Judge Willett on the ‘Kudzu-Like Creep of the Modern Immunity Regime’
Article from For Liberty by Norm Leahy.
Federal appeals court Judge Don Willett was long noted for his pithy and pointed opinions while a member of the Texas Supreme Court. He’s still writing opinions worth reading in full, including a 2018 dissent in a case about qualified immunity.
In that case:
[Dr.] Joseph Zadeh appeals the dismissal of his Section 1983 claim against several members of the Texas Medical Board who he claims violated his constitutional rights through a warrantless search of his office and medical records.
The appeals court said Dr. Zadeh’s rights were violated. But because of qualified immunity, there was no way to hold law enforcement officials accountable for their actions.
This obvious injustice prompted Willett to write an opinion condemning what he called the “kudzu-like creep of the modern immunity regime”:
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.
The Supreme Court has “long resisted” efforts to take a fresh look at qualified immunity. George Floyd’s videotaped murder may give them the not-so-gentle push to finally tackle the court-invented protection that, as Willett wrote, “smacks of unqualified impunity.”
Image Credit: Joe Ravi [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons