|||UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
|||April 17, 2001
|||ROBERT A. BROWN
ANGELO ARMENTI, JR.; CALIFORNIA UNIVERSITY OF PENNSYLVANIA; BARBARA A. ARMENTI; CUR TIS C. SMITH; DELORES L. ROZZI; HAYWOOD L. PERR Y; BONITA A. KLINE; BETH BAXTER; JAMES H. MCCORMICK; CBS CORP KDKA-TV; WESTINGHOUSE BROADCASTING COMPANY KDKA-TV; WESTINGHOUSE CBS HOLDING COMPANY, INC. KDKA-TV; CBS BROADCASTING INC., AKA KDKA-TV; PAUL MAR TINO; CHARLES D. FOUST; GERALD F. KELLEY; KAREN D. LUM; LINDA J. MCCLELLAN; DEAN WEBER; CARLEEN C. ZONI; JUDY ANSILL; WILLIAM F. BARRY; FRANK DELUCA; CARMINE DURZO; ANNETTE GANASSI; PAUL LEMMON; EDWARD M. PAULSO; STEVEN STOUT; JOHN K. THORNBURGH; AARON WALTON; ROBER T WETZEL; FOUNDATION FOR CALIFORNIA UNIVERSITY OF PENNSYLVANIA ANGELO ARMENTI, JR., APPELLANT
|||Appeal from the United States District Court for the Western District
of Pennsylvania (D.C. Civ. No. 98-cv-01332) District Judge: Honorable Donetta
W. Ambr ose
|||John M. Golden, Esquire (Argued) First & Market Building 100 First Avenue,
Suite 825 Pittsburgh, PA 15222 Counsel for Appellee D. Michael Fisher Attorney
General John G. Knorr, III, (Argued) Chief Deputy Attorney General Chief,
Appellate Litigation Section Office of Attorney General of Pennsylvania
Department of Justice Strawberry Square 15th Floor Harrisburg, PA 17120
Counsel for Appellant
|||Before: Mansmann, Barry and Cowen, Circuit Judges.
|||The opinion of the court was delivered by: Mansmann, Circuit Judge
|||Argued March 12, 2001
|||Filed: April 17, 2001
|||OPINION OF THE COURT
|||In this interlocutory appeal, the defendant appeals the District Court's
denial of a motion for summary judgment in a section 1983 action where the
defendant asserted the defense of qualified immunity. What is unusual her
e is the setting -- a public university. In an amended complaint, a tenured
professor alleged that he was suspended from teaching a class after he refused
the university president's instruction to change a student's grade and that
he was discharged after submitting a written criticism of the president
to be presented to the university board of trustees. According to the complaint,
these were acts of retaliation which violated the professor's rights to
academic freedom and free speech protected by the First Amendment. We conclude
that the amended complaint did not allege deprivations of constitutional
rights and that summary judgment should have been granted. We therefore
will reverse the portion of the District Court's judgment that dealt with
these issues and remand for the District Court to enter summary judgment
for the defendant university president.
|||When an appellate court reviews the denial of a defendant's claim to qualified
immunity, "the appealable issue is a purely legal one: whether the facts
alleged . . . support a claim of violation of clearly established law."
Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985).*fn1
Resolving the legal issues, however, requir es "consideration of the factual
allegations that make up the plaintif f 's claim for relief." Id at 528.
For this r eason, we present the facts as they have been alleged by the
plaintiff and do not concern ourselves with weighing the correctness of
the plaintiff 's version. Id. Our review is plenary. Abbott v. Latshaw,
164 F.3d 141, 145 (3d Cir. 1998).
|||For twenty-eight years, plaintiff Robert Br own was employed as a professor
at California University of Pennsylvania; he has been tenured since 1972.
At the conclusion of the spring 1994 semester, the plaintiff assigned an
"F," or "failing," grade to one of his students in a practicum course because
the student had attended only three of fifteen class sessions. Defendant
Angelo Armenti, the university president, ordered that the grade be changed
to "Incomplete," but the plaintiff refused.
|||The plaintiff alleged that, as a result of his refusal, the university
suspended him from teaching the course. He further contended that "[a]s
a result of this and other matters, the plaintiff wrote a critical review
of Defendant Armenti for presentation to the University Board of Trustees."
