A Win and a Setback for Accountability

Two recent decisions from the federal courts of appeals show the impact that IJ’s Project on Immunity and Accountability is having—and how much work remains to be done. 

In July, the 1st Circuit Court of Appeals held that Gloucester, Massachusetts, school officials obviously violated a parent’s First Amendment rights when they threatened to prosecute him under a clearly inapplicable statute because they didn’t like that he filmed his interactions with them. But IJ’s victory at the Supreme Court earlier this year in Gonzalez v. Trevino makes clear that government officials can’t use state laws as cover for retaliation against free speech. So, IJ filed a friend-of-the-court brief urging the appeals court to overturn a lower court’s ruling granting qualified immunity to the school administrators.

When the father sued to hold the school officials accountable, a district court ruled that the officials were protected by qualified immunity—a judicial doctrine that shieldsgovernment officials from civil liability unless the unconstitutionality of their conduct was “clearly established”—because the facts of this case did not exactly match those of any prior case. IJ argued in our brief that well-established First Amendment principles put all public officials on notice that retaliation for speech is obviously unconstitutional, regardless of the exact circumstances of this case.

The 1st Circuit agreed, saying: “If the First Amendment means anything in a situation like this, it is that public officials cannot—as they did here—threaten a person with legal action under an obviously inapt statute simply because he published speech they did not like.” This holding goes a long way in limiting some of qualified immunity’s most pernicious uses. 

Not so for the obviously unconstitutional conduct at issue in the case of IJ client Percy Taylor. Percy’s is one of many cases seeking accountability for Louisiana’s widespread and well-documented practice of imprisoning people long beyond their sentences—by 525 days in Percy’s case, a state judge found. First, the good news: Shortly after IJ took on Percy’s case, the Fifth Circuit Court of Appeals clarified that it has not added a third prong to qualified immunity’s already-onerous two-step process—meaning plaintiffs in Louisiana, Mississippi, and Texas are spared from even greater barriers to accountability.

But then came the bad news: Even though a state judge had found that Percy was overdetained under state law, and even though the state never challenged those calculations (including in Percy’s federal lawsuit), the Fifth Circuit, of its own accord, chose to do its own calculations and decided that Percy had actually been underdetained—meaning his lawsuit is dismissed without those fact-intensive calculations ever actually being tested. The court of appeal’s second-guessing of the unchallenged state court decision violates the Constitution and the limited scope of qualified immunity appeals, so IJ has asked the full court to rehear the case en banc and finally give Percy his day in court.

While setbacks are always disappointing, IJ will keep fighting so that if government officials violate your rights, they can be held accountable.

Jaba Tsitsuashvili is an IJ attorney.