Amicus Curiae Brief — Joseph A. Zadeh, et al., Petitioners v. Mari Robinson, et al.

No. 19-676

IN THE

Supreme Court of the United States

————

JOSEPH A. ZADEH, ET AL.,

Petitioners,

v.

MARI ROBINSON, ET AL.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF AMICUS CURIAE

ASSOCIATION OF AMERICAN

PHYSICIANS AND SURGEONS,

IN SUPPORT OF PETITIONERS

————

ANDREW L. SCHLAFLY

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

December 18, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

QUESTION PRESENTED

Whether the Court should recalibrate or

reverse the doctrine of qualified immunity.

ii

TABLE OF CONTENTS

Pages

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

Table of Contents ................................................. ii

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

Interests of Amicus Curiae ................................... 1

Summary of Argument ......................................... 2

Argument .............................................................. 4

I. Qualified Immunity Should Not Extend

to Where, as Here, the Violations of the

Fourth Amendment Were Egregious ............ 5

II. An Entrenched Pattern of Violating

Constitutional Rights Is Less Deserving of

Qualified Immunity, Not More So ............... 10

III. None of the Rationales for Qualified

Immunity Exists Here. ................................ 11

Conclusion ........................................................... 14

iii

TABLE OF AUTHORITIES

Pages

Cases

Ass’n of Am. Physicians & Surgs. v. Clinton,

997 F.2d 898 (D.C. Cir. 1993) ........................... 2

Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975) .......................... 1

Ass’n of Am. Physicians & Surgs. v. Tex. Med.

Bd., 627 F.3d 547 (5th Cir. 2010) ..................... 2

District of Columbia v. Heller, 554 U.S. 570

(2008) ................................................................. 2

Ferguson v. City of Charleston, 532 U.S. 67

(2001) ................................................................. 7

Forrester v. White, 484 U.S. 219 (1988) ............. 12

Giordenello v. United States,

357 U.S. 480 (1958) ........................................... 9

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .. 12, 13

Johnson v. United States,

333 U.S. 10 (1948) ......................................... 8, 9

Katz v. United States, 389 U.S. 347 (1967) .......... 6

Mancusi v. DeForte, 392 U.S. 364 (1968) ............. 9

Mullenix v. Luna, 136 S. Ct. 305 (2015) .............. 6

Pearson v. Callahan, 555 U.S. 223 (2009) ........... 5

Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920) ....................................... 7, 8

Springer v. Henry, 435 F.3d 268 (3d Cir.

2006) .................................................................. 2

Stenberg v. Carhart, 530 U.S. 914 (2000) ............ 2

United States v. Jones, 565 U.S. 400 (2012) ........ 6

United States v. Natale, 719 F.3d 719 (7th

Cir. 2013) .......................................................... 2

Whalen v. Roe, 429 U.S. 589 (1977) ..................... 7

iv

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ............ 11

Statutes

British Nationality Act of 1948

http://www.legislation.gov.uk/ukpga/

Geo6/11-12/56/enacted ................................. 3-4

Articles

American Academy of Pediatrics Committee

on Injury and Poison Prevention (2000) ....... 6-7

American Psychiatric Association Workgroup

on Suicidal Behaviors (2003)............................ 7

Brian Falls, “Legislation prohibiting

physicians from asking patients about

guns,” Journal of Psychiatry & Law

(Fall 2011) ..................................................... 6, 7

No. 19-676

IN THE

Supreme Court of the United States

JOSEPH A. ZADEH, ET AL.,

Petitioners,

v.

MARI ROBINSON, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

INTERESTS OF AMICUS CURIAE1

Amicus Association of American Physicians and

Surgeons (“AAPS”), is a national association of

physicians. Founded in 1943, AAPS is dedicated to the

highest ethical standards of the Oath of Hippocrates

and to preserving the sanctity of the patient-physician

relationship. AAPS has been a litigant in this Court

and in other appellate courts. See, e.g., Ass’n of Am.

Physicians & Surgs. v. Mathews, 423 U.S. 975 (1975);

1 Amicus files this brief after providing the requisite ten days’

prior written notice and receiving written consent by all the

parties. Pursuant to Rule 37.6, counsel for amicus curiae

authored this brief in whole, no counsel for a party authored this

brief in whole or in part, and no such counsel or a party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person or entity – other than amicus,

its members, and its counsel – contributed monetarily to the

preparation or submission of this brief.

