Petition for Writ of Certiorari — Joseph A. Zadeh, et al., Petitioners v. Mari Robinson, et al.

Supreme Court briefNov 22, 2019

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In the Supreme Court of the United States

JOSEPH A. ZADEH & JANE DOE,

Petitioners,

MARI ROBINSON, SHARON PEASE & KARA KIRBY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

EUGENE R. FIDELL

PAUL W. HUGHES

Yale Law School

Counsel of Record

Supreme Court Clinic MICHAEL B. KIMBERLY

127 Wall Street

ANDREW A. LYONS-BERG

New Haven, CT 06511

McDermott Will & Emery LLP

(203) 432-4992

500 North Capitol Street NW

Washington, DC 20001

ANDREW J. PINCUS

(202) 756-8000

CHARLES A. ROTHFELD

phughes@mwe.com

Mayer Brown LLP

1999 K Street, NW

WILLIAM P. DEMOND

Washington, DC 20006

Demond Law, PLLC

(202) 263-3000

1520 Rutland St.

Houston, TX 77008

(713) 701-5240

Counsel for Petitioners

QUESTION PRESENTED

Whether the Court should recalibrate or reverse

the doctrine of qualified immunity.

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Authorities................................................... iii

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Statutory Provision Involved ......................................1

Statement ....................................................................1

A. Legal Background .............................................3

B. Factual Background .........................................6

C. Proceedings Below ............................................7

Reasons for Granting the Petition ............................12

A. The Court should reexamine the

qualified immunity doctrine...........................13

B. The “clearly established” doctrine has

created a patchwork of conflicting

circuit approaches. .......................................... 16

C. This is an excellent vehicle to

reevaluate qualified immunity.......................20

D. Qualified immunity is inconsistent with

the text and history of Section 1983. .............22

Conclusion .................................................................24

Appendix A – Court of appeals decision ................... 1a

Appendix B – Court of appeals decision

(withdrawn) ..................................... 42a

Appendix C – District court decision ...................... 70a

iii

TABLE OF AUTHORITIES

Cases

A.M. v. Holmes,

830 F.3d 1123 (10th Cir. 2016) ............................ 20

Anderson v. Creighton,

483 U.S. 635 (1987) ........................................ 13, 23

Beck v. Texas State Board of Dental Examiners,

204 F.3d 629 (5th Cir. 2000) ................................ 10

City of Los Angeles, Calif. v. Patel,

135 S. Ct. 2443 (2015) ............................................ 7

Cleveland v. Bell,

938 F.3d 672 (5th Cir. 2019) ...........................17-18

Corbitt v. Vickers,

929 F.3d 1304 (11th Cir. 2019) .............................. 3

Donovan v. Dewey,

452 U.S. 594 (1981) ............................................ 5, 7

Ferguson v. City of Charleston,

532 U.S. 67 (2001) ................................................ 22

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................ 4, 5, 23, 24

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................ 18, 19

Imbler v. Pachtman,

424 U.S. 409 (1976) .............................................. 22

Ioane v. Hodges,

939 F.3d 945 (9th Cir. 2018) ................................ 19

Kane v. Barger,

902 F.3d 185 (3d Cir. 2018) ................................. 18

Kisela v. Hughes,

138 S. Ct. 1148 (2018) .................................... 13, 14

Cases—continued

Leiser v. Kloth,

933 F.3d 696 (7th Cir. 2019) ................................ 19

Marks v. Hudson,

933 F.3d 481 (5th Cir. 2019) ................................ 18

McLin v. Ard,

866 F.3d 682 (5th Cir. 2017) ................................ 17

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011) ................................ 17

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019) .......................... 14, 17

Mountain Pure v. Roberts,

814 F.3d 928 (8th Cir. 2016) .......................... 18, 19

New York v. Burger,

482 U.S. 691 (1987) ...................................... passim

Owen v. City of Independence,

445 U.S. 622 (1980) .............................................. 22

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) .............................................. 24

Pearson v. Callahan,

555 U.S. 223 (2009) ................................... 11, 23-24

Pierson v. Ray,

386 U.S. 547 (1967) ...................................... 3, 4, 22

Quintana v. Santa Fe Cty. Bd. of Comm’rs,

2019 WL 452755 (D.N.M. 2019) .................... 15, 16

Rodriguez v. Swartz,

899 F.3d 719 (9th Cir. 2018) ................................ 14

Saucier v. Katz,

533 U.S. 194 (2001) .............................................. 24

Scheuer v. Rhodes,

416 U.S. 232 (1974) .......................................... 4, 24

Cases—continued

See v. City of Seattle,

387 U.S. 541 (1967) ................................................ 5

Simon v. City of New York,

893 F.3d 83 (2d Cir. 2018) ................................... 19

Sims v. City of Madisonville,

894 F.3d 632 (5th Cir. 2018) ................................ 16

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) .............................................. 21

Thompson v. Clark,

2018 WL 3128975 (E.D.N.Y. 2018) ..................... 14

Thompson v. Cope,

900 F.3d 414 (7th Cir. 2018) ................................ 14

Thompson v. Virginia,

878 F.3d 89 (4th Cir. 2017) .................................. 19

Ventura v. Rutledge,

2019 WL 3219252 (E.D. Cal. 2019) ..................... 14

Z.J. v. Kansas City Bd. of Police Comm’nrs,

931 F.3d 672 (8th Cir. 2019) ................................ 18

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ........................ 13, 22, 23, 24

