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.