The Supreme Court will have a chance to stop at least one common abuse of qualified immunity

Law enforcement officers sometimes make split-second decisions that turn out to be wrong. But in the case of Sylvia Gonzalez, a mayor, police chief and special detective spent weeks considering ways to retaliate against her, a retiree who promised change when she ran for Castle City Council Hills, Texas.

After Gonzalez's election, she faced deliberate, coordinated, and prolonged efforts to silence her. She even spent a day in jail on false allegations.

But when Gonzalez sued his tormentors for violating his First Amendment right to criticize them, the 5th U.S. Court of Appeals threw out his case.

As part of their defense, the mayor and his accomplices asserted “qualified immunity,” a court-created doctrine that protects public officials from prosecution unless their victims can prove that the abuse was “clearly established” as unconstitutional in previous cases.

Public servants deserve that get-out-of-jail-free card, the courts ruled, because public service sometimes requires quick thinking. If first responders have to answer for their split-second decisions – like everyone else – they might hesitate in tense situations, and too much doubt could lead to people dying.

Or at least that’s how the story goes. But “Inexplicable,” a new report from our public interest law firm, the Institute for Justice, challenges this thinking. Using the largest-ever collection of qualified immunity appeals, spanning the 11 years from 2010 to 2020, the study describes how qualified immunity works in practice in the courts of law. federal appeal.

Although law enforcement officers were the most common defendants, many of these calls did not even involve police. In 21 percent of cases, the only defendants were other government employees, including mayors, city managers, university and school officials, and prosecutors. Many of these cases involved premeditated retaliation against a private citizen or fellow government employee.

For example, a social worker sexually harassed a woman in California, then presented a qualified immunity defense in court. A university administrator oversaw mock hearings for expel a student from a university in Ohio. A borough council president pressured a local prison system to end a contract with his political opponent in Pennsylvania. And a health official licensed an employee because she refused to cancel a necessary medical appointment in Arkansas.

None of these officials were police officers. No one made a split-second decision. However, all benefited from partial immunity.

Supreme Court Justice Clarence Thomas has previously questioned the one-size-fits-all approach to qualified immunity. Writing about a first amendment case involving university censorship, he asks: “Why should university officials, who have the time to make calculated choices regarding the adoption or enforcement of unconstitutional policies, be afforded the same protection as a police officer who takes into account a fraction of a second the decision to use force in a dangerous context? »

It's a good question.

Even when calls involve the police, the types of complaints are diverse. According to the report, only 23 percent of calls – or less than one in four – involve police officers accused of using excessive force. A similar number of cases involved allegations of false arrest, which less often involve decisions made on the fly.

Agents conducted a thorough investigation, consulted with attorneys, issued a press release, and obtained three arrest warrants in Parma, Ohio, before arresting Anthony Novak. His alleged crime? Created a parody Facebook page that made fun of the local police department.

A jury found Novak not guilty, but only after spending four days in jail and enduring the hardship of the trial. More than five months passed between his first Facebook post and his acquittal – enough time for the police to admit their pettiness. But when Novak fought back with a First Amendment trialhis executioners benefited from qualified immunity.

The retaliation against Gonzalez also happened in slow motion. Once the mayor and his accomplices hatched their plan to imprison him based on trumped-up allegations of falsification of government documents, they had time to sleep on it before moving forward. After Gonzalez surrendered, the city handcuffed her, put an orange shirt on her and distributed her booking photo to the media.

Unlike Novak's case, his is still alive. The United States Supreme Court – the same court that invented the “clearly established” rule in 1982 – has agreed to examine the issues in his case. Oral arguments are scheduled for March 20.

Win or lose, Gonzalez deserves justice. The same goes for everyone who faces calculated government abuse.

Elyse Smith Pohl is a legal research and policy attorney at the Institute for Justice and co-author of “Inexplicable.” Daryl James is a writer at Institute for Justice.

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