Monday, March 18, 2024

Opinion Now, ‘qualified immunity’ fans justify jailing a forgetful grandmother. (George F. Will, WaPo)

I agree with the Institute for Justice, which George F. Will calls "indefatigable and infallible," a group that several of us consulted concerning the City of St. Augustine's abuses of power on artist, musician and tour guide regulations.  From The Washington Post:


Now, ‘qualified immunity’ fans justify jailing a forgetful grandmother

March 18, 2024 at 7:30 a.m. EDT
Sylvia Gonzalez in front of the U.S. Supreme Court in D.C. (Courtesy of Institute for Justice)
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Law enforcement officials in Castle Hills, Tex., took no chances. To protect the safety of the small San Antonio suburb, they clapped the accused miscreant in jail and in irons: handcuffed to a metal bench, unable to stand up and stretch her 72-year-old legs.

The grandmother in the orange jail shirt was accused of stealing — months earlier, and for only a few minutes — a petition that she had helped to instigate, and that a signer had submitted to the city council moments before the grandmother supposedly stole it.

Next Wednesday, the Supreme Court will hear oral arguments as to whether Sylvia Gonzalez, represented by the indefatigable and infallible Institute for Justice, can sue the city officials who, she says, inflicted on her a retaliatory arrest as payback for her criticisms of the city government. A federal appellate court has said she cannot. The Supreme Court is considering Gonzalez’s encounter with nastiness because it implicates constitutional guarantees.

Gonzalez, a retiree, was elected to the city council in 2019, stressing opposition to the appointed city manager, whose incompetence was, she said, proven by streets in disrepair. In office, she helped to organize a nonbinding citizens’ petition calling for reinstatement of the previous city manager. This annoyed the mayor, and some of his allies who also supported the city manager.

As Gonzalez gathered her papers after a contentious council debate, the Institute for Justice’s filings recount, the mayor, who sat next to her, asked where the petition was. Puzzled, she said it had been given to him the day before. He told her to look among her papers, where it was found. He said, “You probably picked it up by mistake.”

End of story? No, the beginning of a petty, clumsy and obvious plot to charge her with a misdemeanor to force her from the council. After an “investigation” (by a friend of the police chief), Gonzalez was arrested for violating a law making it an offense to “conceal” or “otherwise impair” the “availability of a government record.” The charges were eventually dropped, but after the trauma of the arrest and having her mug shot splashed across local media, Gonzalez decided to leave public life.

But not to forgo suing the mayor, the police chief and the investigator, charging them with a retaliatory arrest intended to punish her for exercising her First Amendment rights of speaking and petitioning for redress of grievances. A panel of the U.S. Court of Appeals for the 5th Circuit overturned a lower court’s ruling for Gonzalez, holding that “qualified immunity” protected the city officials from liability. That doctrine, which sensibly protects police making split-second decisions in dangerous situations, should not protect officials who coldly conspire to violate a citizen’s rights.

Judge James C. Ho, in dissenting from the 5th Circuit’s refusal to grant Gonzalez a rehearing, cited Supreme Court Justice Neil M. Gorsuch’s observation that “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.” Ho said: “The opportunity for public officials to weaponize the criminal justice system against their political adversaries has never been greater.”

The 5th Circuit mechanically, and disregarding a nuanced precedent, said the Castle Hills officials deserved qualified immunity because they had “probable cause” — really? a document misplaced for a few minutes? — for arresting Gonzalez. The Supreme Court has, however, held that a First Amendment retaliatory arrest claim can proceed if there is evidence that the plaintiff was arrested for actions that do not result in arrests when committed by people who have not engaged in controversial but protected speech.

Ho noted that Chief Justice John G. Roberts Jr. has said: When jaywalking is frequent but rarely results in arrests, if a vocal critic of police behavior is arrested for jaywalking, and files a retaliatory arrest claim, a court would not properly protect First Amendment rights if the claim were reflexively dismissed because the police technically had probable cause — jaywalking, for Pete’s sake — for the arrest.

As another dissenting judge, Andrew Oldham, noted, evidence of the Castle Hills officials’ animus against Gonzalez as abundant: arresting her rather than merely issuing a summons; jailing her; the orange shirt; the handcuffs. Evidence of similar treatment of others for actions similar to hers is nonexistent.

She is asserting a right the court should affirm: the right to sue officials who inflict retaliatory arrests. Affirmation would advance reconsideration of qualified immunity, the court-created doctrine that has evolved into a shield protecting disreputable officials who, carelessly or maliciously, violate individuals’ rights.

Opinion by 
George F. Will writes a twice-weekly column on politics and domestic and foreign affairs. He began his column with The Post in 1974, and he received the Pulitzer Prize for commentary in 1977. His latest book, "American Happiness and Discontents," was released in September 2021. Twitter

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