CHICAGO — A federal appeals panel said a Chicago police dispatcher, who shot a woman in self-defense in a roadside fight, can’t continue a wrongful termination lawsuit in which she accused the city of violating her Second Amendment rights for firing her over the incident.
The city fired Keli Calderone when a state grand jury indicted her for attempted murder following a July 2017 altercation on South Ashland. According to court documents, the incident started at a red light when a nearby driver threw a drink into Calderone’s vehicle. Calderone and the other motorist engaged in a verbal and physical altercation ending with Calderone firing a handgun, injuring the other woman’s liver, bladder, pancreas and one kidney.
Calderone, who was off duty from her job at the city’s Office of Emergency Management and Communications, argued she fired her legally-owned gun in self defense, a position that ultimately won her acquittal at a state court criminal bench trial. That victory, which led to her reinstatement, prompted her to sue the city and her supervisors in federal court, alleging the firing was an improper retaliation.
U.S. District Judge Thomas Durkin granted the city’s motion to dismiss Calderone’s suit. He first determined the 2008 U.S. Supreme Court opinion in District of Columbia v. Heller and 2012 U.S. Seventh Circuit Court of Appeals opinion in Moore v. Madigan cover only the right to own a gun and not explicitly whether there is a right to use one in self defense. Even if that second right were established, however, Durkin said Calderone’s supervisors can’t be sued because there isn’t sufficient precedent to deprive them of so-called qualified immunity, a legal doctrine which generally shields public officials from lawsuits over their official actions.
Calderone appealed the dismissal to the U.S. Seventh Circuit Court of Appeals, which issued its opinion Nov. 5. Circuit Judge Joel M. Flaum wrote the decision; Seventh Circuit Chief Judge Diane P. Wood and Judge Ilana Diamond Rovner concurred.
“Calderone insists that Moore clearly establishes her right to shoot someone in self-defense,” Flaum wrote. “The statute we struck down in Moore prohibited public carry, as apart from public use, of a firearm. Carriage and use are separate and distinct interests under the Second Amendment.”
Flaum further said qualified immunity is “particularly appropriate” in a situation where there isn’t “a single decision considering the circumstances in which discharging a firearm constitutes self-defense for purposes of the Second Amendment.”
Calderone also said the city had three policies that violated her rights as established in the 1978 U.S. Supreme Court opinion in Monell v. Department of Social Services of New York. While the city didn’t dispute the existence of those personnel policies, it contested whether the rules, as applied to Calderone, were responsible for the alleged rights violations.
In agreeing with Durkin’s dismissal, Flaum wrote that Calderone didn’t adequately demonstrate causation and culpability, nor did she challenge the inherent constitutionality of the policies. She identified no other city employee who suffered an equivalent legal injury under the rules, and her personal allegation “cannot establish Monell liability in view of the city’s facially constitutional personnel rules.”
The panel declined to consider whether Durkin was right to dismiss Calderone’s claim her firing was a retaliation for using Second Amendment rights because the matter was resolved “on the grounds of qualified immunity and the absence of Monell liability,” Flaum wrote. It further rejected her claims of due process violations because Calderon’s union contract, which ultimately secured her reinstatement, was sufficient legal protection.
“Without evidence that the Union breached its duty handling her grievance,” Flaum wrote, “Calderone cannot state a due process claim on this basis.”
Although Calderone is still haggling over back pay, the panel said due process guarantees access to remedy, not a desired outcome.
Calderone has been represented in the action by attorneys Cass T. Casper, of Talon Law; Christopher Cooper; and Gia Scatchell, all of Chicago.
The city has been represented by its corporation counsel in its Department of Law.