In
Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), despite a three-way split on the merits, the Justices agreed on one point: It was the
facts Siegert alleged, not any particular cases he happened to cite—or not cite—in support of his claim, that mattered for purposes of deciding the qualified immunity question. The Justices seemed perfectly willing to use their own resources to determine and explain what the law was. The majority wrote: “The
facts alleged by Siegert cannot, in the light of our decision in
Paul v. Davis [424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) ] be held to state a claim for denial of a constitutional right.”
Id. 500 U.S. at ––––, 111 S.Ct. at 1794 (emphasis added). Focusing on the malice element requisite to Siegert's constitutional claim, Justice Kennedy said: “Upon the assertion of a qualified immunity defense the plaintiff must put forward specific, nonconclusory
factual allegations which establish malice, or face dismissal.... In my view petitioner did not meet the burden of
alleging facts from which malice could be inferred by other than the most conclusory allegations.”
Id. at ––––, 111 S.Ct. at 1795 (emphasis added). The dissent said something very similar: “The majority contends that Siegert has not alleged the violation of any ‘right,’ ‘clearly established’ or otherwise. In my view, there can be no doubt that
the conduct alleged deprived Siegert of a protected liberty interest and that this right was clearly established at the time Gilley wrote his letter. Siegert's claim, therefore should surmount Gilley's assertion of qualified immunity.”
Id. at ––––, 111 S.Ct. at 1797 (emphasis added) (Marshall, J., dissenting). Not one of the opinions purported to limit its analysis to the cases cited by Siegert to the district court. The phrase “legal facts” appears nowhere in the opinion.