WASHINGTON, D.C. — The Cato Institute and the Law Enforcement Action Partnership have filed an amicus brief urging the U.S. Supreme Court to quickly review a Fifth Circuit Court of Appeals decision granting qualified immunity to law enforcement officials in Louisiana, arguing the ruling weakens accountability for constitutional violations and undermines First Amendment protections.
The request stems from a lawsuit filed by Richard Hershey, who alleges his First Amendment rights were violated after he was threatened with arrest and forced to leave a public area for handing out pamphlets. The Cato Institute filed the brief challenging a ruling it argues weakens government accountability and reduces protections against viewpoint discrimination.
The case arose on a public sidewalk outside the Brookshire Grocery Arena in Bossier City, Louisiana, before a Christian rock concert, where Hershey was distributing pamphlets promoting the Christian Vegetarian Association. He was “peacefully exercising his First Amendment rights in a traditional public forum” when he was forced to leave, while a nearby commercial radio station was permitted to remain, an action Hershey argues demonstrates viewpoint discrimination.
Following the incident, Hershey filed a federal civil rights lawsuit under Section 1983, which the Cato Institute described as a Reconstruction-era law that allows individuals to seek damages when state or local officials violate their constitutional rights. After the lawsuit was filed, however, both the district court and the U.S. Court of Appeals for the Fifth Circuit ruled against Hershey, concluding the officers were protected by qualified immunity.
The institute argued in its statement that the decision was based on a narrow interpretation of the U.S. Supreme Court’s 2002 decision in Hope v. Pelzer. In that case, the appellate court interpreted the Supreme Court’s ruling as applying only to Eighth Amendment claims involving prison conditions, not to constitutional claims arising under the First Amendment.
Government officials should still be held liable for obvious constitutional violations even when there is no prior case with nearly identical facts, the Cato Institute argues. By limiting the Hope ruling to the Eighth Amendment, the Fifth Circuit improperly shielded officers from liability despite what the institute characterizes as an obvious violation of Hershey’s constitutional rights.
Furthermore, the Cato Institute contends that no other federal appellate court has interpreted the Hope decision so narrowly and says the Fifth Circuit’s approach creates a restrictive legal standard that the Supreme Court has long rejected.
Section 1983, created during Reconstruction, was intended to provide a remedy when state and local officials violate constitutional rights. By failing to uphold that purpose and creating what the institute describes as an “artificial loophole,” the statute’s purpose is diminished, and accountability for unconstitutional government conduct is significantly reduced. The use of “arbitrary, atextual frameworks” that “narrow the Supreme Court’s rulings” will only lead to the shielding of “blatant First Amendment abuses.” The Cato Institute also asserts that the Fifth Circuit’s ruling created a system that “rewards bad-faith government actors and insulates egregious misconduct from civil liability.”
The Cato Institute and LEAP are asking the Supreme Court to grant certiorari and reverse the Fifth Circuit’s decision, arguing that doing so would reinforce Section 1983’s protections and deter violations of constitutional rights.
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