concurring in part and dissenting in part:
I concur in the denial of qualified immunity as to defendants Dammon and Edwards and in the grant of summary judgment, based on qualified immunity, in favor of defendant Roth. I dissent from the grant of summary judgment based on qualified immunity in favor of defendants Cas-per and Currence. In addition, I believe that the failure of the majority to address the effect of a law enforcement officer’s improper motive — that is, the effect of his intent to take action violative of a plaintiffs clearly established constitutional rights — upon the officer’s right to assert the defense of qualified immunity leaves the district court without guidance from this court with respect to the central issue with which Judge Miller grappled below and the parties emphasized in this Court. That issue, for reasons discussed infra, may require determination by the district court on remand.
A.
I fully concur in the views expressed by Judge Wilkinson in Part II of his majority opinion. Moreover, review of the “entire summary judgment record,” at 444, surely discloses, as Judge Wilkinson has written, “no apparent reason” for the “grossly disproportionate number of searches at Rosie’s” by defendants Dammon and Edwards. At 446 (emphasis added). Accordingly, pursuant to the standards stated by Judge Wilkinson in Part II and his factual and legal analyses set forth in Part III with which, except for part of footnote 3,1 also agree, plaintiffs, on remand, would seem presently to be entitled to the award of partial summary judgment rejecting the asserted qualified immunity defenses of defendants Dammon and Edwards.1 Those *449two defendants, having failed to state any “apparent reason” for their conduct, are not entitled to assert that defense at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Nor, since they have seemingly had “adequate time for discovery,” are they entitled to any further opportunity to conduct further discovery or to file additional Fed.R. Civ.P. 56 materials. Id. 106 S.Ct. at 2553.2
B.
A substantial amount of discovery was conducted before the district court denied the summary judgment motions of the five defendants. That denial, as the majority opinion of this panel makes clear, was required as to defendants Dammon and Edwards. As to those two officers, plaintiffs have clearly submitted in appropriate Fed. R.Civ.P. 56 form evidence that those two defendants intentionally attempted to deprive plaintiffs of their constitutional rights.3 As to defendant Currence, while he has stated that he only entered plaintiffs’ residence twice, once in connection with the execution of the search warrant and once in connection with an investigation unrelated to this case, and that he entered Rosie’s bar on only three occasions, nevertheless, the alleged involvement of Currence with one or both Dammon and Edwards on one occasion at the residence and at other times at the bar poses the factual question of whether Currence had knowledge of any unlawful purpose on the part of Dammon and Edwards, if such an unlawful purpose did exist, and conspired with those officers to forward such unlawful purpose. Without the chance to test at trial the truthfulness of defendant Cur-rence’s position that he had no knowledge of any intent by any defendant to deprive plaintiffs of their constitutional right not to be subjected to unreasonable searches and not to be deprived of their lawful right to engage in business,4 plaintiffs have no way to pursue their quests for relief against an officer like defendant Currence who alleg*450edly intentionally played a supporting role in the asserted intentional unconstitutional conduct of defendants Dammon and Edwards. The same is true as to defendant Casper, who apparently participated in a number of bar checks with Dammon and/or Edwards. However, as to defendant Roth, his single involvement was in connection with one search of the residence. While Roth states that he only “stood by” at that time5 and plaintiffs have stated that Roth, together with Dam-mon, “opened a safe,” 6 Roth’s participation in the pattern of activities of Dammon and Edwards was minimal. Since plaintiffs had the opportunity through discovery substantially to link Roth to the alleged unlawful purposes and activities of other police officers — particularly Dammon and Edwards— they are not entitled further to pursue their claims against him in the face of his assertion of qualified immunity. Celotex, supra. Accordingly, I concur in the grant of summary judgment in favor of Roth on the basis of the latter’s qualified immunity claim, and dissent from the grant of summary judgments in favor of defendants Casper and Currence.
C.
