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Qualified Immunity For Government Supervisors Who Demanded Scientist Lie In Court.

We’ve talked about the legal doctrine of “qualified immunity” before and the need for it to be reformed.

To refresh people’s memory, “qualified immunity” is:

Qualified immunity is a type of legal immunity. “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan .

Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. Accordingly, courts must resolve qualified immunity issues as early in a case as possible, preferably before discovery.

Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. While judges, prosecutors, legislators, and some other government officials do not receive qualified immunity, most are protected by other immunity doctrines.

Enter into the arena one Dr. Greg Ohlson who has worked in a variety of capacities as a scientist and recently worked for the Arizona Department of Public Safety, Scientific Analysis Bureau, in analyzing blood alcohol samples for DUI cases.

According to a letter to the USA Today, Ohlson was called to testify in a DUI case.

At the Arizona Department of Public Safety, samples from multiple defendants were analyzed in batches. The department preferred to give criminal defense attorneys only their defendant’s sample. I told my supervisors that the most fair and objective method was to provide defense counsel with the entire batch of samples, so they could better review and determine the results. I considered that a best practice and within my professional discretion.

In 2016, I testified in two DUI cases that the disclosure being provided to defense attorneys was incomplete. I was asked whether there was any scientific reason not to disclose the information. I said no. I was asked whether the undisclosed data could demonstrate that there was a problem in the blood run. I said yes, based on my professional opinion.

Then all hell broke loose.

I was informed by my superiors that I was required to change my testimony in court.

I said I would not change my testimony. I was then suspended– locked out of my computer and had my key card taken away. After months of being isolated from my work and my team, it was determined that I had been insubordinate and I was fined. I felt I was being forced to retire.

The State of Arizona makes it a felony to influence testimony of a witness:

13-2802. Influencing a witness; classification

A. A person commits influencing a witness if such person threatens a witness or offers, confers or agrees to confer any benefit upon a witness in any official proceeding or a person he believes may be called as a witness with intent to:

1. Influence the testimony of that person; or

2. Induce that person to avoid legal process summoning him to testify; or

3. Induce that person to absent himself from any official proceeding to which he has been legally summoned.

B. Influencing a witness is a class 5 felony.

Ohlson sued the state on the basis of retaliation for protected speech. He also sued on the basis that his supervisors were breaking the law when asking him to lie in court.

Both the lower state court and the Ninth Circuit Court of Appeals ruled in favor of the state officials because of “qualified immunity.”

The Ninth Circuit opined:

Ohlson then filed a complaint in federal district court alleging, as relevant here, a First Amendment retaliation claim for “testifying truthfully and completely under oath in the [Worthen and Morel cases], and in advocating within the [Department] for a change in the manner in which the department responds to requests in criminal cases for entire batch runs.” The district court granted defendants’ summary judgment motion, holding that Olson established a violation of his First Amendment rights, but failed to show that they were clearly established. The district court analyzed the allegations of retaliation for both the internal advocacy and testimony, and held that Ohlson established a violation of his First Amendment rights with respect to both types of speech.

So the district court and the Ninth Circuit Court of Appeals both agree that there was a violation of Ohlson’s rights.

The Appeals Court then wrote:

The Supreme Court has said that a constitutional right is clearly established when “any reasonable official in the defendant’s shoes would have understood that they were violating [a plaintiff’s constitutional right].” Plumhoff v.Rickard, 572 U.S. 765, 779 (2014) (citations omitted). No “directly on point” case is required, but the constitutional question must be “beyond debate.” Kramer v. Cullinan, 878 F.3d 1156, 1163 (9th Cir. 2018) (citations omitted). We have been directed to no case recognizing a First Amendment violation with respect to governmental action against an employee’s speech within the workplace. We did recognize such a violation in Garcetti, but we were reversed by the Supreme Court. Ohlson is therefore not able to show that the Department violated clearly established law with respect to this claim

The Appeals Court is saying that even though Ohlson’s supervisors broke the law, they did not break any recognized First Amendment right to speech even though they retaliated against Ohlson for his speech, which is against the law as well.

The Court then laid down the ruling:

The judgment of the district court in favor the defendants on grounds of qualified immunity is AFFIRMED.

Ohlson supervisors broke the law, retaliated against his truthful testimony on the stand, demanded that he change that testimony, and then when he wouldn’t essentially got rid of him.

None of those four things are legal, but because there is no case law that says the actions of the supervisors were wrong, they get off the hook.

You may be thinking, “well it can’t happen in the future because there is case law now.”

You’d be wrong.

There still is no case law that says that supervisors acted against the law and any Constitutional right to speech.

All the courts did was affirm that there wasn’t any case law. They didn’t create any case law that would put government workers on notice that similar conduct would be illegal.

The next Greg Ohlson won’t fare any better than this Greg Ohlson.

What bothers us about this is not only the “free bite of the apple,” but if a private citizen tried to influence testimony of an employee in a case, they would spend time in jail and be fined. Yet because someone works for the government, they get a “stay out of jail,” card.

We have severe problems with the idea that a law that is on the books is not understood by government officials. Why is it that “ignorance of the law is no excuse” unless you have a government ID card?

Qualified immunity does not need to be eliminated, but it needs to be revised to eliminate outcomes like those found in this case where government officials are above the laws of the land.



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