Two years later, the university terminated the plaintiff 's employment.
|||The plaintiff then filed a sixteen-count complaint in a Pennsylvania state
court, naming Armenti and thirty-one other individuals or entities as defendants.
The complaint alleged violations of state law as well as of federal and
state constitutional law. Pursuant to 28 U.S.C. S 1446(d), the case was
removed to the United States District Court for the Western District of
Pennsylvania. *fn2 By the time the District
Court considered the motion for summary judgment now before us, the only
claims remaining for disposition were federal civil rights violations alleged
against several defendants including Armenti, and a civil rights retaliation
claim against Armenti alone. Count V in the complaint stated the retaliation
claim against Armenti:
|||"80. Defendant Armenti retaliated against Plaintiff because Plaintiff
refused to change a student's grade at the order of Defendant Armenti, in
violation of Plaintiff 's right to academic free expression, in violation
of the First and Fourteenth Amendments to the United States Constitution.
|||81. Defendant Armenti retaliated against Plaintiff for Plaintiff 's critical
review of Defendant Armenti for the Board of Trustees in violation of Plaintiff
's right to free speech under the First and Fourteenth Amendments to the
United States Constitution."
|||The District Court granted summary judgment as to all the claims except
for those in Count V. The District Court denied defendant Armenti's motion
for summary judgment as to the Count V claims, concluding that both the
plaintiff 's criticism of Armenti and the plaintiff 's assignment of student
grades were protected speech under the First Amendment. The District Court
did not address the defendant's claim to qualified immunity. The defendant
filed a timely appeal, asserting again that qualified immunity provides
him a defense to the Count V claims.
|||The doctrine of qualified immunity establishes "that government officials
performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This doctrine is
founded upon the recognized "need to protect officials who are required
to exercise their discretion and the r elated public interest in encouraging
the vigorous exercise of official authority." Id. at 807 (internal quotations
and citation omitted).
|||We have held that the defendant is entitled to the defense of qualified
immunity if none of the following questions can be answered in the affirmative:
(1) have the plaintiffs alleged a violation of their statutory or constitutional
rights; (2) was the right alleged to have been violated clearly established
in the existing law at the time of the violation; and (3) should a reasonable
official have known that the alleged action violated the plaintiffs' rights.
Rouse v. Plantier, 182 F.3d 192, 196-97 (3d Cir . 1999). The threshold-nature
of the inquiry serves tofilter unfounded claims and "promotes clarity in
the legal standards for official conduct, to the benefit of both the officers
and the general public." Wilson v. Layne, 526 U.S. 603, 609 (1999) (citing
County of Sacramento v. Lewis, 523 U.S. 833, 840-42 n.5 (1998)); Siegert
v. Gilley, 500 U.S. 226, 232 (1990) ("Decision of [the] purely legal [immunity]
question[s] permits courts expeditiously to weed out suits which fail the
test without requiring a defendant who rightly claims qualified immunity
to engage in expensive and time consuming preparation to defend the suit
on its merits."). We turn, therefore, to the question of whether First Amendment
rights were violated.*fn3
|||The Supreme Court has held that the First Amendment prohibits the government
from regulating speech based upon its substantive content or the message
it conveys. Rosenberger v. Rector and Visitors of University of Virginia,
515 U.S. 819, 828 (1995). Here, we must consider whether the alleged actions
of the defendant, the president of a public university, had the effect of
discouraging speech with a disfavored message and, therefore, amounted to
an improper conditioning of public employment. The plaintiff has alleged
two acts of retaliation and two theories supporting First Amendment protection
of his speech. First, he asserts that retaliation following the plaintiff
's refusal to change the grade violated a right to academic free expression
under the First Amendment. Second, the plaintiff contends that the defendant's
firing him for submitting a written criticism violated the generalized free
speech rights under the First Amendment. We will consider these arguments
|||Employees of federal and state government do not relinquish their First
Amendment rights to comment on matters of public interest as a condition
of their government employment. Pickering v. Board of Education, 391 U.S.
