Catch 22 on Immunity Doctrines

I copied the following from the Grits for Breakfast blog. I’ve met Judge Don Willett on more than one occasion. I told him very directly how I feel about the Immunity Doctrines. Maybe, just Maybe, I had an impact and contributed to him seeing the light.

ALL of the Immunity Doctrines are unconstitional. Worse than the ‘qualified immunity’ our Judiciary has given those employed as police is the ‘absolute immunity’ given to Prosecutors & Criminal Trial Court Judges. The most destructive of all to the Rule of Law is the ‘sovereign immunity’ that allows the entity responsible for supervising the actions of it’s employees (Government) to escape accountability. 

Willett decries Catch-22 on qualified immunity for police

 Newly appointed federal 5th Circuit Court of Appeals Judge Don Willett last week issued a “concurrence dubitante” (meaning he concurred despite skepticism over the legal proposition at hand) concerning qualified immunity for police officers who violate people’s constitutional rights, in this case due to an unconstitutional search. (Check out the case here, his concurrence begins on p. 21; see also coverage from Reason.)

Opined Willett: “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior.”

And he sums up a Catch-22 regarding police litigation that’s bothered me for years:

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.

However, the judge argued, this failure to analyze the constitutionality of police behavior has (unintended?) consequences:

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.

Willett concluded:

Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The current “yes harm, no foul” imbalance 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.

That’s an excellent, brief summary of one of the biggest problems with qualified immunity. For more, one of the judge’s footnotes included references to several items that readers interested in more detail on the topic may want to review: