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

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.

Connect with us—we’re here to help.

Achieving Equal Protection against Discrimination through the Ohio Fairness Act

The law is intended to protect the rights of all citizens equally. But what happens to equal protection when the laws are inconsistent from one jurisdiction to the next? In that case, the promise of protection waivers, and the rights of certain individuals and groups become unclear.

That’s what is going on right now in Ohio regarding LGBT rights. There is, however, a potential solution on the horizon—if Ohio’s legislators can demonstrate the commitment to fairness required to enact it.

Hit-or-miss discrimination laws

Nearly half of the states in the U.S. lack a statewide law offering blanket protection of civil rights for LGBT citizens. Ohio is one of those states.

Some of Ohio’s municipalities and counties have anti-discrimination laws that address sexual orientation and transgender identity. But in localities where there are no laws covering specific instances of LGBT discrimination, there are no legal means to fight against or seek damages for those injustices.

Federal law does not fill the gap. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees by employers on the basis of sex, race, color, national origin, or religion. This law generally only applies to employers with 15 or more employees, including federal, state, and local governments. Title VII also fails to specifically address situations that involve housing, education, and credit.

Historically, courts are divided as to whether Title VII protections extend to gay and transgender people.

Protecting LGBT rights with the Ohio Fairness Act

The Ohio legislature has addressed the issue of statewide protection for LGBT rights, but it has not completed its task. House Bill 160 would introduce the Ohio Fairness Act. This sweeping anti-discrimination legislation is fair and needed.

Unfortunately, as of now, the bill is still only pending.

The proposed House Bill 160 aims to extend legal protection against discrimination specifically to the LGBT community. It would make it illegal for any Ohio employer, employment agency, or labor organization to discriminate against an employee or applicant based on an individual’s sexual orientation, gender identity or expression.

Similar versions of House Bill 160 have been introduced over the last decade, yet none have passed. The current version of the bill had its hearing earlier this year, but the legislature, once again, failed to pass it.

In our opinion, that failure hurts all of Ohio’s citizens.

Why equal protection matters

Enacting the Ohio Fairness Act is not only the right thing to do for Ohio and its citizens. It also has real-life benefits for the people of Ohio.

As civil rights attorneys, we routinely field inquiries from people who have been discriminated against based on sexual orientation or transgender identity. While we do have resources and alternate avenues by which we can help people seek justice for discrimination, we’re not able to use the full potential of the civil litigation system for individuals who don’t live and work in one of the few Ohio localities where appropriate discrimination laws are already in effect. Passing House Bill 160 would empower us to use civil litigation to its fullest against discriminating parties anywhere in Ohio.

In addition, the non-discrimination protections afforded by House Bill 160 would be good for Ohio’s economy and business environment. By protecting the LGBT community’s right to work, the bill could only enhance the ability of Ohio businesses to attract and retain talent. That’s why House Bill 160 is backed by numerous chambers of commerce as well as Ohio Business Competes, a collective of more than 475 statewide businesses.

Since the 1960s, our society has—piece by piece—pulled down the walls of discrimination that unfairly blocked good people from basic rights and opportunities. The malicious discrimination of the past—common prejudices based on race, gender, religion, disabilities, and national origins—were remedied starting with laws that empowered enforcement agencies and set the stage for private lawsuits. The explicit statewide protections that would be afforded by the Ohio Fairness Act are no less needed, and the LGBT community no less deserving.

As the new Ohio Legislature returns to office this fall, a number of things could happen with House Bill 160

If you agree that statewide protection against discrimination should be equally available to all Ohioans, then let your voice be heard in support of House Bill 160 by reaching out to Equality Ohio or the Ohio ACLU.

And if you believe that you have been unfairly discriminated against, contact the civil rights attorneys at Cooper & Elliott.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Excessive Force Victim Denied Constitutional Right to Access Courts

As civil rights attorneys, we pay close attention to important cases and rulings that highlight flaws in the legal system. We also pay attention when courts set precedent that shows promise of improvement.

We’ve addressed the potential dangers posed by the Qualified Immunity Doctrine. It’s just one facet of the legal system that government actors can hide behind when they’ve abused their power and used excessive force. Unfortunately, there are others. A recent excessive force case provides a textbook example of another failing in the system that allows government agents to hinder a victim’s pursuit of justice. This case demonstrates one of the challenges civil rights attorneys must face, as well as the kind of creative approach that is needed to penetrate seemingly invincible defenses.

A case of excessive force

In 2010, a New Jersey man, Emil Jutrowski, was pulled over and arrested by two New Jersey state troopers for driving under the influence of alcohol. (He later pled guilty to that charge.) Through a misunderstanding at the time of the arrest, an altercation occurred, and Jutrowski was handcuffed and immobilized face-down on the pavement.

The state troopers were joined by two New Jersey police officers who had observed the scuffle and stopped to offer assistance. Soon after, one of the four law enforcement officers kicked Jutrowski in the head, fracturing his eye socket. Jutrowski did not see which of the officers had kicked him and later could not conclusively identify the assailant. All four officers, in their incident reports and testimonies, admitted that Jutrowski had been kicked while apprehended—yet, none would admit to doing so, nor would they identify the officer who had.

A creative legal approach by civil rights attorneys

Jutrowski sued all four law enforcement officers for excessive force, but a federal judge dismissed the case because the victim was essentially asking the court (and as a result, a jury) to guess which individual defendant should be held liable. The Third U.S. Circuit Court of Appeals in Philadelphia agreed.

But the case is not over, thanks to Jutrowski’s perceptive and persistent counsel. Jutrowski has alleged conspiracy on the part of the four officers involved in the incident; claiming that they were acting in concert to deprive him of his constitutional right of access to the courts to pursue his claim for damages. The federal appeals court ruled that Jutrowski could pursue this avenue of redress.

We commend the attorneys in this case for going beyond the obvious and for finding a creative way to secure justice for their client. In our own pursuit of justice for our clients, we understand that approach and can relate to that commitment. We hope Jutrowski and his attorneys ultimately prevail in this case. That would be an important outcome for future excessive force victims and the civil rights attorneys who represent them.

If you or someone you know has been the victim of excessive force or another rights abuse, contact the civil rights attorneys at Cooper & Elliott.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.