563, 568 (1968). Nor do "students or teachers shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate." Tinker
v. Des Moines School District, 393 U.S. 503, 506 (1968). Furthermore, the
Supreme Court has held that the university setting is one in which First
Amendment free speech pr otections in that context are of particular importance:
|||The essentiality of freedom in the community of American universities
is almost self-evident. No one should underestimate the vital role in a
democracy that is played by those who guide and train our youth. To impose
any strait jacket upon the intellectual leaders in our colleges and universities
would imperil the future of our Nation. Sweezy v. State of New Hampshire,
354 U.S. 234, 250 (1957).
|||These statements notwithstanding, there are recognized limitations upon
free speech in the university setting. For example, we held in Edwards v.
California University of Pennsylvania, 156 F.3d 488, 491 (3d Cir . 1998),
that "a public university professor does not have a First Amendment right
to decide what will be taught in the classroom."
|||In Edwards, a university professor alleged a violation of his First Amendment
rights when the school disciplined him after a series of disputes with the
administration over course curriculum. Id. at 490. We concluded that no
violation occurred because in the classroom, the university was the speaker
and the professor was the agent of the university for First Amendment purposes.
Id. at 491. In support of this conclusion, the Edwards opinion quoted from
the Supreme Court opinion in Rosenberger:
|||[w]hen the state is the speaker, it may make content-based choices. When
the University determines the content of the education it provides, it is
the University speaking, and we have permitted the government to regulate
the content of what is or is not expressed when it is the speaker or when
it enlists private entities to convey its own message . . . . It does not
follow, however, . . . that viewpoint-based restrictions are proper when
the University does not speak itself or subsidize transmittal of a message
it favors but instead expends funds to encourage a diversity of views fr
om private speakers. A holding that the University may not discriminate
based on viewpoint of private persons whose speech it facilitates does not
restrict the University's own speech, which is controlled by different principles.
Id. at 491-92 (quoting Rosenberger , 515 U.S. 819 (1995).
|||Edwards distinguished the rights of a professor in the classroom from
those out of the classroom. Id. at 492. "In the classroom" refers to those
settings where the professor is acting as the university's proxy, fulfilling
one of the functions involved in the university's "four essential freedoms:"
choosing "who may teach, what may be taught, how it shall be taught, and
who may be admitted to study." Id. at 492 (citing Regents of Univ. of California
v. Bakke, 438 U.S. 265, 312 (1978)). Because grading is pedagogic, the assignment
of the grade is subsumed under the university's freedom to determine how
a course is to be taught. We therefore conclude that a public university
professor does not have a First Amendment right to expression via the school's
grade assignment procedures.
|||The plaintiff 's argument to the contrary relies upon the analysis adopted
by the Court of Appeals for the Sixth Circuit in Parate v. Isibor, 868 F
.2d 821 (6th Cir. 1989). In Parate, a non-tenured professor was forced to
sign a memorandum changing a student's grade. Id. at 823-34. He was not
permitted to note on the document that the change was "per instructions
from [the] Dean . . . ." Id. The Court held that a professor's First Amendment
right was violated because the "assignment of a letter grade is a symbolic
communication intended to send a specific message to the student . . . [and]
is entitled to some measure of First Amendment protection." Id. at 827 (citing
Tinker, 393 U.S. at 505-06). The Court concluded that the University was
the speaker only as far as the grade on the student's transcript. Id. at
|||The Edwards framework, however , applies to the present case and offers
a more realistic view of the university-professor relationship. Whether
the school registrar is told that a student's performance rates an "F
" or an "Incomplete" is not a matter that warrants the "intrusive oversight
by the judiciary in the name of the First Amendment." Connick v. Myers,
461 U.S. 138, 146 (1983); Wozniak v. Conry, 236 F.3d 888, 891 (7th Cir.
2001) ("Some universities offer their faculty more control over grading
than [in this case] and maybe discretion is good. But competition among
systems of evaluation at different universities, not federal judges, must
settle the question which approach is best."). We note that our holding
today is consistent with at least one other Court of Appeals. See Lovelace
v. Southern Methodist University, 739 F.2d 419, 426 (2d Cir. 1986) (per
|||In his second argument, the plaintiff asserts that retaliation following
his submission of a critical evaluation violated his free speech rights
under the First Amendment. When resolving such disputes, courts must strike
"a balance between the interests of the [employee], as a citizen, in commenting
upon the matters of public concern and the interest of the State, as an
employer , in promoting the efficiency of the public services it per forms
through its employees" when determining whether a public employer acted
properly in discharging an employee for engaging in speech. Pickering, 391
U.S. at 568. The threshold question in this analysis is whether the employee's
speech may fairly be characterized as a matter of public concern. Rankin
v. McPherson, 483 U.S. 378, 384 (1987).