2

Ass’n of Am. Physicians & Surgs. v. Tex. Med. Bd., 627

F.3d 547 (5th Cir. 2010); Ass’n of Am. Physicians &

Surgs. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993).

This Court has expressly made use of amicus briefs

submitted by AAPS. See, e.g., Stenberg v. Carhart, 530

U.S. 914, 933 (2000); id. at 959, 963 (Kennedy, J.,

dissenting); District of Columbia v. Heller, 554 U.S.

570, 704 (2008) (Breyer, J., dissenting). The Third and

Seventh Circuits have also made use of amicus briefs

by AAPS. See United States v. Natale, 719 F.3d 719,

739 (7th Cir. 2013); Springer v. Henry, 435 F.3d 268,

271 (3d Cir. 2006).

AAPS filed an amicus brief with the Fifth Circuit

in this case below, and has a strong interest in this

petition for a writ of certiorari.

SUMMARY OF ARGUMENT

“To summarize, we have concluded there was a

violation of Dr. Zadeh’s constitutional rights,” the

Fifth Circuit held below. (Pet. App. 14a) With that

clear ruling, this case is an excellent vehicle for

reconsidering qualified immunity, which the Fifth

Circuit applied despite the stark violation of

constitutional rights. This infringement was not done

in the heat of a moment by a police officer

understandably making a snap decision involving life

or death, but instead was a pervasive practice by

officials at the Texas Medical Board (TMB) in violation

of rights familiar to most first-year law students.

The judge-made doctrine of qualified immunity is

overdue for review particularly where, as here, there

is a violation without any justification of urgency.

Government can cause real harm to individuals, and it

confounds justice to automatically deny relief from

3

constitutional violations; there should be a real

deterrent for conduct by government which is

unconstitutional. The exclusionary rule, as used in the

criminal context, is one approach. Its better analog in

the civil context would be real liability for damages

caused by violations of constitutional rights, not a

presumptive denial of legal accountability.

Sovereign immunity is an outdated vestige of a

monarchy

which

is

unsupportable

in

our

constitutional republic today. It is unfair to require a

victim of a violation of constitutional rights to bear the

full brunt of the damages, rather than spreading that

loss among the public which can do something about it

through the democratic process. Just as charitable

immunity doctrine has been cast aside by courts as

unjustified today, qualified immunity for government

violations of constitutional rights is an anachronism.

This case illustrates the incoherence of qualified

immunity doctrine in its current form. The panel

below essentially held that evidence of a tradition of

constitutional violations by a government agency is

justification for applying qualified immunity. The

opposite should be true: the more pervasive the

violations, the less the justification for any immunity.

“The King can do no wrong” is a legal doctrine

appropriate for a monarchy which has subjects, not for

our constitutional republic comprised of citizens. Until

1948, there was no citizenship in Great Britain, and it

made sense in that monarchy for subjects of the Crown

not to be able to sue the Crown. It was not until the

British Nationality Act of 1948 that citizenship was

4

even established in Great Britain.2 American courts

should not continue to import, without statutory

justification, an artifact of a monarchy which Great

Britain itself has abandoned in other fundamental

ways.

The Petition should be granted to clarify or

overturn the judge-made doctrine of qualified

immunity.

ARGUMENT

When Fourth Amendment privacy rights are

flagrantly violated by the State, qualified immunity

should not excuse the wrongdoing. Warrants can be

obtained easily in compliance with the Fourth

Amendment, if a search is justified. But in the absence

of the safeguard of a warrant, physicians cannot be

confident that what they write in medical charts will

be kept private, and patients are deprived of assurance

that their intimate disclosures to physicians will

remain confidential. Attorneys are protected against

unlawful searches and seizures, thereby preserving

the attorney-client privilege and the confidence of

clients that their communications with attorneys will

remain private. Well-established Fourth Amendment

protections must extend to physicians and their

patients as well, and legal accountability is necessary

to attain that goal.

But by holding in favor of qualified immunity for

the lawless search below, the lower court gave carte

blanche to the administrative state to disregard the

Fourth Amendment. The lack of accountability for

such an unconstitutional act by the State is an

http://www.legislation.gov.uk/ukpga/Geo6/11-12/56/enacted

(viewed 12/8/19).

