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Qualified Immunity

Judge Willett Questions Qualified Immunity

In a concurring opinion, Fifth Circuit Judge Don Willett expresses concern about the " kudzu-like creep of the modern immunity regime."


As part of an investigation of his practices, the Texas Medical Board executed an administrative subpoena on Dr. Joseph Zadeh's medical office, accompanied by two federal Drug Enforcement Agency (DEA) officers. According to Dr. Zadeh, the Board agents exceeded the scope of their subpoena in executing their search of his offices, so he sued, seeking damages for alleged violaitons of his constitutional rights.

In reviewing De. Zadeh's claim, the U.S. Court of Appeals for the Fifth Circuit sympathized with Dr. Zadeh's claims, but nonetheless concluded the Board and its agents were entitled to qualified immunity because their conduct did not violate "clearly established" law. This is how qualified immunity doctrine works, but not all of the judges on the panel were too happy about it, Judge Don Willett in particular.

In an opinion "concurring dubitante," Judge Willett writes:

The court is right about Dr. Zadeh's rights: They were violated.

But owing to a legal deus ex machina—the "clearly established law" prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

* * *

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn't cut it; plaintiffs must cite functionally identical precedent that places the legal question "beyond debate" to "every" reasonable officer. Put differently, it's immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. Today's case applies prevailing immunity precedent (as best we can divine it): Dr. Zadeh loses because no prior decision held such a search unconstitutional. But courts of appeals are divided—intractably—over precisely what degree of factual similarity must exist. How indistinguishable must existing precedent be? On the one hand, the Supreme Court reassures plaintiffs that its caselaw "does not require a case directly on point for a right to be clearly established." On the other hand, the Court admonishes that "clearly established law must be 'particularized' to the facts of the case." But like facts in like cases is unlikely. And this leaves the "clearly established" standard neither clear nor established among our Nation's lower courts.

Two other factors perpetuate perplexity over "clearly established law." First, many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding. But the inexorable result is "constitutional stagnation"—fewer courts establishing law at all, much less clearly doing so. Second, constitutional litigation increasingly involves cutting-edge technologies. If courts leapfrog the underlying constitutional merits in cases raising novel issues like digital privacy, then constitutional clarity—matter-of-fact guidance about what the Constitution requires—remains exasperatingly elusive. Result: blurred constitutional contours as technological innovation outpaces legal adaptation.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. Count me with Chief Justice Marshall: "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." The current "yes harm, no foul" imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.

* * *

Qualified immunity aims to balance competing policy goals. And I concede it enjoys special favor at the Supreme Court, which seems untroubled by any one-sidedness. Even so, I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence and its "real world implementation."

Among the scholars Judge Willett cites is our own Will Baude.

Qualified immunity doctrine rests on well-established precedents, but it's underlying constitutional pedigree is in doubt (as Justice Thomas has noted). So don't be surprised if more "conservative" originalist justices begin to raise similar questions. Whether or not qualified immunity is a good thing as a matter of policy, it's not so clear that qualified immunity—at least as currently construed and applied—is particularly good law.

(Hat tip: Josh Blackman)

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Qualified Immunity

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25 responses to “Judge Willett Questions Qualified Immunity

  1. From the James Ho school of judiciary writing.

  2. There are a lot of things to hate about Donald Trump, but so far his judicial appointments have been stellar. And Donald Willett, who became my very favorite Texas Supreme Court Justice with his concurrence in Patel v. Department of Licensing, is quickly becoming my very favorite 5th Circuit Judge.

    1. He’s great but this one was way over the top.

      1. In what way? The court agreed that there was in fact an unconstitutional search, then denied any judicial remedy for that violation. What is over the top about pointing out the gross injustice of such a legal doctrine?

        1. I didn’t mean the holding. I meant the rhetoric. “concurring dubitante”; “Sisphyean-work”; etc. He’s known for that rhetoric and most of the time it works for me. This felt forced.

      2. The logic strikes me as sound.

        There is a huge difference between, “We rule this way because there is precedent that requires it,” and, “We rule this way because there is no precedent telling us to rule the other way.”