|||In Connick v. Myers, a District Attorney fired an Assistant District Attorney
for distributing a questionnaire to fellow staff members. 461 U.S. at 141.
The survey sought staff views on the office transfer policy, office morale,
the need for a grievance committee, the level of confidence in supervisors,
and whether employees felt pressured to work in political campaigns. Id.
|||The Court reiterated the balancing described in Pickering, this time addressing
a single question in the analysis: whether the subject of the employee's
expression was " `a matter of legitimate public concern' upon which `free
and open debate is vital to informed decision-making by the electorate.'
" Id. at 145 (quoting Pickering, 391 U.S. at 571-72). The Court reasoned
that if the employee's speech cannot be fairly characterized as constituting
speech on a matter of public concern, it is unnecessary for us to scrutinize
the reasons for her discharge. When employee expression cannot be fairly
considered as relating to any matter of political, social, or other concern
to the community, government officials should enjoy wide latitude in managing
their offices, without intrusive oversight by the judiciary in the name
of the First Amendment. Id. at 146 (internal footnote omitted).
|||The Court pointed to the standard applied in the common law tort for invasion
of privacy as the correct standard to apply when determining whether an
expression is of a kind that is of legitimate concern to the public. Id.
at 143 n.5 (citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)).
The Cox standard for determining whether a topic is a legitimate matter
of public concern is functional, asking whether there is a public benefit
in reporting the matter. 420 U.S. at 495.
|||In Connick, the Court concluded that "[w]hether an employee's speech addresses
a matter of public concern must be determined by the content, form, and
context of a given statement, as revealed by the whole record." Id. at 148-49.
The Court concluded that all but one of the questions on the survey dealt
with the individual employee's dispute with the District Attorney and were
not "of public import in evaluating the performance of the District Attorney
as an elected official." Id. at 148. Because the questionnaire concerned
matters of public interest "in only a most limited sense . . . [t]he limited
First Amendment interest involved here does not require that [the employer]
tolerate action which he reasonably believed would disrupt the office, undermine
his authority, and destroy close working relationships." Id. at 154.
|||Four years later, in Rankin v. McPherson the Supreme Court considered
the question again -- whether a statement by an employee that led to her
firing was a matter of public concern. 483 U.S. at 384. The employee in
Rankin worked in a constable's office and had remarked after hearing of
an attempt on the life of the President, "If they go for him again, I hope
they get him." Id at 379. In determining the "public concern" threshold
test, the Court reasoned that because the statement was made in the context
of a discussion about the policies of the President's administration, and
because it was said following a news bulletin of national interest, it "plainly
dealt with a matter of public concern." Id. at 386.
|||Whether the subject matter of the "speech" was a legitimate matter of
public concern is a question of law. Connick, 461 U.S. at 148 n.7. The fact
that the matter now on appeal is a legal issue distinguishes the present
interlocutory appeal from that in Johnson v. Jones, 515 U.S. 304 (1995).
In deciding Johnson, the Court resolved a circuit split in the courts of
appeals "about the immediate appealability of . . . pretrial `evidence insufficiency'
claims made by public official defendants who assert qualified immunity
defenses." Johnson, 515 U.S. at 308. Although there is some broad language
in Johnson that might suggest the Court foreclosed any consideration of
the sufficiency of the evidence when courts of appeals review summary judgment
motions, the Court limited the holding in at least two ways. First, it noted
that the decision did not change the law for many courts of appeals.*fn4
Johnson, 515 U.S. at 307, 318, 319 (observing that "our holding here has
been the law in several Circuits for some time" and referring to a listing
of cases that included Giuffre v. Bissell, 31 F.3d 1241 (3d Cir. 1994)).
