Road Rage Lawsuit Has Implications for Police Shootings: Opinion

By | November 25, 2020

Can you be fired from a government job for using a firearm in self-defense? That question arose in a recent decision by the U.S. Court of Appeals for the Seventh Circuit. The answer was … equivocal.

Let’s first be clear on just what we’re talking about. According to the U.S. Supreme Court, the Second Amendment protects the right of a citizen to own a firearm for self-defense. Surprisingly, a question that remains unsettled by the courts is how far that right extends to the use of the firearm for self-defense. In sidestepping the need to answer that nagging question, the Seventh Circuit relied on a doctrine we hear about a lot these days: qualified immunity.

Although today’s pitched battles over the doctrine of qualified immunity tend to involve police shootings alleged to be wrongful, the same issue arises whenever a lawsuit in federal court claims that government officials have violated someone’s rights under the U.S. Constitution. Under the rule, all officials — not just law enforcement — are immune from being sued unless they have violated what a reasonable person in their position would have known to be “clearly established” rights.

All of which brings us to the Seventh Circuit’s decision in Calderone v. City of Chicago, decided just after Election Day and lost in the crush of other news. The story began back in 2017, when a city employee named Keli Calderone, while off duty, was involved in what the court called a “road rage” incident with another driver. Both drivers exited their cars. In the argument that followed, the other driver grabbed Calderone by the hair and threw her to the ground. At that point, Calderone pulled a handgun, which she was licensed to carry, and shot her antagonist, who was seriously injured but survived.

Calderone was arrested and subsequently indicted for attempted murder. Her employer, the city’s Office of Emergency Management and Communications, held a termination hearing. Rejecting her claim that the shooting was in self-defense, the office fired her. Ten months later, a state judge acquitted Calderone of the criminal charges on the ground of justified self-defense. The judge found that having been pushed to the ground, Calderone was “in a vulnerable position to be further injured and subjected to additional great bodily harm.”

Following her acquittal, Calderone was reinstated. Nevertheless, she filed suit against the city for violating her constitutional rights. Also named as defendants were two officials at the agency that employed her. The trial court dismissed the lawsuit, ruling that those officials were protected by qualified immunity because they could not reasonably have been expected to know that Calderone’s actions constituted an exercise of her constitutional rights.

The Seventh Circuit agreed. The panel noted that it had been unable to turn up “a single decision considering the circumstances in which discharging a firearm constitutes self-defense for purposes of the Second Amendment.” Thus, wrote the judges, the question “is a matter of first impression,” for which qualified immunity “is particularly appropriate.” In other words, if the courts haven’t addressed the question, government officials can’t be expected to know the answer.

One might sensibly object that it’s a logical step from the right to own a firearm in self-defense to the right to use a firearm in self-defense — else the right itself is meaningless. The Seventh Circuit’s lengthy response boils down to the proposition that there’s a difference between saying a reasonable government official must surely know that there’s a right to use a gun to defend oneself (which is obviously true) and saying that the same reasonable official also must surely know that a particular set of actions on a particular occasion constitutes the exercise of that right.

Perhaps this is the only sensible outcome. If the district attorney who prosecutes Calderone is unaware that her conduct constitutes self-defense, how could her bosses know? Still, it’s worth bearing in mind that the wide loophole is the same one through which lawsuits by those who are harmed by law enforcement officers consistently tumble. An officer who uses his dog to attack a man whose hands are raised in surrender is protected by qualified immunity because the courts at that point have only decided that you can’t use the dog to attack a man who is surrendering while lying down. (True story.)

The Calderone case isn’t about harm done by law enforcement, but it presents the same challenge: Why should suits against government officials for violation of constitutional rights be limited by what the courts have already decided? Surely we can reasonably expect all public servants to operate with a degree of common sense.

I’m not saying the Seventh Circuit decision was wrong. Moreover, I know that the right to bear arms is controversial and the right to armed self-defense more so. But it doesn’t seem entirely unreasonable that a woman who is flat on her back at the side of the road, if she truly fears harm, might use the weapon she is legally carrying to protect herself.

Yes, one can take a different view of the facts. The prosecutor did. And if those who run the government agency that employs her are unsure whether her actions constitute self-defense, they could reasonably wait for the verdict before deciding whether to fire her. There was no need to rush.

I’ve long been a critic of qualified immunity, not just for police but for all government officials. I understand that public servants are often put in tough positions and have to make hard calls. But whether we’re talking about law enforcement or anyone else wielding government authority, the protection of knowing that they’re safe unless a court decision “clearly” establishes that they’re wrong reduces the incentive to make those decisions better.

About Stephen L. Carter, Bloomberg Opinion

Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include "The Emperor of Ocean Park" and "Back Channel," and his nonfiction includes "Civility" and "Integrity." More from Stephen L. Carter, Bloomberg Opinion

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