Tenth Circuit Denies Qualified Immunity for First Amendment Violation


Joshua A. Katz

A civil society might require police, but a free society requires they be accountable for wrongdoing while on the job. Too often, though, the doctrine of qualified immunity protects officers who exceed their authority, such as by arresting citizens who criticize them despite that speech being protected by the First Amendment. Happily, the Tenth Circuit Court of Appeals recently denied summary judgment based on qualified immunity in just that circumstance. A unanimous panel, speaking through Judge David M. Ebel, took the step of finding an officer’s conduct to not only violate the Constitution, but also to be unprotected by qualified immunity.

John Jordan’s nephew, J.J., had a car accident while driving Jordan’s company truck. Jordan went to the scene to help. While officers questioned J.J., Jordan kept his distance and watched, but eventually grew annoyed with the way the officers were questioning J.J. He asked the officers if they were “taking a statement or…giving a statement.” The officers did not like their authority being questioned, and, after a brief verbal exchange, one of the officers forcibly arrested Jordan, whose face was pressed into the ground during the arrest. (Like the opinion, I am giving Jordan’s version, because that’s the relevant version at this stage.) Jordan was charged with obstruction of justice and resisting arrest, but the charges were dropped.

Jordan sued for unlawful arrest, malicious prosecution, excessive force, and violation of religious freedom, under 42 U.S.C. § 1983. A magistrate judge held the officers were protected by qualified immunity for the first three claims but not the fourth. The Tenth Circuit reversed on all three, holding the officers not entitled to qualified immunity.

The Court first held that there was no probable cause because Jordan had a First Amendment right to criticize. “[T]he First Amendment does not protect only quiet and respectful behavior towards police; it protects loud criticism that may annoy or distract the officer.” Based on Supreme Court caselaw, this was not a close question. Since the behavior was constitutionally protected, there was no probable cause for the arrest.

Next, it found that the officers violated clearly established law because there was not even arguable probable cause. The Supreme Court had clearly established just the right at issue. It also held, citing a Tenth Circuit case, that speech protected by the First Amendment cannot be the basis for probable cause. Then it found that Jordan’s speech was within the bounds of clearly established First Amendment law. Therefore, “no reasonable officer could have believed they had arguable probable cause for arrest.” So there was no qualified immunity for the unlawful arrest charge.

The magistrate’s only basis for finding qualified immunity for the malicious prosecution charge was the conclusion that the officers had probable cause, so the Court reversed this holding as well.

Finally, the Court held that the force applied was unconstitutionally excessive because the alleged crime was minor, there was no threat to the safety of the officers or others, and Jordan was not actively resisting arrest or attempting to flee (indeed, he was attempting to remain). It then held that the excessive force violation was one of clearly established law, citing to its prior caselaw establishing that physical force similar to that used here was unlawful when “the arrestee poses no threat, puts up no resistance, and does not attempt to flee.”

The Court was correct to hold the officers accountable for their abuse of power. Such pushback against the all‐​too‐​common grant of qualified immunity is welcome. Even more welcome would be a rethinking of this atextualist doctrine the Supreme Court has read into § 1983, or the passing of new legislation by Congress to do away with it.

Citizen Initiatives Must Be Able to Overcome Government Hostility


Joshua A. Katz

Citizens should be able to assert their rights over governmental opposition. One way they do so is by amending their state constitutions by initiative, where permitted. But courts sometimes stretch sensible legal requirements in ways that insulate the government from this sort of interference. One of the rules that can be stretched in this way is the single‐​subject rule, at issue here.

This case arises from the Attorney General’s seeking an advisory opinion on whether a recreational marijuana initiative, which has met the petitioning requirement for the ballot, may lawfully be put on the ballot. One of the briefs in opposition to the initiative, that of the Florida Chamber of Commerce, challenges it under the single‐​subject rule, maintaining that it violates the rule because it both decriminalizes marijuana and “commercializes” it. By the latter, the Chamber means it allows for its commercial sale in existing medical marijuana dispensaries, among other things.

Initiatives are particularly important for addressing mismatches between rights the people seek and what their representatives deign to allow, as this case illustrates. Those mismatches can have many sources; an important one arises when a statewide majority is represented by a legislative minority, either because of districting or for other reasons. Minority rule resulting from apportionment rules was a driving force behind the 1968 revision of the Florida Constitution, the revision that permitted constitutional amendment by initiative. When there is such a mismatch, and an initiative is used to overcome it, the people cannot rely on the government to adopt implementing rules. So the amendment itself must contain rules making it effective, rather than waiting for statutes, regulations, funding sources, licensure rules, and so on, to emerge from the political branches. But that runs the risk of those provisions being labeled a second subject.

Our brief responds to the Chamber’s in, principally, two ways. First, the proper judicial approach to the rule is one of moderation and pragmatism, and the Supreme Court of Florida should adopt such an approach. The court is, after all, standing between the people and a document they themselves established and reserved to themselves the right to amend, and that in turn establishes the state government. This reading is consistent with the history of the citizen initiative.

