The Fifth Circuit Divides on Qualified Immunity, and Originalism

Judges Ho and Oldham: "Originalism for plaintiffs, but not for police officers, is not principled judging. Originalism for me, but not for thee, is not originalism at all."

|The Volokh Conspiracy |

Today the Fifth Circuit issued a divided en banc decision in Cole v. Hunter. The case considered whether two police officers who shot the Plaintiff were not entitled to qualified immunity. Nine out the sixteen active judges on the en banc court found that qualified immunity was not warranted. (Two senior judges who were on the original panel joined the majority.) Judges Ho and Oldham wrote a joint dissent, which was joined by Judge Smith (see pp. 54-64). Their decision warrants a careful study. It considers how lower court judges should, and should not be originalists.

First, the duo notes that modern qualified immunity doctrine has been criticized as "ahistorical and contrary to the Founders' Constitution." They cite Will Baude's article in the California Law Review, as well as a rejoinder from Aaron Nielson and Chris Walker.

Ho and Oldham, as lower-court judges, see no role in this debate:

As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

Second, Ho and Oldham highlight an important reason why originalism has gained so much salience in debates about criminal justice: it often operates as a one-way ratchet to help the accused, but not the police. Originalists on the right, and non-originalists on the left, are all-to-happy to form an alliance that advances these civil libertarian ends. Indeed, progressive groups have begun to craft "Gorsuch briefs" to peel off conservative votes on textualist grounds.

Ho and Oldham are skeptical of this facet of originalism.

The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J., joined by Thomas, J., dissenting).

A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability.

In other words, if the courts approached civil rights litigation from an originalist perspective, qualified immunity would not be the only doctrine to go. There are lots of doctrines that would constrain the ability of individuals to recover.

Third, Ho and Oldham critique "the unprincipled practice of originalism." In many cases, being an originalist, through and through, make it tougher for civil rights plaintiffs to recover:

Subjecting these officers to trial on originalist grounds is precisely the unprincipled practice of originalism that Justices Scalia and Thomas railed against. And not just for the procedural reasons they identified in Crawford- El. What about the original understanding of the Fourth Amendment, which the plaintiffs here invoke as their purported substantive theory of liability in this case? Does the majority seriously believe that it is an "unreasonable seizure," as those words were originally understood at the Founding, for a police officer to stop an armed and mentally unstable teenager from shooting innocent officers, students, and teachers?

Fourth, Ho and Oldham provide a policy reason in support of their position:

And make no mistake: Principled originalism is not just a matter of intellectual precision and purity. There are profound practical consequences here as well, given the important and delicate balance that qualified immunity is supposed to strike. As the Supreme Court has explained, qualified immunity ensures that liability reaches only "the plainly incompetent or those who knowingly violate the law." Mullenix, 136 S. Ct. at 308 (quotation omitted). And absent plain incompetence or intentional violations, qualified immunity must attach, because the "social costs" of any other rule are too high

Fifth, Judge Oldham quotes his former boss, who rejected "halfway originalism":

To quote Justice Alito: "We will not engage in this halfway originalism." Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2470 (2018). See also id. (criticizing litigants for "apply[ing] the Constitution's supposed original meaning only when it suits them"); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring in the judgment) ("[I]t would be freakish to single out the provision at issue here for special treatment."

The duo close with a jab to fellow originalists on the Fifth Circuit, and elsewhere:

Our circuit, like too many others, has been summarily reversed for ignoring the Supreme Court's repeated admonitions regarding qualified immunity. There's no excuse for ignoring the Supreme Court again today. And certainly none based on a principled commitment to originalism.

Originalism for plaintiffs, but not for police officers, is not principled judging. Originalism for me, but not for thee, is not originalism at all. We respectfully dissent.

Judge Willett responds to the Ho/Oldham joint production:

As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham, it is, respectfully, a pyromaniac in a field of straw men. I have not raised originalist concerns with qualified immunity. My concerns, repeated today, are doctrinal, procedural, and pragmatic in nature. Nor has my unease with modern immunity practice led me to wage "war with the Supreme Court's qualified-immunity jurisprudence." I am a fellow dissenter today, notwithstanding my unease, precisely because I believe the Court's precedent compels it. In short, I have not urged that qualified immunity be repealed. I have urged that it be rethought. Justice Thomas—no "halfway originalist"—has done the same. Ziglar, 137 S. Ct. at 1872 (Thomas, J., concurring in part and concurring in the judgment) ("In an appropriate case, we should reconsider our qualified immunity jurisprudence.").

