergquist v. County of Cochise, 806 F.2d 1364, 1379 (9th Cir. 1986). We know now that, at least with regard to several varieties of constitutional torts, gross negligence is not enough; the actions of the officials must amount to "deliberate indifference." See City of Canton v. Harris, 109 S. Ct. 1197 (1989) (deliberate indifference is standard for Sec. 1983 claim based on inadequate police training); Wood v. Ostrander, 879 F.2d 583, 588 (9th Cir. 1989). That the standard has been tightened does not affect what the defendants should reasonably have known on September 1, 1987, however.

In any event, the standard of deliberate indifference is clearly met by the allegations of the complaint here. Conscious disregard and deliberate indifference are alleged, and supported by the factual allegations. The complaint does not allege that the defendants accidentally or unknowingly sent the train into the protestors, or that the defendants negligently failed to ascertain whether someone was on the tracks. It alleges that the defendants knew the plaintiffs were on the tracks and could see them there, that they by-passed a procedure by which plaintiffs were to call on the Sheriff to remove the protestors, and that instead the defendants simply sent the train forward into the protestors at three times the legal speed and without warning. Assuming that all of these statements are true, they would permit a jury to find deliberate indifference.

Accordingly, the district court did not err in denying the motion of the defendants to dismiss plaintiffs' constitutional claims on the ground of qualified immunity.

CONCLUSION

The order of the district court is AFFIRMED.