Statutes Rules, and Regulations

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C. § 1983 ................................................ passim

45 C.F.R. § 164.512 ................................................... 21

35 Tex. Reg. 1925 (2010) ............................................. 9

Tex. Occ. Code § 168.052(a) ........................................ 9

Other Authorities

William Baude, Is Qualified Immunity

Unlawful?, 106 Cal. L. Rev. 45 (2018) .... 15, 22, 23

Other Authorities—continued

Civil Federal Judicial Caseload Statistics,

(Mar. 31, 2018) ..................................................... 16

Aaron L. Nielson & Christopher J. Walker,

The New Qualified Immunity,

89 S. Cal. L. Rev. 1 (2015) ................................... 16

Joanna C. Schwartz,

The Case Against Qualified Immunity,

93 Notre Dame L. Rev. 1797 (2018) .................... 15

Joanna C. Schwartz,

How Qualified Immunity Fails, 127

Yale L.J. 2 (2017) ........................................... 15, 24

Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. Rev. 885 (2014) ............................... 23

PETITION FOR A WRIT OF CERTIORARI

Petitioners Dr. Joseph A. Zadeh and Jane Doe respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the Fifth Circuit (App., infra, 1a42a) upon rehearing is available at 928 F.3d 457. The

Fifth Circuit’s prior opinion (App., infra, 42a-69a),

which was withdrawn on rehearing, is reported at 902

F.3d 483. The district court’s decision granting, in part,

the motion to dismiss (App., infra, 70a-102a) is unreported.

JURISDICTION

The judgment of the court of appeals was filed on

July 2, 2019. Justice Alito extended the time to file this

petition to November 27, 2019. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1983 provides, in relevant part:

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 * * *.

STATEMENT

The Court should recalibrate or reverse the doctrine of qualified immunity. Justices of this Court—

and several judges on the lower courts—have under-

scored the compelling need to revisit qualified immunity. The doctrine has become nearly impenetrable armor, preventing citizens from vindicating their essential constitutional rights. Qualified immunity, moreover, lacks any statutory or common-law origin. It grew

out of judicially expressed policy, but time has shown

that it does not effectuate those policies.

This case presents a compelling opportunity for the

Court to reevaluate qualified immunity. Here, respondents—administrative state officials of the Texas

Medical Board—executed a no-notice administrative

subpoena on the medical offices of petitioner, Dr. Zadeh. Working at the urging of the Drug Enforcement

Administration, Board investigators demanded immediate production of significant quantities of confidential patient medical information, including intensely

private patient records concerning mental health issues and domestic relationships. The Board obtained

the information by threatening to revoke Dr. Zadeh’s

medical license.

The court of appeals unanimously held—as the district court did before it—that respondents violated Dr.

Zadeh’s constitutional rights. While administrative

subpoenas may be appropriate in some closely regulated industries, it is far from clear that the medical profession is such an industry. Even if it is, an administrative search is allowable only if the authorizing statute provides clear notice of the kind of searches permissible and if the statute cabins the discretion of

officials conducting the search. As all agree, the Texas

laws authorizing administrative searches in these circumstances do neither.

But a split panel of the court of appeals held that

this constitutional protection—stated plainly in this

Court’s precedents—was not sufficiently established so

as to defeat a qualified immunity defense. The court of

appeals held that, unless the same theory of liability

has been previously used with essentially identical

facts, qualified immunity is an insuperable barrier to a

lawsuit.

Judge Willett forcefully dissented. This case, he

explained, “reaffirmed [his] broader conviction that the

judge-made immunity regime ought not be immune

from thoughtful reappraisal.” App., infra, 27a. The

Court should indeed revisit qualified immunity—and

this is a prime case to do so.

This case is an especially attractive one for review

given that the conduct at issue was not the product of

any emergent situation. Rather, these administrative

state officials formed a deliberate plan, they contemplated their options, and only then—with the benefit of

unlimited time—did defendants take action.1

A. Legal Background

1. Section 1983 was originally enacted as part of

the Civil Rights Act of 1871. As part of Congress’s efforts to combat lawlessness during Reconstruction,

Section 1983 provided individuals with a cause of action to sue state officials who violated their legal or

constitutional rights “under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia.” 42 U.S.C. §

1983.

In Pierson v. Ray, 386 U.S. 547 (1967), fifteen

white and black clergymen were arrested and charged

This petition is being filed together with a petition for certiorari

in Corbitt v. Vickers, which also asks the Court to reconsider its

qualified immunity jurisprudence. See 929 F.3d 1304 (11th Cir.

2019). The reasoning contained in that petition applies fully here.

The Court may wish to grant both petitions together to explore all

salient issues, or to grant one and hold the other.

with a misdemeanor when they attempted to use segregated facilities in Mississippi. Id. at 549. The clergymen then sued the officers for false arrest and imprisonment. Id. at 550. The Court concluded that, because “the defense of good faith and probable cause”

applied to “the common-law action for false arrest and

imprisonment,” it was available as a defense to the

Section 1983 suit. Id.at 557. Ultimately, the court reasoned that, in enacting Section 1983, Congress did not

“abolish wholesale” then-existing “common-law immunities.” Id. at 554.