2

5

unacceptable precedent in connection with medical

record privacy. Qualified immunity should not extend

to eliminate remedies for this violation of the Fourth

Amendment, and the petition for certiorari should be

granted to address this important issue. The TMB

enforced a surprise administrative subpoena against a

physician’s office without any independent oversight

by a magistrate, without any meaningful protections

of patient privacy, and without complying with

fundamental Fourth Amendment requirements.

The decision below recognized the violation of the

constitutional right, but then erred in denying full

accountability for it.

By misapplying qualified

immunity, the Fifth Circuit deprived physicians and

patients of any remedy when a governmental agency,

in this case the TMB, egregiously infringes on their

Fourth Amendment rights. Review is needed here.

I.

Qualified Immunity Should Not Extend

to Where, as Here, the Violations of the

Fourth Amendment Were Egregious.

Qualified immunity should not apply where, as

here, there is an enormous “need to hold public

officials accountable when they exercise power

irresponsibly.” Pearson v. Callahan, 555 U.S. 223, 231

(2009). A non-emergency search of many persons’

entire medical records, which may contain sexual

histories, gun ownership, and private domestic issues,

was perpetrated by Respondents in egregious violation

of the Fourth Amendment.

There is no “need to shield officials from

harassment, distraction, and liability when they

perform their duties reasonably,” in the face of this

severe infringement on Fourth Amendment rights. Id.

6

Respondents “‘violate[d] clearly established statutory

or constitutional rights of which a reasonable person

would have known,’” and such conduct should not be

immunized from liability. Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (per curiam) (quoting Pearson, 555

U.S. at 231).

“Wherever a man may be, he is entitled to know

that he will remain free from unreasonable searches

and seizures.” Katz v. United States, 389 U.S. 347, 359

(1967). The patients who have had their entire

medical records unreasonably searched by the TMB

could have included political candidates or anyone who

becomes understandably upset when his or her most

intimate personal details are rifled through by

strangers. Given that the undercarriage of one’s

automobile (with respect to a tracking device) is

protected by the Fourth Amendment, personal medical

records are too. See, e.g., United States v. Jones, 565

U.S. 400 (2012) (holding that GPS tracking of an

automobile’s movements constitute a search under the

Fourth Amendment).

Guidelines compel physicians today to insert all

sorts of highly private information in a medical record,

such asking children about gun ownership in their

homes. The pro-gun control American Academy of

Pediatricians has recommended since 2000 that

“pediatricians incorporate questions about guns into

their patient history taking[,] and urge parents who

possess guns to remove them, especially handguns,

from the home.”

See Brian Falls, “Legislation

prohibiting physicians from asking patients about

guns,” Journal of Psychiatry & Law (Fall 2011)

[hereinafter, “Falls”] (citing American Academy of

Pediatrics Committee on Injury and Poison Prevention

7

893 (2000)). The American Psychiatric Association

likewise issued guidelines in 2003 insisting that

physicians ask any patient who might be suicidal

whether he or she has a gun at home or at work.

“[S]uch discussions should be documented in the

medical record, including any instructions that have

been given to the patient and significant others about

firearms or other weapons.” See Falls, section on

“Standards of care” (emphasis added, citing American

Psychiatric Association Workgroup on Suicidal

Behaviors 23 (2003)).

The Fourth Amendment plainly applies to

administrators making a surprise visit to a medical

office and demanding private medical records without

a warrant. Nearly two decades ago this Court applied

the Fourth Amendment against an invasion of medical

privacy by a public hospital that conducted, without

any suspicion, drug screening of pregnant women’s

urine, which had the legitimate goal of reducing an

epidemic of babies exposed to harmful illegal drugs in

utero. Ferguson v. City of Charleston, 532 U.S. 67, 7071, 77 (2001). See also Whalen v. Roe, 429 U.S. 589,

607 (1977) (“[T]he Constitution puts limits not only on

the type of information the State may gather, but also

on the means it may use to gather it.”).

A century ago Justice Holmes wrote for the

Supreme Court that a seizure of corporate documents

analogous to the search here was “an outrage which

the Government now regrets.” Silverthorne Lumber

Co. v. United States, 251 U.S. 385, 391 (1920)

(emphasis added). Justice Holmes emphasized that

regret is not enough, and there must be additional

consequences to the wrongdoing, and that “the rights

of a corporation against unlawful search and seizure

8

are to be protected even if the same result might have

been achieved in a lawful way.” Id. at 392. The

remedy in that case was to quash the subpoenas so

that the government could not benefit from its

unlawful seizure, but that does not right the wrong

with respect to an infringement on patients’ rights.

