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Running head: Case 2-1 Analysis

Analysis of Case 2-1, Rexford Kipps et al. v. James Cailler et al. Michael A. Mac Donald Cardinal Stritch University Instructor Dr. Michele Wolf Legal and Ethical Issues CMB 504 October 3, 2009

Facts Rexford Kipps was an assistant coach for 11 years at University of Southwestern Louisiana. In March 1996, Nelson Stockley, USLs head football coach told Rexford that Kyle had to attend USL or a school outside of Louisiana. Rexford refused and Stokley terminated Rexfords employment with USL. The athletic director, school president, and president of the board of trustees approved Kipps termination. Rexford filed suits against the four. The defendants filed for a summary judgment arguing that the status of Kipps at-will employment precluded any wrongful action. In addition they claimed they were entitled to qualified immunity and Kipps termination was justified because his sons choice would affect USLs ability to recruit athletes. The district court granted the summary judgment on qualified immunity grounds. Kipps appealed to the U. S. Court of Appeals, 5th District (Kubasek, et al., 2009, pp. 20-21). Issue Mr. Kipps believed his constitutional rights were violated when he was fired from his position with the university. The university believed that his at-will employment status did not grant him rights to continued employment. At-will employment is defined as a relationship [that] allows either party--the employer or employee--to terminate the relationship at any time, for any reason, including no reason at all (Flynn, 2000).

In addition, the defendants believed they, as a government employer, were protected by qualified immunity from lawsuits of this kind given the fact that Kyles enrolment in LSU would hurt the USL football program. Judges reasons and conclusion Judge Parker affirmed the decision of the district court. He held that even if the officials had violated Mr. Kipps constitutional rights their actions were not unreasonable and, therefore, did not bar the use of the qualified immunity rule. The issue of at-will employment was not addressed by either court since it was concluded that the status of qualified immunity superseded any question of facts concerning Mr. Kipps employment status. Rules of law In Harlow v. Fitzgerald, the Supreme Court defined the current idea of qualified immunity as such: government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known (1999). The use of the summary judgment was further refined in Saucier v. Katz where the court stated the question of qualified immunity must be taken before questions of fact are addressed, and that denial of a judgment is only available when it is determined that a violation of a constitutional right exists, that the right was clearly established and that a reasonable official would understand that he is violating a constitutional right (2009).

Evaluation of the reasoning The qualified immunity rule was developed as a guard against the cost of frivolous lawsuits and gave some leeway to officials so that they would not be paralyzed from taking action for fear of being sued. Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity -- absolute or qualified -- for their acts is a recognition that they may err. The concept of immunity assumes this, and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all (Scheuer v. Rhodes, 1974). From the Supreme Courts rulings it is obvious that the efficiency of the government is a primary consideration in the application of the qualified immunity rule. They have moved from a standard that included the subjective need for an officials good faith in his actions to only require that the official has acted reasonably (Denson, 2008, pp. 751-755). Since the officials actions no longer need to be in good faith any ulterior motivations are no longer in question just their actions. There are numerous articles that attack the current court position on qualified immunity. They argue that the objectively reasonable requirement is difficult to determine prior to the hearing of facts but the summary action of qualified immunity prevent this since it must be granted before facts are presented (Chen, 2006; Denson, 2008; O'Brien, 2004). Since the reasonableness of an act is dependant on the situation there must be some determination of the facts to

correctly ascertain the situation the official encountered when the act in question occurred. And, since it is impossible to introduce facts into the trial prior to the summary judgment, it is impossible for a judge to know what might be reasonable. This reasonableness test has, therefore, moved the judgment on the actions of an official out of the hands of a jury so that it is solely the judges decision. In my opinion, the judges at the district court level and in the Fifth Circuit Court of Appeals appear to focus on the reasonableness of the action. As if it is reasonable for a person to choose a particular act instead of reasonable for a person in that situation to act illegally. My impression is that this test is more appropriate for situations involving a police action under the fourth amendment where the situation may preclude the possible investigation of the legality of an action before acting. The case of Saucier v. Katz involved a military police officer guarding Vice President Gore. The decision to act by the officer was necessarily immediate due to the situation (2009). This case does not have that urgency as a factor. It seems to me that the test should be whether it is reasonable for the defendants to know if their actions were legal. This question is never addressed by the courts. Even the case quoted by the court of appeals, Eugene v. Alief Independent School District, states that qualified immunity does not shield a public official whose conduct violates clearly-established constitutional rights, if a reasonable person would have known that such conduct was unconstitutional (1995). I believe the court should have either not granted the summary judgment or stated in their opinion that it is reasonable for the officials to not know that their actions were unconstitutional. This loose interpretation, in essence, changes the qualified immunity rule to absolute immunity with little chance for a plaintiff getting relief from an illegal official act.

(1999). Harlow v. Fitzgerald. Supreme Court Cases: The Dynamic Court (1930-1999), N.PAG. Retrieved October 25, 2009 from (2009). Saucier v. Katz et al.: Certiorari to the United States Court of Appeals for the Ninth Circuit. Supreme Court Cases: The Twenty-first Century (2000 - Present), 1-4. Retrieved October 25, 2009 from

Chen, A. (2006). The Facts about Qualified Immunity. Emory Law Journal, 55(2), 229277. Retrieved October 22, 2009 from

Denson, A. (2008). Neither Clear nor Established: The Problem with Objective Legal Reasonableness. Alabama Law Review, 59(3), 747-769. Retrieved October 22, 2009 from Eugene v. Alief Independent School District, 65 F.3rd1299 (U. S. Court of Appeals, Fifth Circuit, 1995) Retrieved October 25, 2009 from Kubasek, N., Browne, M., Herron, D., Giampetro-Meyer, A., Barkacs, L., Dhooge, L., et al. (2009). Selected Chapters from Dynamic Business Law. Boston: McGraw-Hill.

O'Brien, T. (2004). The Paradox of Qualified Immunity: How a Mechanical Application of the Objective Legal Reasonableness Test Can Undermine the Goal of Qualified Immunity. Texas Law Review, 82(3), 767-794. Retrieved October 22, 2009 from

Scheuer v. Rhodes, 416 U.S. 232 (U. S. Supreme Court, 1974) Retrieved October 25, 2009 from