DA can't be sued for firing 4 higher-level employees who supported his opponent, 5th Circuit says

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A federal appeals court has ruled that a Texas district attorney was partly protected from lawsuits by seven people who claim he fired them because they had supported his election opponent.

In a 2-1 decision on Aug. 6, the New Orleans-based 5th U.S. Circuit Court of Appeals said Hidalgo County District Attorney Ricardo Rodriguez had qualified immunity in suits by four of the employees who had more discretion in their jobs, Law360 reports. Three others were allowed to pursue their cases.

The seven plaintiffs had supported Rodriguez’s election opponent by posting yard signs, wearing campaign T-shirts, block-walking, attending a campaign kick-off party, volunteering at polling stations and posting pictures of themselves wearing campaign T-shirts on social media.

They alleged they were fired as an act of political retaliation in violation of the First Amendment.

Employees in policymaking positions requiring political loyalty are not protected from political dismissals under the First Amendment, Judge Edith Jones wrote in the majority opinion.

Assistant district attorneys hold such positions and are not protected from firing for political activity, Jones said. Nor are employees protected when “they have significant discretion or input into deciding which kinds of crime to pursue with limited resources, which cases to pursue, how to conduct investigations, executions of warrants and arrests and whether to recommend lenient or severe punishments,” Jones said.

Four employees had that kind of discretion in their jobs, and their cases should be tossed, the majority said. The employees were a drug task force commander and her assistant, as well as two investigators.

The appeals court ordered the district court to consider whether the three other plaintiffs, all below the investigator level, could sue. Their cases will depend on fact issues that include whether Rodriguez knew about their support for his opponent and whether it was the reason for their firings. More information is also needed about the employees’ job responsibilities to determine whether they were policymakers, the court said.

Those employees were an intelligence research specialist, a human resources coordinator and an administrative assistant.

A dissenting judge, James Dennis, would have allowed all seven plaintiffs to pursue their lawsuits.

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