The Volokh Conspiracy

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Originalism In The Lower Courts: Is Absolute Prosecutorial Immunity Correct As An Original Matter?

Judge Ho: "There are good reasons to believe that the doctrine of absolute prosecutorial immunity is wrong as an original matter."


Yesterday, while we were all losing our minds about Dobbs, the rest of the judiciary continued to function. The Fifth Circuit decided Wearry v. Foster. The panel found that the doctrine of absolute prosecutorial immunity did not foreclose a 1983 suit against a state prosecutor.

When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted. Therefore, District Attorney Perrilloux is not entitled to absolute immunity for his actions.

Judge Ho wrote a dubitante opinion:

So I write separately, first, to explain how governing precedent requires us to grant prosecutorial immunity in this case, and second, to note that I reach this conclusion reluctantly, because the doctrine of prosecutorial immunity appears to be mistaken as an original matter.

Once again, Judge Ho illustrates how lower-court judges can engage in originalism.

First, Judge Ho resists the temptation to draw "razor-thin" distinctions to evade precedent.

As a panel, we're bound to follow both Supreme Court and circuit precedent—whether we like it or not. Moreover, if fidelity to precedent means anything, it means construing precedent faithfully.

Of course, "judges can always draw razor-thin distinctions and contend that a particular issue is not governed by a non-originalist precedent." Josh Blackman, Originalism and Stare Decisis in the LowerCourts, 13 NYU J.L. & Liberty 44, 51 (2019). But "judges should resist this temptation." Id. See also Williams v. Homeland Ins. Co., 18 F.4th 806, 821 (5th Cir. 2021) (Ho, J., concurring) (same).

I see no principled basis that the panel majority could possibly invoke to distinguish Cousin. To the contrary, the theories put forth by the majority are directly contradicted by Cousin itself.

The majority disagrees on this front:

Our brother's dubitante opinion contends these "razor-thin" distinctions are without a difference. Infra at 24. We disagree.

(Is it still common for judges to use the term "brother"? I know the Supreme Court abandoned that practice prior to Justice O'Connor's confirmation. This practice seems so antiquated.)

Second, Judge Ho cites an amicus brief from the Constitutional Accountability Center–a group known for progressive originalist advocacy.

The bad news is that, although Congress can fix what ails us in cases like this, it shouldn't have to. Because Congress never enacted the immunities that would presume to stop us from deciding Wearry's claims. As the Constitutional Accountability Center observes in its amicus brief, courts should construe provisions "in accordance with . . . text and history." So if we are going to recognize any immunities—notwithstanding the complete absence of any statutory text to support such immunities—at the very most we should recognize only those immunities that are "so well established in the common law . . . that the members of the 42nd Congress must have been aware of them and could not have meant to abrogate them by implication." See also, e.g., Burns v. Reed, 500 U.S. 478, 498 (1991) (Scalia, J., concurring in the judgment in part and dissenting in part) ("the presumed legislative intent not to eliminate traditional immunities is our only justification for limiting the categorical language of the statute"); Ziglar v. Abbasi, 137 S. Ct. 1843, 1870 (2017) (Thomas, J., concurring in part and concurring in the judgment) (same).

Third, Judge Ho cites scholarship from Scot Keller demonstrating that the notion of absolute immunity is not supported by history.

Take the doctrine of qualified immunity. It requires civil rights plaintiffs to prove not only a violation of their constitutional rights, but a "clearly established" one. But the "clearly established" requirement lacks any basis in either the text or original understanding of § 1983. See, e.g., Horvath v. City of Leander, 946 F.3d 787, 800–03 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part); Scott A. Keller, Qualified and Absolute Immunity at Common Law, 73 Stan. L. Rev. 1337, 1388 (2021) ("The Supreme Court's largest departure from the common law of officer immunities occurred when Harlow v. Fitzgerald replaced the subjective good-faith defense for qualified immunity with a clearly-established-law test.").

Fourth, despite this history, Judge Ho maintains that a "faithful reading of precedent" requires the Court to grant immunity here.

The majority says it is "strange" to apply prosecutorial immunity here. Ante, at 16. I agree. As explained, I'm skeptical about the doctrine of absolute prosecutorial immunity as an original matter. But a faithful reading of precedent requires us to grant it here, no matter how troubling I might personally find it.

As a panel, we're duty-bound to follow precedent. And that means we're duty-bound to follow precedent, full stop—not just when it leads to results we like. "[A] principle is not a principle until it costs you." Lefebure v. D'Aquilla, 15 F.4th 650, 663 (5th Cir. 2021) (citing Psalm 15:4 (honoringthose who "keep[ ] an oath even when it hurts")). "[F]ollowing precedent only when you like it—and ignoring it when you don't—is . . . not principled judging. It is the very definition of 'WILL instead of JUDGMENT'—stare decisis 'only when I say so.'" Planned Parenthood of Greater Texas, Inc. v. Kauffman, 981 F.3d 347, 386 (5th Cir. 2020) (Ho, J., concurring). It would "replace judicial hierarchy with judicial anarchy." M.D. v. Abbott, 977 F.3d 479, 483 (5th Cir. 2020).

Our precedents apply absolute prosecutorial immunity in cases just like this. The panel majority has nevertheless decided to allow this suit to proceed to the merits. As an originalist, I may cheer this result. But I doubt that our prosecutorial immunity precedent permits it.

Well said. As an originalist, I cheer the dubitante opinion an exemplary of lower-court originalism: faithfully follow precedent, even if it is not supported by original meaning, but shine a light on why those precedents are flawed. In time, hopefully, this originalism in the lower trickles up to the Supreme Court. The trickle-up effect is a hell of a lot better than the Supreme Court's current leak-out effect.