If this case should proceed to trial in connection with liability issues raised by plaintiffs’ complaint against defendants Dammon and Edwards, the threshold issue with regard ..to the defense of qualified immunity will be the “objective (albeit fact-specific) question” concerning the Fourth Amendment as stated by the majority. See at 445 n. 3 (quoting Anderson v. Creighton, — U.S.-, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987)). But in the light of Vizbaras v. Prieber, 761 F.2d 1013 (4th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986) and McElveen v. County of Prince William, 725 F.2d 954 (4th Cir.), cert. denied, 469 U.S. 819, 105 S.Ct. 88, 83 L.Ed.2d 35 (1984), those defendants will almost surely ask for a jury instruction entitling them to qualified immunity on the basis of their subjective good faith. However, whether or not defendants ask for such an instruction, plaintiffs’ position to date in this case indicates that plaintiffs will seek an instruction to the jury that regardless of whether defendants Dammon and Edwards acted in subjective and/or objective good faith, neither defendant is entitled to qualified immunity if such defendant purposely violated the Fourth Amendment rights of plaintiffs. To date, plaintiffs have couched their position as to intentional pretextual wrongful conduct by defendants in terms of plaintiffs’ constitutional right to engage in business, and apparently have not done so with regard to any possible violation of their Fourth Amendment rights because, up to this point, no Fourth Amendment claim has been presented by plaintiffs to the district court or to this court. While, on remand, the district court will not reach the issue of any purpose on the part of Dammon and/or Edwards to drive plaintiffs out of business, see at 445 n. 3, the district court will, if this case goes to trial on the issue of liability, need to reach the issue of any intentional attempt by Dam-mon and/or Edwards to violate the Fourth Amendment rights of plaintiffs. That is so because plaintiffs will seek to prevail as to the non-availability of the defense of qualified immunity to a defendant if that defendant has intentionally violated plaintiffs’ Fourth Amendment rights. Accordingly, I do not see how this court can avoid stating its views with regard to the questions discussed in Part D, infra.
D.
In the Supreme Court’s majority opinion in Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), Justice Powell, also the author of the majority opinion in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), wrote that in earlier cases,7 the Supreme Court had applied
the “totality of the circumstances” test [which] comprised two separate inquiries: an inquiry into the objective reasonable*451ness of the defendant official’s conduct in light of the governing law, and an inquiry into the official’s subjective state of mind. Harlow v. Fitzgerald, supra, rejected the inquiry into state of mind in favor of a wholly objective standard. Under Harlow, officials “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.” 457 U.S., at 818 [102 S.Ct., at 2738]. Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” Ibid, (footnote deleted). No other “circumstances” are relevant to the issue of qualified immunity.
Davis v. Scherer, 468 U.S. at 191, 104 S.Ct. at 3017 (emphasis added).
But in eliminating “the subjective prong from analysis of qualified immunity,” the Supreme Court, as Judge Rubin has pointed out in Kenyatta v. Moore, 744 F.2d 1179 (5th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2141, 85 L.Ed.2d 498 (1985),
did not thereby purge substantive constitutional doctrine of all subjective issues [and] it did not entirely eliminate subjective inquiry from any qualified immunity analysis: some rights, including those Kenyatta seeks to vindicate, might be violated by actions undertaken for an impermissible purpose but not by the same actions undertaken for permissible purposes.27
Id. at 1185.8
In Halperin v. Kissinger, 807 F.2d 180, 184 (D.C.Cir.1986), then Judge (now Justice) Scalia wrote:
The problem, however, is that whether (in the words of the Harlow test) “conduct does not violate clearly established ... rights,” 457 U.S. at 818, 102 S.Ct. at 2738, often, if not invariably, depends upon the intent with which the conduct is performed. And it is impossible to place “[r]eliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law,” id. (footnote omitted), when clearly established law makes the conduct legal or illegal depending upon the intent with which it is performed. That is precisely the situation here.
In Halperin, id. at 186, Judge Scalia differentiated between intent related to a “defendant’s knowledge of the state of the law ” (emphasis in original), a factor important in pre-Harlow cases and, on the other hand, “intent unrelated to knowledge of the law,” but rather related to invalid purpose or motive, such as “intent to discriminate on the basis of race,” or, as alleged herein by plaintiffs, intent to deprive plaintiffs of their right to conduct their business lawfully. By eliminating the “subjective” component of qualified immunity analysis, Harlow, on the one hand, eliminated inquiry into whether a defendant actually knew that he was violating the law and, on the other hand, required inquiry into determining whether a defendant should have known of the illegal nature of his actions. Harlow did not foreclose inquiry into the improper purpose with which a defendant has allegedly acted.9 In Harlow, in which plaintiff alleged that he had been fired in retaliation for his lawful exercise of his First Amendment rights, the Supreme *452Court remanded the case for further factual determination of the purpose behind the challenged conduct. Herein, the district court’s denial of summary judgment was occasioned by the need for such factual determination. More importantly, this court’s remand for further proceedings below will probably put that question into issue.
The district court, in its opinion, wrote that in the absence of direct evidence of improper motivation, a defendant is entitled to summary judgment based on such defendant’s claim of qualified immunity if there is “any evidence to support the stated basis for the official’s decision, i.e., whether there is any evidence upon which the official could have rationally decided to take the challenged action for the reason which the plaintiff claims is pretextual.”10 That standard, however, may provide insufficient protection to a plaintiff who challenges as pretextual a defendant’s proclaimed purpose of governmental conduct, and who, at the outset of legal proceedings, may not be able to counter the defendant’s assertion.