Subsequently, in Scheuer v. Rhodes, 416 U.S. 232,

245-248 (1974), the Court drew on judicial and legislative immunity doctrines (id. at 239 n.4)—not doctrines

that historically provided immunity to police officers.

The Court noted that its decision was driven by “policy

consideration[s],” notably the risk that officials may

“fail to make decisions when they are needed” or may

“not fully and faithfully perform the duties of their offices.” Id. at 241-242. From there, the Court concluded

that “[t]hese considerations suggest that, in varying

scope, a qualified immunity is available to officers of

the executive branch of government.” Id. at 247. The

Court determined that this immunity required “the existence of reasonable grounds for the belief formed at

the time and in light of all the circumstances, coupled

with good-faith belief.” Id. at 247-248.

Qualified immunity fully emerged in Harlow v.

Fitzgerald, 457 U.S. 800 (1982). Again the Court focused on perceived policy concerns relating to litigation

against public officials: “the expenses of litigation, the

diversion of official energy from pressing public issues,

and the deterrence of able citizens from acceptance of

public office.” Id. at 814. In light of these policies, the

Court reversed the subjective good faith requirement it

had adopted in Scheuer and other cases. Id. at 816-817.

The Court restated the immunity doctrine to “hold that

government 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.” Id. at

818. In reaching this conclusion, the Court relied on

neither statutory text nor common law.

2. The Fourth Amendment requires precompliance

review of an administrative subpoena before a neutral

decisionmaker. See v. City of Seattle, 387 U.S. 541

(1967). However, New York v. Burger, 482 U.S. 691,

721 n.7 (1987), created an exception for searches with

respect to “closely regulated industries.” The government may undertake a search, without precompliance

review, where there exists a “‘substantial’ government

interest” to regulate the business; the regulatory

scheme requires warrantless searches to further such

interest; and the regulatory framework incorporates a

“constitutionally adequate substitute for a warrant.”

Id. at 702-703.

For an administrative scheme to sufficiently approximate a warrant, it “must perform the two basic

functions of a warrant: it must advise the owner of the

commercial premises that the search is being made

pursuant to the law and has a properly defined scope,

and it must limit the discretion of the inspecting officers.” Burger, 482 U.S. at 703. This serves, in part, a notice function—the law must be “‘sufficiently comprehensive and defined that the owner of commercial

property cannot help but be aware that his property

will be subject to periodic inspections undertaken for

specific purposes.’” Ibid. (quoting Donovan v. Dewey,

452 U.S. 594, 600 (1981)).

B. Factual Background

Petitioner Dr. Joseph Zadeh is an internal medicine doctor, and he owns and operates a medical practice in a suburb of Dallas, Texas. App., infra, 2a. Petitioner Jane Doe is one of his patients. Ibid.

The Drug Enforcement Administration (DEA) investigated Dr. Zadeh’s prescribing activities. App., infra, 2a. In October of 2013, a DEA investigator emailed

a representative of the Texas Medical Board (Board),

requesting assistance in developing a case against him.

Ibid. The investigator wrote: “I’m at a point in the

criminal case that I need to interview Dr. Zadeh and

review his patient files.” Ibid. The Board subsequently

opened its own investigation into Zadeh. Ibid.

On October 22, 2013, two Board investigators—

respondents Pease and Kirby—“served an administrative subpoena on Dr. Zadeh.” App., infra, 3a. The subpoena instanter was signed by respondent Robinson,

the Board’s Executive Director. Ibid. In relevant part,

it demanded “the immediate production of the medical

records of sixteen of Dr. Zadeh’s patients.” Ibid. Petitioner Doe was one of those patients. Id. at 71a.

Because “Dr. Zadeh was not present when the investigators arrived,” respondents handed the subpoena

to his assistant. App., infra, 3a. While respondents initially waited in reception area as the assistant contacted Dr. Zadeh and two lawyers, they eventually demanded immediate compliance. Ibid. Respondents informed the assistant that “they would suspend Dr. Zadeh’s license if the records they sought were not

produced.” Ibid. At that point, the assistant complied,

leading respondents “into a conference room and delivering the requested records to them.” Ibid.

Respondents remained in Dr. Zadeh’s offices “for

several hours,” copying records. App., infra, 72a. “Za-

deh’s lawyer eventually arrived and instructed the investigators to leave the premises.” Ibid.

C. Proceedings Below

Dr. Zadeh and Jane Doe brought this Section 1983

suit, alleging, as relevant here, that respondents’ actions violated their Fourth Amendment rights. App.,

infra, 3a-4a. Defendants moved to dismiss, asserting

qualified immunity. Id. at 4a.

1. The district court held that, “as a general rule,

when an agency intends to execute a search pursuant

to the administrative search exception, it must provide

an opportunity for precompliance judicial review.”

App., infra, 80a. But a “more relaxed standard” may

apply to administrative searches of “closely regulated

businesses.” Id. at 81a (citing City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2454 (2015)). Under Burger, the district court emphasized, an “agency can

search a closely regulated business without providing

an opportunity for precompliance judicial review, but

only if the search is necessary to further a regulatory

scheme that is informed by a substantial government

interest.” Id. at 80a. And that “regulatory scheme must

provide ‘a constitutionally adequate substitute for a

warrant.’” Ibid. (quoting Dewey, 452 U.S. at 600).

In assessing whether the Burger exception applies,

the court reasoned that the “medical profession” is not

a “closely regulated business.” App., infra, 81a. Given

the lack of a “history of warrantless inspections” (ibid.),

and the countervailing “long history of recognizing the

need for privacy in the medical profession out of respect for doctor-patient confidentiality” (id. at 81a82a), the court held that it “strains credibility to suggest that doctors and their patients have no reasonable

expectation of privacy” (id. at 82a).

But even if the medical profession “were to be considered closely regulated,” the district court found,

“Plaintiffs’ allegations, if proven, would still establish a

Fourth Amendment violation.” App., infra, 83a. That is

because defendants’ regulatory inspection scheme

failed to meet the third prong of the Burger test: it

failed to “perform the two basic functions of a warrant.”

Id. at 83a-84a. That included the lack of any limitation

on the Board’s discretionary authority. Id. at 87a.

At qualified immunity “step two,” however, the district court found that the relevant rights were not sufficiently established at the time. App., infra, 92a-99a.

The court concluded that, at the time of the conduct, it

“was unclear whether the medical profession should be

considered a closely regulated business.” Id. at 98a.

Further, the court held that was also “unclear to what

degree, if at all, a regulatory scheme allowing for the

warrantless inspection of a closely regulated business

must limit the discretion of the inspecting officer.” Ibid.

The court concluded that, in light of circuit precedent,

respondents “reasonably could have believed that a

search conducted pursuant to a purely discretionary

inspection scheme was legal.” Ibid.

2. The Fifth Circuit affirmed. App., infra, 1a-26a.

At the outset, the court concluded that the warrantless search “was a violation of Dr. Zadeh’s constitutional rights.” App., infra, 14a. Performing a Burger

analysis, the Fifth Circuit concluded that the “medical

industry as a whole is not a closely regulated industry,”

in view of the heightened expectations of privacy in

medical contexts. Id. at 11a. The court, however, noted

that pain management clinics may be treated uniquely,

and it did not determine whether such clinics qualify

as closely regulated industries. Ibid.

The court nonetheless held that, even assuming

that petitioners’ practice is a pain management clinic,

the warrantless search was unconstitutional. App., infra, 14a. The statute authorizing the Board to search

provided merely that it may examine “‘the documents

of a physician practicing at the clinic, as necessary to

ensure compliance with this chapter.’” Id. at 13a (quoting Tex. Occ. Code § 168.052(a)). Regulations provide

that the Board may “‘conduct inspections to enforce

these rules, including inspections of a pain management clinic and of documents of a physician’s practice.”

Ibid. (quoting 35 Tex. Reg. 1925, 1925-1926 (2010)).

This authority, the court found, was “purely discretionary”—and thus outside the requirements of Burger.

App., infra, 14a. Indeed, “there is no identifiable limit

on whose records can properly be subpoenaed.” Id. at

13a. And there is no limitation on “how the clinics inspected are chosen.” Id. at 14a. The court emphasized

that “these requirements suffered from the same fatal

* * * flaw” as that at issue in Burger. Ibid.

And yet, the majority reasoned, this constitutional

violation was insufficient to overcome qualified immunity because petitioners’ constitutional rights were not

“clearly established” at the time. App., infra, at 16a20a. The court began by stating that the presumption

is in favor of qualified immunity: “defendants are entitled to qualified immunity unless the constitutional requirements they violated were clearly established at

the time of their actions.” Id. at 14a.

The court then observed that the Constitution prohibits on-demand administrative searches absent statutory authorization providing for (and offering notice

of) such searches. Id. at 14a-15a. But this right, the

court held, was not sufficiently articulated to qualify as

“clearly established.” Id. at 16a-20a. The court emphasized that this requires prior legal authority address-

ing “the particular circumstances” faced by the defendant. Id. at 16a. As to one of the prior cases relied on by

petitioners—Beck v. Texas State Board of Dental Examiners, 204 F.3d 629 (5th Cir. 2000)—the court found

that Beck did not compel the conclusion “that the only

sufficient substitute under Burger was a statute authorizing no-notice searches.” App., infra, 17a.

3. Judge Willett first concurred dubitante, adding

his voice to a “growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary

immunity jurisprudence.” App., infra, 68a-69a.

Upon rehearing, however, Judge Willett dissented

in relevant part. App., infra, 26a-41a. Characterizing

the majority’s result as a decision of “violation-withoutvindication,” Judge Willett criticized the “judge-made

immunity regime” of qualified immunity as one that

“ought not be immune from thoughtful reappraisal.”

Id. at 27a. Though “[e]veryone agrees [Dr. Zadeh’s]

Fourth Amendment rights were violated,” he wrote,

such a constitutional violation “eludes vindication”

“owing to a legal deus ex machina—the ‘clearly established’ prong of qualified-immunity analysis.” Id. at

36a.

Judge Willett argued that the clearly established

prong has become complex and unsatisfactory. It requires plaintiffs to cite “functionally identical precedent,” and yet remains unclear as to how indistinguishable existing precedent must be to defeat qualified immunity. App., infra, 36a. Where like facts in like

cases are unlikely, he argued, the clearly established

standard has been left “neither clear nor established

among our Nation’s lower courts.” Id. at 37a.

