I was a fan of Don Willett when he sat on the Texas Supreme Court. I was pleased when he was appointed to the U.S. Court of Appeals for Fifth Circuit. And I continue to believe he’d made a great addition to the U.S. Supreme Court.

Last week, in Zadeh v. Robinson, Judge Willett wrote a concurrence that illustrates why I hold him in such high regard.

The issue in Zadeh v. Robinson is a doctrine called “qualified immunity.” The U.S. Supreme Court developed the doctrine in response to a federal statute—42 U.S.C. § 1983—that gives citizens the right to sue individual law enforcement officers for violations of their constitutional rights:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The currently applicable version of qualified immunity doctrine was established by the Supreme Court in 1982 in Harlow v. Fitzgerald: 

[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

At his confirmation hearing this week, Supreme Court nominee Brett Kavanaugh quoted Justice Elena Kagan saying, “We are all textualists now.” In 1982, however, in the days before Justice Scalia brought textualism into the jurisprudential mainstream, things were different.

In his opinion for the Harlow majority, former Supreme Court justice Lewis Powell didn’t quote the text of 42 U.S.C § 1983 (which says nothing about shielding officials from liability in any case), nor did he cite the Constitution or ancient common law principles. Instead, he simply asserted that the doctrine he is promulgating would promote certain policy goals:

Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. …

Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken with independence and without fear of consequences. [Quotation marks and citations omitted.]

It’s hard to imagine a Supreme Court justice engaging in this kind of activism today. And if any justice attempted it, they would be harshly condemned by critics who would say, “There may be a problem with the statute, but, as a matter of constitutional law, fixing statutes is a job for Congress, not the courts.”

Why does any of that matter for the case of Zadeh v. Robinson? Let’s begin by considering certain events that took place on October 22, 2013. According to Judge Southwick (who wrote the opinion for the Fifth Circuit), on that date two “investigators” from the Texas Medical Board appeared unannounced at Dr. Zaheh’s office while he was away. They presented his assistant with an administrative subpoena electronically signed by the board’s executive director and demanded that she turn over the medical records of 16 of Dr. Zaheh’s patients. When the assistant said she would need to get legal advice before giving the investigators access to confidential medical files, they told her if she didn’t immediately comply with their demands they could take away Dr. Zadeh’s medical license. Faced with that threat, she turned over the files.

Now, you might think that the conduct of these Texas Medical Board investigators is a clear violation of the 4th Amendment’s prohibition on unreasonable searches and seizures.  After all, they bullied a medical assistant into turning over confidential patient records without a warrant and without giving her an opportunity to contact a lawyer or challenge their demands. But that’s not how qualified immunity doctrine works. In order to overcome qualified immunity, a plaintiff must be able to point to a previous decision in which a court has found that the specific conduct in question was unconstitutional. The result is that, while licensing board employees will henceforth be expected to know that they can’t simply demand the immediate production of confidential documents without a warrant, the Texas Medical Board investigators who did it, in this case, got a pass. As Judge Southwick explains:

There was a violation of Dr. Zadeh’s constitutional rights. Even so, these defendants are entitled to summary judgment [because] the unlawfulness of the [their] conduct was not clearly established at the time of the search.

Judge Willett didn’t write a dissent in Zadeh v. Robinson. He couldn’t. As a circuit court judge, he is bound to follow Supreme Court precedent, which clearly establishes the interpretation of qualified immunity doctrine that Judge Southwick applies in her opinion for the court. Instead, he wrote what he calls a “dubitante” concurrence.

Dubitante is Latin for “doubting,” and in his concurrence, he makes clear that what he’s doubtful about isn’t the Fifth Circuit’s application of qualified immunity doctrine; it’s the doctrine of qualified immunity itself:

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. …

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. …

Section 1983 meets Catch-22. … 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. … An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. …

Qualified immunity aims to balance competing policy goals. And I concede it enjoys special favor at the Supreme Court, which seems untroubled by any one-sidedness. Even so, I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence and its “real world implementation.” [Footnotes and citations omitted.]

Two things about Judge Willetts’ concurrence make me happy. The first is that it shows he’s brought his good sense and his sense of style to his new job on the Fifth Circuit. The second is that, simply because he’s such a highly-regarded jurist, his doubts about qualified immunity will probably be noted by at least some Supreme Court justices. And given that at least one of those justices, Clarence Thomas, has expressed his own doubts about the doctrine of qualified immunity, it gives me hope that this outdated piece of judicial activism will eventually be overturned.