Prior to Halperin v. Kissinger, supra, Judge Edwards, in Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985), in the course of reversing and remanding for further proceedings, set forth the following guidance for trial courts:
The kind of case we confront today, involving allegations of unconstitutional motive, offers to litigants a possible means to circumvent the new rule, simply by pleading that any act was performed with an intent to violate clearly established constitutional rights and thereby surmounting the threshold test set out in Harlow. We recognize that in some instances, plaintiffs might allege facts demonstrating that defendants have acted lawfully, append a claim that they did so with an unconstitutional motive, and as a consequence usher defendants into discovery, and perhaps trial, with no hope of success on the merits. The result would be precisely the burden Harlow sought to prevent.
Id. at 29.11
Pursuant to Judge Edwards’ analysis of Hobson, a district court should require a plaintiff’s allegations to be as specific as reasonably possible under the circumstances, but should not require a plaintiff, who, prior to any discovery, may be “able to paint only with a very broad and speculative brush,” to negate all factual assertions by a defendant’s denial of unlawful motivation. Id. at 30-31. Each plaintiff must be *453required to come forward and state in his complaint in support of any such allegation all that he can, or Harlow will not accomplish its purpose. But Harlow and its progeny are not intended to cut down a plaintiff at the threshold because such a plaintiff is unable, without any discovery, to rebut evidence proffered by a defendant who denies any wrongful motivation.
When a defendant claims qualified immunity, his alleged wrongful conduct should be individually examined as the district court performs what is essentially a balancing role: weighing each defendant’s right to be held immune before such defendant is put through any more pretrial or trial procedures than are necessary, against the plaintiffs right to have a fair opportunity to establish the asserted improper purpose or motivation of a given defendant. In that role, the district court should keep in mind that the lack of sufficient involvement of a particular defendant may entitle that defendant to summary judgment on the basis of qualified immunity even if other defendants are held not to be entitled to prevail, at least short of trial, on their respective claims of qualified immunity.
E.
In the light of the majority’s silence as to the issues discussed in Part D, supra — issues raised in and decided by the district court, and argued to this court by both sides — the district court may well need to decide for itself how to analyze and apply the law of qualified immunity in connection with alleged intentional pretextual wrongful conduct by defendants Dammon and Edwards, without any guidance by the majority of this court. That, I believe, is unfortunate.
. While the case law concerning standards for warrantless administrative searches may not have established entirely clear constitutional principles, see generally W. LaFave, Search and Seizure § 10.2(g) (2d ed. 1987), the number and type of searches conducted by Dammon and Edwards, without any "apparent reason" for the same, did violate "clearly established" rights of plaintiffs under the Fourth Amendment. If, on remand, the district court grants summary judgment on Fourth Amendment grounds in favor of plaintiffs against Dammon and Edwards, this case will be over as far as the question of liability is concerned. But if this case should go to trial on the issue of liability, the questions discussed in Parts C and D, infra, may well be reached.
The Fourth Amendment issue was not presented to or considered by the district court. or raised by counsel in any presentation in this court or below. Nevertheless, I agree with the majority that the Fourth Amendment question must be addressed at the threshold of this appeal. But I also believe that plaintiffs’ due process claim should not be treated in the manner adopted by the majority.
In the court below and in this court, plaintiffs contended—and the district court agreed — that any intentional attempt by any defendant to deprive plaintiffs of their right "to engage in any of the common occupations of life,” Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923)), violated plaintiffs’ rights under the due process clause of the Fourteenth Amendment. The majority disposes of that contention by stating that ”[p]laintiffs are not entitled to assert a Fifth or Fourteenth Amendment *449due process right to ‘engage in business' should their Fourth Amendment claims fail. Such a right would be akin to that in Lochner v. New York, 198 U.S. 45 (25 S.Ct. 539, 49 L.Ed. 937] (1905), and its progeny, which the Supreme Court has long since refused to recognize.” At 445 n. 3. Perhaps Roth and its progeny do stand only for the proposition that a person cannot be deprived of his lawful right to do business without procedural due process and that deprivation of such an economic right does not rise to the level of a constitutional violation. See L. Tribe, American Constitutional Law, §§ 8-2, 11-1 n.4 (1978). Perhaps the specter of Lochner does negate the existence of a substantive due process — or equal protection — right of a person to have redress against a local law enforcement officer who intentionally seeks to prevent the individual from engaging in lawful business. Perhaps such a right does not exist unless the particular person is discriminated against as a member of a suspect class. But those questions involve difficult and murky constitutional areas which have not even been mentioned to date in this case by the district court or addressed by counsel either in the district court or in this court. The mention of Lochner in dissent by Justice Black in Griswold v. Connecticut, 381 U.S. 479, 514-15, 524, 85 S.Ct. 1678, 1698-99, 1703, 14 L.Ed.2d 510 (1965) did not deter six members of the Supreme Court from holding that a substantive constitutional right exists. Griswold, of course, dealt with personal rights of a very different nature than the due process rights asserted in this case. Nevertheless, when a law enforcement officer’s action is coupled with a specific intent to single out and harass a particular person with the purpose of preventing him from engaging in lawful business, one of the questions which arises is whether there is not involved "conduct that shocks the conscience." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (Frankfurter, J.). While I am not prepared at this point to disagree flatly with the majority’s view that no substantive constitutional right to do business exists, I am not prepared, on the other hand, to agree with that view as applied in this case, or to take a position with regard to it at this stage of this appeal.
