Do you think anyone who works for the government—not just the police—should be able to pull you over and detain you?
And if a government employee who was never granted police powers assumes these powers unilaterally and clearly violates your constitutional rights, should you be able to hold them to account? Or should they be allowed to get off scot-free through “qualified immunity” merely because they work for the government?
Across the nation, government officials are routinely exceeding their authority and violating the rights of ordinary Americans but are escaping accountability because of the court-created doctrine of qualified immunity. As a result, citizens have been beaten in unprovoked attacks, detained illegally, and even killed by government workers. But the victims and their families have been denied their day in court to hold these bad actors accountable because courts across the nation—following the lead of the U.S. Supreme Court—refuse to enforce constitutional limits on government officials who, they say, are shielded by qualified immunity.
When the U.S. Supreme Court created qualified immunity, it said it was balancing “two evils.” On the one hand, the Court conceded that granting qualified immunity would sometimes leave people without a remedy when government employees violated their rights. On the other hand, if suits were broadly allowed, those tasked with performing government jobs could be afraid to execute these tasks to the best of their abilities.
Qualified immunity was the Court’s attempt to get this balance right. It provided government officials with a protection from lawsuits, but only if these officials were executing the duties prescribed to them by law. In other words, immunity would be available only in suits “arising from actions within the scope of an official’s duties.”
If there is one thing that proponents and opponents of qualified immunity agreed on, this was it: A government official’s ability to claim qualified immunity could be raised only in in defense of their actions while doing their job; they couldn’t receive qualified immunity when their actions far exceed any reasonable interpretation of their authority.
But this baseline premise is no longer the case.
Several months ago, the U.S. Eighth Circuit Court of Appeals granted qualified immunity to a county engineer who acted like a modern-day “Dwight Schrute” from the TV show “The Office.” Despite having no authority whatsoever to act like a police officer, this engineer pretended to be a traffic cop by pulling over two trucks traveling peacefully on a highway and detaining the drivers for three hours. He then called a local sheriff’s office, tribal police, and state troopers, asking them all to come and ticket the drivers because they were over a weight limit that he had made up less than an hour before. When state troopers finally arrived, they ticketed one driver but dismissed the ticket the following day.
In the end, the engineer unconstitutionally detained the drivers and their trucks and forced the police to waste valuable time. But for some reason, the court granted qualified immunity to the county engineer, who has no business performing traffic stops, for his unlawful detention of the drivers.
The Eighth Circuit’s decision runs in the face of the Supreme Court’s precedent on qualified immunity. It is also inconsistent with this nation’s historical practices. To ensure that rogue agents are not able to cloak themselves in an unjustified immunity, the Institute for Justice (“IJ”) now represents the owner of the trucks (Central Specialties, Inc., “CSI”) in seeking Supreme Court review of the Eighth Circuit’s decision granting qualified immunity to the county engineer. This case is part of IJ’s Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the rules; if citizens must follow the law, then government must follow the Constitution.
Watch this video to learn more about the case: https://youtu.be/sI4Y2s9C69s
CSI: A thriving road-repair company
CSI is a third-generation, family-owned construction company based in Minnesota. It was founded in 1976 by Al Minnerath, a former Air Force officer who served in the Korean War and, after his service, sought to bring next-level service to the world of highway construction. When Al retired, he placed the company under the leadership of one of his seven sons, Allan Minnerath, who continues as the company’s President and CEO today.
Under Allan’s leadership, the company has grown to 350 employees and focuses on building roads and highways in the Midwest.
Jonathan Large County Engineer and Pretend Police Officer
Jonathan Large works as a highway engineer for Mahnomen County. His job is clearly defined by state law, which places him in “charge of the highway work of the county and the forces employed thereon.” It is Large’s responsibility to “make and prepare all surveys, estimates, plans, and specifications which are required of the engineer.” And he even “may impose weight and load restrictions on any highway under [his] jurisdiction.” But nothing in the law authorizes Large to pull over vehicles traveling on highways or detain their drivers. Only law enforcement officials are allowed to do that.
Large Opposes CSI
In late 2016, the state of Minnesota contracted with CSI to perform road work on a state highway, including in Mahnomen County. Large opposed this contract and, once it was awarded, fought the company every step of the way. For example, in early 2017, while the terms of the contract were still being worked out, Large vociferously objected to CSI being able to use all the haul roads it needed to complete the project. Presumably wanting to put the issue to bed, the Minnesota Department of Transportation, which was ultimately responsible for the contract with CSI, split the baby and gave CSI use of some, but not all, of the roads it requested.
But the issue wasn’t quite resolved. That summer, CSI’s project manager reached out to Large because the company needed to use a non-designated road as a return route. The trucks would be empty, CSI assured Large, meaning they would be well below the weight limits of the roads. Wanting to stay out of it, the Minnesota Department of Transportation instructed Large and CSI to resolve the issue themselves.
Large, however, went well beyond his authority to “resolve” the issue. Knowing which roads CSI wanted to use and when, Large lowered the weight restrictions on the roads CSI wanted to use so that even empty trucks would be considered overweight. He didn’t inform CSI of this change until less than an hour before CSI had planned to travel the roads.
