Everything wrong with qualified immunity

in this Sixth Circuit decision granting qualified immunity to two police officers who arrested and commenced prosecution of a man for creating a Facebook account parodying the local police department. To wit:

• The court skips the merits, ignoring the obvious First Amendment concerns and doing nothing to establish or further the meaning of the First Amendment.But the panel does not want to be seen endorsing obvious overreach implicating the First Amendment, so they suggest "doubts"that what the government did was worth the time and effort And they urge police, quoting Bari Weiss (!) to "say 'No.'" This seems like the worst of all worlds. The court recognizes and calls out the wrongfulness of government conduct, but not in a way that has any effect on the next cop to pull this stun (and there will be a next one). Instead, the court does something that I would have expected Fed Soc judges to abjure--issuing lectures to other branches of government having no force or effect.

• This was not a fast-moving, emergency requiring snap judgments in a life-threatening situation that courts should not second-guess. These officers had time and space to think and consider what they did with respect to an obvious parody and knew why they did it. Whatever the need for qualified immunity in the former case, it should not apply in the latter. And, again, because the court skipped the merits, there remains no Sixth Circuit precedent on these facts to move the right towards being clearly established.

• The court also rejected municipal liability, again on a narrow conception of who is a policymaker and what qualifies as failed training. Municipal liability is unfortunately and unnecessarily narrow, so I am not sure the decision is wrong based on prevailing doctrine.

This case again illustrates the problem of defining what it means to vindicate one's rights. Is it enough to avoid liability for enforcement of a law in a constitutionally invalid way (as the plaintiff did here)? Or should there be some retroactive, substitutionary remedy such as damages for making an individual deal with that process? Section 1983 exists, in part, to ensure the latter. Limits such qualified immunity and narrow municipal liability render that a less-effective weapon for that purpose.