Triad Associates, Inc., D/b/a Guardian Security, Jk Guardiansecurity Services, Inc., and K & J Management,inc., Plaintiffs-appellees, v. Renault Robinson, Defendant-appellant, 10 F.3d 492 (7th Cir. 1993)

In this appeal, defendant below, Renault Robinson, appeals the district court's refusal to grant a motion to dismiss based on qualified immunity. We affirm.I.

From 1983 through early 1987 the defendant, Renault Robinson, was the Chairman of the Board of Commissioners of the Chicago Housing Authority (CHA). The CHA is a municipal corporation that provides housing for low income families in Chicago and is governed by a Board of Commissioners whose members are appointed by the Mayor of Chicago. The plaintiffs (collectively "Triad") are in the business of providing security and guard services, and from 1982 through 1989 the CHA engaged Triad for such security services. All of the shareholders of Triad are white individuals. This litigation centers around allegations that after Robinson's appointment as Chairman of the CHA Board by the late Mayor Harold Washington, he led the CHA in a concerted effort to replace the white owned plaintiff companies with black owned security companies. Triad asserts that this effort was both racially and politically motivated.

Triad originally filed suit in 1987, naming the CHA, Renault Robinson, and five other CHA officials, in their individual capacities, as defendants. In its seven count complaint, Triad set out various theories for relief. Three counts were based upon 42 U.S.C. § 1983, in which Triad alleged as predicates the infringement of its free association, speech, due process and equal protection rights. In a fourth count, under 42 U.S.C. § 1985(3), Triad alleged a conspiracy to deprive it of its rights to free association and equal protection. Triad also alleged civil RICO violations, and, in two counts under state law, breach of contract and tortious interference with contract.

The district court dismissed the entire complaint under Federal Rule of Civil Procedure 12(b) (6). On appeal, this Court reversed the dismissal of the Sec. 1985(3) claim and the Sec. 1983 claims that were based on due process and equal protection theories. Triad Assoc., Inc. v. CHA, 892 F.2d 583 (7th Cir. 1989), cert. denied, 498 U.S. 845, 111 S. Ct. 129, 112 L. Ed. 2d 97 (1990). Thereafter, Triad filed a five count second amended complaint in the district court reasserting the Sec. 1985(3) and state law contract claims against the CHA and the Sec. 1983 equal protection claim against all defendants. An additional count alleged in the alternative a violation of the corporate shareholders' equal protection rights. On a 12(b) (6) motion the district court dismissed the plaintiff shareholders' claims for lack of standing, leaving in the case only the corporate plaintiffs, and extended qualified immunity to all of the individual defendants in the case except Renault Robinson.¹  The court found that with respect to the other defendants the "complaint contains no specific allegations as to how [they] played a specific role in any illegal act." This appeal was then brought by Robinson alone and presents the sole issue of whether the district court erred in refusing to extend qualified immunity to him. For the reasons stated below, we affirm the district court's denial of qualified immunity.

As an initial matter, we note our jurisdiction to immediately review a denial of qualified immunity to the extent it turns on an issue of law. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817, 86 L. Ed. 2d 411 (1985); Elliot v. Thomas, 937 F.2d 338, 340-41 (7th Cir. 1991), cert. denied, --- U.S. ----, 112 S. Ct. 973, 117 L. Ed. 2d 138 (1992). Also preliminarily, we observe that because qualified immunity was raised here in a motion to dismiss, we must take the allegations of the plaintiff's complaint as true, construing them liberally and viewing them in the light most favorable to the plaintiff. See McMath v. City of Gary, Indiana, 976 F.2d 1026, 1031 (7th Cir. 1992). Furthermore, the allegations from the complaint are the only facts properly before us when considering an appeal of a denial of an immunity defense raised in a motion to dismiss. See McDonald v. Haskins, 966 F.2d 292, 292 (7th Cir. 1992). And because this appeal only presents questions of law, our standard of review is de novo. See Apostol v. Landau, 957 F.2d 339, 342 (7th Cir. 1992).A.

The test for determining whether a public official defendant is entitled to qualified immunity is an objective one. A government official performing discretionary functions can be stripped of his shield from liability for civil damages only if his conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known" as of "the time [the] action occurred." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). While the specific conduct in question need not previously have been held unlawful, " [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). Thus the touchstone of a qualified immunity inquiry is the clarity of the state of the law in relation to the defendant's conduct at the time the conduct occurred.

Robinson presents two basic arguments why he should be entitled to qualified immunity. First, he argues that Triad has failed to plead specific facts that make out an equal protection violation and thus should face outright dismissal. Second, Robinson devotes the bulk of his brief to the position that even if Triad has succeeded in stating a cognizable claim under current law, Triad has failed to surmount the Harlow hurdle by not showing that at the time of Robinson's conduct it was clear that a corporation could sue for discrimination against it based on the skin color of its white shareholders.

