Reason by Jonathan H. Adler Aug. 31, 2018
As part of an investigation of his practices, the Texas Medical Board executed an administrative subpoena on Dr. Joseph Zadeh's medical office, accompanied by two federal Drug Enforcement Agency (DEA) officers. According to Dr. Zadeh, the Board agents exceeded the scope of their subpoena in executing their search of his offices, so he sued, seeking damages for alleged violaitons of his constitutional rights.
In reviewing De. Zadeh's claim, the U.S. Court of Appeals for the Fifth Circuit sympathized with Dr. Zadeh's claims, but nonetheless concluded the Board and its agents were entitled to qualified immunity because their conduct did not violate "clearly established" law. This is how qualified immunity doctrine works, but not all of the judges on the panel were too happy about it, Judge Don Willett in particular.
In an opinion "
concurring dubitante," Judge Willett writes:
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. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.
More:
https://reason.com/volokh/2018/08/31/judge-willett-questions-qalified-immunit
