Criminal Justice

Judge Don Willett Butts Heads With Fellow Trump Appointees Over Qualified Immunity for Cops

“Modern immunity practice—essentially 'heads government wins, tails plaintiffs lose'—leaves many victims violated but not vindicated."

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Since joining the U.S. Court of Appeals for the 5th Circuit in 2017, Judge Don Willett has emerged as a prominent critic of qualified immunity, a controversial legal doctrine that generally shields police officers and other government officials from being sued when they violate citizens' constitutional rights. "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior," Willett observed in the 2018 case of Zadeh v. Robinson. "I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence."

Willett spoke out against qualified immunity once again earlier this week. Writing in dissent on Tuesday in Cole v. Hunter, he faulted the doctrine for formalizing "a rights-remedies gap through which untold constitutional violations slip unchecked." As Willett put it, "the real-world functioning of modern immunity practice—essentially 'heads government wins, tails plaintiffs lose'—leaves many victims violated but not vindicated." Willett made it clear that he thinks the Supreme Court should revisit the doctrine and set things straight.

Two of Willett's fellow 5th Circuit judges, James Ho and Andrew Oldham, did not like the sound of that. "Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders' Constitution," Ho and Oldham wrote in a joint dissent, citing Willett and other critics of the doctrine. "As originalists, we welcome the discussion," they continued. "But…a principled commitment to originalism provides no basis for subjecting these officers to trial."

In addition to serving together on the 5th Circuit, Willett, Ho, and Oldham share something else in common. All three judges were nominated and appointed to that court by President Donald Trump. When it comes to qualified immunity, however, Willett and his fellow Trump appointees stand miles apart.

According to Ho and Oldham, Willett's "one-sided approach" to the issue is far too hostile towards the cops. "Originalism for plaintiffs, but not for police officers," Ho and Oldham lectured Willett, "is not principled judging."

Willett replied in a footnote. "As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham," he wrote, "it is, respectfully, a pyromaniac in a field of straw men." As Willett pointed out, to call for the Supreme Court to rethink this particular doctrine is hardly an anti-originalist heresy. "Justice Thomas—no 'halfway originalist'—has done the same," Willett retorted.

So the fight over qualified immunity is heating up significantly at the 5th Circuit. And that's just counting the Trump appointees.

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  1. The Bill of Rights have no teeth.

    1. One of the great flaws in the Constitution is that there is no citizen enforcement of the Constitution; it relies on Congress passing laws and government judges enforcing them.

      There should be some method for ordinary people to sue for Constitutional violations. Even if the only remedy was nullifying a law or removing someone from office, that would be a good start.

      1. In theory, that’s what the 2nd is for.

        In theory.

        1. In theory, you’re full of bunk. The 2nd is for when the legal system fails to the point that illegal actions are necessary to for a new legal system.

          The flaw is not having a legal path for ordinary citizens to hold the government accountable. The idea that only government can prosecute government is laughable.

          1. If one of the hijackers had just showed up in the ER with cutaneous anthrax, which would not be “skin irritation “ or a single lesion and not been diagnosed and aggressively treated he would probably have died…… Read More

        2. +1000

          Not in theory though. We have a right as freedom loving peoples to overthrow tyranny and replace it with a freedom protecting government.

        3. “shortviking
          August.23.2019 at 3:15 pm
          In theory, that’s what the 2nd is for.

          In theory”

          And the 9th

      2. One of the great flaws in the Constitution is that there is no citizen enforcement of the Constitution; it relies on Congress passing laws and government judges enforcing them.

        Ah, but there is. Its called ‘shoot the bastards’. Its just people don’t think we’re at that point.

        1. here should be some method for ordinary people to sue for Constitutional violations.

          Too hard to read those two simple words?

      3. That’s really the great flaw with any system of laws. Laws only work if people for the most part decide to follow them (or are inclined to behave that way regardless). Which is why I will call myself an anarchist even though I don’t really think anarchy is a realistic possibility either.

    2. Yes, but do you have a right to teeth?

      1. If they are made of wood, yes, but no one needs a diamond plated grill. The founders couldn’t envision this sort of technology being in the hands of ordinary citizens.

  2. So much for the idea that Trump is the authoritarian bugbear, unlike the field of Dems that would have us all fearing arrest for saying something “hateful”. Four more years of Trump appointed judges, and America may yet see some roll back of the police state.

