Cooper & Elliott Blog

Judge Willett’s Opinion and the “Catch” to Qualified Immunity

Posted on Tue, Nov 20, 2018 @ 5:40 PM

We’ve talked before about the doctrine of qualified immunity: what it is, the scope and boundaries of its application, and how, at times, it can serve as an impediment to genuine justice.

It’s important for us as civil rights attorneys to keep up on cases where qualified immunity plays a major role in legal decisions. It’s our job to track case law where qualified immunity is applied (or denied). A recent opinion by Judge Willett with the Fifth Circuit Court of Appeals emphasizes the uncertainties of qualified immunity as a legal standard and the legal implications when prior case law doesn’t yet exist.

A standard in qualified immunity without precedents

When the Texas Medical Board executed an administrative subpoena on the medical office of a physician named Dr. Joseph Zadeh, the ensuing raid included two federal Drug Enforcement Agency (DEA) officers. Dr. Zadeh asserted that the Board agents had exceeded the scope of their subpoena in executing their search of his offices. He sued, seeking damages for alleged violations of his constitutional rights.

The case eventually made its way to the U.S. Court of Appeals for the Fifth Circuit. That court concluded that the Board and its agents were entitled to the protection of qualified immunity because their conduct did not violate “clearly established” law. In other words, there was no identical precedent that found in favor of the plaintiff. No precedent meant no case for Dr. Zadeh even if, as the court acknowledged, it was sympathetic to the plaintiff’s claims.

Not all the jurists involved in that decision agreed with the court’s logic.

Judge Willett’s concerns

In an opinion “concurring dubitante,” Judge Don Willett registered his “disquiet over the kudzu-like creep of the modern immunity regime.” He objected to the court’s requirement that identical case law be established before qualified immunity can be pushed aside, noting that “it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.”

Judge Willett recognized the catch-22 nature of qualified immunity as it is applied in the courts: “Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered.” Finally, Judge Willett distilled the issue down to a simple equation: “No precedent = no clearly established law = no liability” whose “imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed.”

In his taut and well-reasoned concurring opinion, Judge Willett captured the issue surrounding the potential abuse of qualified immunity.

A Supreme change needed in qualified immunity

We believe it is time for the doctrine of qualified immunity to be re-evaluated with the limits of its application more clearly defined. Victims of abuse by law enforcement and government agents deserve that kind of clarity. Realistically, achieving it is easier said than done.

The United States Supreme Court will have to be the agent of change. Qualified immunity has enjoyed special favor by the Supreme Court, but that position need not be permanent as more justices (such as Justice Clarence Thomas and Justice Sonia Sotomayor) express a growing concern about qualified immunity jurisprudence.

How long will our justice system live with the “yes harm, no foul” imbalance that too often leaves plaintiffs in the wake of court decisions that defer to the doctrine of qualified immunity regardless of the specific elements of a case? Too long, in our opinion.

It’s up to judges, such as Justice Willett, and to civil rights attorneys who see the damage done by qualified immunity to continue to speak up and advocate for a more balanced legal protection for both government agents and the people they serve.

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