Terry Maketa wins civil case 

Appeals court rules former sheriff has immunity

click to enlarge Sheriff Terry Maketa in happier days. - FILE PHOTO
  • File photo
  • Sheriff Terry Maketa in happier days.

A version of this story appeared on the Indy news blog, The Wire, Jan. 17.

A week before former El Paso County Sheriff Terry Maketa was scheduled to be retried on criminal charges, the 10th Circuit Court of Appeals reversed a lower court ruling in a civil case filed against him. In 2015, five sheriff’s personnel accused Maketa and others of taking illegal “adverse employment actions” against them, launching the civil case.

The Appeals Court’s three-judge panel ruled in a decision filed Jan. 17 that Maketa and then-Undersheriff Paula Presley, also named in the lawsuit, are entitled to qualified immunity from the claims by the plaintiffs — Commanders Mitch Lincoln, Rod Gehrett and Rob King, and Lt. Cheryl Peck and Sgt. Robert Stone. (All remain employed at the Sheriff’s Office except for Stone, who has retired.)

The ruling stemmed from Maketa’s appeal of the U.S. District Court’s March 2016 denial of his motion to dismiss the case based on qualified immunity, which generally protects public officials from civil liability claims of unconstitutional conduct.

Maketa’s attorney in the case, Andrew Ringel of Denver, wouldn’t comment directly on the decision. Presley declined to comment.

Ed Farry, who represents the plaintiffs, tells the Independent, he’s disappointed. “We believe that the juris prudence regarding qualified immunity should be reconsidered by the [U.S.] Supreme Court as suggested by Justice [Clarence] Thomas in the last term.” He was referring to Thomas’ skepticism at applying immunity too broadly, a position that’s gained traction across the country in legal circles.

A recent article in the California Law Review states, “While the [Supreme] Court doubles down on qualified immunity, the doctrine has also come under increasing outside criticism. Recently publicized episodes of police misconduct vividly illustrate the costs of unaccountability.” It also notes the NAACP’s Legal Defense Fund has called for “re-examining the legal standards governing ... qualified immunity.”

Farry said an appeal is unlikely.

El Paso County, which remains a defendant in the case, issued a statement saying officials are “studying the ruling and evaluating its options going forward.” The county noted the court “affirmed the county’s employment related actions” to place the plaintiffs on paid leave pending the lawsuit’s outcome “so they would not lose pay and benefits.”

The five employees (the plaintiffs), variously claimed Maketa and Presley punished them for:
  • favoring a sheriff’s candidate the two didn’t support,
  • not giving a scripted account regarding a so-called missing internal affairs file for Sheriff Bill Elder,
  • making complaints about Maketa that indicated the sheriff showed favoritism to employees based on sexual favors, and
  • creating a hostile work environment.
The appeals court ruled that Maketa’s and Presley’s assertion of qualified immunity imposed “a heavy burden” on the plaintiffs, “requiring them to point to existing precedent or the clear weight of authority establishing the existence of a constitutional violation.”

The court turned away claims by the three commanders that Maketa’s action to place them on leave after they submitted an Equal Employment Opportunity complaint alleging bias based on sexual favors was an “adverse employment action.” The court also found that Peck hadn’t demonstrated that her statement to the media about the missing Elder file was made as a private citizen, rather than as a public employee. The missing file escapade formed grounds for at least one of the criminal charges against Maketa.

Maketa, who served as sheriff from 2003 to Dec. 31, 2014, is being retried for a variety of criminal charges starting on Jan. 23 after a jury in July acquitted him on witness tampering, conspiracy to commit witness tampering and official misconduct charges and deadlocked on several others.

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