  3. If judges and courts cannot create new law, where then did the doctrine of qualified immunity come from? If you were to enact a statute that does what the doctrine does, it would create a (very large) less privileged class of citizen and would therefore be unconstitutional. So how is it that a court can create what is, effectively, a super-statute where Congress cannot?

    1. The purpose of laws is to treat people differently. If Congress passes qualified immunity, why do you think it would be unconstitutional?

      1. Have you ever heard of the responsible corporate officer doctrine, also known as the Park doctrine?

    2. In theory, QI arises from the Courts interpretation of 42 U.S.C. ?1985 ?1983 and like (modern descendants of the civil rights act of 1871). Like many others I feel the current interpretation is wrong, but it’s misleading to suggest that the court doesn’t ground its findings in statute.

      Essentially they determined that Congress intended to incorporate certain (alleged) common law immunities when it enacted the civil rights act of 1871.

      And from a constitutional perspective congress was allowed when it created some new liability, to limit said liability. (The point in dispute is over whether Congress did so, and to what extent.)

      As a somewhat separate aside please note that the common law is judge made, so your premise (judge made law is not allowed) needs to be revised to be a bit more nuanced.

      1. And in practice, the legislature that is expressly empowered to categorically resolve this dispute hasn’t decided to weigh in.

  4. Ubi jus, ibi remedium.

    (I actually used that bit of Latin in a motion for new trial that succeeded.)

    1. That sounds spot on. Has it been used to challenge qualified immunity?

  5. IANAL

    So forgive me if this seems a silly question but couldn’t the qualified immunity apply to the three people who did the search, but not to the board, as the employer of one of the agents involved? How does the board also get carte blanche in this case? Is qualified immunity not limited to the actors in the situation that physically did something?

    Have a great weekend everybody!

    1. There is no respondeat superior liability in section 1983 litigation; to hold the governmental employer liable, one must prove the unconstitiutional conduct was pursuant to or an act of official policy, or, rarely, a custom and usage so well entrenched as to be an unwritten policy. And if the employer is a state governmental entity, you cannot sue it under section 1983 both because it is not a person and because it is protected by the eleventh amendment. Catch 22 indeed.

  6. If they refuse the people the remedy of the jury box, they will leave the people with only the remedy of the cartridge box.

    If this goes on…

    1. While you statement of the issue is rather threatening, I have always said that the notion of a right without a remedy is an oxymoron. There is always a remedy for a wrong, and if the courts refuse to provide a judicial remedy for constitutional violations, they risk an unpredictable extrajudicial remedy being exacted. That risk is just too great for the courts to continue to use qualified immunity as an excuse to deny a judicial remedy for very real constitutional violations.

      1. They don’t merely risk it, they justify and necessitate it. The greater danger is that having been so necessitated, the remedy might be successfully prevented anyway. Then the power of the state has no bounds, and Katy bar the door!

  7. It is outrageous that “ignorance of the law is no excuse” for you and me, but is for the very professionals whose JOB is to know better! No one should be above the law. Abolish immunity in all its forms.

  8. “The current “yes harm, no foul” imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.”

    That one paragraph alone shows supporters of “qualified immunity” (and absolute immunity) to be morons. Unfortunately, morons are the dominant life form on this planet.

    1. “Unfortunately, morons are the dominant life form on this planet.”

      Only among human politicians. Please don’t cast unwarranted aspersions at the non-human segment of the animal kingdom.

    2. Unfortunately, you’re talking about most of the people who get through the law school process and become tomorrow’s jurists and legal academics. There’s a profound unwillingness to challenge the status quo and too great an eagerness to repeat tired arguments flatly belied by experience.

  9. There’s a common law doctrine in the Commonwealth, that an agent of the state who commits a crime or misconduct on another’s property, becomes a “trespasser ab initio”. They are deemed to have been trespassing from the moment they entered the property, before the misconduct even occurred, and are subject to civil liability for their trespass. Since trespass is not part of the job description, the agent has no protection from liability. I take it this Common law protection has been extinguished by statute in the US?

  10. Hmmmm…what’s a con to do?

    Judge decreed pnenumbras (Roe, gay marrage, etc.)—bad!

    Judge decreed pnenumbras (anti QI)—good!