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.

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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.

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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)