Qualified Immunity

Trump Judicial Appointees Clash Over Qualified Immunity and 'the Woke Constitution'

The fight over qualified immunity divides "conservative" judges on the 5th Circuit.


Federal judges Don Willett and James Ho share some surface similarities. They both sit on the U.S. Court of Appeals for the 5th Circuit and were both appointed to that court in 2017 by President Donald Trump. But when it comes to the roiling legal debate over qualified immunity, the two jurists stand miles apart.

Qualified immunity is the controversial legal doctrine that generally shields state actors, including police officers, from being held civilly liable if the conduct that they are being sued over does not violate what the Supreme Court has called "clearly established statutory or constitutional rights."

Willett is one of the doctrine's leading judicial critics. "Qualified immunity smacks of unqualified impunity," he has written. In practice, the doctrine lets "public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Ho, by contrast, has argued that the cops are not getting enough judicial deference in qualified immunity cases. He has faulted his colleagues on the 5th Circuit for "second-guessing split-second decisions by police officers from the safety of our chambers."

The two jurists clashed openly in Cole v. Hunter (2019), a case involving a family's lawsuit over the police shooting of their mentally disturbed teenage son. Willett conceded that controlling SCOTUS precedent left the lower court with no choice but to give the officers qualified immunity. So Willett blasted away at the precedent. "The real-world functioning of modern immunity practice—essentially 'heads government wins, tails plaintiffs lose'—leaves many victims violated but not vindicated," he wrote.

Ho did not like the sound of that. "Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders' Constitution," Ho wrote, joined by another Trump appointee, Judge Andrew Oldham, citing Willett and other critics of the doctrine. According to Ho and Oldham, Willett's "one-sided approach" is too anti-cop. "Originalism for plaintiffs, but not for police officers," they wrote, "is not principled judging."

Willett and Ho butted heads over qualified immunity again last week. Ramirez v. Guadarrama arose from a horrific incident in which police officers tased a suicidal man who was drenched in gasoline, setting him on fire, killing him, and burning down his house. As Reason's Jacob Sullum observed, "Gabriel Eduardo Olivas doused himself with gasoline, but it was the cops who set him on fire. They were there to help him."

The 5th Circuit ruled in February that the officers who tased Olivas were entitled to qualified immunity. Willett argued in a June dissent that the full 5th Circuit should have reheard the case, which was originally decided by a three-judge panel.

"The panel held that tasing a combustible Olivas did not violate his constitutional protection against excessive force," Willett wrote. "More to the point, [the panel held that] such a claim was not even facially plausible. I have a different view: 'As the facts are alleged…the [Fourth] Amendment violation is obvious.'"

Once again, Ho did not like the sound of that. "Reasonable people can disagree with the doctrine of qualified immunity" and "with what the police officers did here," Ho lectured Willett. But "as judges, we apply our written Constitution, not a woke Constitution." Needless to say, "woke Constitution" was not intended as a compliment.

Willett got the last word. "In my judgment, nothing better captures the yawning rights-remedies gap of the modern immunity regime than giving a pass to alleged conscience-shocking abuse" like the 5th Circuit did here. Perhaps the Supreme Court will take notice of this unfortunate outcome, Willett concluded, and send a message to the lower court that "makes clear that those who enforce our laws are not above them."

NEXT: The Campaign Against 'Extremism' Looks Like an Attack on Speech

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36 responses to “Trump Judicial Appointees Clash Over Qualified Immunity and 'the Woke Constitution'

  1. Why is it relevant that they are Trump appointees?

    1. It’s an article pitched at a constituency: “See, even some Trump-aligned judges recognize QI for the travesty it is!” The left doesn’t need convincing on this; they’re already anti-QI because supporting reform is seen as being anti-cop, pro-black, etc.

      1. “The left doesn’t need convincing on this; they’re already anti-QI because supporting reform is seen as being anti-cop, pro-black, etc.”

        LOL. Do you have any evidence of left wing jurists attempting to deny or eliminate QI?

