Labor & Employment Law Daily Employee discharged after shooting in road rage incident can’t pursue Second Amendment claims against supervisors
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Tuesday, November 10, 2020

Employee discharged after shooting in road rage incident can’t pursue Second Amendment claims against supervisors

By Ronald Miller, J.D.

The employee had to demonstrate that there was a clearly established right to discharge a gun under these circumstances, not to simply possess a gun in public.

Two City of Chicago supervisors involved in the discharge of an employee after she was arrested for attempted murder after shooting another motorist in a road rage incident were shielded by qualified immunity from liability in a lawsuit brought by the employee, ruled the Seventh Circuit. In view of the fact that there is not a single decision considering the circumstances in which discharging a firearm constitutes self-defense for purposes of the Second Amendment, the appeals court concluded that the scope of the right is a matter of first impression. Consequently, because there was not a clearly established right to discharge a gun at another motorist, the supervisors would not have understood that their actions violated that right (Calderone v. City of Chicago, November 5, 2020, Flaum, J.).

Road rage incident. The employee in this case worked for the City of Chicago as a police communications operator. On July 19, 2017, she was off duty and out driving her car when she became embroiled in a road rage incident with another motorist. The end result of the dispute was that she shot the other motorist with a handgun that she was legally permitted to carry on her person. Police officers subsequently arrived on the scene, where they arrested the employee.

An Illinois grand jury indicted the employee for attempted murder in August 2017. Following the initiation of the criminal case, the city administratively charged her with violation of a personnel rule. The employee’s principal response to the charges was that the shooting constituted “self-defense with a lawful firearm.” Thereafter, the city held a pre-termination hearing and she was fired effective December 6, 2017.

In October 2018, following a bench trial, the employee was acquitted of an attempted murder charge on the basis of self-defense after a finding that the other motorist was the “original aggressor.” The city subsequently reinstated the employee.

Right to bear arms. The employee brought this action against the city and two supervisors alleging that her termination deprived her of her Second Amendment right to keep and bear arms. She also alleged that the city deprived her of property and liberty rights without due process, and that the city’s personnel rules were void-for-vagueness (or overbroad). The district court dismissed all of her claims. It ruled that the supervisors were entitled to qualified immunity because the Second Amendment does not clearly establish a right to use a gun in self-defense. This appeal followed.

Second Amendment retaliation. On appeal, the employee challenged the district court’s dismissal of her Second Amendment retaliation claims against her supervisors and the city. She also challenged the district court’s dismissal of her procedural due process claim. The employee alleged that the city, through her supervisors, fired her for exercising her Second Amendment right to use a firearm in self-defense.

Qualified immunity. As an initial matter, the Seventh Circuit addressed whether her supervisors were entitled to qualified immunity. Public officials enjoy immunity from civil liability for conduct that “[1] does not violate [2] clearly established statutory or constitutional rights of which a reasonable person would have known.” Here, the appeals court concluded that prong two—the requirement that there be a clearly established right—was dispositive in this case. “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

In this instance, the appeals court concluded that the district court correctly held that the individual defendants were immune from the employee’s Second Amendment claim. While the employee argued that “there is absolutely a clearly-established right to carry and possess a firearm for self-defense in this jurisdiction,” the appeals court pointed out that she was not fired for possessing a firearm in self-defense; but was fired for shooting the other motorist. Therefore, the employee had to demonstrate that there was a clearly established right to discharge a gun under these circumstances, not to simply possess a gun in public.

Constitutional question. In this case, the appeals court was presented with the issue of when the Second Amendment protects the discharge of a gun. The parties failed to provide a single decision considering the circumstances in which discharging a firearm constitutes self-defense for purposes of the Second Amendment. Lacking any discernible standard, the scope of the right is a matter of first impression.

Moreover, the appeals court observed that judicial restraint counsels in favor of bypassing the constitutional question presented. Here, observed the court, the parties had not adequately briefed the contours of the right the employee asserted, namely, (1) the circumstances under which a gun may be discharged in self-defense under the Second Amendment, or (2) whether such a right applies to her conduct. Moreover, the employee did not propose the contours of the right. Viewing the constitutional issue at the proper level of generality, the appeals court observed that just about the only thing that was clear about this case is that existing precedent did not establish whether the employee’s shooting of the other motorist was constitutionally protected. Consequently, the supervisors were immune from suit on the employee’s Second Amendment claim.

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