In 2017, Justice Thomas surprised some when he noted that current qualified immunity jurisprudence seemed to be straying from proper judicial inquiry and into the sort of policy balancing that is more appropriately left to Congress. Until that test is changed to a legal inquiry as to whether immunity existed at common law, he opined, “we will continue to substitute our own policy preferences for the mandates of Congress.” He concluded with a warning that “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.”

Zadeh v. Robinson, when it was first decided by the Fifth Circuit in 2019, was not terribly remarkable. Dr. Zadeh ran a pain clinic, and his office was searched without warrant or notice in violation of his (and his clients’) Fourth Amendment rights. But the officers involved were entitled to immunity, because somewhere in the tangle of applicable statutes and rules it was not “absolutely clear” that their conduct was unlawful.

This is a fairly typical result in official immunity cases. In 2018, the U.S. Supreme Court reiterated the requirement that officers, to be liable, must violate a right in such a way that the unlawfulness of their conduct was “clearly established at the time.” District of Columbia v. Wesby, — U.S. —, 138 S.Ct. 577, 589 (2018).  For the law to be “clearly established,” there must be a close congruence of the facts in the precedent and those in the case before the reviewing court. “The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiffs seek to apply.” Id. at 590. The Fifth Circuit interprets this to require almost identical prior facts found to be unlawful. So government officials, like dogs, generally get one free bite in every “unique” situation.

However, on rehearing, Justice Willett wrote a dissent that was attention grabbing. In that dissent, Willett opined 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. 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. This current “yes harm, no foul” imbalance leaves victims violated but not vindicated. Wrongs are not righted, and wrongdoers are not reproached.

Specifically, Willett noted two issues with current qualified immunity analysis. First, many courts simply hold that the violation at hand was not “clearly established,” without holding that it was, in fact, a violation. This means that subsequent violators can argue that their actions are still not “clearly established” to be unlawful.

Second, Willett noted that modern violations increasingly involve modern technologies, the contours of which are rapidly changing. Thus, it may be impossible to “clearly establish” a violation of one type of technological scenario before that scenario changes.

As Willett concluded:

Doctrinal reform is arduous, often-Sisyphean work. Finding faults is easy; finding solutions, less so. But even if qualified immunity continues its forward march and avoids sweeping reconsideration, it certainly merits a refined procedural approach that more smartly—and fairly—serves its intended objectives.

Recent events have made his words seem particularly prescient, as calls for reformation of official immunity law gather. His analysis gives some insight into how the court may recalibrate, rather than dismantle, the doctrine.

The Petition for Writ of Certiorari has been pending on Zadeh since September 2019, and was recently relisted and distributed for conference. It is one of several official immunity cases before the court at the moment, but may be just the type of case that Justice Thomas is looking for to address his concerns. If you want to follow the case, you can do so here.