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Tuesday, September 04, 2018

Judge Willett questions qualified immunity

Fifth Circuit Judge Don Willett, a conservative and Trump long-lister for SCOTUS, "concurred dubitante" to question qualified-immunity doctrine in this case. (H/T: Volokh Conspiracy, HTing Josh Blackman). The court found that the Texas Medical Board violated the rights of the plaintiff doctor and two patients in issuing and enforcing administrative subpoenas, but that the right was not clearly established.

Willett derides qualified immunity as a deus ex machina that smacks of "unqualified impunity" by letting officers behave badly so long as they are the first to behave badly. He emphasizes two problems with current doctrine--the inconsistency over how factually similar precedent must be to clearly establish a right and the continued tendency of courts to skip merits and decide the right is not clearly established, thereby depriving plaintiffs of precedent that can be used to clearly establish the right. Requiring a plaintiff to produce identical precedent as courts create less precedent is a catch-22, an Escherian Stairwell, and a heads-defendans-win-tails-plaintiffs-lose situation. Willett joins the growing cross-ideological chorus of judges (including Justices Thomas and Sotomayor, as well as Judge Jack Weinstein) and scholars (Will Baude and Joanna Schwartz) urging recalibration of the doctrine.

On that cross-ideological consensus, it is telling that Willett's statement comes in an ideologically unique case--a regulatory body allegedly overstepping its authority in investigating a licensed professional sounding in the the regulatory over-zealousness that libertarian judges dislike. It does not come in the more frequent (and ideologically different) qualified immunity case case arising from a police officer using excessive force against an unarmed person of color.

Posted by Howard Wasserman on September 4, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I was struck by the last three words of the post. I never noticed that unarmed people of color were especially affected by qualified immunity. Is there any data to back that up?

Also, I'm not exactly sure what you think the fact that Willett wrote on this particular case is "telling," but a quick Lexis search "told" me that this is the first case of his young career as a circuit judge where a court granted qualified immunity even though the action was pretty clearly unconstitutional, which is the part of qualified immunity analysis he has a problem with.

Posted by: Biff | Sep 5, 2018 9:51:15 AM

I agree with Judge Willett on the issue, but DAMN such horrible faux-folksy writing.

Posted by: Sam | Sep 4, 2018 5:16:17 PM

Very interesting case , raising complex issues , have to do , with the symbiotic relationship between criminal search , and administrative search . But to the issue of qualified immunity , one needs to use finally the right concrete terminology , and it is :

Not the lack of precedent or avoiding the merits of a case ( which didn't really occur here , judges dealt with it lengthily ) but rather , I quote :

“ The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiffs seek to apply ”

Or , in bit different form or phrasing :

“ legal principle ( must ) clearly prohibit the officer’s conduct in the particular circumstances before him ”

End of quotation :

That should imply , bit different animal . We tend to be smart after the fact , but not in fact . Even legal experts , may debate endlessly after the fact , so , surly an official ( and layman in fact in law ) may not always , understand clearly at the very moment of on line action , or under stressing situation , what are the consequences of the legal and factual configuration he faces at every given moment . Not so easy to predict . It may seriously affect the work of public servants of all kinds. There are solutions for it , but surly , we won’t stay young here .


Posted by: El roam | Sep 4, 2018 11:40:37 AM

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