When a witness testifies in court, they take an oath to tell “the truth, the whole truth, and nothing but the truth.” Laws also prevent a witness from being persuaded to give inaccurate testimony or commit perjury. Arizona, for example, makes it a felony to attempt to “influence” the testimony of a witness.
As I found out, however, if you work for the government, your superiors can’t be held financially responsible for ordering you to change your testimony and retaliating against you when you refuse.
I worked as a forensic scientist for nearly 40 years in a variety of agencies and medical laboratories, including the Arizona Department of Public Safety, Scientific Analysis Bureau, which I ended up suing.
I regularly testified in court about the results of defendants’ blood-alcohol samples.
A USA TODAY Opinion series: Faces, victims, issues and debates surrounding qualified immunity
At the Arizona Department of Public Safety, samples from multiple defendants were analyzed in batches. The department preferred to give criminal defense attorneys only their defendant’s sample. I told my supervisors that the most fair and objective method was to provide defense counsel with the entire batch of samples, so they could better review and determine the results. I considered that a best practice and within my professional discretion.
Told to change testimony in court
In 2016, I testified in two DUI cases that the disclosure being provided to defense attorneys was incomplete. I was asked whether there was any scientific reason not to disclose the information. I said no. I was asked whether the undisclosed data could demonstrate that there was a problem in the blood run. I said yes, based on my professional opinion.
Then all hell broke loose.
I was informed by my superiors that I was required to change my testimony in court.
I said I would not change my testimony. I was then suspended – locked out of my computer and had my key card taken away. After months of being isolated from my work and my team, it was determined that I had been insubordinate and I was fined. I felt I was being forced to retire.
For Arizona DPS, the concern was never to make sure the state didn’t convict innocent people.
My son was killed by a park ranger.But I may never see justice.
I brought suit in federal court for the violation of my First Amendment right to free speech. Everyone I talked to, including many lawyers, said, “They can’t do that. The government can’t order you to change your testimony, then punish you if you still tell the truth.”
Unbelievably, they were wrong.
Qualified immunity trumped my rights
The U.S. District Court for the District of Arizona agreed there was a violation of my free speech rights but granted the defendants qualified immunity, which means they won’t have to pay monetary damages.
The court ruled that the law was not “clearly established” on whether government employees had a First Amendment right to be free from discipline for in-court testimony offered as part of their job.
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I appealed the court’s decision. In August, a panel of three judges on the 9th Circuit Court of Appeals held that I couldn’t recover my financial losses because the court had not previously carved out an exception to qualified immunity that protects government employees from discipline by their employer for telling the truth in court. In short, my First Amendment rights weren’t “clearly established” by the district court.
How is that possible?
According to qualified immunity, even if the government’s conduct was illegal, because there is no case saying government supervisors can’t punish an employee for truthful testimony in court, my supervisors weren’t on notice that this kind of conduct could create civil liability for them.
It doesn’t make sense.
I’m a scientist, not a lawyer, but I can’t understand why any supervisor would need a court to tell them that you can’t punish someone for truthful testimony. I fear for government employees. That they can be punished for telling the truth, and end up having to leave their job because of it, doesn’t feel like justice.
Qualified immunity robbed me of my shot at justice. It must be abolished.
Greg Ohlson retired from the Arizona Department of Public Safety in 2017.
This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.
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This article originally appeared on USA TODAY: Qualified immunity let Arizona punish me for telling the truth