Photo of It’s good to be king: public officials and qualified immunity

It’s good to be king: public officials and qualified immunity

Brinton M. Wilkins, Ryan B. Frazier
Utah Employment Law Letter

The sheriff and the undersheriff

The El Paso County (Colorado) Sheriff’s Office em­ployed Lieutenant Cheryl Peck, Sergeant Robert Stone, and Commanders Mitchell Lincoln, Rodney Gehrett, and Robert King. Each of the employees sued Sheriff Terry Maketa and Undersheriff Paula Presley for re­taliating against them for engaging in constitution­ally protected speech. Specifically, Peck claimed that in 2013, after she failed to follow his instructions to lie to the media in connection with the disappearance of an Internal Affairs (IA) document, Maketa retaliated against her by transferring her to the midnight shift.

Stone claimed that Maketa and Presley retaliated against him after learning that he supported a politi­cal candidate they opposed. He claimed they initiated a “criminal investigation” into the missing IA document and ordered a criminal investigation of his children, who were sheriff’s office employees. Lincoln, Gehrett, and King claimed that after they filed complaints about Maketa and Presley with the Equal Employment Opportunity Commission (EEOC) and the Board of County Commissioners, Maketa and Presley retaliated against them by putting them on paid administrative leave; con­fiscating their telephones, tablets, weapons, badges, and vehicles; and escorting them out of the building.

Peck, Stone, Lincoln, Gehrett, and King sued in fed­eral court, alleging that Maketa and Presley retaliated against them for exercising their constitutionally pro­tected free-speech rights. Maketa and Presley asked the court to dismiss the claims, arguing that they were pro­tected by so-called qualified immunity. The trial court denied the request, and Maketa and Presley appealed to the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Utah employers).

Qualified immunity and ‘clearly established’ right

The 10th Circuit acknowledged that certain pub­lic employees cannot be sued for actions taken in the course of performing their official duties. Nevertheless, that immunity is not necessarily absolute. More often than not, it is qualified.

The court noted that a public official’s immunity can be set aside if (1) the official “violated a constitu­tional or statutory right” and (2) the violated right was “clearly established” at the time of the alleged violation. In most cases, for a right to be clearly established in the 10th Circuit, there must be a decision from the U.S. Su­preme Court or the 10th Circuit establishing that the alleged activity is constitutionally protected.

To successfully argue that her employer retaliated against her for engaging in constitutionally protected speech, a public employee must show that the employer took an “adverse employment action” against her. Case law from the Supreme Court or the 10th Circuit must clearly establish that what the employee experienced was indeed an adverse employment action.

According to the 10th Circuit, because there was no case law clearly establishing that any of Peck’s speech was constitutionally protected, Maketa and Presley were immune from her claim. Because Stone, Lincoln, Gehrett, and King could not show that their speech re­sulted in a clearly established adverse employment ac­tion against them, Maketa and Presley were immune from their claims as well.

No ‘clearly established’ right

Regarding Peck, the court noted that speech a public employee is directed to engage in as part of her employment is not constitutionally protected. Thus, to succeed on her claim, Peck had to show that Maketa retaliated against her for engaging in speech outside her official duties. She could not do that.

Even if the court assumed the truth of everything Peck alleged, when she spoke to the media, she did so in her capacity as a sheriff’s office employee because Maketa had directed her to speak to the media, even though she disobeyed him and did not usually speak to the media as part of her job duties. Accordingly, even if everything she alleged was true, she couldn’t show that what she said was clearly established con­stitutionally protected speech. Because she couldn’t do that, qualified immunity protected Maketa and Presley from her claim.

No adverse employment action

Regarding Stone, the 10th Circuit noted that work­place investigations generally are not adverse employ­ment actions. Although the investigation into Stone and his children was criminal in nature, no decision from the Supreme Court or the 10th Circuit settled whether a criminal investigation should be treated differently from a run-of-the-mill workplace investigation.

The 10th Circuit did note, however, that case law clearly establishes that criminal charges and crimi­nal trials are adverse employment actions. But absent illuminating case law, it is not clear that a criminal investigation alone is an adverse employment action since a criminal investigation is not public and is “a far cry” from a criminal trial.

In addition, no case law from the Supreme Court or the 10th Circuit clearly established that any of the actions taken against Lincoln, Gehrett, and King con­stituted adverse employment actions. Thus, even if ev­erything in their complaint was true, Stone, Lincoln, Gehrett, and King could not show that the actions taken against them were clearly established adverse employment actions. That meant qualified immunity protected Maketa and Presley. Lincoln, et al. v. Maketa, et al., No. 16-1127 (10th Cir., 2018).

Lessons learned

It is important to remember that this decision cov­ers only states in the 10th Circuit’s jurisdiction. Other circuits may have different tests and case law that would tend to show actions like Maketa’s or Presley’s violated clearly established rights or the employees suffered ad­verse employment actions.

Further, a trial was never held in this case. Both the trial court and the 10th Circuit based their decisions on the assumption that everything the employees alleged was true. Thus, no one reading this article should believe that Maketa and Presley actually did what Peck, Stone, Lincoln, Gehrett, or King alleged they did. But that em­phasizes the potential power of an immunity defense. Even if Maketa and Presley did what the employees ac­cused them of doing, they were immune.

Immunity may or may not be available to public em­ployers. As with almost everything in the law, whether a public employer can rely on any type of immunity de­pends on the people and facts involved. If you want to know whether this powerful tool is available to you in any given situation, consult competent legal counsel.

You can contact the author at or 801-328-3600.


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