Academic journal article Emory Law Journal

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

Academic journal article Emory Law Journal

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

Article excerpt


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 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}6 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}9 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 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. …

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