“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.” App., infra, at 36a. The officers here, Judge

Willett wrote, might plausibly claim to be shielded by

Beck’s narrow exception to the rule against warrantless searches, so long as Dr. Zadeh cannot cite caselaw

placing the “legal question ‘beyond debate’ to ‘every’

reasonable officer.” Ibid. This “‘yes harm, no foul’ imbalance leaves victims violated but not vindicated,”

wrongs “not righted,” and “wrongdoers * * * not reproached.” Ibid.

Judge Willett also commented on two particular

features of the clearly established test.

First, he described the harm of “constitutional

stagnation.” App., infra, 37a. Because many courts

grant immunity without first determining whether the

challenged behavior violates the Constitution, he reasoned, courts are not “establishing law at all, much less

clearly doing so.” Ibid. Plaintiffs are left unable to

point to factually analogous precedent precisely because fewer courts are producing precedent. See Id. at

37a-38a. (“Section 1983 meets Catch-22.”). “Courts

then rely on that judicial silence to conclude there’s no

equivalent case on the books.” Id. at 38a. This reasoning, made possible by Pearson v. Callahan, 555 U.S.

223 (2009), Judge Willett argued, amounts to an

“Escherian Stairwell” for qualified immunity doctrine.

Ibid. “Heads government wins, tails plaintiff loses.”

Ibid.

Second, because constitutional litigation increasingly involves cutting-edge technologies, if courts continue to avoid the constitutional merits in cases raising

novel issues, then “constitutional clarity * * * remains

exasperatingly elusive.” App., infra, at 38a. Without

clear holdings at step-one of the qualified immunity

analysis, the public will be left with “gauzy constitu-

tional guardrails as technological innovation outpaces

legal adaptation.” Ibid.

Additionally, Judge Willett argued that the majority erred in its appraisal of the case. Respondents’ constitutional violation did violate “clearly established

law, not a previously unknown right.” App., infra, at

27a. It is a violation to conduct a warrantless search

without precompliance review, Judge Willett emphasized. Id. at 28a. It is only where Burger’s test is satisfied that such an inspection does not violate the Fourth

Amendment. Id. at 28a-29a. The statute at issue, however, failed long-established requirements—it neither

authorized Board officials to search without notice, nor

did it meaningfully limit officer discretion. Id. at 30a33a. As a result, “[n]o exception applies. And it’s only

when an exception applies that the general rule

doesn’t.” Id. at 35a.

REASONS FOR GRANTING THE PETITION

The Court should grant review. A chorus of voices

has raised substantial questions regarding the scope

and legal foundation of qualified immunity. This includes Judge Willet, who issued an extended dissent in

this case. This issue is indeed important: Qualified

immunity recurs with frequency, and it has severely

inhibited the refinement of governing constitutional

standards.

The “clearly established” analysis also suffers from

lack of clarity, resulting in patchwork treatment across

the circuits. And this is a particularly good case for review. As Judge Willett explained, any less aggressive

qualified immunity doctrine would result in victory for

petitioners.

Finally, review is warranted because qualified immunity has grown far too strong—yet it has no legitimate foundation. The doctrine sprung wholly as judi-

cial policy, without any constitutional, statutory, or

common law origin. And time has shown that—even if

those policy judgments could support the doctrine—

qualified immunity does not accomplish these stated

goals.

A. The Court should reexamine the qualified

immunity doctrine.

The scope and viability of the prevailing qualified

immunity doctrine requires careful evaluation—

significant criticisms have surfaced, the doctrine presently leads to stagnation in the refinement of governing constitutional standards, and the issue arises with

considerable frequency.

1. In recent years, criticism of prevailing qualified

immunity doctrine has been widespread and sustained.

Justice Thomas, for example, recently “note[d] [his]

growing concern with [the Court’s] qualified immunity

jurisprudence.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1870

(2017) (Thomas, J., concurring in part and concurring

in the judgment). As the doctrine has evolved, the

Court has “‘completely reformulated qualified immunity along principles not at all embodied in the common

law.’” Id. at 1871 (quoting Anderson v. Creighton, 483

U.S. 635, 645 (1987)). And, because the Court’s “analysis is no longer grounded in the common-law backdrop

against which Congress enacted the 1871 Act,” the

Court no longer is “interpreting the intent of Congress

in enacting the Act.” Ibid. (quotation alteration omitted). Justice Thomas ultimately urged that, “[i]n an

appropriate case, we should reconsider our qualified

immunity jurisprudence.” Id. at 1872.

Justice Sotomayor has likewise expressed concerns

regarding the current reaches of the doctrine. Kisela v.

Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J.,

dissenting). Because “[n]early all of the Supreme

Court’s qualified immunity cases come out the same

way—by finding immunity for the officials,” Justice Sotomayor cautioned that the current “one-sided approach to qualified immunity transforms the doctrine

into an absolute shield for law enforcement officers.”

Ibid. In the Fourth Amendment context, the result is to

“gut[]” its “deterrent effect.” Ibid. More broadly, this

“sends an alarming signal to law enforcement officers

and the public”—“It tells officers that they can shoot

first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Ibid.

