Judge Willett Lets Loose On QI

There are arguments in favor of qualified immunity, and they’re not easily dismissed. Then again, there are arguments as to why it’s an inexcusable travesty, an exception created by the Supreme Court out of whole cloth. Adding to the mess, there is the problem of Pearson v. Callahan, in which the Court changed the analysis from serial to either/or, thus allowing courts to apply qualified immunity to egregious conduct without having to decide, and thus hold, that the conduct was unconstitutional.

So what? So the “clearly established right” prong of QI can never be met if courts skirt the part about whether the conduct involved violated a constitutional right. New Fifth Circuit Judge Don Willett agreed with the majority that, under the current state of the law, the court was constrained to grant the defendants QI in Zadeh v. Robinson.

Plaintiff Joseph Zadeh appeals the dismissal of his Section 1983 claim against several members of the Texas Medical Board who he claims violated his constitutional rights through a warrantless search of his office and medical records. Dr. Zadeh, an internal medicine doctor, owns and operates a medical practice in Euless, Texas. One of his patients, Jane Doe, is also a plaintiff-appellant in this case.

This isn’t merely a warrantless pretextual administrative search case, but one that exposed Dr. Zadah’s patients’ confidential medical records to the prying eyes of the DEA. Even assuming that there was cause to search with regard to the doctor, what does that have to do with his patients, who have done nothing to cause their right to confidentiality to be violated?

But there was no prior holding establishing the methodology of this administrative search as specifically unconstitutional, and so the court applied QI. Was it unconstitutional so that the next time it’s done, it will be “clearly established”? Who knows. The court doesn’t say. The court doesn’t have to. Thanks, Supremes.

In a concurrence, however, Judge Willett goes to town.

DON R. WILLETT, Circuit Judge, concurring dubitante:

The court is right about Dr. Zadeh’s rights: They were violated. But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

And while acknowledging the limitations of a circuit court to heed the precedent of the Supreme Court, Judge Willett proceeds to call out the breezy rhetoric that provides no guidance and allows courts to circumvent the liability for constitutional violations at will.

Today’s case applies prevailing immunity precedent (as best we can divine it): Dr. Zadeh loses because no prior decision held such a search unconstitutional. But courts of appeals are divided—intractably—over precisely what degree of factual similarity must exist. How indistinguishable must existing precedent be? On the one hand, the Supreme Court reassures plaintiffs that its caselaw “does not require a case directly on point for a right to be clearly established.” On the other hand, the Court admonishes that “clearly established law must be ‘particularized’ to the facts of the case.” But like facts in like cases is unlikely. And this leaves the “clearly established” standard neither clear nor established among our Nation’s lower courts.

Scratch the surface of any fact pattern and there will be differences upon which a court can hinge its decision. Whether they are distinctions is another matter. Whether anybody can be that mind-numbingly stupid as to not know they’ve violated someone’s constitutional rights is yet another matter. The presumption is that if a court hasn’t told you that putting a gun in a person’s mouth and threatening to blow his head off unless he admits guilt, how could a cop possibly know this is unconstitutional?

But Judge Willett doesn’t stop there, and moves on to the Court-made Catch-22 to go along with the Court-made QI defense.

Two other factors perpetuate perplexity over “clearly established law.” First, many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding. But the inexorable result is “constitutional stagnation”—fewer courts establishing law at all, much less clearly doing so. Second, constitutional litigation increasingly involves cutting-edge technologies. If courts leapfrog the underlying constitutional merits in cases raising novel issues like digital privacy, then constitutional clarity—matter-of-fact guidance about what the Constitution requires—remains exasperatingly elusive. Result: blurred constitutional contours as technological innovation outpaces legal adaptation.

What’s remarkable about this concurrence, dubitante, isn’t that Judge Willett demonstrated the humility to accede to precedent, but the guts to call bullshit on it. Orin Kerr thought this approach was inappropriate.

I also have concerns with qualified immunity. But if judges want to criticize the Supreme Court’s decisions, they should express their personal opinions in law review articles instead of the F.3d.

There is, perhaps, something to be said by muddying up legal opinions with a judge’s personal, maybe even idiosyncratic, take on the law. It’s not that judges aren’t entitled to their views, but putting into “F.3d” takes it to a level of “official” that a law review does not. And prawfs do so love their law reviews.

But that strikes me as the very point made by Judge Willett, that these flagrant anomalies surrounding Qualified Immunity manage to never see light in decisions, and need to be raised and addressed by circuit courts since the Supreme Court has steadfastly buried their mistakes under a pile of vapid rhetoric. Ignoring the glaring failures of QI doesn’t make them go away, or enable lower courts to apply the conflicting vagaries spewing from One First, but since there’s no higher court to direct the Supremes to deal with their mess, somebody has to. Turns out that somebody is Judge Don Willett.

19 thoughts on “Judge Willett Lets Loose On QI

  1. Dan

    “But if judges want to criticize the Supreme Court’s decisions, they should express their personal opinions in law review articles instead of the F.3d.”

    I don’t have the cite handy, but in the mid-’90s, Judge Posner wrote an opinion dealing with maximum retail price maintenance under the antitrust laws. He was constrained by applicable Supreme Court precedent to hold that the scheme violated the law, and he so held (apparently this was before his MO changed overtly to “I’ll do whatever I want”). But in so holding, he explained at length why that precedent was wrong.

    The case was appealed, the Supremes granted cert, and he was “reversed”–which is to say that the Court agreed with his critique of their precedent.

    tl;dr: Judges expressing those “personal opinions” in F.3d can lead to the Supremes making changes.

    1. SHG Post author

      Cool Judge Posner story, bro. Without it, you would have just cut to the tl;dr point, because it wasn’t obvious enough without the fascinating anecdote.

