Labor & Employment Law Daily City worker, fired after road rage shooting, has no 2A (or other) constitutional retaliation claim
Tuesday, September 24, 2019

City worker, fired after road rage shooting, has no 2A (or other) constitutional retaliation claim

By Joy P. Waltemath, J.D.

Arguing self-defense, the reinstated employee was acquitted in her attempted murder trial, but her Second Amendment retaliation claim failed because it protected only her possession of a firearm; the Amendment is silent as to self-defense.

A city police communications operator who was fired after she was arrested and charged with attempted murder in a non-work-related road-rage incident in which she shot another driver had not stated a viable claim of retaliation for exercising her Second Amendment “right to bear arms for self-defense.” That amendment and its precedent protected possession of firearms. reasoned a federal district court in Illinois, and did not reach the issue of self-defense, customarily left to criminal and tort law. Nor could she succeed on her due process and liberty interest stigma-plus claims, or claims that the city’s personnel policies were unconstitutionally overbroad and void for vagueness because, in essence, they all were premised on the theory that it was unreasonable for the city to fire her after she shot another person. “This is a fundamentally implausible allegation,” concluded the court (Calderone v. City of Chicago, September 17, 2019, Durkin, T.).

Driving incident results in shooting. The city employee lost her job after she got into an altercation with a member of the public while driving. She followed the other driver when that driver pulled off the road, blocked that driver’s car with hers, engaged in an argument, stood in front of the other driver’s car when that driver attempted to leave, and, after the other driver pushed her to the ground while attempting to push her out of the way, then shot the other driver, severely injuring her. The employee was arrested, charged with attempted murder, and acquitted after a bench trial a little over a year later.

Fired and reinstated. Between her arrest and acquittal, the city administratively charged her with violating several personnel rules. She was given a pre-termination hearing and fired about five months after the incident. Once she was acquitted, she was reinstated, and an arbitration hearing to determine the back pay she was owed was held approximately four months later. She sued the city and two of her supervisors, alleging constitutional violations, and the court dismissed with prejudice all her claims.

Second Amendment retaliation. The employee’s primary claim was that she was fired in retaliation for exercising her Second Amendment “right to bear arms for self-defense.” Relying on the customary First Amendment retaliation rubric, the court questioned whether her alleged protected activity actually was protected by the Second Amendment. Although language in the Supreme Court’s 2008 Heller decision referenced a “right of law-abiding, responsible citizens to use arms in defense of hearth and home,” the case itself did not address the use of a gun in self-defense, but only possession of a gun that could enable self-defense, a limitation of Heller’s holding noted by courts and commentators. Further, in actual practice, whether the actual use of a gun is self-defense is left to criminal and tort law; the Second Amendment is silent.

Self-defense and the Second Amendment. Under what circumstances is use of deadly force legally justified as self-defense? Here, the employee was indicted for attempted murder and acquitted after arguing self-defense at trial. In between, the city “determined that her actions—stopping her car to engage in an argument with a member of the public while she was armed, and eventually shooting that person on a public street—were not legally justified.” The Second Amendment itself is silent as to whether her actions were in self-defense, and consequently, the city’s evaluation of her actions as to self-defense were “outside the Second Amendment’s scope,” and the court concluded she failed to state a constitutional violation.

That conclusion also compelled the court’s decision that the individual defendants were protected by qualified immunity, as a Second Amendment right to use a gun in self-defense under these circumstances was not clearly established.

Due process property interest. Here, the employee alleged a property interest in continued employment because her position is a “for cause” position under both the city’s personnel rules and the applicable collective bargaining agreement. The issue, then, was whether the job loss occurred without due process of law. The applicable CBA had extensive grievance and arbitration procedures, which typically satisfy the requirements of post-deprivation due process.

Instead of claiming these procedures were inadequate, the employee contended that the city delayed her arbitration, deliberately leaving her “in limbo.” The constitutional issue was whether sufficient state law protections existed, however, not whether they were afforded, unless she had challenged the fundamental fairness of the procedures, which she had not. If her argument was that the city had not complied with the CBA, her remedy would be in state law, not in a constitutional claim.

Because the CBA provided adequate post-termination remedies, she was only entitled to minimal pre-termination due process (pretty much notice and an opportunity to be heard). Here, the employee conceded she received adequate notice, responded, and that a pre-termination hearing was held, but she claimed it was a sham. However, the court pointed out that “the constitutional standard for impermissible bias is high,” and she only made conclusory allegations that the proceedings were “predetermined, formal and sham pre-disciplinary” hearings.

Mostly, said the court, she argued the merits of her administrative and criminal charges, not the process of the pre-termination hearing, and that got her nowhere, given this is a due process claim. That she was acquitted of attempted murder in a criminal trial did not mean that due process was violated during her pre-termination hearing on administrative charges citing aggravated battery: the two charges, and their standards of proof, were entirely different. But even if they were identical, reasoned the court, her acquittal did not establish a due process violation.

Liberty interest. The court treated the employee’s liberty interest claim as a stigma-plus claim, since she alleged that the city defendants caused her to “to be labeled as murderer” and unfit to perform so that she couldn’t get another, similar public job. Stigmatizing statements by a government actor can be actionable where an employee also shows the deprivation of an existing right, so here the employee had to show that in addition to being fired, she was stigmatized by the city, the stigmatizing information was publicly disclosed, and she suffered a tangible loss of other employment opportunities from that public disclosure. But the employee could not show stigmatizing “false assertions of fact” that “come from the mouth of a public official” because the administrative charges plainly did not label her as a “murderer,” and she had not alleged that the city defendants did so in any public statements. Finally, she did not allege any facts to show it was virtually impossible that she find new employment; she simply restated the elements of the test. Not enough, said the court.

Personnel policy overbreadth. Her claim the city’s personnel policies were overbroad because they interfered with rights protected by the Second Amendment also failed, given that overbreadth is traditionally a First Amendment doctrine, she had no precedent otherwise, and there is no such thing as an “as-applied” overbreadth challenge. She had not pleaded any necessary allegations about the unconstitutional sweep of the city’s personnel policies, focusing exclusively on how those policies applied to her specific conduct.

Void for vagueness. Finally, although the employee argued “she was not on notice that using her own handgun in self-defense would result in her termination” under the city’s personnel rules, the court pointed out she was fired for violating city and state law; acting in a “discourteous” manner towards a member of the public; “provoking or inciting” a member of the public; and “conduct unbecoming an officer or public employee.” It is not plausible, said the court, that she did not understand shooting someone—generally a crime—could result in being fired.

Because all her claims were premised on the fundamentally implausible allegation that it was unreasonable for the city to terminate her after she shot another person, the court dismissed her complaint with prejudice.

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