Second, the Court acknowledged that where a district court does not clearly
state facts relevant to a question of law, it might be appropriate for a
court of appeals to "undertake a cumbersome review of the record to determine
what facts the district court . . . likely assumed." Id . at 319. In addition,
the Supreme Court recently clarified the holding in Johnson:
|||Johnson held, simply, that determinations of evidentiary sufficiency at
summary judgment are not immediately appealable merely because they happen
to arise in a qualified-immunity case; if what is at issue in the sufficiency
determination is nothing more than whether the evidence could support a
finding that particular conduct occurred, the question decided is not truly
"separable" from the plaintiff 's claim, and hence there is no "final decision"
under Cohen and Mitchell. Johnson reaffirmed that summary judgment determinations
are appealable when they resolve a dispute concerning an "abstract issu[e]
of law" relating to qualified immunity -- typically, the issue whether the
federal right was "clearly established." Behrens v. Pelletier, 516 U.S.
299, 313 (1996) (citations omitted).
|||In Grant v. City of Pittsburgh, 98 F .3d 116 (3d Cir. 1996), we observed
that "crucial to the resolution of any assertion of qualified immunity is
a careful examination of the record (preferably by the district court) to
establish, for purposes of summary judgment, a detailed factual description
of the action of each individual defendant." Id. at 122. We have also noted
that although the qualified immunity inquiry is primarily legal, "some factual
allegations . . . are necessary to resolve the immunity question." Gruenke
v. Seip, 225 F.3d 290, 299 (3d Cir. 2000). Therefore, Johnson does not foreclose
an appellate court from scrutinizing the evidence put forward by the plaintiff
following a qualified immunity summary judgment motion.
|||The role of a factual inquiry resolving a claim to qualified immunity
is addressed in Anderson v. Creighton, 483 U.S. 635 (1987). In Creighton,
the Supreme Court considered whether an officer was liable for conducting
an unreasonable search if a reasonable officer could have believed that
the search was lawful. Id. at 637. The Court required a particular inquiry,
stating that the "relevant question in this case . . . is the objective
(albeit fact-specific) question whether a reasonable officer could have
believed Anderson's warrantless search to be lawful, in light of clearly
established law and the information the searching officers possessed." Id.
at 641. The Court vacated the judgment and remanded the case with specific
instructions that any discovery "should be tailored specifically to the
question of Anderson's qualified immunity." Id. at 646 n.6.
|||Creighton instructs that "the balance that our cases strike between the
interests in vindication of citizens' constitutional rights and in public
officials' effective performance of their duties," id . at 639, requires
plaintiffs to respond to a defendant's claim of qualified immunity with
evidence that the actions alleged "are actions that a reasonable officer
could have believed [un]lawful." Id. at 646 n.6. As a result, a respondent
does not satisfy the Rule 56(e) burden by relying upon bare allegations
or assertions of abstract rights. If the defendant official is liable only
where "[t]he contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that
right," id. at 640, it is reasonable for a court considering a qualified
immunity summary judgment motion to require that the plaintiff make clear
what the alleged violation is. Where plaintiff fails to present particularized
facts, the motion should be granted. *fn5
|||In the present case, it is clear that the plaintiff did not satisfy Creighton.
The District Court conceded that it did not know the content of the speech
at issue. The record contains only two clues about the content of the evaluation:
the assertion in the complaint that the plaintiff 's evaluation was "critical,"
and the plaintiff 's testimony that the evaluation was submitted on a two-page
form that "had room to respond to four or five different things that had
to do with academic standards and faculty morale and how the president dealt
with various issues on campus." Although his deposition testimony indicates
that he had access to a copy of the completed evaluation form, he did not
enter the document into the record. Nor does the plaintiff disclose the
substance of his comments on the form, saying only that he did not choose
the subjects, but that his was "a response to an evaluation form that I
had been given."
|||It is the words that the plaintiff wrote on the form that allegedly motivated
the retaliation. When considering a summary judgment motion, a court must
have before it the "content, form, and context of a given statement, as
revealed by the whole record" to determine if the statements were of legitimate
public concern. The plaintiff did not provide such proof, alleging only
that the speech was "critical." In the absence of evidence, the District
Court improperly inferred that the speech addressed "academic integrity."