  2. Patrick Maupin

    “But if judges want to criticize the Supreme Court’s decisions, they should express their personal opinions in law review articles instead of the F.3d.”

    Because it hurts the SC judges’ feelings less to be dissed in a law journal than in an opinion?

    Because it’s inappropriate to let victims (real victims, not “victims”) know that it’s not their imagination and that at least one judge agrees that they really have been wronged?

    Because Willett should go big or go home, and not dissent in a concurrence?

    Or simply because Kerr so desperately needs to believe in the relevance of law reviews?

    So many questions. Maybe this is why I don’t twitter.

  3. Jim Tyre

    The times they are a changing.

    Listen boyzengrrlz, I can remember a time when, separately, both SHG and Judge Kopf were pretty critical of Judge (then Justice) Willett. Mostly just because they didn’t like his twitter style.

    But then Judge Willett does something crazy like write a (hopefully) important concurring opinion that’s spot on, et voila. Now, he’s SHG’s darling. One can only imagine what will happen if/when he writes that killer majority opinion.

    1. SHG Post author

      You know how Louis CK is literally horrible but funny? You’re no Louis CK. Please stop trying and keep your hands to yourself.

  4. Richard Kopf


    Count me as being one of those who believes Judge Willett’s concurrence, albeit with the unnecessary affectation “dubitante”, is perfectly appropriate. But that is not the main point of this comment.

    I want to address Willett directly on both realism and substance. He laments that “many [district] courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent.”

    Hey, dude, welcome to the real world where groundlings (district judges) labor. I know you have never been a federal trial judge under the pressures of time to disposition standards regarding a never-ending stream of civil and criminal cases, but, even from your elevated perch, replete with four kid law clerks, what the hell do you expect? It should be obvious why some of us take the “simpler” route. We are required get our work out the door as fast as possible. We have other fish to fry.

    Far more importantly, in the hard cases where one is asked to determine whether a constitutional violation may have occurred, it is wrong to suggest district judges should take on that task when there is the smoother, easier path–not clearly established for lack of an analogous precedent.

    Because district judges have limited–not circuit-wide or national–jurisdiction and because we are not selected for our scholarly accomplishments, it is for Circuit judges, and ultimately, the Justices of the Supreme Court, to address the unique and hard questions. They are suited to “making” law–we are not. After all, they are called our superiors not for nothing.

    Furthermore, even if we district judges take the path of least resistance there is nothing to preclude our superiors from taking up those hard questions. Legal realism requires that we recognize that federal district judges are not well suited to tackling such difficult problems when there is a less difficult and less controversial alternative. Our superiors can take up the hard question if they like.

    All the best.


    1. SHG Post author

      One of the “discussions” we keep having is about the need for trench experience for appellate court nominees. Appellate lawyers don’t see it, because they have none themselves and can’t admit their significant limitations. Trial lawyers and judges, however, see it very clearly. Had they ever tried a case, they might have a far better understanding of what and why decisions below are made as they are, and why they need to write opinions that are usable rather than merely prosaic.

      1. Richard Kopf

        With Aretha’s gold coffin and wonderfully funky funeral firmly in mind, allow me to say, “Amen, Brother!”

        All the best.


        1. SHG Post author

          Was it just me, or did anybody else note the oddity that Obama went to McCain’s funeral while Clinton went to Aretha’s? And what idiot let the talentless teenybopper Ariana Grande sing at Aretha’s funeral? Is there no respect?

          1. B. McLeod

            I saw a video of Obama trying to sing “Amazing Grace.” He can’t carry a tune in a sack, and it wouldn’t surprise me if he is ignorant of music generally. Ariana Grande is coasting on sympathy points for the moment.

          2. Richard Kopf


            Life imitates art:

            “Bishop Charles H. Ellis III has apologized to Ariana Grande for the way he behaved towards her at Aretha Franklin’s funeral.

            During an interview with the Associated Press at the cemetery where Franklin was laid to rest following her 8-hour ‘Celebration of Life’ funeral service on Friday, Ellis expressed regret for the way he touched the singer onstage and for saying he initially thought the 25-year-old singer was a new menu item at Taco Bell.”

            Maria Pasguini, People Magazine, September 01, 2018 11:48 AM.

            All the best.


  5. B. McLeod

    Putting a rational criticism in the F.3d may increase the chance of another judge actually considering it if the case makes it to a higher level of review. The really excellent point here is that skipping the issue of the violation necessarily means that if there is a miraculously identical case tomorrow, there is still no “clearly established” violation. While the courts follow this pattern, precedent does not evolve, and the universe of “clearly established” violations will tend to remain static.

    1. SHG Post author

      You can cite a law rev in a brief, but then you would have to find it and read it. Nobody wants to do that. A circuit decision, on the other hand, carries some gravitas and will be read.

      1. B. McLeod

        Also, to say what needed to be said doesn’t really even provide enough text for a typical “Note” in a law review, and the judge would have had to spend six times as much effort futzing with formatting and citation conventions that courts don’t use. I doubt I have bothered to read a law review article in the last decade.

  6. none

    I’ve been working with Ocasio-Cortez for the past year + and one of the things discussed is putting QI out of its misery. No other legal mechanism works that way. Nobody beats a murder charge by saying “hey it wasn’t sufficiently clear that you couldn’t stab someone 5 times, last I heard only 6 stab wounds were considered illegal.” That + the fact that QI is reserved for use by those who seek to maintain institutional power makes it a prime candidate for nuking it into oblivion.

    1. SHG Post author

      Great, clueless morons on parade will certainly fix this. When you’re by far the stupidest person in the room, don’t explain QI to lawyers. And if you want to start out with your cred by claiming “I’ve…,” then give your name or you have none.

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