In making his first argument Robinson seemingly asserts that the allegations contained within Triad's complaint do not support an inference that Robinson acted with the discriminatory intent necessary to make out an equal protection claim. See Washington v. Davis, 426 U.S. 229, 238-48, 96 S. Ct. 2040, 2047-51, 48 L. Ed. 2d 597 (1976). Although, in light of our limited jurisdiction on an appeal such as this one, it may seem curious to review plaintiff's complaint for its general sufficiency in stating a claim, determining whether a plaintiff has asserted a constitutional violation at all is " [a] necessary concomitant to the determination of [qualified immunity]." Siegert v. Gilley, 500 U.S. 226, ----, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 (1991). One of the main purposes of immunity and interlocutory review of a denial of immunity is to spare public officials the cost and burden of full litigation every time an accusation of misconduct is leveled against them. Deciding as a threshold matter the "purely legal question" of whether a plaintiff has established the violation of any constitutional right at all "permits courts expeditiously to weed out suits which fail the test without requiring the defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits." Id.²  Accord Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986) (delineating a two-part analysis under Harlow: "(1) does the alleged conduct set out a constitutional violation? and (2) were the constitutional standards clearly established at the time in question?").

In undertaking such a preliminary inquiry, notwithstanding the objective character of the Harlow test, it is appropriate to examine the sufficiency of the allegations concerning the defendant's underlying intent when intent is a component of the complained of constitutional violation. See Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990) (en banc), cert. denied, --- U.S. ----, 111 S. Ct. 2796, 115 L. Ed. 2d 970 (1991); Rakovich v. Wade, 850 F.2d 1180, 1210 (7th Cir.) (en banc), cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 534 (1988); Branch v. Tunnell, 937 F.2d 1382, 1385-86 (9th Cir. 1991). And in this circuit on a motion to dismiss we require no more from plaintiffs' allegations of intent than what would satisfy Rule 8's notice pleading minimum and Rule 9(b)'s requirement that motive and intent be pleaded generally. See Elliott v. Thomas, 937 F.2d 338, 345 (7th Cir. 1991), cert. denied, --- U.S. ----, 112 S. Ct. 973, 117 L. Ed. 2d 138 (1992). Contra Branch, 937 F.2d at 1386 (adopting a "heightened pleading standard in [qualified immunity] cases in which subjective intent is an element of a constitutional tort action" and holding that "in order to survive a motion to dismiss, plaintiffs must state in their complaint nonconclusory allegations setting forth evidence of unlawful intent"). In qualified immunity cases there is no special pleading standard that need be satisfied to survive a motion to dismiss. "A possibility that the defendants will claim immunity does not require the plaintiffs to anticipate and plead around that defense." Elliott, 937 F.2d at 345.³ 

In any event, examining Triad's complaint we find that the allegations not only directly state but also fully support an inference that Robinson intended to discriminate on the basis of race.⁴  Triad has alleged, for example, that it has performed competently, that Robinson knew it was white owned, that Robinson terminated Triad's services at some CHA sites, and that he participated both in paying Triad more slowly than black owned firms and in awarding security work to black owned firms after refusing to award a competitively bid contract to Triad in spite of the recommendation of the CHA Executive Director. Further, Triad has alleged that Robinson also participated in modifying bid specifications to levels at which black owned firms could qualify. Triad has also asserted that Robinson issued false statements associating it with a white alderman allegedly unpopular in the black community.

Robinson argues that none of these incidents standing alone can support the inference that he intended to racially discriminate against Triad. A court's duty, however, is to consider a complaint as a whole. See DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir. 1988). Looking at the allegations of Triad's complaint and their combined significance, we feel that even if Triad needed to satisfy a heightened pleading standard--and we repeat that it does not--there is ample basis here from which to infer a racial animus. See Elliott, 937 F.2d at 345-46.

This brings us to the heart of the appeal. Robinson argues vigorously that, even if the complaint is sufficient in its allegations of intentional discrimination, a white owned corporation's ability to bring a Sec. 1983 race discrimination suit was not clearly established at the time of the conduct in question. Therefore, a reasonable public official in his position would not have expected to be haled into court because of discriminatory action taken against such a corporation. Thus, Robinson reasons, the plaintiffs have failed to satisfy the Harlow test, and he should not be denied protective immunity.

We reject this argument as flawed in its inception and therefore need not resolve whether its linchpin, that it would not have been clear to a reasonable official in his position that a corporation could bring a discrimination suit,⁵  is correct. Instead we find persuasive this Court's reasoning in Kurowski v. Krajewski, 848 F.2d 767 (7th Cir.), cert. denied 488 U.S. 926, 109 S. Ct. 309, 102 L. Ed. 2d 328 (1988), and hold that uncertainty as to the eventual plaintiff's standing to bring suit, no matter how objectively reasonable at the time of the conduct in question, cannot be the basis for qualified immunity.

