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Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears

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Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

 Trump Sixth Circuit judge Chad Readler cast the deciding vote to reverse a district court and rule that a government security officer had qualified immunity and could not be sued for excessive use of force in responding to a person’s protest against government officials. The July 2020 decision is Sevy v Barach.

Anthony Sevy went to a Michigan state courthouse to pay a $10 parking ticket. When he tried to pay with a debit card, he was told he would have to pay an additional $1.75 processing fee. He refused and later returned with $10 worth of pennies as a form of protest, which officials refused to accept. Things escalated and two security officers became involved. According to Sevy, one of those officers, Philip Barach, grabbed him as he was leaving, threw him to the ground, and choked him until he lost consciousness while he was placed under arrest. When he awoke, he was handcuffed and taken to an elevator where, Sevy explained, Barach threw him to the ground and knocked his head against the side of the elevator. Sevy was charged with disorderly conduct, to which he pleaded no contest, and was allowed to go home.

Sevy then proceeded to sue the officers in federal court, claiming Fourth Amendment excessive force and First Amendment retaliation. The district court granted qualified immunity to the other officer but denied it to Barach, who then appealed.

All three judges ruled against Barach on the Fourth Amendment immunity claim, either based on the merits or for lack of jurisdiction. In a 2-1 vote with Readler providing the deciding vote, however, the majority reversed the district court and ruled that Barach should get immunity on the First Amendment claim.  In order to overcome qualified immunity, a person must show that “clearly established” constitutional rights were violated. The majority maintained that Sevy’s First Amendment claim was not “clearly established” because he could point to no caselaw establishing a right to recover on a First Amendment retaliation theory for excessive use of force in executing an arrest.

Judge Karen Nelson Moore strongly dissented. Sevy’s First Amendment right to “protest and criticize government officials,” Moore explained, “is clearly established such that a reasonable officer would know that he could not use any force to retaliate against an individual for the exercise of that speech.” Moore continued that “[a]mple precedent” supports the “clarity” of Sevy’s rights, and that a reasonable officer “cannot claim that they would be surprised to learn that the use of physical force in retaliation for the exercise of those First Amendment rights was a constitutional violation.” A previous decision “addressing identical action,” as the majority seemed to be demanding, was simply not necessary according to Moore, and the decision should have been affirmed.

As a result of Readler’s deciding vote, however, Sevy will not be able to pursue his First Amendment retaliation claims. The case is yet another example of an appeals court decision made possible by a Trump nominee that reversed a lower court and dismissed a claim without trial  against a law enforcement official for excessive use of force, in this case in retaliation for the exercise of a First Amendment right to protest.