Qualified immunity could protect government workers from lawsuits no matter how outrageously they act

When the black Ford pickup truck that Mario Rosales had just passed on the two-lane Roswell, New Mexico, road began tailing him, his mind started to race: Was it some cartel or gang member beset with road rage and wanting revenge?

Turns out, it was an angry, off-duty deputy sheriff – in a tee-shirt and basketball shorts.

The ensuing altercation that March 2018 day has been seared into Rosales’ brain. Chaves County Sheriff’s Deputy David Bradshaw blocked Rosales’ driveway with his truck, shouted profanities at him and then pointed his firearm at him. Rosales remembers the barrel of the gun peaking out, next to a child’s long hair in Bradshaw’s passenger seat.

“I was shaking, scared,” Rosales, now 26, said in an interview. “Do you ever get so terrified where you can’t stay still? Like anxious. I don’t know what this guy is going to do, he’s already followed me to my house, already aimed his gun at me, what else is this guy going to do? I'm just trying to please him and get him off my property.”

Although Bradshaw lost his job, was criminally convicted of aggravated assault with a deadly weapon and child abuse, and even served prison time for his actions that day, a New Mexico District Court determined last November that because Bradshaw was a deputy sheriff he couldn’t be sued for violating Rosales’ Constitutional rights. Bradshaw was given qualified immunity for his actions against Rosales in the civil litigation that sought monetary damages.

Legal experts say the case is emblematic of a new stealth expansion of qualified immunity. The doctrine grants civil liability protections to government workers, including law enforcement officers, who may violate peoples’ Constitutional rights when there’s no clear precedent for that violation.

The legal doctrine is supposed to give government workers the ability to do their jobs without worry that they will be subjected to excessive lawsuits should, for example, there be a good faith error. It has frequently come up in cases where police officers have been accused of injuring or killing someone in the line of duty. But now, two circuit courts are expanding the protections of qualified immunity to government workers who engage in acts unrelated to their on-the-job duties.

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In 2019, the 10th Circuit Court of Appeals, which includes New Mexico, was the first to drop considering the question of whether an official acted within the scope of their authority to determine if an official should receive qualified immunity in the Rosales case. Earlier this year, the 8th Circuit Court of Appeals followed suit in a case involving the actions of a Minnesota county engineer who decided to pull over two semi trucks on the highway.

The changes mean that appeals courts governing 13 states, or more than a quarter of the United States, now enable immunity protections for government officials’ behavior, whether or not they are on duty – or doing something required for their job – and violate someone’s Constitutional rights.

“A regime in which government officials are given free rein to exceed the scope of their authority and still benefit from qualified immunity will not only deprive victims of compensation and fail to deter unlawful abuses of authority; it will lead to even more constitutional violations by immunizing officials who lack the training and accountability that otherwise enables the government to control their behavior,” wrote Peter Schuck, a Yale Law School professor emeritus in a brief supporting the petitioners appealing the 8th Circuit case to the Supreme Court. Schuck’s body of scholarship was relied upon by the 1982 Supreme Court to create the modern doctrine of qualified immunity.

Patrick Jaicomo, an attorney with the public interest law firm Institute for Justice, who is co-counsel in both cases, said protecting workers who aren’t engaged in duties related to their jobs is particularly problematic because there is an even less likely chance there will be an existing legal precedent for their actions – so the more outrageous their behavior is, the more likely they are to be protected from a civil suit by qualified immunity.

Bradshaw’s attorney, Daniel J. Macke, declined to comment on pending litigation. In a legal filing, Macke wrote that Bradshaw’s conduct, even if “off duty,” was discretionary because he had acted like an officer – by calling in Rosales’ license plate, informing Rosales that he was a law enforcement officer, and telling him he would get a ticket – and is considered on-duty at all times under state law.

But Rosales said he was never ticketed by Bradshaw, and Bradshaw’s former employer said the deputy acted outside the scope of his employment when he chased Rosales down and threatened him. He is appealing.

“Qualified immunity is supposed to not be available to officers who are on fair notice that what they're doing is illegal or violates someone’s rights,” said Marie Miller, co-counsel for Rosales. “Common sense will tell you, the officer had to have known what he was doing was wrong, his role was to prevent assaults and keep the peace and he was doing the exact opposite here.”

The public interest law firm is also appealing the 8th Circuit Court decision and has petitioned the U.S. Supreme Court to take up the case.

That case involves Allan Minnerath, 53, who runs a third-generation family-run business called Central Specialities, Inc., which engages in highway construction in Mahnomen County, Minnesota. The case stems from a July 2017 incident where a county highway engineer used his county vehicle to block two highway construction trucks from driving down a roadway, stopping the truck and their drivers for three hours until law enforcement arrived.

The engineer had a contentious history with the company due to disagreements over their contract and got the weight restrictions on the highway changed from five tons per axle to five tons total that morning, causing the company’s empty semi trucks to run afoul of the roadway’s weight limit. A loaded Ford F250 is equivalent to about six tons and a filled UPS truck is roughly seven or eight tons, Minnerath said.

“It was definitely a personal grudge,” Minnerath said. “Our employees witnessed a cement truck that was for sure overweight. A gravel truck that was overweight, and he just let them go by.”

In a deposition, reviewed by USA TODAY, Jonathan Large acknowledged he did not legally have the power to stop traffic as a county engineer. But he was granted qualified immunity by the courts, including the 8th Circuit Court of Appeals, which did not look at whether he had the authority per his job to stop and detain traffic. It found, instead, that there were “no cases considering this issue or even cases considering remotely similar facts.”

Institute for Justice argues in its writ that the Supreme Court needs to resolve the split between the appeals courts on whether officials must act within the scope of their authority to receive qualified immunity.

“What he did was completely out of bounds for his position, he’s not a policeman, he’s not a highway patrol person,” Minnerath said. If he’s allowed to claim qualified immunity, “any government employee could do whatever they want.”

Attorneys representing Large said in a statement to USA TODAY that he had prevailed in the case previously and they “have every confidence that if this matter were to come before the Supreme Court, those decisions would be affirmed.”

Qualified immunity is supposed to give officials the breathing room necessary to take necessary action or make decisions, independently and without fear of consequences for doing so. It was created because the Supreme Court noted that while there may be situations where someone’s rights are violated without remedy, it’s an important “balance of evils” to give officials the ability to perform their jobs, said Anya Bidwell, Institute for Justice co-counsel on the Minnerath and Rosales cases.

The courts are essentially undermining policymakers, who have put in place limits on the duties of government workers, when it doles out qualified immunity to those workers who ignore those limits, Schuck said.

Taking the logic further, Schuck noted that agencies use training and discipline to ensure proper conduct of employees, but a police department is unlikely to be in a position to train or discipline a county engineer or school teacher who takes on the duties of a police officer and violates the Constitution in the process.

As for Rosales, months after the incident, he sold his car and, after dealing with intimidation from other law enforcement officers in town, he left the state. He no longer passes people off of the interstate and has suffered from flashbacks.

“That whole thing changed a lot more than I would’ve ever expected,” Rosales said. “Even though I was in the right and even though I didn’t do anything wrong, if I could go back in time, I would tell myself, let’s not pass that truck. Because it’s too much.”

Tami Abdollah is a USA TODAY national correspondent covering inequities in the criminal justice system. Send tips via direct message @latams or email tami(at)usatoday.com

This article originally appeared on USA TODAY: Qualified immunity could protect all government workers from lawsuits