FIRST AMENDMENT
Qualified immunity for First Amendment retaliation claims

Stearns v. Wagner, 122 F.4th 699, (8th Cir. 2024)

The facts: Following the death of George Floyd, there were large protests in Kansas City, Missouri. On May 30, 2020, the Kansas City Police Department (KCPD) requested help from the Missouri State Highway Patrol (MSHP) to deal with the protests. Near midnight, the crowd was beginning to disperse after MSHP performed crowd control by deploying white smoke projectiles. An MSHP sergeant, Jeffrey Spire, then skipped two additional projectiles off the ground toward the retreating protestors. Plaintiff Sean Stearns, who was attending the protest, had an object strike his left eye, which caused enough damage that Stearns lost all vision in that eye. Stearns alleged that the object was one of the projectile shells the MSHP sergeant had skipped off the ground.

The type of case: Stearns alleged that Spire violated his civil rights by using excessive force and by retaliating against him for his protected First Amendment speech. Stearns also sued the Kansas City Board of Police Commissioners, the City of Kansas City, and the police chief of Kansas City. The lower court granted summary judgment (court-ordered judgment without a trial) to the defendants. Stearns appealed the lower court’s decision.

The issues: On appeal, Stearns argued the lower court erred in granting Spire qualified immunity. Qualified immunity shields public officials and employees from civil suits unless their actions violate a clearly established constitutional right. To prove a First Amendment retaliation claim, Stearns was required to show that he was engaging in a protected First Amendment activity, that Spire took an action that would discourage a reasonable person from continuing that activity, and that Spire’s action was retaliation for Stearns’ protected speech.

The court’s ruling: The U.S. Court of Appeals for the Eighth Circuit upheld the decision that Spire was entitled to qualified immunity. To succeed in a First Amendment retaliation claim, Stearns had to do more than just show that Spire’s deployment of the projectiles was close in time to Stearns’ protected First Amendment activity — a temporal connection. Rather, he also needed to show that he was singled out for his protected expression — a causal connection. However, both parties agreed that Spire did not fire the projectile at any specific person or group, but indiscriminately into the crowd. Stearns therefore failed to show that Spire had singled him out and therefore Spire had not violated his First Amendment rights.

What this means for cities: While the appellate court here found that Spire did not retaliate against Stearns for his protected speech, it did so only because Spire’s firing into the crowd was indiscriminate rather than targeted at Stearns or at a defined group. Cities should ensure that law enforcement personnel are trained to not engage in targeted, retaliatory responses to individuals or groups engaged in protected First Amendment speech or activities.

PUBLIC EMPLOYMENT
Criminal offender rehabilitation

McNitt v. Minnesota IT Servs., 14 N.W.3d 284 (2024)

The facts: In late 2021, Minnesota IT Services (MNIT), the central information technology organization for the state, posted a job opening for a web developer with the Minnesota Department of Education (MDE). The plaintiff, Jeremy McNitt, applied for the position and was offered the job subject to passing a background check. That background check showed McNitt had a 2017 conviction for possessing child pornography. MNIT determined the conviction was directly related to the job McNitt was seeking and asked McNitt to provide evidence of rehabilitation and fitness for employment. McNitt provided MNIT with evidence he had completed his sentence, was no longer on probation, and had remained law abiding. MNIT determined McNitt had not shown that he was sufficiently rehabilitated and issued a notice of disqualification.

The type of case: McNitt administratively appealed the disqualification, meaning the parties had a hearing in front of an administrative law judge (ALJ). The ALJ determined that McNitt’s conviction for child pornography directly related to the position he had applied for, which meant he was required to provide evidence of rehabilitation and present fitness. The ALJ found McNitt had provided sufficient evidence to MNIT of his rehabilitation and recommended MNIT remove any record of McNitt’s disqualification and offer him a position identical in responsibility and pay to the MDE position. However, the commissioner of MNIT rejected the recommendation and ultimately issued an order saying McNitt had failed to establish sufficient rehabilitation. The order affirmed the decision to disqualify McNitt and barred him from applying for any other public employment until January 2027. McNitt appealed the decision.

The issues: Minnesota’s Criminal Offender Rehabilitation Act (CORA), Minnesota Statutes Chapter 364, is designed to encourage the rehabilitation of people with criminal convictions and provide opportunities to gain employment in the public sector. It has procedures that must be followed if someone with a criminal conviction seeks public employment with the state or any of its political subdivisions. An applicant can be disqualified if their conviction directly relates to the position they are seeking. However, even if the applicant’s conviction directly relates to the position, they cannot be disqualified if they show evidence of rehabilitation and fitness to perform the duties. MNIT argued that even though McNitt provided the documentation required under CORA, it still had discretion to disqualify him from employment.

The court’s ruling: The Minnesota Court of Appeals found that the language of the CORA statute was mandatory and does not give public employers the discretion to disqualify an applicant if they provide the documents outlined in the statute. An applicant shows that they are sufficiently rehabilitated by providing a copy of their release order, evidence showing at least one year has elapsed since their release from any correctional institution without conviction for a subsequent crime, and evidence showing compliance with all terms of probation or parole. Once an applicant presents those documents, the public employer has no discretion to determine the applicant is not rehabilitated.

What this means for cities: CORA applies to all political subdivisions of the state, which includes cities. Certain positions and offenses are exempt from the protections of CORA, such as employment in juvenile corrections where the applicant’s past convictions are related to child physical or sexual abuse. However, if the statute does not specifically state the type of job or conviction is exempt, CORA applies. Cities should ensure their policies regarding applicants with past convictions clearly state that if an applicant provides the required documentation of rehabilitation under statute and is otherwise the most qualified candidate for the position, the city has no discretion to disqualify them. The state of Minnesota has petitioned the Minnesota Supreme Court to review the decision, but the court has not yet issued an order on whether it will do so.

Written by Lisa Needham, research attorney with the League of Minnesota Cities. Contact: lneedham@lmc.org or (651) 281-1271.