Las Vegas POA

Qualified Immunity Bars Dispatcher’s Second Amendment Claim

Written on 12/10/2020
Will Aitchison

Keli Calderone is a police communications operator at the City of Chicago’s Office of Emergency Management and Communications. On July 19, 2017, Calderone was off duty and in her personal car. While idling alongside Calderone at a red light, motorist Selene Garcia threw a drink into Calderone’s vehicle and then pulled to the side of the road. Calderone followed Garcia and stopped right behind Garcia’s car.

Calderone and Garcia exited their cars and argued. After a minute or so, Garcia returned to her vehicle and tried to drive away. Calderone, however, stood in front of Garcia’s car, thus barring any exit. When Garcia attempted to drive around Calderone, Calderone moved to stop her. Garcia again got out of her vehicle. She pushed Calderone several times, eventually grabbing Calderone by the hair and throwing her to the ground. Calderone then shot Garcia with her handgun, which she was legally permitted to carry on her person.

Police officers subsequently arrived on the scene, where they arrested Calderone. As for Garcia, the bullet lacerated several of her vital organs, including her heart. Doctors later removed portions of Garcia’s liver, pancreas, and gallbladder, as well as one kidney. Garcia was hospitalized for several months because of those injuries. The bullet remains lodged near Garcia’s spine because it is too dangerous to remove.

An Illinois grand jury indicted Calderone for attempted murder in August 2017. Following the initiation of Calderone’s criminal case, the City administratively charged her with violation of its rules and eventually terminated her.

In October 2018, the Illinois state court held a bench trial on Calderone’s attempted murder charge. The trial judge acquitted Calderone based on self-defense. Though the City subsequently reinstated Calderone, she sued the City and two of her supervisors in federal court. Calderone alleged that her termination deprived her of her Second Amendment right to keep and bear arms.

The federal Seventh Circuit Court of Appeals found that the doctrine of qualified immunity barred Calderone’s claims. As the Court phrased it, “Public officials enjoy immunity from civil liability for conduct that does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

The Court had serious questions about whether the Second Amendment protects the use of a firearm, as distinct from its possession and carry: “Moreover, the parties have not provided – nor have we located – a single decision considering the circumstances in which discharging a firearm constitutes self-defense for purposes of the Second Amendment. Lacking any discernible standard, the scope of the right remains a matter of first impression. Qualified immunity is particularly appropriate in this situation.”

As the doctrine of qualified immunity prohibited Calderone’s Second Amendment claim, the Court proceeded to duck the ultimate question of whether the Second Amendment prohibits the use of a firearm: “Judicial restraint counsels in favor of bypassing the constitutional question presented. The parties have not adequately briefed the contours of the right Calderone asserts, namely: (1) the circumstances under which a gun may be discharged in self-defense under the Second Amendment, or (2) whether such a right applies to Calderone’s conduct. Calderone did not propose the contours of the right beyond her general assertion that Moore means it exists. The prudent approach, therefore, is to decline to address whether Calderone’s supervisors violated her constitutional rights.”

Calderone v. City of Chicago, 2020 WL 6500933 (7th Cir. 2020).

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