Kurowski involved a Sec. 1983 suit against a state court judge brought by former public defenders who alleged that they were fired by the judge on the basis of their politics in violation of their First Amendment rights. The defendant asserted that he should be entitled to qualified immunity, arguing that at the time of his conduct the law failed to clearly establish that a judge's absolute immunity does not extend to hiring and firing decisions. Because it would not have been clear to a reasonable judge at the time that such actions could render him liable, the defendant concluded that he was entitled to enjoy the shelter of qualified immunity. The court rejected this argument noting that " [r]ules without judicial sanction are rules just the same." Id. at 774. A defendant's good fortune of being spared the consequences that federal courts usually mete out for illegal conduct does not in any way affect the fact that such conduct is illegal. Whatever protection from a judicial assessment of liability the special doctrine of absolute immunity could have provided the judge in Kurowski,⁶  it would never place an imprimatur of approval on a clear infringement of First Amendment rights.

Robinson's argument is a similar attempt to gloss over a what is a fundamental distinction in our jurisprudence, the distinction between right and remedy.⁷  There are rules of law, many of them clearly established, whose violations in particular cases are simply not suited for vindication. Even if the illegal nature of certain conduct is clear, other institutional concerns will sometimes operate to preclude particular individuals from obtaining relief. For example, courts will not resolve cases requiring the resolution of political questions, see Gilligan v. Morgan, 413 U.S. 1, 93 S. Ct. 2440, 37 L. Ed. 2d 407 (1973), nor cases that necessitate the determination of the validity of an act of a foreign state, see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964). To an aggrieved party a right without a remedy is doubtlessly not much better than no right at all. And in that practical sense, the right/remedy distinction can grow abstract. But its validity and usefulness become manifest precisely in a case like this one. Qualified immunity works to cut off what often would otherwise be legitimate calls for redress. We embrace this doctrine because, by providing some breathing room, it serves the essential function of facilitating public officials in the performance of their lawful duties. Through the doctrine, our jurisprudence seeks to encourage lawful official conduct in a manner short of complete abdication to governmental prerogative. Because qualified immunity represents an attempt at systemic maximization of legitimate official conduct, the availability of a remedy to a particular plaintiff should not be of critical moment in an immunity analysis. We want officials to act lawfully whether or not the circumstances of a given case work to reduce accountability.⁸  Kurowski makes clear that a distinction exists in the law, and should exist in the heads of reasonable public officials, between the legality of conduct and the ability of a putative plaintiff to achieve redress for such conduct. Accordingly, the appropriate focus in a qualified immunity analysis is the legality of the conduct of the public official, not the obviousness of his liability to the ultimate plaintiff.⁹  Implicit in the structure of the Harlow ruling itself is this essential point: "Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action." Harlow v. Fitzgerald, 457 U.S. 800, 821, 102 S. Ct. 2727, 2740, 73 L. Ed. 2d 396 (1982) (emphasis added).

Furthermore, Triad's ability to assert a Sec. 1983 discrimination claim under the facts of this case is not a question of the scope of the underlying substantive right. That was fixed by the Equal Protection Clause's guaranty that government action will not be taken on the basis of race. Except under narrow circumstances,¹⁰  governmental disregard of the fundamental dictate of equal treatment is the beginning and end of the equal protection inquiry. Whether a particular entity that feels the effect of such action is entitled to judicial relief is a classic issue of standing, see, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 260-61, 97 S. Ct. 555, 560-61, 50 L. Ed. 2d 450 (1977), and, as discussed above, is therefore not relevant to a qualified immunity analysis.

Nothing in this Court's opinion in Auriemma is to the contrary. There we held that the defendant was entitled to qualified immunity with respect to a 42 U.S.C. § 1985(3) claim because it was not clearly established at the time of his conduct that whites as a class came within the protection of the statute. See Auriemma, 910 F.2d at 1458-59. Sec. 1985(3) provides a cause of action when "two or more persons ... conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving ... any person or class of persons of the equal protection of the laws...." We found that it was reasonable to believe, at least prior to our decision in Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d 583 (7th Cir. 1989), that the Sec. 1985(3) "equal protection" right was intended only to protect black citizens. Here, by contrast, the operative equal protection right derives from the Fourteenth Amendment and undoubtedly protects all citizens against race-based discrimination. See Regents of University of California v. Bakke, 438 U.S. 265, 289-90, 98 S. Ct. 2733, 2747-48, 57 L. Ed. 2d 750 (opinion of Justice Powell). In this case, unlike Auriemma, there is no question that it is unlawful to discriminate against whites under the applicable rule of law. The only issue before us is whether Triad is an appropriate party to seek relief for such alleged discrimination. This is the essence of standing. And we again emphasize that public officials who conduct themselves in clear contravention of the command of the law do so at their own risk, regardless of the vagaries of the contemporaneous law of standing.

For the foregoing reasons the judgment of the district court is

AFFIRMED.