These concerns are broadly recognized. See Morrow

v. Meachum, 917 F.3d 870, 874 n.4 (5th Cir. 2019)

(Oldham, J.) (“Some—including Justice Thomas—have

queried whether the Supreme Court’s post-Pierson

qualified-immunity cases are ‘consistent with the

common-law rules prevailing [when [Section] 1983 was

enacted] in 1871.’”); Rodriguez v. Swartz, 899 F.3d 719,

732 n.40 (9th Cir. 2018) (Kleinfeld, J.) (“Some argue

that the ‘clearly established’ prong of the analysis lacks

a solid legal foundation.”); Thompson v. Cope, 900 F.3d

414, 421 n.1 (7th Cir. 2018) (Hamilton, J.) (“Scholars

have criticized [the qualified immunity] standard.”);

Ventura v. Rutledge, 2019 WL 3219252, at *10 n.6

(E.D. Cal. 2019) (“[T]his judge joins with those who

have endorsed a complete re-examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”);

Thompson v. Clark, 2018 WL 3128975, at *10

(E.D.N.Y. 2018) (Weinstein, J.) (“The legal precedent

for qualified immunity, or its lack, is the subject of intense scrutiny.”).

In critiquing prevailing doctrine, Judge James

Browning supplied a district court perspective: “Factually identical or highly similar factual cases are not

* * * 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.” Quintana v.

Santa Fe Cty. Bd. of Comm’rs, 2019 WL 452755, at *37

n.33 (D.N.M. 2019). In Judge Browning’s view, the current “obsession with the clearly established prong” improperly “assumes that officers are routinely reading

Supreme Court and [circuit court] 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.” Ibid. That is not

how police operate: “in their training and continuing

education, police officers are taught general principles,

and, in the intense atmosphere of an arrest, police officers rely on these general principles.” Ibid. In requiring a “highly factually analogous case,” this Court’s jurisprudence “has either lost sight of reasonable officer’s

experience or it is using that language to mask an intent to create ‘an absolute shield for law enforcement

officers.’” Ibid.

Until this Court examines it, the qualified immunity doctrine will continue to face criticism. See, e.g., William Baude, Is Qualified Immunity Unlawful?, 106

Cal. L. Rev. 45, 46-49 (2018); Joanna C. Schwartz, The

Case Against Qualified Immunity, 93 Notre Dame L.

Rev. 1797, 1800 (2018); and Joanna C. Schwartz, How

Qualified Immunity Fails, 127 Yale L.J. 2, 11-12

(2017).

2. The current state of qualified immunity jurisprudence leaves significant violations of constitutional

rights without vindication. “This current ‘yes harm, no

foul’ imbalance leaves victims violated but not vindicated. Wrongs are not righted, and wrongdoers are not

reproached.” App., infra, 36a (Willett, J.).

And, given the frequent use of qualified immunity,

courts fail to refine the contours of constitutional

rights—perpetually locking in the cycle of immunity.

This now occurs frequently, with courts “avoid[ing]

scrutinizing the alleged offense by skipping to the simpler second prong.” App., infra, 37a (Willett, J.). See also Sims v. City of Madisonville, 894 F.3d 632, 638 (5th

Cir. 2018) (noting that the case was the “fourth time in

three years that an appeal has presented the question

whether someone who is not a final decisionmaker can

be liable for First Amendment retaliation.”); Aaron L.

Nielson & Christopher J. Walker, The New Qualified

Immunity, 89 S. Cal. L. Rev. 1, 37-38 (2015) (finding a

post-Pearson decrease in the willingness of circuit

courts to decide constitutional questions). This result,

when compounded with lower court’s restrictive reading of the “clearly established” standard, has produced

an “Escherian Stairwell” in which “[p]laintiffs must

produce precedent even as fewer courts are producing

precedent.” App., infra, 38a (Willett, J.).

3. Review is also warranted because these questions recur with enormous frequency. A Westlaw

search found around 6,000 federal opinions mentioning

qualified immunity in 2018 alone. And, each year, tens

of thousands of lawsuits are filed that may implicate

qualified immunity. See Civil Federal Judicial Caseload Statistics, tbl. C-2 (Mar. 31, 2018) (identifying

that, for 12 months ending in March 2018, 15,020 “other civil rights” lawsuits, 20,673 prisoner civil rights

cases, and 10,947 prison condition cases were filed—

virtually all of which could involve a qualified immunity defense).

B. The “clearly established” doctrine has

created a patchwork of conflicting circuit

approaches.

As we just described, the need to reevaluate the

qualified immunity doctrine is reason enough to grant

the petition. Beyond that, there is a persistent disa-

greement among the courts of appeals regarding the

degree of factual similarity required from precedent for

official conduct to violate “clearly established law.”

1. The Fifth Circuit—as reflected in its decision

here and elsewhere—takes an outlier approach, requiring a very substantial degree of factual similarity with

past precedent. As we illustrated, the Court here

searched for governing precedent that had addressed

materially identical facts. App., infra, 16a-18a. In the

absence of case law addressing the same factual scenario, the court concluded that statements of governing

rules—with obvious application to respondents’ conduct—could not satisfy the “clearly established” requirements.

Morrow v. Meachum, 917 F.3d 870 (5th Cir. 2019),

involved an excessive force claim against a police officer who used his police car to strike a fleeing motorcyclist, killing him. Id. at 873-874. In so holding, the

Fifth Circuit set aside the many cases cited by appellants from other jurisdictions forming a “consensus”

that a “rolling block” was a violation of clearly established rights where a fleeing driver “pose[s] no immediate danger.” Id. at 879-880. Instead, the court determined that precedent did not “foreclose using deadly

force to end police chases.” Id. at 877.

