« Sovereign Immunity and Dalehite | Main | More cancel culture and counter-speech »

Wednesday, August 05, 2020

Judge Reeves on qualified immunity

An opinion to behold from Judge Reeves of the Southern District of Mississippi. (H/T: Michael Masinter). the 72-pager includes a lengthy history of § 1983 from passage in 1871 to the creation of qualified immunity; it calls out racial bias in policing and in society at large (especially in Mississippi) to explain why a search was not consensual. It calls out appellate judges for creatively interpreting Reconstruction statutes to protect older white men while failing to protect African-Americans against government misconduct. It calls directly and explicitly on the Supreme Court to do something (while admitting to not knowing what that should be). And it uses a cute three-point Star Wars allusion to organize the opinion ("§ 1983: A New Hope;" "Qualified Immunity: The Empire Strikes Back;" and "The Return of § 1983"). All while granting the officer qualified immunity for an egregious Fourth Amendment violation (traffic stop and lengthy search with no cause to be found) because he has no choice under current law.

For those who believe in such a thing (I don't), is this judicial activism? Does the judge's role, especially a lower-court judge, include railing against the state of the law, its horrific incorrectness, and its negative effects, especially in such sharp terms? Judge Reeves "applied the law rather than making the law," so he behaved consistent with that typical definition. An opinion is an essay having no direct force or effect. But should judges use these essays for such a cri de coeur?

Posted by Howard Wasserman on August 5, 2020 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


I think there's a difference between having alternative channels of expression and having equally influential (effective) alternative channels of expression.

For instance, as a student, a shirt will be seen by far more people than most students will ever have the opportunity to have a meaningful conversation with.

To say that you can have school uniforms at a public or private school "because the student can simply start a conversation with each and every person at the school who will walk by them in the hall, i.e., there are alternative channels of communication open to all" is to misunderstand how introverted most people are and how exclusionary cliques are.

Far more women will read your shirt than will ever give you the time of day.

Posted by: Mean Girls | Aug 7, 2020 2:41:18 PM

I cannot agree with Professor Kerr's suggested alternative, for two reasons.

(1) It requires an outside invitation to be effective. It's one thing to say "well, it's also an invitation to publish in a law review," because (barring symposia) the initial submission is not via invitation — it's an unholy cacophony that makes the Tower of Babel look a paragon of clear communication, but that's for another time — but depending upon being invited to speak somewhere, and in particular speak somewhere AS AN HONOREE, to get one's views on critical JOB-RELATED issues heard is just a little bit tinged with circular reasoning.
No, functionally in government-related speech, it is the very definition of circular reasoning. Absent the "platform" and "obligation" of academic publication and related activities, the opportunities to make professional views known is very limited. And it's even more limited when those views are... orthogonal to orthodoxy, even if they are (at least in one's own view) essential to continued professional function. There's a short, fascinating scene during the first season of The West Wing (in which Admiral Fitzwallace interrupts a meeting on DADT involving field-grade staff officers) that both educates the public a tiny bit and underplays the reality. From what I've seen, it's even worse in the judiciary.

(2) Reeves' jeremiad (using that term advisedly) was directly related to the issues before him. Perhaps they weren't adequately briefed; perhaps, due to the hidebound practices of the bar, they weren't made with full appreciation of even the contested facts (because the probability that those contested facts weren't even presented — due to OVERreliance on precedent made without regard to facts — is extremely high). Eppur si muove... even when the P/o/p/e/ Supreme Court has said otherwise.
This was not an instance of an irrelevancy, or a judge using a judicial opinion to audition for a postjudicial career as a talking head. (Not that I have any particular examples in mind for THAT. Well, not more than half a dozen or so.) Judge Reeves issued his restrictive ruling and objected to the restrictions in a professional manner. Would that more judges had done so regarding Jim Crow, and that more had objected to being "bound" by Korematsu and Hirabayashi... especially in the context of a declared abrogation of personal responsibility for personal misconduct.

Posted by: C.E. Petit | Aug 7, 2020 12:10:59 PM

It's one thing for a judge to occasionally say that they've never seen anything like this and their education hasn't prepared them for it so they need to be briefed and argued.

It's a whole nother level of incompetence and ineffectiveness if the judge says in each-and-every case that they have absolutely no idea what's going on and that unless the lawyers fill them in on what the law might have to say about this, that judge couldn't possibly make an informed ruling.

If a judge says they never have any idea what the law is, than they shouldn't need to get an education to be a judge. The entire justification for the cost of college is that you are competent when you come out.

