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.

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Comments on “Appeals Court Judge: Qualified Immunity Is A Rigged Game The Government Almost Always Wins”

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ac+ says:

Re: The only Remedy

“… it is clearly time to make a new, less corrupt one.”

Can’t be done. Corruption is a fundamental attribute of all government. Our 1776 experiment in honest government has failed spectacularly — Americans today sense that things have gone terribly wrong, but can’t pinpoint the cause due to the fog of government misinformation permeating every aspect of life. However, a small fringe ideological minority has well understood the true situation for over a century.

ryuugami says:

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.

Isn’t a good portion of those laws and regulations that make it a "closely regulated" industry exactly about keeping the data private? I was pretty confident that stuff like HIPAA Privacy Rule meant there was, you know, an expectation of privacy.

Anonymous Coward says:

Lies and more damn lies

There really is no place to post an article on Tech Dirt about things of immense interest to the community without attaching it to an article.

Several says ago I posted a rebuttal to an article about lies and damn lies being spread by political hacks that are really in favor of destroying western civilization.

Today I will simply post a link to an article about a Jewish 93 year old in The Guardian and what he has to say about the big lie.

stine (profile) says:

Re: Lies and more damn lies

If you’d have scrolled to the end of the page, there’s a vere helpful “Submit a Story” link that you could have spent just a little more time and thumb motion searching for.

Back to the plot. This is along the same lines as saying law enforcement can arrest you for whatever they want, and then search the books for an applicable law.

PaulT (profile) says:

Re: Lies and more damn lies

“There really is no place to post an article on Tech Dirt about things of immense interest to the community without attaching it to an article.”

If your story doesn’t get selected by the people who write here, well, start your own blog. You can’t dictate what any site you don’t run opts to write about, and no source can cover everything.

“Several says ago I posted a rebuttal to an article about lies and damn lies”

So? Did you? Was it relevant to the article? How do we even know it was you since you refuse to allow yourself to be differentiated from other posters? Hell, since you refused to even link to the previous comment, how do we know it even exists?

“Today I will simply post a link to an article”

…but refuse to comment on what relevance it has to the discussion, or even why you think it’s worth looking at, thus making both the link and your comment utterly worthless. But, thanks for at least driving traffic toward a source that tends toward some factual information rather than the right-wing fiction factories that are usually so popular with the whiners here.

Try providing context and reasoning, it might pan out better for you.

David says:

It's much worse than that

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]

You wish. Enter plea deals. "There is no legal precedent, so qualified immunity lets us keep our illegally obtained evidence. In light of that, you’d be a fool not to accept the following plea deal:"

And poof, still no legal precedent. A plea deal does not create precedent, and the vast majority of cases end in plea deals. And the desire to retain a prosecutorial toy is a strong incentive to offer a plea deal, and since the first-time declaration of some executive action being illegal does not help the defendant, there is excellent extortion material for getting them to accept a deal rather than desiring a proper verdict.

Who is most likely to accept a bad plea deal? People not having the money for a defense. Consequently the executive will feel a lot more entitled fucking with the rights of people from the lower classes since they are more likely to accept a foul deal, keeping precedent from getting established.

Paul Brinker (profile) says:

Re: Re:

The key here, is to have just enough justification to say the person did in fact violate constitutional rights AND have some thread of a ruling be broken even if its not closely related to this case.

An easy example is taking pictures and video is well established to not be a crime, but they charge you with 2 person consent wire tapping laws for your video. Its still a constitutional issue, the cop already knows hes in the wrong and making up a case, but under qualified immunity today, unless you have a wire tapping case (and not a video or picture related case) the court will say, “to bad so sad”.

This is the kind of crack that is needed in qualified immunity, and today its not there at all. Your wire tapping case is as far from a recording case as I am from the grand canyon.

jz1861 (profile) says:

Re: Re:

I appreciate the comment, AC. For the record, my brother, an attorney, felt the same way you did, and many other lawyers did.

I mean this with all due respect, but there are those of who still feel like the government doesn’t have the right to take whatever it wants, that we still have or should have 4th amendment rights. I am not sure if we are naive, you are jaundiced, or the reality is somewhere in the middle. I do respect your POV though now more than ever.