This understanding of “clearly established” is oftapplied in the Fifth Circuit. See, e.g., McLin v. Ard,

866 F.3d 682, 696 (5th Cir. 2017) (To defeat qualified

immunity, the court “must be able to point to controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.”) (quoting

Morgan v. Swanson, 659 F.3d 359, 371-372 (5th Cir.

2011)). And the Court routinely distinguishes past

precedent based on distinctions that are often relatively thin. See, e.g., Cleveland v. Bell, 938 F.3d 672, 677

(5th Cir. 2019); Marks v. Hudson, 933 F.3d 481, 486

(5th Cir. 2019).

2. Other circuits, however, have taken more flexible approaches regarding appropriate mechanisms to

satisfy the “clearly established” inquiry.

First, the plurality of circuits reason directly from

this Court’s holding in Hope v. Pelzer, 536 U.S. 730

(2002), that “fair notice” to officers can exist absent

particular precedent addressing the specific facts of the

violation in question. Id. at 742.

The Eighth Circuit, in Mountain Pure v. Roberts,

814 F.3d 928 (8th Cir. 2016), for instance, even in affirming a finding of qualified immunity, held that

courts should use a “flexible standard, requiring some,

but not precise factual correspondence with precedent.”

Id. at 932 (quotation omitted). The Eighth Circuit has

continued to apply this rule, including to find violations of clearly established law even in the absence of

precedent directly on point.

In Z.J. v. Kansas City Bd. of Police Comm’nrs, 931

F.3d 672 (8th Cir. 2019), the court found the use of

flash-bang grenades by a SWAT team to enter a home

with unknown occupants so “unreasonable” (id. at 683)

that it violated clearly established Fourth Amendment

law, even absent specific factual similarity from precedent (id. at 684, 689). The court applied its rule that

“[a]n officer may have fair notice based on the fact his

conduct is obviously unlawful, even in the absence of a

case addressing the particular violation.” Id. at 685.

The Third Circuit similarly does “not require a

case directly mirroring the facts at hand.” Kane v.

Barger, 902 F.3d 185, 195 (3d Cir. 2018) (quotation and

alteration omitted). Sufficiently analogous—but not

identical—precedent may suffice to place officials “‘on

notice that their conduct violates established law even

in novel factual circumstances.’” Ibid. (quoting Hope,

536 U.S. at 741).

The Ninth Circuit also does not require “a prior

identical action to conclude that the right is clearly established.” Ioane v. Hodges, 939 F.3d 945, 956 (9th Cir.

2018). So too in the Fourth Circuit, where, “[i]n the

absence of ‘directly on-point, binding authority,’ courts

may also consider whether “the right was clearly established based on general constitutional principles or a

consensus of persuasive authority.” Thompson v. Virginia, 878 F.3d 89, 98 (4th Cir. 2017) (quotation omitted).

Second, several circuits have adopted a two-track

approach wherein some official actions implicate such

“obvious” violations of constitutional rights that no degree of factual similarity from precedent is necessary.

In Simon v. City of New York, 893 F.3d 83, (2d Cir.

2018), for instance, the Second Circuit held that the

unlawful detention of a material witness was a violation of clearly established law without “need[ing]” to

“decide” whether out-of-circuit authorities “clearly

foreshadow[ed]” the decision. Id. at 97. “This is one of

the uncommon obvious cases,” the court found, “in

which the unlawfulness of the defendants’ conduct is

sufficiently clear even though existing precedent does

not address similar circumstances.” Ibid. (citation

omitted; alterations incorporated).

The Seventh Circuit also examines whether, “[i]f

no existing precedent puts the conduct beyond debate,”

the defendant’s “alleged conduct is so egregious that it

is an obvious violation of a constitutional right.” Leiser

v. Kloth, 933 F.3d 696, 702 (7th Cir. 2019). Likewise,

the Tenth Circuit applies a “sliding scale” approach

such that, the more “obviously egregious” the official

conduct in light of “prevailing constitutional princi-

ples,” the less factual specificity required from precedent. A.M. v. Holmes, 830 F.3d 1123, 1135-1136 (10th

Cir. 2016).

Altogether, the Fifth Circuit has taken an outlier

approach to qualified immunity—requiring an impossibly high level of factual similarity to past precedent

before a constitutional violation can be deemed “clearly

established.” That is all the more reason why review is

warranted, and why recalibration of the standards

governing qualified immunity is necessary.

C. This is an excellent vehicle to reevaluate

qualified immunity.

This case presents an attractive opportunity to

reevaluate qualified immunity. All three judges of the

court of appeals—like the district judge—agree that respondents violated petitioners’ constitutional rights.

App., infra, 14a (“To summarize, we have concluded

there was a violation of Dr. Zadeh’s constitutional

rights.”). The only question here was whether that

right was sufficiently well established. On that issue,

the court divided.

This is thus a suitable case to reverse qualified

immunity in whole. If the defense is not cognizable in

circumstances like those here, then there is no doubting that petitioners’ claims may proceed.

What is more, this case provides occasion for the

Court to, in the alternative, recalibrate the standard

for assessing whether a particular right is “clearly established.” If less particularity is required than what

was mandated below, petitioners’ claims may proceed—just as the dissent would have held.

In fact, the disagreement between the majority and

the dissent turned on the degree of precision required.

