CA1: Qualified immunity for political discrimination

Lopez-Quinones v. Puerto Rico National Guard, No. 07-1976.    Going off my handwritten notes here, this is a qualified immunity in political discrimination case (and the dissent by Torruella, points out that the First Circuit leads the nation in political discrimination cases).  The plaintiff was worked for the Puerto Rican national guard.  While he supervised 30 or so people, he really didn’t make policy.  Applying Elrod v. Burns, 427 U. S. 347 (1976), the First Circuit says that no, this wasn’t a policy-making position, and therefore he couldn’t be discriminated against on political grounds. Okay, so he was victimized.

But, the First says that the defendants are entitled to qualified immunity.  (I find it very strange that the Victims’ Rights Industry never seems to get to upset about qualified immunity allowing people that violate other peoples’ civil rights to be immunized.)  Why?  The plaintiff didn’t show any caselaw that would have put the defendants on notice, and although the legal test is whether the duties were “policy-making” or not, there is some caselaw which might have confused people as to whether the fired person’s title id dispositive.  Torruella says, essential, “Duh!  Of course they knew they politically discriminating again him, and, like, everyone knows that political discrimination against non-policy-making supervised was wrong.”

I would like to add one note here.  While Torruella is correct that the First probably is generating the most political discrimination caselaw (almost all of it from Puerto Rico), many of the cases are disposed of on summary judgment because the lawyers screwed up.  This wasn’t one of them