If you got a plumbing certificate and then said in every case you were called out to "I have no idea what to do", people would say your education was as worthless as a campaign promise in november.

Posted by: Mario Sister | Aug 6, 2020 9:12:26 PM

For better or worse, determination of rights is not done in the abstract, but in the context of adjudication in litigation. And adjudication in the US is done in an adversary system in which there are distinct roles for the judge and the (counseled) party. The judge doesn't make a free-wheeling inquiry into whether someone's rights have been violated. You could imagine a system in which she does--it's not the one we have.

That said, one can imagine a bit more judicial leeway than Orin allows. But nowhere near as far as this suggests.

Posted by: Howard Wasserman | Aug 6, 2020 9:11:12 PM

"A judge, however, should be the judge of the advocates' positions, not his own."

Yes, but first-and-foremost they need to uphold people's cleared enumerated rights in the bill of rights and not pretend that those rights mean nothing unless they were briefed and argued.

The whole point of a JD is to make sure a judge has enough education to be able to identify when someone is being censored, disarmed, discriminated against, denied procedural due process, etc. without having to have it pointed out to them.

Otherwise why did he need to go to college?

Posted by: Hillsdale Carnegie | Aug 6, 2020 8:57:15 PM

The problem that emerges when judges decide to address an issue that has not been briefed or argued is that the risk of error becomes so much greater. Judges in that role run a far greater risk of adopting the mindset of the advocate, and overlooking something important that cuts the other way. I have suggested in my prior comment several arguments that Judge Reeves should have considered, but did not, likely because there had not been an adversarial presentation. For another example, for decades scholars have picked apart Chief Justice Marshall's reasoning in Marbury v. Madison, noting a variety of various problems that he failed to address. I tell my students not to be too hard on Chief Justice Marshall, however, because Secretary Madison's failure to file a brief deprived the Court of the ability to be presented with all the pertinent arguments. It is one thing to invite briefing on a potentially dispositive issue that the parties have not raised, yet another when a judge both advances an argument, and then decides that the judge's own argument is right. Surely that approach presents some special dangers. If the judge wants to be an advocate, the judge can resign and rejoin the practice or, perhaps, as Orin suggests, write an article or give a speech. A judge, however, should be the judge of the advocates' positions, not his own.

Posted by: Larry Rosenthal | Aug 6, 2020 6:52:33 PM

Howard asks: "Do you take the same view of dissents and dissentals by justices calling for reconsideration (when that is not the QP) or court of appeals judges suggesting en banc review?"

No, I don't. They're taking positions on matters that are properly decided by their own courts, on which they have their own vote. It seems perfectly appropriate for a judge to express a critical view of how the law should be reformed by their own court, as that's the job for which they have been nominated and confirmed.

Posted by: Orin Kerr | Aug 6, 2020 6:50:54 PM

I agree that the polemical nature explains why the opinion is drawing attention. I asked my question to see if your objection was to the polemical nature, the subject, or the practice in general--I appreciate the answer.

Out of curiosity: Do you take the same view of dissents and dissentals by justices calling for reconsideration (when that is not the QP) or court of appeals judges suggesting en banc review?

Posted by: Howard Wasserman | Aug 6, 2020 5:30:54 PM

Howard, my own answers:

"Don't lower-court judges regularly use opinions to urge the Supreme Court (or the court of appeals) to take up issues or to reconsider areas of law?"

I think it's uncommon, although I'm not sure this opinion counts as merely asking the Supreme Court to "reconsider" a doctrine. It's the polemical nature of the opinion that is drawing attention and that makes it noteworthy.

"Isn't that appropriate in a hierarchical judicial system."

My view: Generally no, not in a judicial decision, although I realize I may be an outlier on this. And certainly reasonable people disagree with me on it!

"If it were a less contentious or less a matter of major public debate (e.g., this circuit is wrong in its definition of a bankruptcy insider and should adopt the view taken by this other circuit), would it be problematic?"

My view: It would be equality problematic, I think.

Posted by: Orin Kerr | Aug 6, 2020 3:33:13 PM

Orin: Thanks for framing it this way--should have thought to propose this in the OP:

Don't lower-court judges regularly use opinions to urge the Supreme Court (or the court of appeals) to take up issues or to reconsider areas of law? Isn't that appropriate in a hierarchical judicial system. If it were a less contentious or less a matter of major public debate (e.g., this circuit is wrong in its definition of a bankruptcy insider and should adopt the view taken by this other circuit), would it be problematic?