        Oh, to be sure, anti QI language is part of their propaganda. But not remotely anything actually on their agenda. Rampant statism is as rampant statist does.

        1. LOL. Do you have any evidence of left wing jurists attempting to deny or eliminate QI?

          “Jurists” is not the constituency I’m referring to. This is a political opinion mag; it’s mostly aimed at pundits.

          1. The topic of the article is a disagreement between two ‘right wing’ (Trump appointed) jurists. If you acknowledge that by “the left” you were excluding, you know, any sitting judges, well who am I to argue?

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        2. Jurists? Do you mean judges? The whole point of QI is that it is a summary judgement and doesn’t get to a jury.

          1. “Jurists? Do you mean judges?”

            Yeah, that’s why I used the term jurist. Here in the US that means judges and more broadly can also mean legal scholars who may not be sitting on the bench (another way of saying ‘judge.’).

            Jurists are invariably excluded from ever serving as jurors.

    2. Because conflict between two judges appointed by the Trump administration will be seen as epicaricacy; at least at a surface level.

    3. Because the narrative is that all Trump appointees are clones grown from one of his moles, and thus devoid of all agency and independence and must therefore be opposed at every turn.

      Both sides are wrong of course, there are no clones and every appointee is an full individual. The idea that all appointees are beholden to the whims of appointer is just stupid.

      1. Yeah remember when a bunch of left wing rioters stormed the Senate building where they were holding hearings to confirm Kavanaugh. Nobody got punished for breaking the law then and nobody got shot by a capitol hill cop or SS protection squad.

      2. Yeah .. the left wingers on SCOTUS are all over the place – they rarely vote in borg fashion….. /sarc

  2. QI is bad enough as it is, but the 5th Circuit takes it to a whole new level. Their QI decisions stand out as batshit insane *even among QI decisions*. It’s hard to even call the 5th Circuit jurisprudence on this ‘qualified’ immunity, it’s far close to *absolute* immunity; no conduct in egregiously awful enough, no case close in facts enough, for them to not award QI unless you happen to get extremely lucky and get Willet and the other couple semi-reasonable judges on your panel, and then pray they’re too busy for en banc review.

    1. Ya, no kidding. Honestly the most surprising thing here is that there is even one judge in the 5th circuit that doesn’t like QI.

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  4. Would love to see soho debate between Ho and Willet backing up their claims about originalism in regards to QI. From my understanding Willets view is more Constitutional sound but love to hear Ho’s ideas on the matter.

    1. Starting a debate between sitting judges would, of course, never happen. But it would be interesting to see. That said, I suspect you’d be disappointed in the depth of Ho’s argument, extending “origionalism” to deference to government narratives sounds much more like the result of motivated cognition rehab actual reasoning. His judgements (not just the ones here, I’ve run across his shtick before) usually sound like basic “back the blue” propoganda.

  5. Trump is suing Facebook, Google, and Twitter–in a class action lawsuit–for conspiring to violate his First Amendment rights and the rights of an as yet to be determined number of other Americans.


    If Trump is running for president in 2024 (and I think it’s obvious that he is), he should have his attorneys set up a website so that anyone who feels like their rights have been violated by Facebook, Twitter, or Google, either as a content creator or as a consumer of banned content, could have an opportunity to sign onto the class action with him.

    Talk about projecting an image that he’s fighting for them!

    As I wrote yesterday, we don’t have anyone in a position of power, right now, that wants to protect conservative speech online. And in the face of Lina Khan’s power play last week, the only restraint we’re likely to see on the FTC’s power, as they come after speech rights online, is the self-restraint the FTC finds for fear of angering the American people.

    Like it or not, Trump rallying the American people in defense of conservative speech online may be the only play left that could actually obstruct Lina Khan and the FTC.

    1. I still say suing Facebook on first amendment grounds because they banned you is a losing proposition.

      1. Clarence Thomas doesn’t agree with you.

        And what if Facebook banned you because they were afraid that the government would break them up into three competing companies if they didn’t ban you?

