The Problems With Alleging Federal Government Conspiracies Under 42 U.s.c. § 1985(3)

• Publication year: 2019

The Problems with Alleging Federal Government Conspiracies Under 42 U.S.C. § 1985(3)

Allen Page

THE PROBLEMS WITH ALLEGING FEDERAL GOVERNMENT CONSPIRACIES UNDER 42 U.S.C. § 1985(3)

Abstract

The conspiracy theories about government involvement in the 9/11 terrorist attacks have been deservedly rebuked. But less well-known-and much more credible-are the allegations that federal government officials conspired to detain and abuse noncitizen Arab and Muslim men in direct response to the attacks, even though the individuals had no connections to the terrorists. This conspiracy was alleged in lawsuits by the individuals who were detained. Fifteen years after the initial complaint, the Supreme Court dismissed the detainees' claim under 42 U.S.C. § 1985(3), a Reconstruction-era conspiracy statute, in a case called Ziglar v. Abbasi. That provision-less familiar than its companion, § 1983-seeks to remedy injuries and rights violations resulting from any "two or more persons" who "conspire" for the purpose of depriving another's civil rights.

The Court's dismissal centered on confusion around how the element of conspiracy ought to apply. For nearly forty years, the lower courts have interpreted the statute's requirement of "two or more persons" in divergent ways. On one hand, some circuits apply the intracorporate conspiracy doctrine, which says that two people within an organization cannot conspire with one another in the normal course of business because they act as a single legal entity. On the other hand are the circuits that reject the intracorporate conspiracy doctrine, joined by a small but unified chorus of academics, who challenge the doctrine's common law origins. A handful of scholars have added that, for government conspiracies, the doctrine's application presents additional problems.

However, rather than resolve the decades-old split, the Court in Abbasi ruled on the basis of qualified immunity, relying on the confusion surrounding the intracorporate conspiracy doctrine's applicability as proof that the law was not clearly established. Instead of clarifying the issue, the Court's approach doubled down on the confusion about what it means to "conspire." Indeed, with respect to claims against federal officials, the Court superimposed the procedural barrier of qualified immunity atop the thorny intracorporate conspiracy doctrine, which is itself an artificial creation of some lower courts that has been superimposed over the required elements of the statute. To get to the merits of a § 1985(3) claim, a court will now have to wade through both.

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This Comment argues that neither barrier ought to prevent claimants from pleading or proving a conspiracy by officers of the federal government under § 1985(3). The intracorporate conspiracy doctrine has persisted almost entirely through repeated reliance on precedent, but a review of its historical development and an analysis of the common law principles upon which it purports to rest reveal that its justifications fail. Qualified immunity, on the other hand, has a place in the claims. But that place is within the analysis of the rights violation element, not the conspiracy element. Both barriers needlessly supplant the substantial limitation the Court has already identified in the text of the statute-namely, a need for the plaintiff to show that the defendants acted with invidious discriminatory animus.

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Introduction.............................................................................................566

I. Section 1985(3): The Remedy for Conspiracies to Violate Civil Rights.....................................................................................569

A. Griffin: A Remedy for Private Actors ....................................... 570
B. Griffin's Progeny: The Remedy's Reach.................................. 571
C. Section 1985(3) Claims Against Federal Officials................... 573
D. The Plaintiffs' Claims in Abbasi .............................................. 576

II. Rejecting the Intracorporate Conspiracy Doctrine.............578

A. "Precedential Creep:" Tracing the Doctrine's Development at Common Law........................................................................ 580

1. Nelson Radio: Antitrust Origins......................................... 581
2. Dombrowski: Introduction to Civil Rights......................... 581
3. Novotny: Rejecting the Doctrine........................................ 583
4. Migration to Government Conspiracies ............................. 584

B. The Doctrine's Faulty Justifications ........................................ 585

1. Text and Legislative History............................................... 586
2. Reliance on Precedent ........................................................ 587
3. Common Law Agency Principles: Single Actor Theory ..... 588
4. Comparing Policies: Criminal and Antitrust Counterparts 589

