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Qualified immunity is not available to private defendants who are alleged to have conspired with government officials to deprive plaintiffs of their civil rights, the 2nd U.S. Circuit Court of Appeals has ruled in a case of first impression. The ruling in Toussie v. Powell, 02-7770, means that former Brookhaven, N.Y., Republican Party Chairman John Powell will have to defend himself against charges he manipulated a town board to deprive prominent developer Robert Toussie of due process. The dispute began in 1998, when Toussie obtained a variance to build a single-family home in Brookhaven, Suffolk County. Toussie alleged that Powell and Town Supervisor Felix Grucci pressured the Board of Zoning Appeals to rescind the variance. A Suffolk Supreme Court justice vacated the decision and ordered the board to issue Toussie a permit, but the board allegedly dragged its feet on complying with the court order by filing a frivolous appeal that it never perfected. Toussie claimed he lost a possible buyer for the home site and was unable to develop or sell the property for more than two years. Powell and Grucci, he said, then conspired to secure the passage of an amendment to the Town Code — which came to be known as the “Toussie Law” — that made it more expensive for Toussie to develop his substantial holdings in the town. Toussie filed suit in the Eastern District of New York under 42 U.S.C. �1983, claiming he was deprived of due process and equal protection. Eastern District Judge Denis R. Hurley Sr. rejected Powell’s motion to dismiss on the grounds of qualified immunity. Toussie then argued to the 2nd Circuit that Powell should not be allowed to make an interlocutory appeal from the denial of qualified immunity. Such appeals are normally allowed only to spare public officials the burden of going to trial and where the benefit of qualified immunity is “effectively lost” if the trial is allowed to proceed. But 2nd Circuit Judge Guido Calabresi said that “because Powell has, under our prior cases, a colorable claim to qualified immunity, we have jurisdiction to consider his claim, since otherwise that claim would be ‘effectively lost.’” Turning to the merits, Judge Calabresi said the U.S. Supreme Court in Wyatt v. Cole, 504 U.S. 158 (1992), found that qualified immunity is not available for private defendants under � 1983 for invoking state replevin, garnishment or attachment statutes. “There is some question as to how broadly Wyatt should be read,” Calabresi said. “ Wyatt’s holding is expressly limited to the question of qualified immunity and leaves open the possibility that a Section 1983 action ‘could be entitled to an affirmative defense based on good faith and/or probable cause or that Section 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens.’” Nonetheless, Calabresi said, the logic of Wyatt “applies as much to allegations that a private defendant conspired to influence improperly governmental decision-making as it does to allegations that a private defendant invoked an unconstitutional state replevin, garnishment, or attachment statute.” Following the instructions of Wyatt, he said, the 2nd Circuit examined whether the reasons underlying government employee immunity apply to a private party, and concluded, in the language of Wyatt, that the “public interest will not be unduly impaired if private individuals are required to proceed to trial to resolve their legal disputes” in the context of a civil rights suit for conspiring with government officials. The court remanded the case after specifying that its ruling does not foreclose a defense by Powell based on his right to petition the government — or decide whether “private defendants who are acting pursuant to a government contract or a court order can be shielded by qualified immunity.” Judges Dennis Jacobs and Sonia Sotomayor joined in the opinion. Christopher A. Jeffreys of Melville, N.Y., represented Powell. David N. Yaffe and William P. Caffrey of Hamburger, Maxson, Wishod & Knauer represented Toussie.

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