        And I hope the point is getting across that this may be a good strategy for the primaries. If this gets certifies, and you can be part of a Trump led lawsuit to stick it to the big tech guys who have been treating you like shit, they’re likely to vote for you in the primaries, as well.

  6. I’m less concerned about police qualified immunity than I am prosecutorial absolute immunity. Prosecutors routinely bring charges that are false or lacking in substantive evidence. These are used to intimidate defendants into signing a plea bargain. They will never pay a price for any such ethical breach by their superiors and absolute immunity allows them to operate with absolute impunity.

  7. I don’t compare the two, but they certainly are two sides of the same coin. I’ll toss judges in there, too. All seem to directly contradict 42 USC 1983 which purports to apply to “Every person.” Somehow the justice system that was clearly set up to give defendants every advantage against a more powerful state seems to have turned into a plea bargain factory where people are routinely screwed, and the processes and people that screw them over are routinely immune to recourse because channing it would just be “a burden on the state.” It’s disgusting.

  8. “send a message to the lower court”
    Always a bad idea..

    Using court cases (involving people as pawns) to “send a message” isn’t justice. It’s using people of the case to send a political message like castrating a son because a daughter got knocked-up.

    Frivolous lawsuits is WHY Q.I. exists in the first place. Remember the guy who sued McDonalds $5Million for getting Hot Coffee? Those frivolous lawsuits go on through the entire 90s.. People far too excited to see *free* money in B.S. law cases who coincidentally got away with it by [WE] ganging the case.

    Point is Q.I. is a correction point to B.S. judgments of the past. Get rid of Q.I. and stop pampering B.S. judgements or keep Q.I. and keep the B.S. lawsuits going.

  9. In the United Kingdom the nobility had rights the peasants didn’t enjoy. “All men” were not politically equal. That was the main reason the colonists seceded, as they made clear in the “D.O.I.”.
    In 20th century USA de facto nobility reestablished official nobility with “qualified immunity”, i.e., unqualified (for all practical purposes) immunity. Honesty in govt. has always been virtually missing.
    Few noticed. Everyone suffered because in principle all loose their rights, when anyone officially is violated.
    Rights are not created by vote, by law. They are identified as property of all, by a humanistic moral code. Granting special rights that exclude some, is tantamount to denying rights.
    When authorities violate rights, they become criminals, morally.

  10. The Fifth Circuit bench is a downscale bench — populated by backwater bigots, superstitious slack-jaws, and disaffected, on-the-fringe clingers — on which using “woke” is a cheap appeal for giggles.

    In a way, it’s nice those right-wing hayseeds find something to laugh about to take their minds off being stomped by their betters in the culture war.

    1. Asshole bigot heard from.

  11. “But “as judges, we apply our written Constitution, not a woke Constitution.””

    Having a really hard time finding the Qualified Immunity bit in the written constitution.

    Shirley it just got left off of all the versions available in NZ

    1. Go figure the U.S. Constitution is a Law over the government by the People not a law over the people.

  12. Reasonable people can disagree is far too lacking these days. Let them have their debate, in public. Bravo for leading by example! Maybe the left will get some ideas about having a debate, rather than a building a wall, with the rest of society.

  13. The larger problem here is how devoid of facts these arguments are. Okay, I now know these two judges are divided on their conclusions, but why are they so divided? What were the facts of each individual case? Tased a guy covered in gasoline sounds bad, but is it? What are the actual facts? Did the cops know he was covered in gasoline? Did they understanding that tasing him would light him on fire? Does dousing yourself in gasoline mean you get a free pass and police can’t use force since they might hurt you?

    I don’t have an opinion and I have even less of one now given that no facts were presented. It’s kind of important to know what actually happened before determining whether or not QI should apply.

  14. Just curious. Do judges enjoy immunity?

    1. Yes – absolute immunity, like prosecutors.

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