Those words were written by Fifth Circuit Court of Appeals Judge Don R. Willett in an August 31, 2018 decision—Zadeh v. Robinson.


In the Zadeh decision, Judge Willett expressed the strong view that the “doctrine of qualified immunity … ought not be immune from thoughtful reappraisal.” He added that the current manner in which the doctrine is judicially applied “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.”


Qualified Immunity Excuses Constitutional Violations


Here is how qualified immunity works in cases involving civil rights violations, such as excessive force by the police or violations of individual privacy rights by government officials.


42 U.S.C. § 1983 was enacted to provide individuals with a statutory remedy in which to seek redress for violations of their constitutional rights. It is part of the civil rights act of 1871, found in Section I of the Ku Klux Klan Act of 1871.


In the 1961 decision, Monroe v. Pape, the U.S. Supreme Court expanded the scope of the statute by ruling that individuals could seek redress for constitutional violations even when the person or persons committing the violations were “acting under color of state law.” The statute was expanded even further in 1971 when the Supreme Court created the “Bivens doctrine” allowing for “private causes of actions” against federal officials for violations of constitutional rights.


These expansions inevitably led to more § 1983 lawsuits against federal and state prosecutors, law enforcement officials, judges and legislators. These officials bitterly claimed that the lawsuits severely hindered their ability to carry out their discretionary duties. The Supreme Court came to realize that unbridled redress of constitutional violations placed serious restrictions on not only the function of government but the administration of justice as well.


Qualified Immunity Protects Against §1983 Violations


In 1976, the Supreme Court in Imbler v. Pachtman curbed the application of § 1983 by holding that public officials acting within the scope of their official duties are protected by the doctrine of qualified immunity unless their conduct violated a “clearly established” constitutional right that a reasonable person should have known existed.


By creating this doctrine, the court was trying to finding middle ground by having a remedy for violations of constitutional rights while permitting the effective administration of government and justice.


Writing in the Cornel Law Review (May 2000), former federal prosecutor and San Diego defense attorney John D. Kirby stated:


“Some sacrifice of individual rights for the sake of effective government is the inevitable price of living in a society organized and run by fallible human beings. The early common law recognized that the threat of personal liability might prevent officials from executing their duties with the necessary decisiveness. The framers embodied this recognition in the Constitution. Indecisiveness caused by fear of personal liability can lead to grave public harm. For example, a mayor may decide not to demolish a row of houses to provide a fire-break if he thinks he will subsequently be held liable for destroying the homes.


“This trade-off rationale implies that the protection that the qualified immunity doctrine supplies should be closely tailored to the needs of different levels of public officials. It should give no more protection than is necessary for the official to effectively fulfill his duties because each additional measure of protection divests victims of a greater range of remedies for violations of their constitutional rights. Providing more protection than is necessary to prevent officials from being unduly inhibited in the performance of their duties results in an unjustifiable sacrifice of individual constitutional rights.”


Trade Off Shifts Burden of Proof


This trade-off leaves the individual seeking redress for a violation of their constitutional rights in this difficult position: they must first show that a constitutional right was indeed violated and then show that the right was clearly established at the time of the alleged official misconduct that violated the right. The Supreme Court has held that a right is “clearly established” to a sufficient degree that a “reasonable person would understand that what he is doing violates that right.”


The law evolving out of this trade-off doctrine is this: once a government official has invoked a qualified immunity defense, the violated individual has the burden of showing that their constitutional right was clearly established while the official bears the burden of showing that their conduct was objectively reasonable under existing law at the time the challenged conduct was committed.


Qualified Immunity Allows Officials to Duck Consequences


This brings us to the sharp concerns expressed by Judge Willett in the Zadeh decision:


“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 that such a search [is] 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 defendant win, tails plaintiffs lose.”


The head wins, tail loses phenomenon was vividly illustrated on September 5, 2018 when the Sixth Circuit Court of Appeals rejected a qualified immunity defense while the Fifth Circuit Court of Appeals applied the defense.


Sixth Circuit Rejects Claim of Immunity


In the Sixth Circuit case, a female police officer during a traffic stop/vehicle search escorted a female passenger in the vehicle to a nearby restroom. The officer told the passenger that she “may have to search her” before asking “would you step over here.” The passenger walked to the requested location. The snap on the officer’s gun holster was unfastened. She placed her hand on the weapon five times as she questioned the passenger before handcuffing her hands behind her back. The officer then placed her hands under the passenger’s brassiere and pinched her breasts resulting in bruising. The officer told the passenger that a previous suspect had “stuffed needles in her bra,” adding that the passenger had “the loo of a junkie whore.” The officer found no drugs, paraphernalia, weapon or other contraband. The passenger sued the officer under § 1983. The Sixth Circuit rejected the officer’s qualified immunity defense finding that a jury could conclude that the search was unconstitutional.


In the Fifth Circuit case, a plaintiff sued police officers under§ 1983, charging that they violated his Fourth Amendment rights when they forcibly entered his home and conducted a search without a warrant, without his consent, and without having reasonable suspicion that contraband was in his residence or that anyone faced possible harm in the residence. He also charged the police used excessive force by assaulting him while they arrested him.


Just as Judge Willett explained in Zadeh, the federal district court found there was plausible reason to believe the officers had violated the plaintiff’s Fourth Amendment rights, but extended qualified immunity to the officers because the nature of the Fourth Amendment violations alleged by plaintiff was not “clearly established” under existing law when they entered the residence.


The end result: heads won in the Sixth Circuit, tails lost in the Fifth Circuit.


We agree with Judge Willett: it is long past time for the Supreme Court and the lower federal circuits to reappraise the judicially created doctrine of qualified immunity. Bad officials, especially the police, should be held accountable when they behave badly—and the federal courts have a duty to clearly establish that.