Two Republican House lawmakers are advocating for the Supreme Court to strengthen First Amendment protections for religious speech by hearing a case that questions qualified immunity for law enforcement officers.
Reps. Nathaniel Moran of Texas and Glenn Grothman of Wisconsin have filed an amicus brief supporting Richard Hershey, a Christian evangelist who was reportedly stopped by police and security personnel in February 2020 from handing out Christian vegetarian literature on a public sidewalk outside the Bossier City Arena in Louisiana. The lawmakers argue that officers should not be shielded by qualified immunity for what they describe as an "obvious" violation of Hershey's constitutional rights.
"Mr. Hershey’s constitutional rights were treated as optional the moment officers decided to ignore them," Moran stated. "The Fifth Circuit's ruling lets that stand, creating a circuit split that leaves citizens with weaker right to free speech and right to religious free exercise which is contrary to the Founders’ intent."
The brief contends that the Constitution protects Hershey's activities under both the free speech and free exercise clauses. It asserts that qualified immunity should not protect government officials from accountability for clear constitutional infringements, and that differing rulings among federal appeals courts necessitate Supreme Court review. Moran and Grothman argue that Section 1983 of federal law was intended to hold officials accountable for violating constitutional rights.
According to court documents, there was no written policy governing leafletting on the public sidewalks surrounding the arena at the time of the incident. Hershey claims he was "harassed and threatened with arrest and jail" and left the area due to concerns about being taken into custody. He later sued five police and security officers, alleging violations of his free speech rights.
A federal district court initially ruled that the officers were entitled to qualified immunity, a decision that was upheld by the Fifth Circuit Court of Appeals. Hershey's legal team, First Liberty Institute and Clement & Murphy PLLC, has asked the Supreme Court to review the Fifth Circuit's decision.
"There is simply no excuse for the government actions alleged in petitioner’s complaint. In any other circuit — and in the Fifth Circuit if he were a prisoner asserting mistreatment — his case could proceed," the petition states. "This Court should intervene and reaffirm that there is no novelty exception to the promise of §1983 when it comes to clearly established constitutional rights."