Wednesday, May 6, 2009

Qualified immunity: the ultimate loophole

You can have a constitutional claim against a government official, but if the case does not closely resemble prior cases, then the defendant gets the benefit of the doubt and he (or she) is immune from suit. It's the ultimate loophole.

The case is Kennedy v. Lehman, a summary order decided on May 6. In this case, the plaintiff was Crew Chief for the Department of Public Works in Erie County. He was supervised by Douglas Naylon, who filed an EEO charge of discrimination against the County. Kennedy was a witness to the discrimination alleged by Naylon. Kennedy himself was then fired, allegedly for pretextual or false reasons. Kennedy claimed that the real reason for his termination was that he was a potential witness for Naylon's claim. This sure sounds like a First Amendment claim for Kennedy, doesn't it?

Well, yes and no. Ruling in Kennedy's favor on this issue, the trial judge in this case observed that, in 2005, the Second Circuit held in Konits v. Valley Stream Central School District, 394 F.3d 121 (2d Cir. 2005), that "a public employee's willingness to be a potential witness in a co-worker's claim of employment discrimination is 'speech on a matter of public concern' deserving of First Amendment protection.'" But that's not enough for Kennedy's case to go forward. Why? Qualified immunity.

Qualified immunity means the public official cannot be sued if the law was unclear at the time of the alleged violation. "The law" in this context is usually case law decided by the Second Circuit or the Supreme Court. If the case law was vague in this area at the time of the violation, then the defendant is off the hook because he cannot be expected to know that the courts would later conclusively find in a different case that his conduct was illegal. What kills the case for Kennedy is that even assuming the trial court accurately described the ruling in Konits, "the law of this Circuit as to whether a retaliation claim such as Kennedy’s was actionable under the First Amendment was unsettled until that case was decided. In fact, Konits explicitly states as much." Then the Court of Appeals quotes from the relevant portion of Konits:

Prior to our decision today, there was a split among the district courts in this Circuit as to whether retaliation based on identification as a witness in a fellow employee’s discrimination suit could give rise to a First Amendment cause of action. Compare Nonnenmann v. City of New York, 174 F. Supp. 2d 121, 136 (S.D.N.Y. 2001) with Catletti v. County of Orange, 207 F. Supp. 2d 225, 229 (S.D.N.Y. 2002). By our decision today, we resolve this split and hold that any use of state authority to retaliate against those who speak out against discrimination suffered by others, including witnesses or potential witnesses in proceedings addressing discrimination claims, can give rise to a cause of action under 42 U.S.C. § 1983 and the First Amendment. To the extent that Nonnemann holds otherwise, it is overruled.

So while Konits may provide support for Kennedy's claim, it was decided in 2005. Kennedy was retaliated against in 2002 and 2003. While the law in this area was clear in 2005, it was not clear in 2002-03. Kennedy therefore has no First Amendment case against these defendants, after all, and the trial court is reversed on this issue. So while, in hindsight, Kennedy has a real claim against the County officials who retaliated against him, since those defendants could not have seen Konits coming, they are entitled to qualified immunity, the ultimate loophole.

As a footnote, I always wondered about that language in Konits which says that it was not clear before 2005 that testimony on behalf of other employees who were claiming discrimination is protected under the First Amendment. Konits cites Catletti v. County of Orange, 207 F. Supp. 2d 225 (S.D.N.Y. 2002) as a case that conflicted with another Southern District case, Nonnenmann. But Catletti (which I argued) was affirmed by the Court of Appeals in 2003. In Catletti, the Court of Appeals concluded, "we agree with the district court that uninhibited testimony is vital to the success of our courts' truth-seeking function. As we said in United States v. Pacelli, 'the foundations of federal justice will be undermined' if witnesses are not able to testify freely. 491 F.2d 1108, 1113 (2d Cir. 1974). The paramount importance of judicial truth-seeking means that truthful trial testimony is almost always of public concern." Under Catletti, wasn't this area of the law clear in 2003?

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