C. Additional Problems with Government Conspiracies .............. 591

III. Rejecting Qualified Immunity to Establish a Conspiracy .... 594

A. Qualified Immunity in Section 1985(3) Claims ........................ 596

1. Clearly Established: Right vs. Conduct.............................. 597
2. The Proper Application-Elements that Invoke Plaintiffs' Rights .................................................................................. 598
3. The Faulty Application-Elements that Do Not Invoke Plaintiffs' Rights ................................................................. 600

B. Ziglar and Ashcroft: Protecting High-Ranking Federal Officials .................................................................................... 600

Conclusion.................................................................................................604

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Introduction

In the wake of 9/11, conspiracy theories alleging government involvement in the attacks circulated around the Internet. The government debunked these claims,¹ as did the scientific community.² But other, more credible allegations emerged, which focused on the activity of the federal government in response to the attacks. According to these allegations-which were largely confirmed by the government's own investigation³ -federal government officials conspired to detain and abuse Arab and Muslim men without any evidence of connections to terrorism. Some of those detainees sued, claiming their rights had been violated.⁴ There was little doubt about the basic truth of the allegations.⁵ Instead, the issue was whether-assuming the allegations to be true-the federal officers did anything unlawful.⁶

In Ziglar v. Abbasi, as in prior cases arising from these or similar facts, the Supreme Court answered that question in the negative.⁷ The Abbasi plaintiffs had sued various high-ranking federal officials, including the FBI Director, the Attorney General, and the warden of the prison where they had been detained and allegedly abused.⁸ When the case arrived at the Supreme Court, some fifteen years after its commencement, it still had not made it past the pleadings stage. And it never would. The Court expressed grave concerns over the defendants' conduct as alleged by the plaintiffs, which included solitary confinement, strip searches, and both physical and emotional abuse.⁹ "If the facts alleged in the

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complaint are true," it noted, "then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected."¹⁰ Nevertheless, in a 4-to-2 ruling, it denied the claimants any legal remedy.¹¹

In the final part of the opinion,¹² the Court discussed and dismissed the plaintiffs' claim brought under 42 U.S.C. § 1985(3), a Reconstruction-era statute that seeks to remedy injuries and rights violations resulting from any "two or more persons" who "conspire" for the purpose of depriving the claimant's civil rights.¹³ To state a claim under § 1985(3), a plaintiff must plead facts showing that "two or more persons" were involved in the alleged conspiracy.¹⁴ This plurality requirement is typical of any conspiracy statute.¹⁵

But, for nearly forty years, the lower courts have split over how to interpret "two or more persons" in this context. Some say that multiple individuals within a single organization cannot conspire because they act as the organization, a proposition known as the intracorporate conspiracy doctrine.¹⁶ Others reject that contention, challenging the validity of the doctrine's basis in the common law.¹⁷ The debate surrounding the intracorporate conspiracy doctrine gets hazier when instead of individuals within a corporation-thus, intracorporate-the conspiracy alleged involves government officials.¹⁸

Instead of resolving that decades-old split of authority, the Court in Abbasi relied on a procedural immunity reserved for government defendants, applying a doctrine known as qualified immunity.¹⁹ The purpose of qualified immunity is to give government officials "breathing room to make reasonable but mistaken judgments about open legal questions" by shielding them from liability unless it

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is shown they violated "clearly established" law.²⁰ In Abbasi, the open question was whether and how the intracorporate conspiracy doctrine ought to apply.²¹ Since the circuit courts were split, the Court concluded, the law was not "clearly established"-no "reasonable official" in their circumstances could have known what the law really was.²²

But this disposition poses something of a Catch-22-a peculiar procedural puzzle. It implies that the only real way a reasonable federal official could have clarity is if the Supreme Court itself resolved the circuit split and addressed the issue on the merits. And yet, the Court explicitly declined to do just that, deciding instead to avoid the merits of the issue precisely because it was unclear.²³ Instead, it allowed long-standing uncertainty about the conspiracy...