rejecting as too general the argument that "anyone who prevails on the merits of a claim based on (for example) the First Amendment's free exercise of religion clause, however novel that claim is, can defeat the defense of immunity simply by pointing out that the right to the free exercise of one's religion has long been a constitutional right"
How later courts described this case
- rejecting as too general the argument that "anyone who prevails on the merits of a claim based on (for example) the First Amendment's free exercise of religion clause, however novel that claim is, can defeat the defense of immunity simply by pointing out that the right to the free exercise of one's religion has long been a constitutional right"
- stating government employer’s conduct must have “had the effect of blacklisting the employee from employment in comparable jobs”
- “If a state or the federal government formally banned a person from a whole category of employment, it would be infringing liberty of occupation — a component of the liberty that the due process clauses of the Fifth and Fourteenth Amendments] protect, and recognized as such almost since the beginning of this nation.”
- “We must be wary both of using hindsight to make an untidy body of case law seem clear and directive at the time the public official was called on to act, and of imagining that public officials have the training and experience in extracting legal rules from case law that appellate judges have.”
Written by the judges who cited it.
The opinion
BAUER, Chief Judge, dissenting.
I am unable to join Judge Posner’s opinion because I believe that the appellees were, in fact, entitled to due process protections and that the defendant could reasonably be charged with knowledge of their right to a hearing at the time he acted. I do not differ with Judge Posner’s articulation of the appropriate criterion for invoking qualified immunity; rather, I read the relevant case law as clearly establishing the plaintiff’s right to due process under that standard.
In order to establish the defense of qualified immunity, an official must show that his conduct did not violate clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). Additionally, the law of this circuit, as well as others, has clothed this naked pronouncement with the vesture of particularity. Before a right is “clearly established” it must be “sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.” Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986). This court’s decision in Adams v. Walker, 492 F.2d 1003 (7th Cir.1974), decided months before Walker’s firing of Colaizzi and Indovina, put the defendant on direct *311 notice that his conduct was indeed unlawful, as Walker himself was the defendant there.
In Adams , we delineated the type of public accusations accompanying a discharge which constitute a deprivation of “occupational liberty,” sufficient to require due process protections. Adams was dismissed from his position as a member of the Illinois Liquor Control Commission by Governor Walker. In a publicly released telegram, Walker accused Adams of “incompetence, neglect of duty and malfeasance in office.” Id. at 1004 . A contemporaneous press release indicated that Adams was required to revoke eight liquor licenses of Western Concessions, Inc., instead of fining it for making political campaign contributions. The court determined that Walker had not deprived Adams of a liberty interest and therefore, owed him no due process protections.
In so finding, we emphasized the Governor’s use of “talismanic” language intended only to satisfy the state constitutional requirement for terminating a state commissioner. The court also made a clear distinction between accusations of mere “incompetence, neglect of duty and malfeasance in office” (Judge Cummings characterized Walker’s statements as the equivalent of “ T am dismissing you because I think I can find a better liquor commissioner’ ”) and those involving “dishonesty, immorality, disloyalty, alcoholism or narcotics violations,” which would engender due process protections. Id. at 1008-09 .
In terminating Colaizzi and Indovina, Walker clearly exceeded the perfunctory language used in dismissing Adams. In two press releases Walker accused Colaizzi and Indovina of “wrongdoing” and “misconduct” while exhaustively detailing the “threat[s]” used by the two men in an attempt to influence Zenith officials. Finally, Walker directly implicated the appellees’ honesty by stating that, “[t]here will always be a few bad apples, but the overwhelming number of state employees, in fact, the overwhelming number of all public employees are dedicated, honest hardworking people.” (emphasis added). These comments far exceed the “unelaborated” allegations of inability used in firing Adams. Instead, Walker’s charges clearly fall within the category of accusations which the Adams court indicated were a deprivation of liberty. The court specifically identified accusations of dishonesty as requiring due process protections, and it cannot be seriously contended that Walker’s statements did not infringe upon the appellee’s honesty here.
I believe that a reasonable person would have known that the appellees were denied a clearly established right. Most of all, Walker should have known.