Fourth Amendment

A Qualified Immunity Case That the Federal Courts Got Right

Fatal police shootings and the Fourth Amendment


Qualified immunity is a controversial legal doctrine that generally shields police officers and other government officials from being sued when they violate citizens' constitutional rights. In most cases, as the Cato Institute's legal scholar Clark Neily memorably put it, the doctrine amounts to "a get-out-of-responsibility-free card for rights-violating cops who shoot first and ask questions never."

Thankfully, the U.S. Court of Appeals for the 5th Circuit took a different view in a qualified immunity case decided this week. Amador v. Vasquez originated in 2015 when Deputies Greg Vasquez and Robert Sanchez of the Bexar County, Texas, Sheriff's Department shot and killed a man named Gilbert Flores while responding to a call about an alleged domestic violence incident. When the deputies arrived, Flores was holding a knife and behaving erratically. Twelve minutes after the encounter began, while Flores stood some 30 feet away with his hands raised in apparent surrender, the deputies opened fire. They justified their use of deadly force by claiming that Flores posed an immediate threat to them.

Flores' wife and family subsequently filed suit against the two deputies, arguing that the fatal shooting violated his Fourth Amendment right to be free from the use of excessive force. Vasquez and Sanchez urged the courts to squash the suit, claiming their actions were protected by qualified immunity.

The U.S. District Court for the Western District of Texas rejected the deputies' position. In its decision this week, the U.S. Court of Appeals for the 5th Circuit did the same. "A reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment," the ruling declared. The family's excessive force suit against the deputies "should proceed to trial."

Among the jurists who signed on to that ruling was Judge Don Willett. There is little surprise in that. Since joining the 5th Circuit in 2017, Willett has rarely missed the opportunity to raise doubts about the constitutionality of modern qualified immunity doctrine. "To some observers," Willett remarked in a 2018 case, "qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior."

Willett has even butted heads over qualified immunity with some of his fellow Trump-appointed judges on the 5th Circuit. In Cole v. Carson (2019), Judge James Ho and Judge Andrew Oldham faulted Willett's "one-sided approach" to qualified immunity for being too tough on the cops. "Originalism for plaintiffs, but not for police officers," Ho and Oldham asserted, "is not principled judging."

Willett fired back 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." It is neither unoriginalist nor unprincipled, Willett pointed out, for a federal judge to question the constitutionality of qualified immunity. "Justice Thomas—no 'halfway originalist'—has done the same."

The federal bench could use a few more judges in the Willett mold in future qualified immunity cases.

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  1. There can’t have been any problem with this shooting.

    Excessive force is perpetrated by white Anglos against blacks and hispanics. Yet it looks like the cops and the guy who got shot were all hispanic.

    So it must all be OK.

    /sarc /sarc /sarc

  2. Willett has even butted heads over qualified immunity with some of his fellow Trump-appointed judges on the 5th Circuit.


    1. Now if he was like cod I’d be like fish and chips ahoy!

      1. Hey look, the mentally diseased cuck is back.

        1. Your mom said “Hi.”

    2. It’s almost like Presidents can’t control everything and we’re Libertarians and we like it that way and sometimes that means great Presidents appoint shitty judges who slip through the cracks.

      1. Or shitty presidents appoint great judges who provide judicial leadership in actually, you know, treating the constitution like a real thing…..

  3. Please let Willet be the next SC justice. Please?

    1. I would definitely be in favor, but I think it’s more likely that Trump will put up Barrett instead. Presumably, it’ll be RBG going out, and I’m sure the GOP will find it easier to replace her with another woman (to the extent that a SCOTUS nomination process is ever going to be easy again).

  4. QI just seems like part of the reversal of the Constitutional order of things – rather than government being prohibited from doing anything it is not specifically permitted to do, government is permitted to do anything it’s not specifically prohibited from doing. Where in the Constitution does it say that cops can’t shoot random people? You, on the other hand, are prohibited from doing anything you’re not specifically permitted to do, all rights reside with government and you must beg permission from government for every little thing you do. If it pleases them, they may graciously issue a license.

  5. “it is, respectfully, a pyromaniac in a field of straw men.”

    Out fucking standing.

    1. Yeah, I got a chuckle out of that too. Somebody give him Ginsburg’s seat

      1. I may actually start professing a belief in a higher power that meddles in the affairs of mortals if that happened.

    2. “Out fucking standing.”

      Award for best sex by a farmer?

  6. Let’s hope this is a trend and not just “another isolated incident”.

  7. In simple, perhaps somewhat crude English, Qualified Immunity was, is and remains Unmitigated Bullshit.

  8. twelve minutes is a long time to be dickering with an irrationally behaving person who is armed. Yes, he was not an immediate threat (immediate defined as the 3-4 seconds it would take for him to close the 30 foot gap toward one of the officers.)

    In terms of the public’s true feelings in a situation like this, just recall the audience response to Indiana Jones pulling a pistol to shoot the saber wielding dude. People love just the sort of behavior the cops exhibited, only most are reluctant to admit that they too cheered for Indy.

    1. The public (jury) isn’t the same as the court which gives the case to the jury, but, yes, this seems like an interesting case to suddenly forget about qualified immunity.

      It seems fairly arbitrary which constitutional violations they let cops get away with.

    2. Agreed. On the limited facts stated I can easily see a jury going EITHER WAY when this goes to trial. Which, I believe, is exactly the point… that it could go either way, and should therefore go to a trial and a jury, rather than have a court dismiss the case outright.

    3. I’ve been on juries. I’ve watched movies. I have no difficulty whatsoever distinguishing between the two so I’m having trouble deciphering your gibberish.

  9. “The federal bench could use a few more judges in the Willett mold in future qualified immunity cases.”

    Hear, hear!

  10. The originalist argument on this cracks me up. Precisely which bit of original constitutional text might they be referring to? Somehow I don’t think that a doctrine of impunity from violating the constitution is buried in the constitution.

    1. I agree. It’s really hard to come up with originalist reasoning that cops have the authority to execute someone who hasn’t even been charged with a crime, let alone convicted of it. Especially when that crime amounts to mere threats of violence, is compared to the real violence from the cops’ guns.

      I was taught in government school many years ago, that police have to follow the law as well. Why didn’t the police shoot his legs?

      1. They are taught to always shoot at center mass, no exceptions.

        1. That’s because if you’re justified in shooting you shoot to stop the threat, and a headshot is a lot harder. The problem is that they shoot when it’s not justified.

          Easy rule: if a regular person could be prosecuted for the shooting, then there’s no qualified immunity because breaking the law is clearly defined so the police are on notice not to do that. Of course that’s not how it’s actually applied.

  11. When I saw the title, I laughed and thought “Well no way it was the 5th Circuit”. Because I’ve come to look forward to trashing their latest facially absurd QI ruling over on the Short Circuit posts on Volokh, since they seemed insane even for QI, the great dissents of Willett notwithstanding.. being dissents and all.

    I’m in shock. Surely they’ll reverse themselves like last time they made a reasonable QI ruling.

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  14. Don Willett for the SCOTUS. Imagine him replacing Breyer. Suddenly, the court would have 3 Justices working full-time for the Constitution.

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  16. In my opinion, the best test of whether a doctrine is constitutional or not is if it were to be enacted as a statute, would it pass constitutional muster or would it be blatantly unconstitutional?

    Courts cannot create new law, they can only interpret existing law. If the interpretation creates a law that Congress cannot legitimately pass, then the law is plainly unconstitutional.

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