The Supreme Court's decision in Lane v. Franks seems, on its face, like a win for the First Amendment and public employees. But it is neither. It does nothing for no one, not even the fired employee, Edward Lane, who claimed he was fired because of truthful testimony he gave in a public corruption criminal prosecution. All the decision ultimately does is force lower federal appellate courts to find new ways to shut the courthouse doors to public employees retaliated against when they speak up about wrongdoing, fraud, crimes that they come across in their jobs.
Edward Lane was director of a program at Central Alabama Community College. He discovered that a Suzanne Schmitz, an elected member of the Alabama state House, was maintaining a "no-show" job, meaning that she did not show up for work ever, just collected and cashed payroll checks. Schmitz was eventually prosecuted on mail and wire fraud charges related to this malfeasance, found guilty, ordered imprisoned for 30 months, etc. Lane was subpoenaed to testify and did testify at both of Schmitz's trials (the first ended in a hung jury) regarding the circumstances that had led him to terminate her employment.
Lane was later fired, and he filed suit claiming that his firing was in retaliation for his testimony under subpoena at Schmitz's criminal trials in violation of his First Amendment rights. The district court threw his case out of court, and the Eleventh Circuit affirmed.
The Supreme Court ruled (unremarkably it must be said): "Lane's truthful sworn testimony at Schmitz' criminal trials is speech as a citizen on a matter of public concern." Then the Court dutifully recited that the employer had offered no evidence of any legitimate reason for its attempt to coerce perjury by Lane at Schmitz' two criminal trials, and, therefore, held "that Lane's speech is entitled to protection under the First Amendment."
And then the Court seizes defeat from the jaws of victory. It turned to the issue of qualified immunity framing the question as follows:
Could [the defendant employer] reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities?
As once put so aptly by Judge Ronald Gilman of the Sixth Circuit and with all due respect: "There is no way."
It is a federal crime and a violation of 18 U.S.C. 1513(e) to retaliate against a person by interfering with their employment on account of information they provided to law enforcement authorities about criminal activity. But, nevertheless and despite the reality that it would in fact be a crime, the Court ruled that the employer could have believed reasonably that it could lawfully fire Lane bacause of his grand jury testimony. Therefore, Franks was entitled to qualified immunity, which means that Lane cannot collect any damages for what is both a criminal and a constitutional violation.
The Court's decision dramatically expands the scope of the qualified immunity defense in civil rights cases. Previously, the Court had ruled that qualified immunity was not available where in light of preexisting law, the unlawfulness of the official’s conduct was reasonably and objectively apparent. Wilson v. Layne, 526 U.S. 603, 615 (1999). But now even if the official's conduct is proscribed by a federal criminal statute, he may still reasonably and objectively entertain the notion that his conduct may not be unlawful and therefore be entitled to qualified immunity.
And so it goes.
Robert L. Abell
www.RobertAbellLaw.com
