Appeals Court Judge: Qualified Immunity Is A Rigged Game The Government Almost Always Wins

from the well-deserved-(and-well-placed)-shots dept

We've long cast a skeptical eye on the judicial theory of qualified immunity. Conjured out of thin air by the Supreme Court, qualified immunity cannot be found among the thousands of laws and statutes our legislature has created over the past couple of centuries.

Qualified immunity raises an almost-insurmountable bar for plaintiffs to hurdle when alleging Constitutional violations. It's not enough to provide evidence of violated rights. Previous court decisions on point must exist, and the court must have previously established [insert rights violation here] as a Constitutional violation for the plaintiff's lawsuit to advance. This summation of the QI standard from Scott Greenfield may seem outlandish, but it's actually not that far from the truth.

The presumption is that if a court hasn’t told you that putting a gun in a person’s mouth and threatening to blow his head off unless he admits guilt [violates someone's rights], how could a cop possibly know this is unconstitutional?

Greenfield's post discusses a recent decision [PDF] by the Fifth Circuit Court of Appeals. The ruling deals with an unconstitutional search of medical records performed by the DEA. The Appeals Court agrees with the plaintiff rights were violated.

Relying on Supreme Court precedent, we held that it was clear at the time that “prior to compliance, Cotropia was entitled to an opportunity to obtain review of the administrative subpoena before a neutral decision maker.” Id. at 358 (citing See v. City of Seattle, 387 U.S. 541, 545 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984)). Similarly, the demand to turn over Dr. Zadeh’s medical records immediately did not provide an opportunity for precompliance review. We agree, then, that a requirement of precompliance review in many, if not most, administrative searches had been clearly established by Supreme Court precedent prior to the search here.

The government argued that the medical industry is "closely regulated" (like pawn shops or porn), thus eliminating the need to present subpoenas for review and/or engage in warrantless searches. The court disagrees with the government's assessment, pointing out the ridiculousness of claiming there's no expectation of privacy in medical records.

Acknowledging that the medical profession is subject to close oversight, the district court emphasized the absence of a history of warrantless inspections to conclude that the medical profession was not a closely regulated industry. Important to its conclusion was the confidential nature of the doctor-patient relationship: “It strains credibility to suggest that doctors and their patients have no reasonable expectation of privacy.” On appeal, the defendants all but concede that there is not a lengthy history of warrantless searches.

At the end of the day, all this discussion doesn't matter. The "unlawfulness" was "not clearly established" at the time it happened. Why? Because no case directly on point with this one had arisen where the Appeals Court had declared this particular rights violation -- containing these particular circumstances -- unconstitutional.

That's where the decision gets interesting. Recently-appointed appeals court Judge Don Willett concurs with the majority's opinion, but only to raise questions about qualified immunity and its effect on the justice system.

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.

Willett's next sentence is nearly as trenchant as Greenfield's take on QI:

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. [emphasis in the original]

And that's the problem: a novel way of violating rights -- even a way the court agrees is unconstitutional -- gets a free pass because no one has been sued over this exact rights violation occurring under these exact circumstances. This Supreme Court-erected standard of review -- cases on point -- has resulted in many federal judges refusing to declare acts unconstitutional… because no one before them has bothered to find violations clearly established. The justice system provides no justice. Instead, it erects shelters for government misconduct.

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.

This is where we're at as a country. Rights can be violated so long as the government employee finds a new way of doing it or happens to reside in a jurisdiction where that particular rights violation hasn't been "clearly established" as unconstitutional. Even if it has been, the government may still get away with it as long as the violation occurred before it was determined unconstitutional. What was supposed to balance citizens' ability to seek redress with the government's supposed need to move fast and break things is merely another way for government employees to avoid being held accountable for their actions.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: don willett, fifth circuit, qualified immunity, rights