The Supreme Court Needs To Affirm That Public Employees Can’t Do Whatever They Want

Can any old desk jockey who works for the government pull you over and detain you, even if they’re not a law enforcement officer? Of course not. Well, unless you are a highway engineer named Jonathan Large from Mahnomen County, Minnesota.

In actions that would make Dwight Schrute from “The Office” envious, Large took it upon himself to play cop for the day, pulling over two trucks that traveled peacefully on a highway and detaining the drivers for three hours. Large then called the local sheriff’s office, tribal police, and state troopers, asking them to come and ticket the drivers because they were over the arbitrary weight limit that Large had made up less than an hour earlier (specifically to spring his trap on the trucks).

The first two police officials refused Large’s request, and although state troopers eventually came and ticketed one driver, they dismissed the ticket the next morning. Thanks to Large’s antics, the trucks and their drivers were unconstitutionally detained, the company that owned the trucks (CSI) lost significant revenue, and actual police wasted their valuable time.

As outrageous as Large’s actions were, a federal appeals court overseeing CSI’s case against him exceeded them.

After CSI, represented by the authors of this oped, filed a civil rights lawsuit against Large, he invoked qualified immunity. Last November, the Eighth Circuit agreed to allow Large this protection.

According to the court, Large could not be sued because no case says that county engineers violate constitutional rights when they unjustifiably exercise law-enforcement powers and seize trucks and detain drivers. Large even admitted that he did not have authority to detain CSI’s trucks. But that did not matter to the court, in whose view qualified immunity applies so long as a defendant is employed by the government, regardless of whether this defendant is performing his job or engaging in extracurricular activities.

When the U.S. Supreme Court created qualified immunity, it supposedly balanced what it called “two evils.” On the one hand, the court conceded that sometimes people who have a right to a remedy might not get one. On the other hand, if suits are broadly allowed, people who are tasked with performing government jobs could be afraid to execute these tasks to the best of their abilities. 

Whatever its documented flaws and contradictions, qualified immunity was at least the court’s attempt to get this balance right. It provided all government officials with protection from lawsuits, but only if these officials were executing the duties prescribed to them by law.  In other words, immunity is 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 can only be raised in the context of doing his job; they can’t receive qualified immunity when their actions far exceed any reasonable interpretation of their authority.

But, thanks to the case against Large, that is no longer the case.

The Eighth Circuit’s rule means that qualified immunity no longer balances two evils. It just denies a remedy to victims of constitutional abuse. If there is no requirement that qualified immunity is only available to those who actually do their jobs, officials like Large who don’t—those least deserving of qualified immunity—will be the ones most likely to be protected by it.

That’s because in order to overcome qualified immunity, plaintiffs must find an earlier case involving materially similar facts. As this case proves, it is much easier to find an opinion on an unconstitutional traffic stop performed by a police officer than a county engineer.

If the Eighth Circuit’s decision is allowed to stand, it will shake the very foundation of qualified immunity, whose stated goal is to provide breathing room to those acting in the line of duty. The Supreme Court should step in and once again confirm that qualified immunity is not a license for any government employee to engage in lawless conduct.

Bidwell, Jaicomo and Gervasi are attorneys with the Institute for Justice, which represents CSI in this case.

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