Posted by: Howard Wasserman | Aug 6, 2020 3:02:12 PM

C.E. Petit,

I agree that what Judge Reeves did was the easiest way to make a public impact. I think it's fair to say that he violated norms of opinion writing, using a case before him as an opportunity to draw attention to his views on a major public debate. My sense is that kind of norm violation on a high-profile question is generally very likely to capture public attention.

With that said, I disagree that Judge Reeves lacks alternative ways to make his views known. To pick a recent example, last year, UVA awarded Judge Reeves its highest prize, the Thomas Jefferson Foundation Medal in Law. Upon acceptance, Judge Reeves gave a widely-covered speech on the need for diversity among the judiciary. I would think Judge Reeves could have used that opportunity, or another one like it, to argue that qualified immunity should be overturned.

Posted by: Orin Kerr | Aug 6, 2020 2:49:28 PM

OK, let's assume for the moment that Judge Reeves was "wrong" to include this material in his opinion. The next question is the important one: What would be the right way to do so, for an issue that "evades review but is capable of repetition"?

I suppose he could write an opinion letter for a newspaper. Which wouldn't have the references to convince anyone that he had any basis other than his personal opinion... and then would be edited for length, focusing on soundbites instead of reasoning. That would disserve its purpose.

I suppose he could write a longer-form piece for a "civilian" magazine like The Atlantic Monthly or Harper's, but that would have much the same difficulty. The readership would see his conclusory statements, but not his documentation or anything else related to "source credibility." That's a serious problem in any area, but particularly in this one: Source credibility, revelation of hidden agendas, and such in relation to "civil rights" isn't a side line — it's the core of the argument (Gobitis/Barnette being an excrutiating, and excrutiatingly obvious, example; so, too, is Meyer v. Nebraska). So this alternative really isn't much better.

Or he could resort to the law reviews. Forget all of the jokes about law reviews, who reads them, and their impact on actual development of law for the moment; think, instead, about the law review selection process. No, there's never any inappropriate pressure applied, and faculty who clerked for a judge never try to "help" the selection committee... and then there's the delay, and the cite-checking, and the differences between "this professor's writing got diffuse here" and "this writing came from a judge?"

Book publishing has similar problems. Just look at Judge Posner's time... and the difficulties that wrought in several areas in which he published material that was, umm, not up to the contemporary scholarly standard in the "related fields" that were the subject of the respective works. Judge Reeves' work would be judged harshly by historians, for example, because it doesn't play all of the historiographic games currently necessary for "junior scholars" (the long-form-law-review route) or appeal to the biographical/hero-worshipping meme that dominates the serious-nonfiction, nonacademic press.

I'll pause for the laughter at resorting to talk shows, NPR, or (if even called) Congressional testimony with a CSPAN interview thereafter.

Judge Reeves is a judge. He is also a lawyer and a citizen. His research and analysis matters for those reasons alone. I don't see an alternative venue.

Posted by: C.E. Petit | Aug 6, 2020 11:39:15 AM


A fair definition--although, like every other attempt to define J/A, honored more in the breach. But did Reeves run afoul of that? He did not "decide" anything in the sense of discussing and resolving a legal issue necessary (or even relevant) to the decision. It was dicta within an opinion that could never be more than persuasive in any event.

Posted by: Howard Wasserman | Aug 6, 2020 11:17:27 AM

"when a judge reaches out to address issues that were not briefed or argued"

The first amendment doesn't actually say that something has to be briefed or argued to be protected under the first amendment. The absence seems to imply that the government has a job of upholding the first amendment regardless of how uneducated the defendant or how ineffective the defense. That persecution doesn't become just simply because people (or students) don't know how to jump through which hoops to take advantage of their rights.

The founders seemed to foresee that the government might choose to keep people in the dark about their rights and the adversarial process in hopes that they would never have to acknowledge the bill of rights as long as they could say "it wasn't briefed or argued so it's back to the lower court and we'll see you in three years even though it's obvious that this implicates the first amendment".

Posted by: Kafka | Aug 6, 2020 4:47:13 AM

One ideologically-neutral definition of judicial activism is when a judge reaches out to address issues that were not briefed or argued. I suspect that this opinion is a classic example of that brand of activism. I very much doubt that the parties briefed and argued the questions about the lawfulness of qualified immunity addressed by Judge Reeves.

