Supreme Court: Federal Officials Subject to Individual Liablility for Violating Right to Free Exercise of Religion

             On December 10, 2020, in a unanimous opinion, the Supreme Court ruled that Muslim men put on the no-fly list in retaliation for their refusal to act as informants for the FBI could sue FBI agents for monetary damages under the Religious Freedom Restoration Act (RFRA).  The RFRA permits litigants to obtain monetary damages against federal officials in their individual capacity for violating the First Amendment right to free exercise of religion. 

            The case, Tanzin v. Tanvir (U.S., Dec. 10, 2020, No. 19-71) 2020 WL 7250100, centered around three Muslim men who claimed that FBI agents placed them on the no-fly list because they refused to act as informants against their religious communities. The individuals were seeking both an injunction and monetary damages for lost income and wasted airline tickets. The defendants claimed that monetary damages were not permitted by RFRA.

            Writing for the Court, Justice Clarence Thomas noted that the plain language of RFRA permits individuals to sue government officials in their individual capacities. Moreover, the Court found that monetary damages were a form of “appropriate relief” permitted by the statute. The Court noted that money damages have long been authorized in American law, dating back to the beginning of the republic. Specifically, the Court pointed to the Civil Rights Act of 1983, which permits monetary recovery against government officials who violate individuals’ civil rights. RFRA, enacted in 1993, is in that tradition and uses the same terminology. The Court concluded by acknowledging that although there may be valid policy reasons to shield government officials from liability, Congress is the one who must create such policies.  

            Although the recent ruling opens government officials to liability, officials are still entitled to assert a defense of qualified immunity when sued in their individual capacities for monetary damages under RFRA. Qualified immunity shields government officials for being held personally liable for money damages for constitutional violations so long as the officials did not violate a “clearly established” right. The Tanzin Court acknowledged, that the FBI agents were still entitled to raise the defense of qualified immunity. (Id. at p. *5, fn. 2.) 

 

Watch David E. Mastagni Testify Against Madatory Personal Liability Insurance Before Select Committee on Police Reform

On December 18, 2020, David E. Mastagni and PORAC PresidentBrian Marvel testified before the California Assembly Select Committee on Police Reform, which is chaired by Assembly Member Mike A. Gipson.  The Committee's stated mission is to "closely examine California's public safety practices and create a new vision with the goal of prioritizing the safety of all members of the public. Broad topics for hearings are expected to include law enforcement hiring and training, as well as options for increasing accountability of agencies and officers to reduce public safety risks."

During their opening statements Mastagni and Marvel outline the ongoing efforts of law enforcement representatives to enact balanced reforms.  Mastagni explained "we have worked tirelessly with the stakeholders and the leadership to modernize use of force legal standards, establish state-wide use of force policy requirements and training, and increase transparency."   Addressing the issue of decertification of peace officers, he stated, "my clients support a licensing revocation process to assist in striking the proper balance that addresses legitimate and shared concerns over bad officers avoiding accountability while maintaining fundamental principles of due process and fairness for innocent officers."   As a matter of due process and thoroughness, we proposed that POST defer its decision until the administrative appeal is complete, providing POST a more complete record to consider revocation and avoiding double jeopardy and inconsistent factual findings and legal determinations. 

At the request of the hearing organizers, he also explained that peace officer disciplinary rights largely mirror the representation rights of all union members, and that due process rights for public employees are mandated by the Constitution.

During the hearing, Deborah Ramirez, Law Professor at Northeastern University, advocated for severely limiting collective bargaining rights and civil service protections for peace officers to eliminate merit-based hiring, promotion and due process protections, which have historically prevented discriminatory or politically motivated employment practices.  Saving the most ill-advised for last, she also advocated for mandating professional liability insurance for peace officers and prohibiting local governments from reimbursing the cost in order to price peace officers out of the profession based on insurance costs.

Mastagni rebutted this end around of due process protections, pointing out that actuarial determined predictions of liability risk, i.e. likelihood of being sued, is a factor that would be primarily driven by the jurisdiction and assignment an officer works.  He cited California's deeply-rooted public policies mandating all employers indemnify employees for liability incurred in the course and scope of their duties.  One of the key flaws with this proposal is that the liability algorithms and actuarial assumptions are not based on an objective analysis of an officer’s conduct, but rather predicted assumptions of potential future liability.

The objective factors that insurance companies use are not well suited for a core government function like public safety because the risk factors will be primarily based on circumstances beyond an officer’s control. These factors are a better predictor of active officers who work dangerous jurisdictions, beats, or assignments, as opposed to a reliable means of identifying bad officers. An insurance mandate would also deter police, Mastagni said, “from rushing to the sound of the gun.”  Applying these factors is against public policy because the officers likely to register as “high risk” are often those involved in the most vital and dangerous calls where a member of the public’s life is on the line and the officer must use force.  The concept is fundamentally flawed in that it essentially abdicates local decision-making authority concerning who should and who should not be a peace officer in a particular jurisdiction to a private, for-profit entity.     

Echoing these concerns, James Touchstone, an attorney for the California Police Chiefs Association, said policing and the medical field are completely different and should not have the same requirements. “It is not comparable whatsoever, in my opinion, to doctors who have time to plan and make a surgical plan, examine a patient multiple times before they're faced with a life-or-death situation,” he said.

The Mission Local correctly noted, "The reactions from Mastagni and Touchstone likely means that any legislation that might establish the insurance would be fought or bargained over fiercely by the unions." (see, "Mandatory professional liability insurance for California police?Lawmakers are interested., December 18, 2020".)

The Testimony of Marvel and Mastagni may be view by clicking the images or links below:

 

David E. Mastagni: https://www.youtube.com/watch?v=nUgbfT6FBUg

 

Brian Marvel: https://www.youtube.com/watch?v=5Laj6kA961w

On December 22, 2020, the Peace Officers Research Association of California, the California Association of Highway Patrolmen and the California Police Chiefs Association submitted a letter articulating the objections raised by Mastagni to the mandatory professional liability insurance proposal.  The linked letter more fully address the legal and public policy flaws infused in this proposal.