The legal blogosphere has been abuzz with Judge Willett’s recent “dubitante” concurrence in Zadeh v. Robinson, in which the Twitter superstar and Supreme Court shortlister urged reconsideration of the judge-made doctrine of qualified immunity. Yet just one day before that decision was released, another federal judge — James O. Browning, in the District of New Mexico — issued his own blistering criticism of the doctrine, as a four-paragraph footnote to his order in Manzanares v. Roosevelt County Adult Detention Center, 2018 U.S. Dist. LEXIS 147840 (D. N.M. Aug. 30, 2018). To my knowledge, however, that decision has so far flown entirely under the radar, notwithstanding that cross-ideological opposition to qualified immunity is steadily growing.
The Manzanares case involved a municipal employee’s Section 1983 claims against state prison officials, who paired him with a violent inmate to assist in his maintenance work at the prison; these prison officials, in turn, claimed qualified immunity. The plaintiff’s claims here weren’t very strong on the merits, and the district court ended up holding that there wasn’t any due process violation in the first place.
What makes this case extraordinary, however, is Judge Browning’s general discussion of qualified immunity. After he sets forth the relevant legal precedent, he drops a footnote (Footnote 10, if you’re reading along), which consists of a comprehensive, four-paragraph criticism of the doctrine. Not only does he cite Will Baude’s game-changing article on the (lack of) legal justifications for qualified immunity, but he also quotes extensively from Cato’s amicus brief in Pauly v. White. Footnote 10 is worth reading in its entirety, but here’s a cleaned up excerpt of the most important points (with emphases added):
[T]he Supreme Court has sent unwritten signals to the lower courts that a factually identical or a highly similar factual case is required for the law to be clearly established, and the Tenth Circuit is now sending those unwritten signals to the district courts . . . .
Factually identical or highly similar factual cases are not, however, the way the real world works. Cases differ. Many cases have so many facts that are unlikely to ever occur again in a significantly similar way. . . . The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day-to-day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. . . . It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?” . . .
The Court disagrees with the Supreme Court’s approach. The most conservative, principled decision is to minimize the expansion of the judicially created clearly established prong, so that it does not eclipse the congressionally enacted § 1983 remedy. As the Cato Institute noted in a recent amicus brief, “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.” Pauly v. White, No. 17-1078 Brief of the Cato Institute as Amicus Curiae Supporting Petitioners at 2, (U.S. Supreme Court, filed Mar. 2, 2018)()(“Cato Brief”). “The text of 42 U.S.C. § 1983 . . . makes no mention of immunity, and the common law of 1871 did not include any across-the-board defense for all public officials.” Cato Brief at 2. “With limited exceptions, the baseline assumption at the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. Judges and scholars alike have thus increasingly arrived at the conclusion that the contemporary doctrine of qualified immunity is unmoored from any lawful justification.” Cato Brief at 2. See generally William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018)(arguing that the Supreme Court’s justifications for qualified immunity are incorrect).
Moreover, in a day when police shootings and excessive force cases are in the news, there should be a remedy when there is a constitutional violation, and jury trials are the most democratic expression of what police action is reasonable and what action is excessive. If the citizens of New Mexico decide that state actors used excessive force or were deliberately indifferent, the verdict should stand, not be set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court decision. . . .
I could scarcely have written a more powerful critique of qualified immunity myself.
Also, for those who care about such things, Judge Browning was appointed by George W. Bush, in 2003. The ideological and jurisprudential breadth of the many judges who have criticized qualified immunity (which now include appointees of every single President since Carter, as well as one of the two remaining LBJ appointees) mirrors the ideological and professional breadth of the huge array of groups that have asked the Court to reconsider the doctrine. Indeed, the increasingly relevant question now may not be who will oppose qualified immunity, but who will defend it?