This Court has been abundantly clear that

government agents cannot properly decide for

themselves when to invade privacy. As this Court

explained 70 years ago:

The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies

law enforcement the support of the usual

inferences which reasonable men draw from

evidence. Its protection consists in requiring

that those inferences be drawn by a neutral

and detached magistrate instead of being

judged by the officer engaged in the often

competitive enterprise of ferreting out crime.

Any assumption that evidence sufficient to support

a magistrate’s disinterested determination to issue

a search warrant will justify the officers in making

a search without a warrant would reduce the

Amendment to a nullity and leave the people’s

homes secure only in the discretion of police

officers. … When the right of privacy must

reasonably yield to the right of search is, as a rule,

to be decided by a judicial officer, not by a …

government enforcement agent.

Johnson v. United States, 333 U.S. 10, 13-14 (1948)

(emphasis added). This Court emphasized in Johnson

that the search without a warrant of a hotel room was

a violation of the Fourth Amendment, even though the

Court found that the officers likely had probable cause

9

to obtain a warrant. See id. at 15. “If the officers in

this case were excused from the constitutional duty of

presenting their evidence to a magistrate, it is difficult

to think of a case in which it should be required.” Id.

Long ago the Supreme Court likewise held that

mere subpoenas, like those used below, may not be

used to circumvent the Fourth Amendment

requirement of a warrant. Nearly 50 years ago, the

Supreme Court explained as follows:

the subpoena involved here could not in any event

qualify as a valid search warrant under the Fourth

Amendment, for it was issued by the District

Attorney himself, and thus omitted the

indispensable condition that “the inferences from

the facts which lead to the complaint ‘... be drawn

by a neutral and detached magistrate instead of

being judged by the officer engaged in the often

competitive enterprise of ferreting out crime.’

Johnson v. United States, 333 U.S. 10, 14.”

Giordenello v. United States, 357 U.S. 480, 486. …

Thus, there can be no doubt that under this

Court’s past decisions the search of [defendant’s]

office was “unreasonable” within the meaning of

the Fourth Amendment.

Mancusi v. DeForte, 392 U.S. 364, 371-72 (1968)

(emphasis added). Similarly, “there can be no doubt”

that the search below violated the Fourth Amendment.

Accordingly, the Fifth Circuit was unanimous that

the surprise search of Dr. Zadeh’s medical office and

his patients’ records was in violation of the Fourth

Amendment. (Pet. App. 14a) So far, so good. But then

the appellate court applied qualified immunity

anyway to the clear violation, rendering the legal

10

challenge essentially for naught. (Id. 14a-20a) This

deprived the public, particularly patients, of essential

deterrence against infringements on the Fourth

Amendment.

II.

An Entrenched Pattern of Violating

Constitutional Rights Is Less Deserving

of Qualified Immunity, Not More So.

As an illustration of the broken doctrine of

qualified immunity doctrine, the degree to which a

constitutional violation is entrenched at a government

agency is deemed to be a reason to apply immunity

rather than reject it. The Fifth Circuit panel majority

expressly held that:

Even assuming that the plaintiffs could show that

Robinson failed to train her subordinates and that

failure resulted in a constitutional violation,

Robinson was not deliberately indifferent in

delegating her subpoena authority in light of the

fact she was acting pursuant to the

regulations in the same way as her

predecessors and the numerous subpoenas

issued each year.

(Pet. App. 25a, emphasis added).

Under this reasoning, a pervasive violation of

constitutional rights by a governmental agency is

more likely to receive qualified immunity than an

aberrational violation is. What is the logic in that?

The doctrine of qualified immunity has so many such

contortions that a review by this Court is overdue for

it.

This case of a non-emergency, egregious violation

of Fourth Amendment rights fits the call by Justice

11

Thomas to reconsider the doctrine of qualified

immunity:

Until we shift the focus of our inquiry to whether

immunity existed at common law, we will continue

to substitute our own policy preferences for the

mandates of Congress. In an appropriate case, we

should reconsider our qualified immunity

jurisprudence.

Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas,

J., concurring in part and concurring in the judgment).

