Forensic psychologists denied absolute immunity

Does working for a government agency give a forensic psychologist license to do or say pretty much anything without legal consequence, even if it violates a subject’s Constitutional rights?

 

That is the intriguing question addressed by the U.S. Ninth Circuit Court of Appeals in a recent decision relating to the civil rights of people behind bars.

The ruling in Gay v. Parsons stems from a risk assessment by two psychologists working for California’s Board of Parole Hearings. Omar Sharrieff Gay, a California prisoner, filed suit against the psychologists, claiming that their opinion that he was at high risk for violence was influenced by racial and religious animus.

Gay was serving an indeterminate sentence of nine years to life for the attempted murder of a police officer. His crime took place in 1989, when he was a 21-year-old member of the Crips gang. A few years after going to prison, he converted to Islam and quit the gang.

In his civil rights claim, Gay described the psychologists' 2015 interview of him as feeling like “a military or police style interrogation.” He claimed that psychologists Amy Parsons and Gregory Goldstein asked hostile questions and made prejudicial comments, including:

“Why do you hate white people and Jews?”

“With everything going on in the world, at home with [Muslims], we don’t know if you are just another radical Islamic terrorist.”

When Gay took offense and asked if they would be asking those questions if he were a white Christian, Goldstein allegedly replied, “You’re a high risk for violence with that sarcastic attitude.”

Absolute immunity?

In their defense, the psychologists argued that they were absolutely immune from liability because they performed a function that was integral to the Parole Board, whose officers are immune from liability over their decisions. They contended that objectivity would suffer if psychologists had to worry about being sued over adverse opinions.

The Ninth Circuit disagreed.

Unlike the Parole Board officers, the psychologists did not have decision-making authority. Rather, their roles were merely advisory. Furthermore, the appellate opinion noted, they had not offered any evidence that their risk-assessment work subjected them to a burdensome volume of legal complaints. “An abstract fear of vexatious litigation” is not enough to merit immunity, the court held.

Further, Judge M. Margaret McKeown observed, the psychologists’ argument “ironically puts [them] in a position of hypothetically violating their professional principles and standards [that require them to] ‘exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.’ ”

I did locate a contrasting decision in another California case, in which a psychologist was granted quasi-judicial (aka absolute) immunity. The distinction was that in that case, a child custody matter, the court had delegated decision-making authority to the psychologist to make certain orders regarding visitation. Without quasi-judicial immunity, the First Appellate District ruled in Bergeron v Boyd, custody evaluators would be “reluctant to accept court appointments or provide work product for the courts’ use. Additionally, the threat of civil liability may affect the manner in which they perform their jobs.”

The case of Gay v. Parsons isn’t over yet.

Qualified immunity?

There are two relevant kinds of immunity. There is absolute immunity, aka quasi-judicial immunity. This is the kind that judges get when acting in their judicial capacities. Similarly, legislators and government prosecutors.

Then there is qualified immunity. That’s the 1967 SCOTUS doctrine that has enabled police to get away with so much corrupt and violent conduct. It bestows immunity to government representatives who unlawfully violate a person’s constitutional rights unless they should have known at that time that they were violating “clearly established law” based on a prior similar case.

With the Ninth Circuit ruling that the psychologists are barred from claiming absolute immunity, the case now reverts back to a district court for a determination as to whether the psychologists can claim this qualified immunity.

The psychologists may have more luck with this. I found several judicial decisions around the country in which psychologists were granted qualified immunity. These included one in Louisiana where the psychologist was assisting the state’s psychology board, as well as cases in both Louisiana and Nebraska involving clinicians working at state hospitals.

In contrast, in a previous Ninth Circuit case, Jensen v. Lane County, the court held that a psychiatrist who was evaluating individuals for the county to determine their eligibility for involuntary hospitalization was not entitled to qualified immunity.

So, it could go either way.

Whatever the outcome of his lawsuit, Omar Gay has moved on.

After he underwent a new risk assessment by a different psychologist who deemed him at only moderate risk, the Parole Board voted in October 2021 to cut him loose. He was 53 years old at the time, and had spent 32 years behind bars. 

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A YouTube video of the 9th Circuit hearing in Gay v. Parsons is HERE. A webinar on psychology and qualified immunity, featuring psycholegal scholar Jessica Bregant of Indiana University, is HERE.