Judge Willett found that it was sufficiently established

that there is a “need for precompliance review of ad-

ministrative subpoenas.” App., infra, 34a. That is, he

explained, “controlling law.” Ibid. Exceptions to clearly

established rights should not form a basis for qualified

immunity, as that makes the analysis “hyperspecific.”

Id. at 35a. Even if the contours of the exception had to

be established, moreover, “[c]ontrolling law dictates

that there must be statutory notice.” Ibid. Since “the

Texas laws don’t provide notice for on-demand inspections,” it was clearly established that there could be

no recourse to an exception to the usual text. Id. at

36a.

But, for the majority, this analysis was not sufficiently specific. Looking at its past cases, because not

one was on all-fours factually, the court concluded that

not “all reasonable officers would have known” of the illegality of their conduct “until now.” App., infra, 18a.

This case also features no urgent decision-making.

The administrative state officials in this case were not

faced with a split-second decision that forced them to

act without deliberation. Rather, they had an opportunity to consider their course of action—and they

chose to proceed just the same, in a way that violated

petitioners’ constitutional rights by searching intensely

private papers outside of any judicial process. These

circumstances render application of qualified immunity

especially dubious. Immunity should be at its nadir

when officials have more than ample time to contemplate the legality of their proposed conduct.

And the constitutional rights here are substantial.

The Court has emphasized that physicians have an interest in “keeping their prescription decisions confidential.” Sorrell v. IMS Health Inc., 564 U.S. 552, 572

(2011). See also Health Insurance Portability and Accountability Act (“HIPAA”), 45 C.F.R. § 164.512. And,

challenging the notion that warrantless searches would

advance the public interest, the Court has held that

medical patients have a “reasonable expectation of privacy” that their records will not be shared without

their permission. Ferguson v. City of Charleston, 532

U.S. 67, 78 (2001).

D. Qualified immunity is inconsistent with the

text and history of Section 1983.

Review is additionally warranted because qualified

immunity, as currently formulated, bears no relation to

either the text of Section 1983 or the common-law immunities from which it sprang. See Ziglar, 137 S. Ct. at

1869-1872 (Thomas, J., concurring); William Baude, Is

Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45

(2018).

1. The current qualified immunity doctrine has no

basis in the text of Section 1983. The Court has

acknowledged this point time and again—Section 1983

“on its face admits of no immunities” (Imbler v. Pachtman, 424 U.S. 409, 417 (1976)), and “[Section 1983’s]

language is absolute and unqualified; no mention is

made of any privileges, immunities, or defenses that

may be asserted” (Owen v. City of Independence, 445

U.S. 622, 635 (1980)).

Rather than growing out of any textual hook, qualified immunity was borne out of a putative “good faith”

defense to a few specific torts. Pierson v. Ray, 386 U.S.

547, 554-556 (1967). It is now applied to all Section

1983 claims. But scholarship suggests that no such

free-standing defense existed at common law. See Baude, supra, at 55-57. See also Ziglar, 137 S. Ct. at 1871

(Thomas, J., concurring) (“some evidence supports the

conclusion that common-law immunity as it existed in

1871 looked quite different from our current doctrine”).

Indeed, the current doctrine bears no resemblance

whatsoever to any common-law immunity defense. The

modern test refers to whether the right in question was

clearly established. See Harlow v. Fitzgerald, 457 U.S.

800 (1982). This reflects, the Court itself acknowledges,

“principles not at all embodied in the common law”

when Section 1983 was enacted. Anderson, 483 U.S. at

645. See also Baude, supra, at 60.

2. Rather than emanating from text or history,

qualified immunity was informed by judge-made policy

determinations. In particular, the court was concerned

with the imposition of personal liability on public officials and the burden of litigation. See Harlow, 457 U.S.

at 813-814 (addressing perceived social costs of claims

against government officials). But, as Justice Thomas

observed, these “qualified immunity precedents * * *

represent precisely the sort of freewheeling policy

choices that [the Court has] previously disclaimed the

power to make.” Ziglar, 137 S. Ct. at 1871 (Thomas, J.,

concurring) (quotation and alteration omitted).

Beyond that, qualified immunity has proven not to

accomplish the goals it seeks. As for officer liability,

indemnification is the norm. One study found that officers in a sample of settlements for police misconduct

only paid 0.02% of the damages paid to plaintiffs,

demonstrating the strong protection already afforded

by indemnification. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 890 (2014). And there

is evidence that qualified immunity plays no meaningful role in alleviating litigation burdens. See Joanna C.

Schwartz, How Qualified Immunity Fails, 127 Yale

L.J. 2, 48-51 (2017). While justified solely by judicially

identified policy, decades of experience have proven

that those policies are not meaningfully advanced by

the doctrine.

3. No factors counsel in favor of retaining qualified

immunity in its current fashion. The Court has previously altered its judge-made rules regarding Section

1983, without serious hesitation. See, e.g., Pearson v.

Callahan, 555 U.S. 223, 233-234 (2009) (overruling

Saucier v. Katz, 533 U.S. 194 (2001)); Harlow, 457 U.S.

at 816-818 (overruling subjective good-faith requirement identified in Scheuer, Gomez, and other authorities). Having been “tested by experience” (Patterson v.

McLean Credit Union, 491 U.S. 164, 173-174 (1989)),

existing doctrine has proven not just ineffective at accomplishing its stated ends, but affirmatively detrimental to litigants and the law alike.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.