For the record though, the windmill has been damaged. The two DEA agents involved in this raid have been disciplined. The Texas Medical Board (TMB) has stopped doing these types of raids. The executive director (ED), Mari Robinson, whose signature is on this subpoena (even though she denied signing it) is not longer ED. Precompliance review is now part of Texas law. The TMB, whose charter has to be renewed every 12 years, was given only two years of life in the last legislative session, and the Texas legislature has given indications that changes to the TMB are coming.

The 5th Circuit ruled that the DEA could only look at partially redacted patient charts when using their subpoenas.

The whole story is the DEA looked at patient charts illegally by using a TMB subpoena. The DEA then issued its own subpoena trying to do a legal search after doing an illegal one. Dr. Zadeh had his staff and his attorneys sign sworn affidavits that the DEA had already illegally looked at patient charts, and the DEA’s attorney didn’t deny this allegation, but the 5th Circuit, likely assuming Dr. Zadeh was guilty of a crime, didn’t buy it. They said there was not enough evidence that the DEA looked at charts.

In Dr. Zadeh’s lawsuit against TMB personnel, it became crystal clear that the DEA did do an illegal search. The DEA filed a complaint about Dr. Zadeh to the TMB and in that complaint asked to look at patient charts, and TMB personnel went along with the DEA’s scheme.

If you listen to the audio of these two cases, you can hear the tone of voice of the judges change. In the first case, the judges sound as if they were being asked to let a guilty doctor free. In the second, they saw what really happened: the DEA and TMB were breaking the law in an attempt to set up an innocent doctor. The judges, particularly Judge E Grady Jolly, were infuriated with the TMB and DEA.

As of now, the case is at the en banc stage and it has not been dismissed. A legal professor told Dr. Zadeh’s team that Judge Willett’s target audience with his opinion was not the legal community but the Supreme Court itself. He wants THIS case to go to the Supreme Court and have the court’s decision on QI re calibrated.

Who knows? Maybe if you get the right angle, the right speed, and the right personnel, you can charge the windmill and it will topple over.

Justice Soonas says:

BUT you love legalisms when favor you pirates / drug sellers.

Let’s see. What broad points have I been hitting for years that apply?

1) Common law, meaning simple fairness — and requiring gov’t and other people to be FAIR — is the highest law in America.

2) Kill all lawyers. Not hyperbole. Start with taking away de jure aspects to end their de facto monopoly on the "practice" of law. Abraham Lincoln did not need a "license" to practice law.

3) Legalisms cut both ways. If Techdirt is going to claim that persons not contesting to have downloaded child pornography should escape justice due to a mere Court Rule, not actual law, then YOU, Techdirt, have no authority for complaining of this legalism.

Oh, and:

4) No censorship even by "private" entities because prevents The Public learning the Truth in "law". That covers publishing regulations and court cases, besides tiny little Techdirt preventing my text from being seen.

Killercool (profile) says:

Re: BUT you love legalisms when favor you pirates / drug sellers.

1) That is NOT the definition of "common law," except in your head. Common law, according to the whole world except for you, is another word for jurisprudence.
That means "{a thing} is/isn’t a law because of legal precedent."

2) Abraham Lincoln DID need a license to practice law, and got it, Illinois, 1836. Up until that point, he had been what would be called a "legal assistant," writing documents for actual lawyers.

3) Like common law, I don’t think "legalism" means what you think it means. If you are referring to a child pornographer escaping justice due to investigators violating the Constitution (illegal search/seizure), that’s on the cops.

4) Censorship by private entities is an expression of their First Amendment rights to free speech and association. The same First Amendment that lets you spew your nonsense everywhere. Well, not everywhere. You are free to stage a protest on the public sidewalk in front of Techdirt’s office. They are free, in turn, to point and laugh, and refuse you entry to their building.

You know, you sure do try to claim a lot of rights about other people’s property.

That One Guy (profile) says:

Re: Re: Already enough of that

I quite understand that they can be annoying at times but please try not to sink to their level with comments like that, they’re really not worth the effort.

Just treat them as someone throwing a world-record setting tantrum against a site they’re obsessed with hating, and as such funny rather than annoying, it’s much less stressful.

