Louisiana Cops Threatened To Arrest a Man for Handing Out Religious Leaflets. They Got Qualified Immunity.

Six years ago, Richard Hershey was distributing religious leaflets on a public sidewalk in a public park surrounding a public arena in Bossier City, Louisiana, when he was accosted by police officers who insisted that he stop. Hershey, who was promoting the views of the Christian Vegetarian Association outside a Christian rock concert at the Bossier City Arena, pointed out that he was exercising his constitutionally guaranteed freedom of speech and freedom of religion. He also noted that the officers had not interfered with another leafleteer, who was advertising a local radio station.

The cops were unmoved. If Hershey did not leave immediately, they said, he would be arrested, and he likewise would be carted off to jail if he ever dared return to the park.

It would be hard to imagine a more blatant violation of First Amendment rights. But last October, the U.S. Court of Appeals for the 5th Circuit held that Hershey could not sue the officers responsible for it because they were protected by qualified immunity , a doctrine that bars federal civil rights claims unless they allege violations of "clearly established" law. Now Hershey is asking the Supreme Court to overrule that jaw-dropping conclusion, which illustrates how broad interpretations of qualified immunity prevent victims of outrageous police misconduct from vindicating their rights.

"The right to evangelize in public, free of viewpoint-based government suppression, is as clearly established as any right in the firmament," Hershey's lawyers, who include former Solicitor General Paul Clement and litigators at the First Liberty Institute , note in a Supreme Court petition filed last Friday. "It is squarely protected by two separate but overlapping clauses of the First Amendment—the Free Speech and Free Exercise Clauses—and by decisions of this Court underscoring that viewpoint discrimination is verboten and that discrimination against religious speech is viewpoint discrimination (im)pure and simple. No government official should need an on-point circuit precedent to illustrate what the Constitution itself and this Court's cases make clear beyond cavil."

Hershey filed his lawsuit under 42 USC 1983 , which authorizes people to sue state or local officials for violating statutory or constitutional rights under color of law. That provision, which dates back to the Civil Rights Act of 1871, says nothing about qualified immunity. The Supreme Court invented that doctrine in the 1982 case Harlow v. Fitzgerald on the theory that officials should be liable under Section 1983 only when they had fair notice that their conduct was illegal or unconstitutional.

As interpreted by lower courts, qualified immunity evolved into a requirement that plaintiffs cite precedents involving nearly identical facts, which can be especially challenging when plaintiffs allege abuses so egregious that they are rarely committed, documented, or litigated. But beginning with Hope v. Pelzer in 2002, the Supreme Court made it clear that victims of "obvious" constitutional violations do not have to cite closely similar cases. The Court reiterated that point in the 2020 case Taylor v. Rojas .

Although Hope and Taylor involved Eighth Amendment claims of "cruel and unusual" punishment, most federal appeals courts have understood the "obviousness" exception to qualified immunity as a general principle that also applies to alleged violations of other constitutional rights. But the 5th Circuit has declined to recognize that exception outside of the Eighth Amendment context. In particular, it has prevented plaintiffs from seeking damages for obvious First Amendment violations, such as arresting a reporter for asking questions , unless they can locate a 5th Circuit precedent that is directly on point.

Fifth Circuit Judge James Ho has repeatedly expressed his dismay at that situation. He nevertheless concurred when a 5th Circuit panel blocked Hershey's lawsuit in October, saying he was bound by the appeals court's precedents.

Hershey's claims " should have been amply sufficient to defeat qualified immunity at this preliminary stage of the proceedings" and "allow Hershey to proceed to trial," Ho wrote in his concurring opinion . "After all, the Supreme Court has repeatedly denied qualified immunity where it found the constitutional violation so 'obvious' that it didn't require the plaintiff to identify factually indistinguishable case law."

Under Hope and Taylor , "it should be enough to defeat qualified immunity that the alleged constitutional violation is obvious," Ho wrote. "And this 'obviousness' principle should be intuitive to all who treasure our constitutional rights." Ho quoted an observation that Supreme Court Justice Neil Gorsuch made as a 10th Circuit judge in 2015: "Some things are so obviously unlawful that they don't require detailed explanation."

Gorsuch added that "sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thin…