Nice Dig at Qualified Immunity, by Judge Don Willett (5th Cir.)

I'm not sure where I stand on qualified immunity—I haven't looked at its history closely enough—but I thought this was well put, in Judge Willett's dissent yesterday in Villarreal v. City of Laredo (en banc):

[O]ne of the justifications so frequently invoked in defense of qualified immunity—that law enforcement officers need "breathing room" to make "split-second judgments"—is altogether absent in this case. This was no fast-moving, high-pressure, life-and-death situation. Those who arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far from having to make a snap decision or heat-of-the-moment gut call, spent several months plotting Villarreal's takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute's near-quarter-century of existence. This was not the hot pursuit of a presumed criminal; it was the premeditated pursuit of a confirmed critic.

Also, while the majority says the officers could not have "predicted" that their thought-out plan to lock up a citizen-journalist for asking questions would violate the First Amendment—a plan cooked up with legal advice from the Webb County District Attorney's Office, mind you—the majority simultaneously indulges the notion that Villarreal had zero excuse for not knowing that her actions might implicate an obscure, never-used provision of the Texas Penal Code. In other words, encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.

In the upside-down world of qualified immunity, everyday citizens are demanded to know the law's every jot and tittle, but those charged with enforcing the law are only expected to know the "clearly established" ones. Turns out, ignorance of the law is an excuse—for government officials. Such blithe "rules for thee but not for me" nonchalance is less qualified immunity than unqualified impunity. The irony would be sweet if Villarreal's resulting jailtime were not so bitter, and it lays bare the "fair warning" fiction that has become the touchstone of what counts as "clearly established law."

Comments

[Kazinski]

What Congress should do, and I saw it on a post here a few years ago but I don't remember who proposed it, is end qualified immunity by statute, and replace it with a constitutional violation small claims court.

I think it would make sense to limit non-monetary damages limiting verdicts to 100k, for transgressions of illegal searches, illegal arrests with less than 30 days custody, and minor injuries and hopefully structure it administratively to get around the 6th amendment, maybe use arbitration. For more serious transgressions allow Federal lawsuits.

Then you wouldn't have federal cases over pre textual stops, principals banning tshirts, but there would still be compensation for wrongdoing, and costs to local authorities, you could even require the offending officer to be personally on the hook for at least 10% of the verdict.

[Aladdin's Carpet]

That strikes me as right.

Part of what’s underlying all of these cases is that running a lawsuit is extremely expensive for everyone involved, most of the fees are eaten up by lawyers, small infractions take an unbelievable amount of time, and all sorts of jurisdictional things and sovereign immunity.

It probably would simply it a lot if a small claims system existed

[Rossami]

Interesting proposal but I still think that ending qualified immunity and replacing it with mandatory liability insurance would be the better fix. Like malpractice insurance, it insulates good actors who get unlucky or make a single bad call but quickly becomes cost-prohibitive for repeated bad actors to stay in the profession.

[Jason Cavanaugh]

How can you possibly claim that you don't know where you stand on QI?

How long have you been in America, and how much of that time have you not spent living under a rock? The abuses and consequences of QI have been widely publicized for decades.

[Kazinski]

Well, actually there are some good reasons for qualified immunity, do we want cops dragged into federal court for every minor transgression? I don't think so.

The real solution is for local prosecutors to do their jobs and prosecute cops when they break the law. After all QI only immunized cops for civil suits, not for criminal prosecution.

Another possible solution is a public integrity section that prosecutes only cops and politicians with an independent budget and command structure.

But of course you can't prosecute cops for every missed Miranda warning, or sue them either.

[Davy C]

But it's not the minorness of the transgression that matters for qualified immunity. It's whether it was previously established by the right court.

If some cop did a minor transgression in 1987 and the court ruled at that time that it was a violation, a cop doing the same minor transgression today is out of luck. But some other cop decides to do something egregious, even something unquestionably criminal, and can't be sued because no court had ruled on that exact thing before.

[PatrickM]

Yes, I do want cops to face charges for transgressions of constitutional rights, no matter how "minor" those may appear to you. Police officers must be held to the highest standards.

[rloquitur]

That all depends, I think, on circumstances. When, like here, they have time to think, then yes. In chaotic and dangerous situations, then some leeway has to be there.

[Rossami]

That leeway should be (and is) granted by juries based on the specific facts of the case. QI prevents the victim from even getting their day in court to make the case.