While Florida’s Supreme Court has enforced the single‐​subject rule more strictly against initiatives than against the state’s legislature (subject to its own rule), the proper approach would be the inverse. In the legislature, the rule addresses logrolling and riders, two ways representatives might fail in their duty to represent their constituents. These are less concerning for initiatives, where the voters do not answer to a constituency, riders are less troublesome, and logrolling is more difficult.

Second, even under Florida’s existing jurisprudence, the “commercialization” here does not change the subject. It is an effort to head off governmental opposition. Opposition is reasonable to expect as many recreational marijuana bills have died in the legislature. So the initiative includes what the Chamber calls “commercialization” provisions, which ensure that a means of distribution is available and that some dispensaries (those currently dispensing medical marijuana) are immediately licensed. If that makes for a single‐​subject violation, then the government, contrary to design, will always have a veto over such amendments, sapping them of their power to overcome governmental hostility.

Initiatives to amend the state constitution, which reflect greater trust in the people than in politicians, are a tool for checking the government. Courts should use great care in keeping them off the ballot. Because they often overcome governmental hostility, indeed, that is a core purpose, they often need to contain detailed rules for their implementation, because otherwise government will frustrate their purposes. So implementing rules, in particular, is not a second subject for the purposes of this rule. When citizens speak, the government should listen.

In Yale University ERISA Case, Plaintiffs Lose but 7th Amendment Wins


Joshua A. Katz

The Seventh Amendment guarantees the right of trial by jury for “Suits at common law.” But defining when a suit is “at common law” can be surprisingly tricky. More than two hundred years after the Seventh Amendment’s enactment, the matter remains heavily litigated and unresolved.

For the first time in U.S. history, plaintiffs suing an employer for breach of ERISA fiduciary duties resulting in excessive fees have received a jury trial. ERISA, the Employee Retirement Insurance Security Act, requires employers sponsoring retirement plans to behave prudently with plan money. (Full disclosure: This case was litigated by my former firm, and I was at the firm during the trial.) The court held that the 7th Amendment jury trial right for “Suits at common law,” applies to such claims, despite plaintiffs seeking relief under ERISA’s provision for “other appropriate equitable relief.” The scope of the 7th Amendment jury trial right is no simple matter, but the court in Yale University got it right, and in so doing protected a vital constitutional right.

The case involves the distinction between suits at “law” and suits at “equity.” Historically, the British courts of law split and shared jurisdiction with the “Chancellor’s court,” which heard equity cases. In law, claims were advanced seeking, predominantly, monetary damages. In equity, by contrast, courts typically awarded such remedies as injunctions and specific performance (in a nutshell, orders for people to take or refrain from taking certain actions). Although the Federal Rules of Civil Procedure merged law and equity into a single form of action, the distinction lives on in some states, most famously Delaware, where corporate law matters go to the Court of Chancery because they concern trusts.

The right to a jury trial depends on both the nature of the action and the nature of the remedy. In ERISA cases, the statutory action is undoubtedly equitable in nature. This makes sense, as Congress was consciously adopting portions of the common law of trusts. As Justice Antonin Scalia has explained, “appropriate equitable relief” means relief that was “typically available in equity” pre‐​merger. Monetary relief is permitted in such cases because it takes the form of surcharge, an equitable remedy consisting of an injunction requiring a fiduciary (like an employer) to pay for a loss that resulted from his breach. In most cases, plaintiffs sue because, for instance, the employer caused them to pay excessive fees to an investment firm or recordkeeper. But there is no segregated fund from which the funds will be collected; indeed, they are not even in the hands of the defendant. These are historical markers of equitable remedies: recovery from segregated funds unjustly obtained is equitable. Without those markers, the Supreme Court has held that monetary damages are legal rather than equitable, because they were not typically available in equity.

In sum, these cases present an equitable claim for relief, together with a remedy not typically available in equity pre‐​merger. While both the claim and the remedy sought matter for the 7th Amendment analysis, the Supreme Court has made clear that the remedy is the more important. So ERISA cases seeking monetary relief against employers for money paid to third parties should be decided by juries; they seek legal relief, albeit under an equitable statutory right.

Until now, all courts before which the matter reached trial have (wrongly) rejected this conclusion. In general, these courts have read the Supreme Court’s precedent holding monetary damages to be legal damages narrowly, because that case dealt with a suit by a fiduciary against a non‐​fiduciary. These courts have instead applied the “previously available in equity” test strictly, holding that the collection sought in these cases is surcharge, an exclusively equitable remedy. These reeds are too thin, though, for the denial of a constitutional right, as the court in Yale rightly held.

So in Yale, score one for the defendants, who received the jury verdict, but score another for the Constitution, whose 7th Amendment received some much‐​needed recognition.