Ho and Oldham respond in kind:

In a footnote, Judge Willett notes that his criticism of the Supreme Court's qualified immunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that makes his criticism harder, not easier, to defend. If his concerns are based on practical and not originalist considerations, then he should address them to the Legislature, rather than attack the Supreme Court as "one-sided." Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)). He also invokes Justice Thomas's opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But that opinion cites Justice Scalia's opinion in Crawford-El, which (as we explained above) warns qualified immunity skeptics not to engage in halfway originalism.

For further reading, consider Judge Pryor's en banc decision in U.S. v. Johnson. He sounded a very similar note about the role that circuit judges play in originalist constitutional interpretation:

We cannot use originalism as a makeweight when applying that analytic framework. Nor can we promise that Johnson would like the result if we did have the authority to approximate originalist outcomes by selectively trimming binding precedent around the edges. See, e.g., Collins v. Virginia, 138 S. Ct. 1663, 1676–77 (2018) (Thomas, J., concurring) (explaining that the law during the Founding period did not exclude illegally seized evidence and indeed "sometimes reflected the inverse of the exclusionary rule" because "that someone turned out to be guilty could justify an illegal seizure") (citing Gelston v. Hoyt, 3 Wheat. 246, 310 (1818) (Story, J.); 2 William Hawkins, A Treatise of the Pleas of the Crown 77 (1721)); see also Janus v. AFSCME, 138 S. Ct. 2448, 2470 (2018) (rejecting the "halfway originalism" of parties who appeal to the original meaning "only when it suits them"). And we cannot use a halfway theory of judicial precedent to cut back on Terry while faithfully adhering to the exclusionary rule. As an "inferior" court, U.S. Const. Art. III, § 1, we have no such authority: "The only Court that can properly cut back on Supreme Court decisions is the Supreme Court itself." Prison Legal News v. Sec'y, Fla. Dep't of Corr., 890 F.3d 954, 966 (11th Cir. 2018) (emphasis added).

For some time, originalism existed primarily in the academy, and occasionally on the Supreme Court. No longer. As the number of originalist judges on the circuit courts continues to grow, these sorts of debates will occur with increasing frequency. I welcome these discussions, which I discuss in my new essay, Originalism and Stare Decisis in the Lower Courts.

NEXT: Brickbat: Snitches Get Stitches

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  1. Originalism is bullshit for authoritarians … per Thomas Jefferson! He was in France for the Constitutional Convention and STRONGLY opposed the goal of a “perpetual constitution.” The goals was set because the Confederacy had lasted only 18 years, but which Jefferson said was proper, in a lengthy letter to Madison,

    He had obviously advanced beyond everyone else on “consent of the governed.” No Constitution can justly bind a later generation, without their consent. Just as no generation may impose debt on a later generation, without their consent. Thomas Jefferson, a real libertarian. No poser.

    What we have now he called “consent of the dead” … “government by might, not by right,” … because “the earth belongs to the living.”

    I have no idea how anyone with an ounce of respect for individual liberty could so piously seek to impose “the founders intent” with NO consent of the governed, Especially when what the founders intended has so clearly failed.

    As we see in even the lowliest workplace, employees do not make a maximum personal commitment, to orders handed down from on high. For over a half-century, Entrepreneurial Management has stressed negotiated commitments. Not to be sappy, but to secure real and deep commitment. To achieve.

    Committed citizens? Or subservient ones? In AMERICA!

    1. So 5 judges hold a new Constitutional Convention every October through June? That’s your improvement over Article V?

      1. Did 5 judges do the last one?

        1. In fact, they did. That’s how we got (un)qualified immunity, after all. That’s how we got a ‘right’ to abortion, a ‘right’ to SSM, it’s how the right to trial by jury got abolished in cases where the prosecutor promises to seek no more than 364 days of prison time per charge.

          “5 judges” are how virtually all the constitutional changes of the 20th and early 21st century arrived.

          1. TYPICAL RIGHT-WING AUTHORITARIAN, BRETT , SAYS …. IN PUBLIC …. THAT WE’VE HAD MULTIPLE CONSTITUTIONAL CONVENTIONS SINCE 1789 … EVEN WACKIER THAN “NICK GILLESPIE’S JACKET.?

            YES, THOSE PEOPLE ARE THAT WACK … AND THEY VOTE … AND REPRODUCE.

            P.S. THE “RIGHT” TO ABORTION IS THE WOMAN’S RIGHT TO LIBERTY … AND AUTHORITARIANS HATE UNALIENABLE RIGHTS

            “But, the fetus has rights at conception.”
            (lol) SO DID THE WOMAN, GOOBER. HOW MANY OTHER OF HIS RIGHTS HAS GOD SUSPENDED, FOR HOW LONG, AND ON WHAT AUTHORITY?

            Unalienable means absolute. DUH
            Thus ALL unalienable rights are … equal. DUH.
            The right to liberty is precisely equal to the right to life, which EXPLODES THEIR BRAINS! LOL.

            So, when two rights are in conflict, both of them equal, HOW is the conflict resolved and by WHO? (this is when they SCREAM — both right and left)

            The authoritarian right DEMANDS that THEIR preferred right be superior. No abortion EVER.

            The authoritarian left DEMANDS that THEIR preferred right be superior. Abortion even at partial-birth.

            BOTH seek to impose THEIR moral FRAUD by force of law,
            The founders CHAINED THEM DOWN, WHICH WE’VE JUST SEEN PISSES THEM OFF.

            But all their rage and screaming is CRUSHED by two simple concepts. The definition of unalienable. And the 9th Amendment And understanding them.

            Oops, now add a third. IGNORANCE of what a Constitutional Convention means. Nobody could INVENT anything THAT wacky, but here it is, in black-and-white.

            Anything else, raging authoritarian?

            F-off SLAVER.

            1. Sure, one other thing: You see that key just above your shift key, on the left side of your keyboard?

              Jiggle it, it’s stuck.

              1. DEFENDS HIS CRAZY-FUCK STATEMENT THAT WE’VE HAD MULTIPLE CONSTITUTIONAL CONVENTIONS SINCE 1789!!!!

                Did 5 judges do the last Constitutional Convention?

                Brett Bellmore
                In fact, they did. That’s how we got (un)qualified immunity, after all. That’s how we got a ‘right’ to abortion, a ‘right’ to SSM

                PLUS
                … Hates FAGS and equal rights
                …. Denies the UNALIENABLE right to liberty
                … Ignorant that marriage was NOT a religious sacrament until 1500 years after the death of Christ

                You see that key just above your shift key, on the left side of your keyboard?
                Jiggle it, it’s stuck.

                CAPS LOCK = RIDICULE.
                When you attack me AND make a TOTAL fool of yourself. Self-defense. Suck it up.

                1. “CAPS LOCK = RIDICULE.”

                  No, CAPS LOCK = YELLING AND SCREAMING.

                  1. RIDICULE ANOTHER GOOBER … MATTHEW SLYFIELD … WHO ALSO DEFENDS THE WACKO CLAIM THAT WE’VE HAD MULTIPLE CONSTITUTIONAL CONVENTIONS SINCE 1789

                    SAYS YELLING AND SCREAMING IS FINE …. FOR HIM.
                    WHICH IS ALSO DESERVING OF RIDICULE!!

                    Hey Matt, is yelling and screaming worse than total, absolute insanity on constitutional conventions???

                    THREE right-wing wackos. So far.

            2. Are you high?

              1. Now, our premier WHITE SUPREMACIST claims we had multiple constitutional conventions since 1789!

                FOUR so far, and counting,

                (They travel in a pack like wild dogs … all committing unprovoked assaults. aka aggression.)

                ,

    2. Anyone who stresses so much over consent from future generations must first explain how the entirety of the current generation gave informed consent. It would be interesting to know who was involved in this invisible consent. Babies? Children? Senile old folks? Criminals, including unconvicted future criminals?