[Kristian H.]

“Well, actually there are some good reasons for qualified immunity, do we want cops dragged into federal court for every minor transgression? I don’t think so.”

The problem isn’t the transgression, it is it the alleged transgressions that aren’t. And the abuse of process that can be used against .gov. (Which, while in one sense is appealing, in another is quite a cost).

But QI for deliberate action, taken after reflection doesn’t seem right. Some times citizens get the benefit of a doubt in the heat of the moment / moment of passion, and in that sense I can see some slack FOR THE VIOLTER, but the VIOLATED still needs to be compensated. That is the pisser. It seems really wrong that both the state and its agents get off the hook for abuse of a innocent party.

[Commenter_XY]

Jason, serious question. What is your preferred alternative to QI?

Mandatory liability insurance?
Special claims court system?
Nothing, and cops get sued all the time?
Something else?

[Michael Resanovic (still highly opinionated)]

I might add a legal/historical observation: I think there's a connection between modern realism and qualified immunity. It is no accident that QI closely followed the adoption of the idea that law is established or made by judges.

Legal realism gains sway by the 1920s/30s, and the first ruling ever declaring ignorance of law to be a valid defense is handed down in 1943.

[Dan Schiavetta]

Well put!

[dirc]

https://www.youtube.com/watch?v=7DpMwDgxC-I

[mydisplayname]

Awesome!

[rloquitur]

This is an incredibly bad decision. First of all, this idea that Villareal could have followed Texas law is just so obnoxious. Rights are rights, and it's the government that is supposed to adhere to them.

At what point should citizens have the right to defend themselves in cases like these?

[CJColucci]

I haven't read enough Willett opinions to have a take on his jurisprudence, but I have noticed that among the judges who are skeptical of qualified immunity are several whose general views, if widely adopted, would severely prune back the rights we now have, so there would be nothing to violate and, consequently, nothing for qualified immunity to do.

[PMBug]

Qualified Immunity is more abused than the Commerce Clause. It needs to be dialed back.

[ReaderY]

The majority’s take on this was very different. The majority opinion strongly suggested that if they had reached the merits, they would have upheld the statute.

I think this approach to the process is wrong. A court needs to declare an opinion on the constitutionality of the statute. If courts keep finding qualified immunity, unconstitutional statutes will keep getting enforced.

If the majority thought the statute was constitutional, it should have reached the merits and so found, as a decision on qualified immunity would have been unnecessary. If the majority thought the statute was unconstitutional, it should have reached the merits and decided that first, then decided if the defendants were nonetheless entitled to qualified immunity.

[ReaderY]

That is, the majority fundamentally disagreed with the dissent. It suggested the statute quite possibly was constitutional, the decision to enforce the statute was completely reasonable, and a decision to find it unconstitutional would have come as a surprise to a reasonable person.

In other words, from the majority’s point of view this wasn’t qualified immunity on a technicality. This was core qualified immunity. The majority found that there were good reasons to think the statute constitutional, and there were good policy reasons for the statute to exist. In the majority’s view, in deciding to enforce the statute in the plaintiff’s case, the defendants were not “targetting” the plaintiff out of some personal vendetta as the plaintiff and dissent claimed. Rather, they were making reasonable judgment calls in their role as zealous public law enforcers. They were operating in the heartland of what qualified immunity is supposed to protect.

[rloquitur]

The statute isn't remotely constitutional as applied here. From a 1A perspective, you get to ask a government official questions. If they answer, you get to listen. And you get to disseminate (generally speaking, obviously, you can't ask a government official for DLNs or SSNs and then use that information, but that's not this case.)

[rloquitur]

The majority didn't reach the merits because the statute, as applied, isn't remotely constitutional, and they'd be horselaughed.

[jdgalt1]

Qualified immunity is a made-up BS excuse for giving bad cops and bad officials a pass on obeying the oath they swore. They wield extraordinary power -- its price is extraordinary responsibility. Judge Willett has it exactly right.

[TheAmazingEmu]

Qualified Immunity has no basis in originalist thought. At the time of the founding, actions taken by government actors without lawful authority were ultra vires and could be subject to both civil suits and criminal prosecution. There would have to be a corresponding tort for a civil suit (such as a trespass or conversion), though.

[reasonable]

"Ignorance of the law is no excuse." Unless it's qualified immunity.