    If only RBG would croak her last croak…

    1. “If only RBG would croak her last croak…”

      Supreme Court Justice Ruth Bader Ginsburg has completed three weeks of radiation treatment after a tumor was discovered in her pancreas. Doctors at Memorial Sloan Kettering Cancer Center in New York said Friday that the tumor “was treated definitively and there is no evidence of disease elsewhere in the body,” per NPR.08/23/2019

      It’s coming, and it’s going to be the shit show of all time. As for “no evidence of disease elsewhere in her body” that is exactly what was said of the malignant nodules on her lungs last December. I call it metastasis, and any one else would have been sent to hospice long before now.

      1. it’s going to be the shit show of all time

        Trump will have to nominate a woman. The Kavanaugh circus was in response to replacing Kennedy, who was a Reagan appointee. For Clinton’s RGB they will pull out the stops. The progtard ladies will be lining up at homeless camps to get gang-raped in order to blame it on any man that might be considered. They are probably already casing potential male candidates to collect DNA evidence to plant in their dried-up twats.

        1. Next up on his list is a woman, anyway.

            1. ACB

              Willett should be next

              1. I think so too. This is Willet standing out from his peers. Trump likes that.

                The show will be glorious with a woman nominee.

        2. Yes, this will be the worst we have ever seen. And during the last year of Trump’s current term will make prog heads explode.

          Lots of yummy proggie tears to be had.

          1. Watch the Lefties bring up the name of that Obama nominee that went nowhere.

            1. Already cocked and loaded.

        3. I wouldn’t be surprised Trump nominates a conservative woman. Hopefully fiscally and limited government conservative, and not socially conservative. What are the Democrats going to do then?

          As a libertarian, we can celebrate Trump’s picks – they’re the most libertarian we’ve had since Regan, though we can be thankful GW Bush didn’t realize how libertarian Thomas is.

      2. Do we have actual proof that she is still alive.

        #WeekendAtBernies
        #DeadParrotSkit

  3. “Originalism for plaintiffs, but not for police officers,” Ho and Oldham lectured Willett, “is not principled judging.”

    Ah, but it is guys. It might not be a principle you like – but its a principle.

    And its perfectly acceptable to subject the state – and its agents – to a higher standard. We don’t require the same level of rigor from the defense that we require from the prosecution, for example.

    We believe ‘innocent until proven guilty’ – not ‘might be either until its proven one way or the other’.

    Things like that.

    1. “Originalism for plaintiffs, but not for police officers,”

      Hell, we’d settle for, “the fact that you were trying to shoot an non-aggressive dog does not qualify you for immunity from shooting a 7-year old child being held prone on the ground at gunpoint.”

    2. Say what you will about the tenets of National Socialism, Dude, but at least it’s an ethos.

      1. Shut the fuck up Diane.

    3. And its perfectly acceptable to subject the state – and its agents – to a higher standard.

      I’d settle for merely subjecting state agents to the same standard we subject the typical individual. If every dog running your way scares you to the point of using lethal force and not caring about anything a stray bullet might hit, you should at the very least be deemed too cowardly to be a police officer, and, if the law were truly equitable, be found guilty of involuntary manslaughter, negligent homicide, or some similar charge.

    4. Police officers didn’t exist at the time, so no originalism for them.

  4. Supreme Court Justice Ruth Bader Ginsburg has completed three weeks of radiation treatment after a tumor was discovered in her pancreas. Doctors at Memorial Sloan Kettering Cancer Center in New York said Friday that the tumor “was treated definitively and there is no evidence of disease elsewhere in the body,” per NPR.08/23/2019

    Let is pray for one more Gorsuch.

    1. +100

    2. Of course, there wood be no disease in a dead body

      #WeekendAtBernies
      #DeadParrotSkit

    3. Gorsuch and Willett together would be a dream, but I fear the next in line is the crazy lady.

  5. What’s silly about qualified immunity is it essentially says that while government can’t violate your constitutional rights, its agents can.

  6. This is good news, especially considering that awful decision we got the other day stating that we can’t overturn qualified immunity because there are no previous cases overturning qualified immunity.

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  8. Qualified Immuity is the largest example of the “BECAUSE REASONS” line of argument.

    It’s not originalist to defend it.

  9. QI doesn’t protect “the plainly incompetent or those who knowingly violate the law” but they don’t hold to that standard.

  10. i visited your website and really nice stuff thanks for every thing .i like that type of website coding problem

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