For example, among the arguments that Judge Reeves's fails to address when he claims that qualified immunity doctrine is not reflected in the text of the Constitution or section 1983 is the congressional authorization for federal courts to either borrow state law or utilize a federal common law of civil rights to resolve issues not addressed by the text of the Reconstruction-era civil rights laws. This authority was originally created by section 3 of the Civil Rights Act of 1866, and currently is codified in section 1988. If the federal courts were powerless to rely on any doctrine to adjudicate section 1983 litigation other than that found in the text of the Constitution or section 1983, for example, then presumably there would be no statute of limitations for section 1983 cases, and no way to determine if a section 1983 action survives the death of the plaintiffs, to use two presumably less controversial examples of the federal courts' common-law powers with respect to the administration of the civil rights laws. It is hard to believe that Judge Reeves can be serious if he believes that the federal courts have no common-law powers with respect to civil-rights litigation.

Larry Rosenthal

Posted by: Larry Rosenthal | Aug 6, 2020 12:07:31 AM

Is it true that Fifth Circuit Judge Barkdale's dissent in Dublin was deleted from westlaw and no longer exists in this timeline or any other?

Posted by: Crisis on Infinite Westlaws | Aug 5, 2020 8:14:37 PM

Arthur: Yes, partial denials of immunity as forfeited are usually appealable, I believe, as they're still denials of immunity, but of course you're generally only getting abuse of discretion review, as with any district court decision of that kind. If one prevails on the abuse of discretion issue, there may be a remand or the court of appeals may decide the immunity question itself.

I found Orin's thread on Twitter to the effect that Reeves actually isn't accurately applying qualified immunity here convincing. I don't know if he meant to imply that Reeves is going out of his way to reach a bad result to serve his larger purposes, but I'll at least float that possibility, or at least float the possibility that Reeves's sincerely held views about how terrible the doctrine is may be causing him to wrongly reason that the doctrine requires bad results in individual cases. The whole business about how a factually on-point case is required to defeat immunity in every case is (a) a fiction that (b) runs through a lot of sloppy critiques of qualified immunity (and this opinion), to the point where judges who imbibe such critiques might start to believe the fiction and grant immunity when they shouldn't.

Posted by: Asher | Aug 5, 2020 6:39:23 PM

Not judicial activism since the ruling on qualified immunity favors the defendant, but not best practice either. Writing this decision probably caused some delay in resolving the dispute between the parties. Judge Reeves also increased the risk that the part of the ruling favoring the plaintiff (Count 3) will ultimately be reversed.

Procedural puzzle: Judge Reeves ruled that the failure to discuss Count 3 in the defendant's brief amounted to a procedural default of summary judgment on that count, the motion granted in full, but that Count 3 wasn't part of the motion and will go to trial. Is the defendant entitled to interlocutory appeal of teh ruling on Count 3?

Posted by: arthur | Aug 5, 2020 6:07:42 PM

It would be highly recommended, to read the hereby astonishing ruling ( introduced by Wasserman in the past here)and understand, the connection, between fourth amendment, and so many wrongdoings in the US, in this regard:


And see, how complicated it is.

Posted by: El roam | Aug 5, 2020 5:37:03 PM

That was a hell of one (although there are too many of such(unfortunatly)). Just worth to note, that the judge accepted the the claim of Jamison, about alleged lack of consent for search and set up a trial on that.

But, a judge can't really do it. It does erode public trust in the system. The system must show, uniformity and conformity. This is not a game. We don't always understand anyway the system. Many doctrines, have very bad appearence in the eyes of laymen (let alone). So:

Only, very hectic, and comprehensive analysis and research can solve it. Not what appears to be subjective cri de coeur of one judge.

In fact, one may argue, that the main problem doesn't lie in quolified immunity, but rather, the fourth amendment. For too many reasons that can't be unfolded here, but one relevant to that case:

The police officer, asked over and over ( five times, and more even) for consent to search his car. Now, over and over, this is wrong. Above all, without warning, that he could decline for search, without bearing and consequences. The latter, must be fixed. Such notice, must be given by police officer prior to consent and search. But, has nothing really to do with quolified immunity.

That is why, in rulings, there is no room for it. It is too serious, too complicated. One ruling, can't seize the whole picture, or, the even the right one.


Posted by: El roam | Aug 5, 2020 5:24:00 PM

Harlan did it re: Jim Crow

Posted by: thegreatdisappointment | Aug 5, 2020 4:55:18 PM

The comments to this entry are closed.