The application of qualified immunity below

weakens any incentive for the Texas legislature and

executive branch to be proactive in preventing

recurrence of Fourth Amendment violations.

Entrenched government officials can abuse their

power with impunity under the expansive application

of qualified immunity to their conduct. While such

sweeping immunity may make sense if governance

were by a monarch protected by the concept “the King

does no wrong,” virtually blanket immunity does not

make sense in our constitutional republic.

III.

None of the Rationales for Qualified

Immunity Exists Here.

None of the rationales for applying qualified

immunity exists here, and no purpose is served by

immunizing from accountability the wrongdoing by

State officials in this case. Their insistence on an

immediate search of the entire medical records of

numerous patients, without any opportunity for precompliance review, obviously implicates the Fourth

Amendment as any first-year law student would know.

12

Perhaps the most often stated rationale for

qualified immunity is to avoid inhibiting officials in

the performance of their duties. The “threat of liability

can create perverse incentives that operate to inhibit

officials in the proper performance of their duties.”

Forrester v. White, 484 U.S. 219, 223 (1988).

But no such “perverse incentives” are remotely

plausible in this case, or cases like it. Administrators

at the TMB knew, or should have known, the

importance of pre-compliance judicial review before

rifling through private medical records.

Legal

accountability for TMB officials who deny physicians

and patients their constitutional right to timely

judicial review is the sort of disincentive that should

be established. The only “perverse incentives” are

those created by immunizing such wrongdoing against

legal accountability, as the Fifth Circuit decision does.

Although not invoked by the Fifth Circuit in this

case, another rationale sometimes cited for allowing

qualified immunity to shield public officials from

liability for infringing on constitutional rights is that

such liability may cause a “deterrence of able citizens

from acceptance of public office.” Harlow v. Fitzgerald,

457 U.S. 800, 814 (1982). But the position of Executive

Director of the TMB is a powerful office in Texas and

there is no shortage of “able citizens” who would like

to have that job, with or without qualified immunity.

Recognizing that a search warrant or pre-compliance

judicial review is required before reading through

intimate medical records – and punishing conduct that

violates that norm – would not deter any qualified

candidates from taking a position at the TMB. If

anything, permissiveness towards the violation of this

constitutional right might deter upstanding citizens

13

from joining the agency expected to violate

constitutional rights.

People want to work at

institutions of integrity, and want meaningful

accountability if and when positions of power are

misused to infringe on constitutional rights.

Other stated rationales, likewise inapplicable here,

for applying qualified immunity are to avoid the

“distraction of officials from their governmental duties

[and the] inhibition of discretionary action.” Harlow,

457 U.S. at 816. Imposing liability for unlawful

searches in violation of the Fourth Amendment would

not inhibit legitimate discretionary action. Valid

search warrants are not difficult to obtain when

justified. There is no risk of rampant litigation over

this issue, which might distract governmental officials

from their daily duties. The TMB could adopt and

adhere to policies that prevent Fourth Amendment

violations by their staff in the future. If anything,

qualified immunity in this situation creates the risk of

more litigation by failing to deter repeat violations.

The TMB has an abundance of legitimate tools for

addressing genuine risks to public safety without

violating the Fourth Amendment rights of physicians

and their patients. For example, the TMB and the

DEA can immediately suspend the ability of

physicians to write prescriptions for controlled

substances, or ask the physician to agree to hold off

writing such prescriptions pending an investigation. If

patients’ medical records need to be reviewed, such

review could be properly limited to controlledsubstance prescriptions without subjecting all of

patients’ medical records to review by strangers

without the patients’ consent. Qualified immunity is

unnecessary to avoid disincentives for state officials,

14

who can do their job while complying with the Fourth

Amendment.

Like many governmental agencies, the TMB is

well-funded by the state legislature,3 which would

surely protect Respondents against personal liability.

Narrowing qualified immunity would have the

salutary effect of encouraging the governor or

legislature to exercise much-needed oversight and stop

costly constitutional violations which an agency

perpetrates.

The sweeping qualified immunity

adopted below renders it less likely that the TMB and

other administrative agencies will respect the Fourth

Amendment.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, this Court should grant the Petition for a

Writ of Certiorari.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

Dated: December 18, 2019

http://www.tmb.state.tx.us/idl/55CABFA2-3D66-6185-0EC7BDDA8EF5B03D (viewed 12/8/19).

3