Monday, June 23, 2014

Setting a precedent, but recovering no damages

As I wrote on Friday, the Supreme Court now holds that the First Amendment protects truthful courtroom testimony by a public employee. Plaintiff-side employment lawyers have waited years for a decision like this, one that allows them to assert that the Court revived a cause of action that has nearly died since the Supreme Court narrowed the legal standard in Garcetti v. Ceballos, which held that the First Amendment does not protect speech pursuant to the plaintiff's job duties.

But Lane v. Franks, decided on June 19, is actually a two-part decision. Yes, the First Amendment prohibits management from firing someone in retaliation for testifying about work-related matters. But part two of the decision says that Lane cannot go after the individual defendant, who enjoys qualified immunity.

Public defendants who are sued for damages may invoke qualified immunity if the state of the law was not clearly established at the time of the rights violation. If the case law was murky at the time the plaintiff was denied constitutional rights, the defendant does not have to stand trial because she cannot be expected to know future legal developments. This means that innovative claims may be dismissed on a summary judgment motion.

The Supreme Court says the defendant in Lane v. Franks gets qualified immunity because the cases in the Eleventh Circuit – where this case originated – were not clear on whether Lane could be fired in retaliation for testifying in court. Some cases pointed one way, but some cases pointed in the opposite direction. This was common in Garcetti cases. The Supreme Court's ruling in 2006 was open to interpretation, and the lower federal courts were all over the place in applying Garcetti in different contexts, including courtroom testimony. However, since the Supreme Court has now affirmatively said that the First Amendment prohibits retaliatory terminations like this, the law is now clearly established for the next plaintiff. This is a tough break for Lane, who wins the case for everyone else, but himself. (A claim remains against one defendant in her official capacity, for which there is no qualified immunity, but those claims are hard to win).

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