      How often do you anticipate writing new constitutions? Will you do it every 20 years? When the new generation outnumbers the old? When voters say so?

      1. Sorry, a generation is 20 years. The method for electing delegates would be … in the first such Constitution. Consent of the governed!.

        Anyone who stresses so much over consent from future generations must first explain how the entirety of the current generation gave informed consent.

        We haven’t given any consent ag all.
        Why is it “obsessing” to have consent of the governed?
        Do you disagree that “governments derive their JUST POWERS from the consent of the governed.?” If so, why is “consent of the dead” somehow … just.
        Which would also allow the federal government to pass $20 trillion of obligations to future generations, without THEIR vote, as being “just.”

        Doesn’t sound like liberty to me.

        1. You can’t have a coercive government constituted entirely from voluntary consent. It’s just nonsense. How do you propose to have the voluntary consent of ALL the governed?

          1. You can’t have a coercive government constituted entirely from voluntary consent.

            SAYS THE DICTATOR!!!

            how do you propose to have the voluntary consent of ALL the governed?

            I am NOT so FUCKING STUPID as to DEMAND a personal veto over 300 million people.

            Here’s how a MORAL philosopher described it

            Virtue of Selfishness by Ayn Rand
            15. GOVERNMENT FINANCING IN A FREE SOCIETY

            “Any program of voluntary government financing is the last, not the first, step on the road to a free society—the last, not the first, reform to advocate. It would work only when the basic principles and institutions of a free society have been established. It would not work today.

            A process of liberation would be much more rapid than the process of enslavement had been, since the facts of reality would be its ally. But still, a gradual process is required—and any program of voluntary government financing has to be regarded as a goal for a distant future.

            WHY? … Consent of the Governed., which today’s dominant libertarian faction detests.

            Rand was Jeffersonian — “Consent of the Governed” is the sole requirement for a moral political philosophy. Which cannot be separate from moral philosophy … IF one chooses the society to be moral.

            In any society, the only alternative to Consent of the Governed. is authoritarianism. Yes, object to taxation … but 5% cannot dictate to 95%, any more than 5% can deny the forming of a local Kiwanis … or a garden club. DUH

            How can anyone demand the freedom and opportunity of America … while claiming those who created and maintain it have no right to do so? They are parasites, mooching off others.

            In moral philosophy, her core principle was “the moral is the chosen.” Non-aggression is derived from that, a secondary value. If a majority of Americans “choose” (consent) to a governmental structure for society, no one has a moral right, none at all, to demand change.

            Liberty demands persuasion not dominance. This is why libertarianism is so soundly rejected today.

            If choice and consent are the requirement for a free society, then democratic socialism is morally superior to the dominant thread in libertarianism today.

            Rand literally defended voluntary communism, when asked about the hippie communes. If they choose to live that way, she said, who has any right to stop them? The moral is the chosen. She did think they blew it, believing they had to become farmers (the Israel kibbutzes are communes.) She may have predicted the thousands of voluntary communes that now exist in America. Most are small businesses, employee owned, who simply add communal housing,

            Yes, when today’s libertarians praise employee ownership, they are praising communism. Who has any right to object to free choice?

            Only thugs would try.

            Anythig else?

    3. As long as the basic rules of government are by supermajority and not simple majority, a low bar any competent demagogue can leap, stirring passions of the moment.

      1. Do the math. YOU JUST DEFENDED MINORITY RULE!!!!

  2. My first reaction is that Judge Ho is trying to knock Willett out of contention for a future SCOTUS appointment (if, say, Trump somehow is re-elected, Cocaine Mitch is still the majority leader, and Barrett or another female has replaced RBG). A little “sweep the leg” action, Cobra Kai style.

    While I agree it’s an important conversation to have, the “let’s stay in our lane” admonition is a bit rich coming from Ho, who seems to be writing law review articles as unnecessary concurrences or dissenting opinions, which seem to be flashing neon “pick me!” signs to Leonard Leo. He’s trying too hard. More Swingers Vince Vaughn, less Swingers Jon Favreau please, James.