By failing to require the proof, the District Court allowed the plaintiff
"to convert the rule of qualified immunity . . . into a rule of virtually
unqualified liability simply by alleging violations of extremely abstract
rights." Creighton, 483 U.S. at 639.
|||Finally, even if we were convinced that the plaintiff 's response to the
summary judgment motion satisfied Creighton, we conclude that summary judgment
would have been appropriate nonetheless. On the facts found by the District
Court, the subject of the plaintiff 's speech closely resembles that of
the questions on the survey in Connick. Those dealt with office morale,
the transfer policy, and employee confidence in supervisors. Connick , 461
U.S. at 141. The District Court here reasoned that the issues contained
speech which was in the category of "academic integrity," "relevant to the
governing of the University, and therefore, . . . of public concern," but
this is comparable to the dissent in Connick concluding that the issues
there "could reasonably be expected to be of inter est to persons seeking
to develop informed opinions about the manner in which . . . an elected
official . . . discharges his responsibilities." Id. at 163 (Br ennan, J.,
dissenting). Had the plaintiff been reprimanded for speaking regarding,
for example, grade inflation, a specific subject about which there is demonstrated
interest, he might have satisfied this test. As it stands, the speech alleged
reflects little more than one employee's dissatisfaction with an administrative
decision by his employer, Connick, 461 U.S. at 148-49. As such, there would
be no public benefit in reporting this matter, Cox, 420 U.S. at 495, and
we find no constitutional violation.
|||We conclude that the defendant is entitled to qualified immunity as to
Count V because no actual constitutional violation was alleged. For this
reason, that portion of the judgment of the District Court on appeal will
be reversed and on remand the District Court will be instructed to enter
summary judgment for the defendant university pr esident.
|||*fn1 Although 28 U.S.C. S 1291 confers
jurisdiction upon the courts of appeals to hear appeals from final decisions
of district courts, the collateral order doctrine creates an exception to
the general rule. In re Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000);
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The parties briefed the issue
of the defendant's qualified immunity, but the District Court did not explicitly
address the question. When it concluded that summary judgment was not appropriate,
however, the Court implicitly ruled on the matter. Even though a district
court does not explicitly address the immunity claims, we nonetheless have
jurisdiction to review the implied denial of those claims. In re Montgomery
County, 215 F.3d at 373. "[A] district court's denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable
`final decision' within the meaning of 28 U.S.C. S 1291 notwithstanding
the absence of a final judgment." Behrens v. Pelletier, 516 U.S. 299, 306
(1996) (quoting Mitchell, 472 U.S. at 530); Sterling v. Borough of Minersville,
232 F.3d 190, 197 (3d Cir. 2000).
|||*fn2 Because plaintiff alleged claims
arising under the Constitution and the laws of the United States, the District
Court's jurisdiction was proper under 28 U.S.C. S 1331.
|||*fn3 The First Amendment states that
"Congress shall make no law . . . abridging the freedom of speech .
. . ." The Fourteenth Amendment applies this provision of the Bill of Rights
to the States. Gitlow v. People of State of New York, 268 U.S. 652, 666
(1925). In Monroe v. Pape, 365 U.S. 167 (1961), the Supreme Court held that
42 U.S.C. S 1983 creates a remedy for violations of rights secured by the
Constitution or the laws of the United States. Id. at 172.
|||*fn4 We had held in Giuffre v. Bissell,
31 F.3d 1241 (3d Cir. 1994), that a claim that "I didn't do it" is different
than a claim to the right of qualified immunity and that a denial of summary
judgment motion based on the former is not appealable. Id. at 1258 (citing
Burns v. County of Cambria, 971 F.2d 1015, 1019 (3d Cir. 1992)). Our holding
in Giuffre is consistent with the later opinion by the Supreme Court.
|||*fn5 This is not a weighing of evidence
for a determination of whether there is a genuine issue of fact, such as
the Court held was not appealable in Johnson, because the legal question
here is separable from the inquiry that is the basis of the plaintiff 's
claim. Behrens, 516 U.S. at 313. Rather, the requirement prevents the clever
plaintiff from bypassing the qualified immunity "filter" simply by identifying
an abstract right.
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