Amicus Brief: DeLanis v. Baker Donelson

James DeLanis was a lawyer with the firm Baker Donelson in Nashville, and he was also chair of the county election commission. A Nashville city councilman threatened to withdraw city business from Baker Donelson, which served as the city’s outside counsel on a variety of issues, due to the position DeLanis took on a tax referendum as a member of the election commission. When DeLanis declined the law firm’s request that he oppose the referendum, the firm fired him. DeLanis then sued the city council member and the law firm for retaliating against his federal free-speech rights, namely his support of the tax-repeal referendum in his capacity as the county election chair. 

The Sixth Circuit denied qualified immunity to the city councilman yet granted qualified immunity to the law firm that fired him under the councilman’s pressure. The Supreme Court has said that qualified immunity can protect private actors "working for the government in pursuit of government objectives," but does not protect those "pursuing purely private ends." Now on petition to the Supreme Court, DeLanis is asking the Court to review the granting of qualified immunity to the private law firm. 

The Manhattan Institute has joined the Institute for Justice, the New Civil Liberties Alliance, and Advancing American Freedom on a brief in support. We argue that qualified immunity partially exists to protect government efficacy when pursuing legitimate government ends; it does not exist to protect efficacy when pursuing illegitimate ends. That’s longstanding doctrine, such as denying qualified immunity when a police officer uses surveillance tools to spy on his ex-wife. By extension, qualified immunity does not extend to the internal employment decisions of a private law firm simply because that firm represents a governmental entity in other contexts. The Supreme Court should grant review to clarify how qualified immunity is limited to a legitimate scope of authority.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.