Qualified immunity on trial: SCOTUS reviews cases by jailed grandma, coerced college student

Twenty years after a social work department failed a "conservative libertarian" student for refusing to lobby for legislation he opposed, leaving William Felkner unable to complete his master's degree, the investigative journalism executive is still trying to hold public administrators personally accountable for violating his First Amendment rights.

Represented by the New Civil Liberties Alliance, Felkner is petitioning the U.S. Supreme Court to overturn the Rhode Island Supreme Court's grant of "qualified immunity" to Rhode Island College officials as well as the 42-year-old precedent itself. The petition is up for consideration for a second time at the high court's Feb. 16 conference.

Qualified immunity shields public officials for court-confirmed wrongdoing that didn't violate "clearly established" law at the time, devised to protect law enforcement when making split-second decisions.

Leading GOP presidential candidate Donald Trump is campaigning to protect the shield for police by congressional statute as some blue jurisdictions remove their own protections. Justices Clarence Thomas and Sonia Sotomayor have sought to re-examine the precedent.

The doctrine "lacks a textual or historical basis and has proven unworkable, forcing the justices to correct lower courts’ mistakes repeatedly while providing little more than 'I know it when I see it' guidance," NCLA said in a press release, alluding to Justice Potter Stewart's famous definition of pornography.

A fifth of defendants in qualified-immunity federal appeals from 2010-2020 were "neither police nor prison officials" and included "mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers," according to a new report by the Institute for Justice.

Nearly as many cases involved "violations of First Amendment rights, including speech, association, and religious liberty," the institute said. "Altogether, only 23% of appeals" among the 5,500 examined "fit the popular conception of police accused of excessive force."

One of those involved Anthony Novak, whose Facebook page parodying local police put him in jail for four days and five months in trial before his acquittal, IJ staff wrote in The Hill on Wednesday. The 6th U.S. Circuit Court of Appeals gave officials qualified immunity in IJ's First Amendment lawsuit for Novak, and SCOTUS declined to accept the case last year.

Felkner's case only drew three friend-of-the-court briefs when the high court first considered it last fall. 

"The longer the timeframe," the more qualified immunity "disincentivize[s] getting the law right" and punishes victims for "willful ignorance" of perpetrators, Americans for Prosperity Foundation, Manhattan Institute and Mountain States Legal Foundation wrote in a joint brief. 

It's especially pernicious in college settings because "schools are able to game the issue [...] by settling or mooting disputes in cases where they fairly anticipate court losses," they said. This creates a "vicious cycle where precedent would otherwise discourage future violations."

"Maintaining qualified immunity harms judicial legitimacy," the libertarian Cato Institute wrote, arguing the high court functionally rewrote Section 1983 of the Civil Rights Act. Taking a "selective approach to which past wrongs to correct and which to leave in place could deepen the crisis" of faith in the Supreme Court.

The Foundation for Moral Law cited the doctrine's use to shield COVID-19 violations such as Alabama's stay-at-home order because SCOTUS hadn't yet struck down New York's religious-gathering limits. 

"There is a major issue with this reasoning that plagues a disturbing number of qualified immunity cases: [New York] Governor [Andrew] Cuomo did not have the benefit" of that ruling either but was "ultimately still held liable," while Alabama Gov. Kay Ivey was not, the brief said.

Rhode Island College's opposition brief last month argued the state's highest court "faithfully applied this Court’s long-settled" precedent, which has decided several cases involving school officials and First Amendment violations. 

It reached an "unassailable" conclusion that precedent at the time did not give Felkner the right to "complete Master’s-level assignments on topics he chose" or get better grades "when he pursued his chosen topic against the wishes of the faculty," the taxpayer-funded school said.

Felkner cited irrelevant case law on viewpoint discrimination against student organizations and censorship of a school-sponsored publication, none of which pertains to “academic decisions concerning grades, coursework, and progress" in a program, the brief said.

The former student's reply brief Jan. 25 emphasized the college didn't even try to argue with "any of the history or textual analysis advanced" in his petition that undermines the "two pillars" of the Harlow case that produced qualified immunity.

"Congress could not have intended to preserve immunity that did not exist in the first place," it says, citing scholarship on the unavailability of a "good-faith defense" in America's early common law. Section 1983 says without qualification that public officials "shall" be liable.

The 1982 ruling was based on "little more than [the high court's] preference for resolution of more cases via summary judgment" and has produced different results under "nearly identical actions" by college and high school officials, as Rhode Island College itself noted, Felkner said.

Quoting the Dobbs decision that overturned national abortion rights, the brief says qualified immunity has distorted "many important but unrelated legal doctrines," leaving First, Fourth and Fourteenth Amendment case law "undeveloped" and students unprotected from academic punishment for their constitutional rights.

The justices are considering a related issue in an IJ case scheduled for oral argument next month that prompted more than a dozen outside briefs.

It pits Texas, 10 other Republican-led states and the National Sheriffs' Association against the ideologically varied ACLU, Institute for Free Speech and Thomas More Society, a pro-life religious liberty law firm.

Sylvia Gonzalez sued Castle Hill, Texas, officials for retaliatory arrest, jailing and attempted removal from office following the septuaginarian's surprise victory for a City Council seat and petition calling for the allegedly abusive and aloof city manager's removal.

The grandmother had "unwittingly placed" the petition "in her binder during a council meeting. Two months later, respondents – city manager’s allies – engineered her arrest for tampering with a government record," IJ's opening brief says.

The full 5th U.S. Circuit Court of Appeals narrowly voted against reviewing a split panel's ruling that overturned a lower court's denial of qualified immunity to officials.

In IJ's words, the panel required Gonzalez to find "another specific individual who had both misplaced a document without engaging in protected speech and was not arrested under the statute" to prove that her arrest was due to her criticism of the government. 

It's asking the high court to clarify that plaintiffs can provide "objective evidence rather than specific examples" to show retaliatory arrest, and that probable cause does not bar such claims against officials beyond "arresting officers for split-second arrests."

IJ "didn't have the bandwidth" to file a friend-of-the-court brief in Felkner's case because of the upcoming Gonzalez argument, which involves "another shade of immunity that plaintiffs must get over to keep their case from being dismissed," spokesperson Andrew Wimer told Just the News.