. During both the pretrial and trial phases, a defendant has the burden of going forward to establish facts supporting his assertion of a qualified immunity defense. In this circuit such a defendant also has the burden of proof to establish the same. Arebaugh v. Dalton, 730 F.2d 970, 972 (4th Cir.1984); Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982).
. That conclusion, of course, follows a fortiori from the views expressed supra in Part A, Le., that if plaintiffs so requested, partial summary judgment should be granted in their favor as to the qualified immunity defenses asserted by defendants Dammon and Edwards.
. See note 1, supra.
. Tr. 55.
. Tr. 72.
.Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).
. Footnote 27 in Kenyatta reads as follows:
See, e.g., Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.[2d] 597 (1976) (purposeful racial discrimination necessary to constitute fourteenth amendment violation); Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (class based animus essential for action under § 1985(3)); Wright v. Georgia, 373 U.S. 284, 292, 83 S.Ct. 1240, 1245, 10 L.Ed.2d 349, 355 (1963) (police officer’s intention to enforce racial discrimination violates equal protection). As Justices Brennan, Marshall and Blackmun point out in their concurring opinion in Harlow, its standard "would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not ‘reasonably have been expected’ to know what he actually did know.” 457 U.S. at 820, 102 S.Ct. at 2740, 73 L.Ed.2d at 411. (Emphasis in original.)
. Circuit courts which have addressed the issue have concluded implicitly if not explicitly that allegations of unconstitutional purpose and motivation are in no way vitiated by Harlow’s rejection of the subjective component of the *452prior double standard enunciated by Wood v. Strickland. See Craft v. Wipf, 810 F.2d 170, 171-73 (8th Cir.1987); Wright v. South Arkansas Regional Health Center, Inc., 800 F.2d 199, 202-03 (8th Cir.1986); Lojuk v. Johnson, 770 F.2d 619, 621-22 n. 2 (7th Cir.1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986); see also Martin v. D.C. Metropolitan Police Dep’t, 812 F.2d 1425, 1428 (D.C.Cir.), reh’g granted and op. vacated in unrelated part, 817 F.2d 144 (D.C. Cir.1987); Huron Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563, 566-67 (6th Cir.), cert. denied, — U.S.-, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986); Flinn v. Gordon, 775 F.2d 1551, 1552 (11th Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1972, 90 L.Ed.2d 656 (1986). Cf. Kenyatta v. Moore, 744 F.2d 1179, 1184-86 (5th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2141, 85 L.Ed.2d 498 (1985).
Anderson v. Creighton, — U.S.-, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), discussed by the majority, at 445 n. 3, does not suggest otherwise. In Anderson, the Supreme Court held that a police officer "is entitled to summary judgment” if “in light of the clearly established principles governing warrantless searches, he could, as a matter of law, reasonably have believed that the search of the Creightons’ home was lawful.” 107 S.Ct. at 3040 (footnote omitted) (emphasis added). Writing for a majority of the Court, Justice Scalia wrote that the holding in Anderson "does not reintroduce into qualified immunity analysis the inquiry into officials’ subjective intent that Harlow sought to minimize.” Id. Anderson did not address in any way the issue of alleged intentional pretextual unlawful conduct. Nor did Justice Scalia in any way indicate in Anderson that he had changed the views which he expressed a year earlier in Halperin.
. App. 144-45.
. See Allen v. Scribner, 812 F.2d 426, 436 (9th Cir.1987) (when a qualified immunity defense is asserted in a disputed factual context, "[a] jury must decide the issue of motivation” (footnote omitted)); Note, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 Yale L.J. 126, 147 (1985).