The Traffic Stop
As he surely anticipated, within the hour of changing the weight limit/informing CSI of the new weight limit, Large spotted two CSI trucks heading down a road he had recently re-marked. Using his Mahnomen County truck, he blocked the road and forced the drivers to pull over. Large, refusing to move his government truck from CSI’s path, then told the drivers to wait until the police could weigh them and issue tickets. Meanwhile, other large non-CSI trucks, also certainly over the newly lowered weight limit, drove by without any interference from Large.
While Large detained the CSI trucks (even though he did not have authority to hold them), Large called the sheriff’s office, the tribal police, and the state troopers. The sheriff’s office told Large to stop wasting the officers’ time, and the tribal police were confused about why they would be involved at all, as the trucks weren’t on tribal land. Hours after Large stopped the CSI drivers were, state troopers eventually arrived and weighed the vehicles. They initially ticketed one of the truckers for exceeding the weight limit, but the very next day, the troopers’ supervisor called Allan to apologize and tell him to throw out the ticket.
County Engineer Jonathan Large far exceeded his lawful authority and acted like a law enforcement officer by making a traffic stop and seizing CSI vehicles and their drivers, all the while letting other trucks of the same weight (but not driven by a company he disliked) drive by. It is telling that actual law enforcement officers did not find CSI’s behavior worthy of detention or a ticket.
Large is Immunized for Violating the Constitution
After CSI filed a civil rights lawsuit against Large, documenting violations of the Fourth and Fourteenth Amendments, Large invoked qualified immunity. Large admitted that he did not have authority to detain CSI’s trucks, but he argued that he could not be sued because no prior case ever ruled that a county engineer violates drivers’ constitutional rights by unjustifiably exercise police powers to seize trucks and detain drivers. In his view, qualified immunity applies to every novel violation of the constitution, regardless of what you do, as long as your employer is the government.
Despite Large’s clear violation of his authority, the district court and the Eighth Circuit sided with Large.
But the Eighth Circuit’s decision was not unanimous. Judge L. Steven Grasz dissented from the ruling, arguing that looking for a case on point that says that county engineers violate constitutional rights when they unjustifiably seize trucks makes no sense. After all, it is much easier to find a case where a police officer violated someone’s rights by detaining them without a warrant than a county engineer doing the same. As a result, those acting outside of their authority are cloaked with “near-absolute immunity for their actions” and perversely receive a greater degree of protection than those who do their job.
In Grasz’s view, before looking into qualified immunity, the court should have examined Minnesota law, which authorizes county engineers to “have charge of the highway work,” “make and prepare all surveys, estimates, plans, and specifications,” and “impose weight and load restrictions.” It does not authorize them to “mak[e] traffic stops, enforce[e] traffic laws, or seiz[e] and detain[e] vehicles to investigate potential weight limit violations.” And because Large was performing a function outside his authority—pretending to be a cop—when he violated the Constitution, “qualified immunity is not applicable here.”
The Legal Argument
Judge Grasz’s reasoning makes sense. When the U.S. Supreme Court created qualified immunity in a decision called Harlow v. Fitzgerald, it established the familiar two-prong test that we know today. Qualified immunity will protect a government official from accountability unless the plaintiff can show that the official (1) violated a right of the plaintiff and (2) that the right was clearly established at the time the officer acted. But the Court also emphasized that this immunity is only available in suits “arising from actions within the scope of an official’s duties.” If an official exceeded his authority, he cannot claim qualified immunity.
The Supreme Court justified the creation of qualified immunity as necessary to balance individual rights against “an official’s duties [that] legitimately require action.” But the Court also sought to ensure that qualified immunity wasn’t turned into a “license to lawless conduct” by limiting qualified immunity to only those government officials whose actions arose from within the scope of their official duties; that was certainly not the case with Jonathan Large’s actions.
Despite the Court’s clear guidance, however, the circuit courts are divided on whether, and how, to apply the scope-of-authority requirement in civil rights lawsuits. Three circuits (the Second, Fifth and Eleventh) require the government official to point to affirmative state law showing that his specific actions fell within the scope of his authority spelled out under state statutes. Two circuits (the Fourth and Ninth) apply a different test, asking what a reasonable officer would or should understand his scope of authority to be; which begs the question in the Large case: “What if the government employee wasn’t an officer at all, yet pretended to be one?” And finally, two circuits (the Eighth and Tenth) skip over the scope-of-authority inquiry altogether.
IJ and CSI are now asking the Supreme Court to weigh in and resolve this split. Above all, the petition for certiorari asks the Court to affirm what Harlow held 40 years ago: Qualified immunity is not available to government officials who, like Large, act outside the scope of their authority. Any conclusion otherwise violates both the Court’s precedent and common law. Simply put: If the government official wasn’t discharging his or her duties, then they receive no protection from accountability.
The Litigation Team
Institute for Justice attorneys Anya Bidwell, Patrick Jaicomo, and Alexa L. Gervasi represent CSI.
The Institute for Justice
Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. Our efforts include direct lawsuits against government officials at all stages of litigation (such as our cases on behalf of Hamdi Mohamud, Kevin Byrd, Sylvia Gonzalez and Cassi Pollreis), appellate friend-of-the-court briefs in support of individuals who have suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of suing governments and their employees for violating individual rights. IJ seeks to ensure that those who violate the Constitution are held accountable for their actions.
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