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 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 city council in Castle Hills, Texas.

After Gonzalez was elected, she faced deliberate, coordinated, prolonged efforts to silence her. She even spent a day in jail on bogus allegations.

But when Gonzalez sued her persecutors for violating her First Amendment right to criticize them, the 5th U.S. Circuit Court of Appeals tossed her case.

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

Government workers deserve this get-out-of-jail-free card, courts have ruled, because public service sometimes requires quick thinking. If first-responders must answer for their split-second decisions — the same as everyone else — they might hesitate in tense situations, and too much second-guessing could get people killed.

Or at least, that is how the narrative goes. But “Unaccountable,” 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, covering the 11 years from 2010 through 2020, the study describes how qualified immunity works in practice in federal appellate courts.

Although law enforcement officers were the most common defendants, many such appeals did not even involve the police. In 21 percent of cases, the sole 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 a fellow government employee. 

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

None of these government workers were police officers. None made split-second decisions. Yet all received qualified 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 officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?”

It’s a good question.

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

Officers conducted a full investigation, consulted attorneys, issued a news release, and obtained three warrants in Parma, Ohio, before arresting Anthony Novak. His alleged crime? Making a parody Facebook page that mocked the local police department.

A jury found Novak not guilty, but not until after he had spent four days in jail and endured the slog of the trial. More than five months passed between his initial Facebook post and acquittal — plenty of time for the police to admit their pettiness. But when Novak fought back with a First Amendment lawsuit, his tormenters received qualified immunity.

The retaliation against Gonzalez also occurred in slow motion. Once the mayor and his accomplices had hatched their plan to jail her on trumped-up allegations of tampering with a government record, they had time to sleep on it before proceeding. After Gonzalez turned herself in, the city handcuffed her, put her in an orange jail shirt, and circulated her booking photo to the media.

Unlike Novak’s case, hers is still alive. The U.S. Supreme Court — the same judicial body that invented the “clearly established” rule in 1982 — has agreed to consider questions from her case. Oral argument is scheduled for March 20.

Win or lose, Gonzalez deserves justice. So do all people facing calculated government abuse.

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