Anonymous Anonymous Coward (profile) says:

Where is the qualified in qualified immunity?

Definition of qualified

1 a : fitted (as by training or experience) for a given purpose : competent

b : having complied with the specific requirements or precedent conditions (as for an office or employment) : eligible

2 : limited or modified in some way qualified approval

Let’s start with 1b. When the Supreme Court pulled qualified immunity out of their collective asses, did they bother to mention the specific requirements to earn immunity eligibility? If they didn’t, isn’t it up to the lower courts to establish those requirements, at least until the Supreme’s say otherwise?

This isn’t to say that the whole concept isn’t seriously bogus.

As for definition 2, the Appellate Courts weaseling about there being no precedent isn’t the type of limitation that should be intended, as the article points out. I believe that one of the purposes of Appellate Courts is to ESTABLISH precedent. They take the district courts rulings upon appeal and make decisions as to whether the law was followed, establishing precedent.

Could it be that since the whole concept was made up and that there is no law spelling out what qualified immunity is or isn’t is causing those courts such consternation that they cannot logically work their way out of the conundrum? Or are they just not brave enough to go ahead and establish a precedent that might be overturned.

The Supreme Court is now hearing about half the cases they used to, but even before the supreme slowdown, the chance of getting a Appellate decision reviewed by them was/is seemingly small. What are they afraid of?

I know someone is going to go off the boards and claim it is all graft, but I don’t think Appellate Judges are as susceptible to graft as lower court judges might be. There might be political leanings, due to the appointment process, but where is the politics in qualified immunity? Or are all politicians looking for ways to ‘uniquely’ for the first time screw someone over?

Killercool (profile) says:

Re: Where is the qualified in qualified immunity?

Qualified immunity is also applied in ways completely opposite to every other use of the term "qualified." Currently, everything is qualified, until that qualification is revoked.

In any other usage, "qualified" would mean that few or no things were "qualified" until they were firmly established.

Anonymous Coward says:

It is interesting to watch the reaction on someone’s face when attempting to rationalize both their interpretation of “rule of law” and the implications levied by “qualified immunity”.

On one hand you have the law ‘n order zero tolerance mantra and on the other you have qualified immunity. So, the law says everyone is subject to blah blah except for those who are not. Brilliant! Then you hear all the babble about how we are a nation of laws – LOL. Excuse me while I go puke.

David says:

Re: Re:

Well, we are ruled by law and order. Courts enforce the law, and policemen enforce order. Policemen don’t tell the courts how to do their job, and courts don’t tell the policemen how to do their job.

This is where a smilie or an “</s>” tag or some other written form of a laugh track should have been but I ran clean out.

Anonymous Coward says:

The gist of it is that the police are that kid that is constantly misbehaving and pushing boundaries, and when called out they then say “well, you didn’t say I *couldn’t* do that”.

Except rather than the court telling them to stop mouthing off and doing shit they know is wrong, they weakly say “well gee, you’re right. Please don’t do it again.” Repeat ad nauseam for every possible permutation of violation.

Killercool (profile) says:

Re: Re:

At this point, the police shouldn’t even be allowed to say they work in “law enforcement,” since they can break the law with impunity if they are creative enough, and they also aren’t required to know the law they are supposed to be enforcing.

“I work in arresting. I also do evidence gathering and creation.”

Anonymous Hero says:

How does this jive with the 9th amendment?

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

I’m not a lawyer, but it seems to suggest that people have more rights than those stated in the Constitution. In other words, there exist rights that haven’t been clearly established.

Whereas the people may do whatever they want if it’s not specifically deemed to be illegal, the government can not do things unless they are specifically deemed to be legal.

Am I misunderstanding this?

Anonymous Coward says:

Re: Re:

You’re not. And you can certainly attempt to add to those list of rights in a court, but you’re going to have to have a damn good case for it. Judges don’t like to create “new” rights (“new” in quotes because it’s perhaps a right you always had, but new in the sense of being newly legally recognized). There are plenty examples of such rights being upheld in various court cases, but I believe it happens very rarely where there isn’t already previous court precedent for such an unenumerated right.

Bergman (profile) says:

If the rules say you always lose, why not try different rules?

