J. Justin Wilson
J. Justin Wilson · April 6, 2021

Late last week, attorneys for three Castle Hills, Texas, officials appealed a ruling holding that they are not immune from suit. The officials, who were sued for throwing a 72-year-old city councilwoman in jail in an attempt to silence her criticism of the city, will ask the federal appeals court to grant them qualified immunity, even though the district court just issued a ruling denying it. This is a common and controversial tactic used by government officials to evade accountability for illegal or unconstitutional actions.

The move is likely to delay the case by at least a year, if not longer.

The lawsuit seeks to vindicate the rights of Sylvia Gonzalez, a former member of the Castle Hills city council. Sylvia helped organize a citizen petition calling for the removal of the city manager, which didn’t sit well with his friends in the city. To bully her into silence and punish her for speaking out, a group of powerful people who controlled the city government engineered a retaliation campaign that culminated in Sylvia being thrown in jail, stripped of her elected position, and publicly defamed. The actions taken by the city and its officials clearly violated Sylvia’s First Amendment rights, so with the help of the Institute for Justice, she sued to hold the officials accountable.

In response to the lawsuit, the officials claimed they were immune, but in March U.S. District Judge David Alan Ezra disagreed. He ruled that the doctrine of qualified immunity did not protect the officials and that the case could move forward to trial.

Now, the government defendants are appealing. That’s because, in addition to the protection qualified immunity affords all government workers, it also gives them something extremely rare in lawsuits: an immediate right to appeal. Normally, when a litigant loses an attempt to dismiss a lawsuit, as the government defendants did in Sylvia’s case, the case proceeds until it is finished. Only then can a losing party appeal to a higher court.

But the normal rules do not apply to the government, especially not when qualified immunity is involved. Because of the special treatment given to qualified immunity by the U.S. Supreme Court, government workers who are denied its protection can immediately ask a higher court to review that denial. Essentially, the government gets to ask for a rematch before the first game is even over. Not only is that unfair—literally, a private defendant in precisely the same position would not be permitted to immediately appeal a similar decision—it allows the government to greatly extend the duration and cost of litigation, which often causes plaintiffs to give up. Regular people like Sylvia can seldom afford to pay lawyers for the years that it can take qualified immunity cases to proceed. That is why so many cases that survive long enough to reach a judgment are litigated pro bono by public-interest law firms like the Institute for Justice.

“I am ready to take this uphill fight to the federal appeals court, or even the Supreme Court, if that what it takes, but I shouldn’t have to do that before a jury of my peers has heard my story,” said Sylvia Gonzalez, the plaintiff in the case. “They silenced me once, but with IJ standing behind me I am ready to stand up for my constitutional rights and the rights of others.”

This little-known loophole is one of the most pernicious aspects of qualified immunity. Not only do government defendants get to hide behind qualified immunity even when they intentionally violate the law, they also get to ask a higher court for a second look at qualified immunity if they lose in the trial court. And for a third look too—by the U.S. Supreme Court—if a court of appeals does not agree with them.

“Sylvia deserves her day in court, but because of the government’s claim of immunity, it is likely to take years before a jury of her peers will hear her case,” explained Institute for Justice Attorney Anya Bidwell. “It is hard to understand why in addition to all the protections qualified immunity already provides, even when government officials lose on qualified immunity—which is no small feat—they get an immediate do-over. It seems like a lot of work aimed at little more than depriving someone like Sylvia of her day in court.”

This case is a part of IJ’s Project on Immunity and Accountability, which is dedicated to fighting against qualified immunity and other doctrines that make it difficult to vindicate individuals’ constitutional rights.