    1. I actually enjoy reading Judge Ho’s opinions. What’s the standard for “unnecessary concurrences”? Judge Ho can keep being Judge Ho as far as I am concerned.

  3. “For some time, originalism existed primarily in the academy, and occasionally on the Supreme Court. No longer.”

    Wasn’t this the grand plan of originalists and conservatives who wanted to get judges on the bench that would chisel away at New Deal and Warren Court precedents? Holmes and the academy used a similar strategy with their historical jurisprudence (and sociological / realistic jurisprudence), which sought to chisel away at the deductive formalism of the 18th century jurists. And around and around we go.

    1. *19th century jurists, not 18th

  4. This all sounds very teenage.

    Maybe we should add a qualification for the federal judiciary that you need to have completed ten years in the Marines before you get nominated. That should spare us most of the High School bitching.

    1. But you just high school bitched.

  5. “As the Supreme Court has explained, qualified immunity ensures that liability reaches only “the plainly incompetent or those who knowingly violate the law.” ”

    Oh, garbage. I think we all know that unqualified immunity doesn’t operate that way in practice. Police routinely get it for things that not sane officer would be unaware were illegal, like planting evidence, or beating unresisting suspects.

    And this is even more offensive: “If his concerns are based on practical and not originalist considerations, then he should address them to the Legislature, rather than attack the Supreme Court.”

    The Supreme court originated unqualified immunity! Not the legislature. Why the hell should complaints about it not be addressed to the guilty party?

    1. When courts reconsider statutory precedents, they usually try to stick to stare decisis on the theory that Congress can easily fix an erroneous statutory interpretation. There is an implicit assumption that Congress more or less acquiesces to the interpretation if they do not change it. Qualified immunity is a form of statutory interpretation: incorporating a common law principle into the statutory scheme. Since Congress has not fixed that interpretation in the last 50 years, courts kind of assume that Congress is okay with it and they don’t really want to step on Congress’s toes.

      I don’t really think that’s a good argument for QI though because it is much more than an erroneous statutory interpretation, it’s a complete body of common law that constantly creates new precedents that shield officials from accountability. Courts usually don’t feel obligated to defer to the legislature considering whether to alter common law, say for torts, in light of experience. So I don’t see an issue with them reevaluating QI.

    2. Bellmore’s well-known authoritarian contempt for individual liberty and the rule of law has rarely been so blatant as above.
      https://reason.com/2019/08/20/the-fifth-circuit-divides-on-qualified-immunity-and-originalism/#comment-7902972

      For PURE authoritarianism. libertarians got it 50 years ago.
      Left – Right = Zero

      The Supreme court originated unqualified immunity! Not the legislature.

      Check and balance, division of power, three EQUAL branches. Learn the Constitution.

      1. I’ve got an old copy of Racter somewhere, the original chat bot. It makes more sense than you do these days.

        1. BULLIES KEEP PUNCHING … Even when TOTALLY HUMILIATED!

          it makes more sense than you do these days.

          His batshit crazy statement “makes sense” that we’ve had MULTIPLE CONSTITUTIONAL CONVENTIONS SINCE 1789!!!! (OMG)

          Did 5 judges do the last Constitutional Convention?

          Brett Bellmore
          In fact, they did. That’s how we got (un)qualified immunity, after all. That’s how we got a ‘right’ to abortion, a ‘right’ to SSM

          BY CONSTITUTIONAL CONVENTION!!!! PLUS
          … Hates FAGS and equal rights
          …. Denies the UNALIENABLE right to liberty
          … Ignorant that marriage was NOT a religious sacrament until 1500 years after the death of Christ

          Authoritarian Right – Authoritarian Left = Zero

  6. We cannot use originalism as a makeweight when applying that analytic framework. Nor can we promise that Johnson would like the result if we did have the authority to approximate originalist outcomes by selectively trimming binding precedent around the edges.

    Do lawyers here suppose this kind of figurative language adds clarity? What is the original meaning of, “a makeweight?”

    1. Something added to the scale to bring the item up to weight. Essentially, a thumb on the scale.

      Which would have been a more widely understood idiom, mind you.