This is precisely why I believe suing cops for violating your rights is a bad idea. Supposedly, creating a less privileged class of citizen is illegal, but the current Qualified Immunity doctrine sure does exactly that. Police have more privileges than non-police, creating a very LARGE less privileged class. Courts supposedly lack the authority to create new laws, but they’ve done exactly that with Qualified Immunity — and if someone tried to create an actual law that does what that doctrine does, the law would be struck down by the same courts that adhere to QI like it was the Word of God!

Every single thing that previous generations considered so beyond the pale that no one could ever justify doing it is now fair game for a rights violation by police because no court has ever needed to rule on such a violation before because everyone knew it was a violation. And with no previous case law, courts defer to the doctrine of Qualified Immunity and dismiss the case.

This is why, for years now, I’ve been suggesting that instead of going through the civil courts, people should take the criminal court route. Every rights violation that you could win a Title 42, Section 1983 lawsuit against a police officer for (assuming you get past the doctrine of qualified immunity) is also a criminal act under Title 18, Section 242! And almost invariably a felony to boot, given the circumstances of a typical rights violation by police!

In 49 out of 50 states, it is completely legal for non-police to arrest a criminal for committing a felony in their presence, even if that criminal is a cop. In almost all of those, it’s just as illegal to flee from or resist a citizen’s arrest as it is to do so for one by police. Escaping from custody is a crime in all 50 states.

Sure, you might be putting yourself in danger doing it, but you’re already in danger just by being in close proximity to police. If they decide to attack you unlawfully, odds are you are the one who will go to prison for it. If they decide to kill you, even if they are prosecuted and convicted you will remain dead — and the odds heavily favor them getting away with murdering you too.

There’s an old story about two government workers in China who were late to work. The penalty for anyone holding a government job being late was death. So was the penalty for armed rebellion. When people have nothing to lose, and success means escaping to safety, why not go for it?

Paul Brinker (profile) says:

Re: If the rules say you always lose, why not try different rules?

While your technically correct, unless the cop is trying to do something grossly illegal (shooting kids in daylight with lots of witnesses). Or the cop is attempting to do something under the color of law (ordering you to drive while drunk, then arresting you for that). Its very very hard to catch a cop in the act of committing a crime and then be able to detain him in any meaningful way.

This means that catching the cop planting evidence on your car (hidden video?). Or simply claiming to have found drugs in your possession is never enough to fly. For crying out loud they gave a guy xrays and enemas and got off on qualified immunity.

Your best bet is to ignore dealing directly with the cop and go after his city. Enough settlements and court cases in a city draw the ire of the feds and if your armed with settlements and cases in the future that the city knows this is not right, you can finally go after qualified immunity.

Anonymous Anonymous Coward (profile) says:

Re: If the rules say you always lose, why not try different rules?

There is at least one problem with your theory. The prosecutors who fail to a) get an indictment from a grand jury, or b) are so enthralled with the law enforcement folks they work with that they fail to make their case, even when it is easy.

The only way I know of to avoid the proprietorial misconduct, which is really hard to prove, is through the civil courts.

Or is there a way to force a prosecutor to do their jobs competently?

That One Guy (profile) says:

"All animals are equal under the law. Some animals however..."

And of course were a defendant without a badge to try the same trick, ‘The law didn’t say I couldn’t do that specific thing, even if anyone with a working brain could have seen that it fell into a category that was clearly illegal’ you can be damn sure that no judge would accept that as a legal defense.

You’d be hard pressed to find a more blatant example of hypocrisy and double-standards, and what makes it all the worse is that the ones benefiting from the ability to break the law with immunity are the ones who are supposedly tasked with upholding the laws.

MarcAnthony (profile) says:

Abdicate responsibility + exterminate all rational thought

Why bother using your reasoning faculties to judge cases when you can just invent a requirement for others to parrot precedent and show where on the doll that the bad official touched your clearly established rights? It’s a brilliant cop-out, really. Too bad that it flies in the face of the clearly established right to redress grievances—with precedent dating back to common law times—and equally bad about that pesky Constitutional provision concerning the government not having the authority to assume undelegated powers. One might be inclined to think that a judiciary that creates schemes that have the effect of negating all but exemplified rights might be overstepping just a tad, if one thought at all.

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