  7. “absent plain incompetence or intentional violations, qualified immunity must attach, because the “social costs” of any other rule are too high”

    Does this apply to “civilians,” too? Do they, too, get to be free from liability unless the precedents are clearly established?

  8. Why are dissenting judges arguing with themselves over who is the True Champion or Originalism?

    Its a waste of everyone’s time [theirs, their clerks, the other judges, the lawyers and everyone who has to plow through the case in the future].

    Its unbecoming preening.

    1. Originalism is authoritarian bullshit on the right, like the living constitution of the authoritarian left.
      https://reason.com/2019/08/20/the-fifth-circuit-divides-on-qualified-immunity-and-originalism/#comment-7902839

  9. Civilians get the Park doctrine.

    https://www.corporatecomplianceinsights.com/jail-time-not-knowing-strict-liability-executives-park-doctrine/

    The government will prosecute executives who “stand in responsible relation to a public danger” through the Responsible Corporate Officer doctrine (sometimes called the “Park doctrine”). See U.S. v. Dotterweich (1943). In Dotterweich, the CEO was convicted of violating the Food, Drug and Cosmetic Act (FDCA) although he had no personal knowledge of the infraction, and the company was not convicted of the same crime! The Supreme Court upheld the misdemeanor conviction, endorsing the common law doctrine that a criminal conviction, without any criminal intent or even knowledge on the part of the defendant, is justified if the defendant is serving as a corporate officer.

    1. So…the Park Doctrine versus the Pork Doctrine?

  10. Until originalism (which is younger than Kim Kardashian) becomes as popular and/or as consequential as are the Kardashian, I see little reason to devote more attention to self-promoting intramural squabbles among originalists than I would to battles regarding dianetics dogma among Scientologists.

    (Scientology: also longer-established and more popular than is originalism.)

    1. ^^THIS (lol)

    2. You really think originalism is inconsequential in 2019? You do realize that there are originalist judges on SCOTUS, with many more filling the ranks of the circuit courts of appeals and the district courts?

      Where have you been lately? Originalism’s influence is growing at a pretty fast clip. You can sit in denial if you wish, I guess. Facts on the ground are quite different than your curt dismissals.

      1. Originalism seems largely to consist of right-wing judges claiming to divine a method of reaching conclusions congruent with Republican and conservative preferences.

        Originalism’s influence is not growing any faster than right-wing influence on the bench is growing, and does not appear to travel much beyond the contours of the conservative population. I see little reason for those beyond that boundary to study it, particularly with respect to chest-thumping among the stale-thinking faithful.

        1. LOL. No its actually trying to use logic to reach a conclusion. The leftist doctrine which you espouse is ALL about reaching an argument based on the conclusion.

      2. You really think originalism is inconsequential in 2019?

        Dangerous. Always
        Authoritarian
        https://reason.com/2019/08/20/the-fifth-circuit-divides-on-qualified-immunity-and-originalism/#comment-7902839

  11. How have we had 30+ years of internet forums and not learned as a society to not feed the trolls?

    1. How many years does it take to know that bat-shit crazy conservatards ALWAYS scream TROLL … when they’ve been humiliated on ANY (of many) issues?
      Whiny pussies,

  12. Second, Ho and Oldham highlight an important reason why originalism has gained so much salience in debates about criminal justice: it often operates as a one-way ratchet to help the accused, but not the police.

    Yes that’s the point. First, their argument ignores the fact that Qualified Immunity has served as a one-way ratchet to help the police at the expense of the accused. Second, yes, that’s how this is supposed to operate- we protect citizens over government officials. Jeez.

    In other words, if the courts approached civil rights litigation from an originalist perspective, qualified immunity would not be the only doctrine to go. There are lots of doctrines that would constrain the ability of individuals to recover.

    GOOD! Those doctrines only serve to protect the government and prevent the citizens from recovering from harm by the government. I don’t see the problem here.

    There are profound practical consequences here as well, given the important and delicate balance that qualified immunity is supposed to strike.

    First, there shouldn’t be a delicate balance. Second, that balance has continually been tilted toward police.

    In the end, its clear QI is not supported by originalism nor the Constitution. In fact it is a doctrine that is the opposite of what the Constitution requires.

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