JOSH BLACKMAN |THE VOLOKH CONSPIRACY | 8.20.2019 10:31 PM

Today the Fifth Circuit issued a divided en banc decision in Cole v. Hunter. The case considered whether two police officers who shot the Plaintiff were entitled to qualified immunity. Nine out the sixteen active judges on the en banc court found that qualified immunity was warranted. (Two senior judges who were on the original panel joined the majority.)

Judges Ho and Oldham wrote a joint dissent, which was joined by Judge Smith (see pp. 54-64). Their decision warrants a careful study. It considers how lower court judges should, and should not be originalists.

First, the duo notes that modern qualified immunity doctrine has been criticized as “ahistorical and contrary to the Founders’ Constitution.” They cite Will Baude’s article in the California Law Review, as well as a rejoinder from Aaron Nielson and Chris Walker.

Ho and Oldham, as lower-court judges, see no role in this debate:

As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

Second, Ho and Oldham highlight an important reason why originalism has gained so much salience in debates about criminal justice: it often operates as a one-way ratchet to help the accused, but not the police. Originalists on the right, and non-originalists on the left, are all-to-happy to form an alliance that advances these civil libertarian ends. Indeed, progressive groups have begun to craft “Gorsuch briefs” to peel off conservative votes on textualist grounds.

Ho and Oldham are skeptical of this facet of originalism.

The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J., joined by Thomas, J., dissenting).

A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability.

In other words, if the courts approached civil rights litigation from an originalist perspective, qualified immunity would not be the only doctrine to go. There are lots of doctrines that would constrain the ability of individuals to recover.

Third, Ho and Oldham critique “the unprincipled practice of originalism.”

In many cases, being an originalist, through and through, make it tougher for civil rights plaintiffs to recover:

Subjecting these officers to trial on originalist grounds is precisely the unprincipled practice of originalism that Justices Scalia and Thomas railed against. And not just for the procedural reasons they identified in Crawford- El.

What about the original understanding of the Fourth Amendment, which the plaintiffs here invoke as their purported substantive theory of liability in this case?

Does the majority seriously believe that it is an “unreasonable seizure,” as those words were originally understood at the Founding, for a police officer to stop an armed and mentally unstable teenager from shooting innocent officers, students, and teachers?

Fourth, Ho and Oldham provide a policy reason in support of their position:

And make no mistake: Principled originalism is not just a matter of intellectual precision and purity. There are profound practical consequences here as well, given the important and delicate balance that qualified immunity is supposed to strike. As the Supreme Court has explained, qualified immunity ensures that liability reaches only “the plainly incompetent or those who knowingly violate the law.” Mullenix, 136 S. Ct. at 308 (quotation omitted). And absent plain incompetence or intentional violations, qualified immunity must attach, because the “social costs” of any other rule are too high

Fifth, Judge Oldham quotes his former boss, who rejected “halfway originalism”:

To quote Justice Alito: “We will not engage in this halfway originalism.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2470 (2018). See also id. (criticizing litigants for “apply[ing] the Constitution’s supposed original meaning only when it suits them”); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring in the judgment) (“[I]t would be freakish to single out the provision at issue here for special treatment.”

The duo close with a jab to fellow originalists on the Fifth Circuit, and elsewhere:

Our circuit, like too many others, has been summarily reversed for ignoring the Supreme Court’s repeated admonitions regarding qualified immunity. There’s no excuse for ignoring the Supreme Court again today. And certainly none based on a principled commitment to originalism.

Originalism for plaintiffs, but not for police officers, is not principled judging. Originalism for me, but not for thee, is not originalism at all. We respectfully dissent.

Judge Willett responds to the Ho/Oldham joint production:

As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham, it is, respectfully, a pyromaniac in a field of straw men. I have not raised originalist concerns with qualified immunity. My concerns, repeated today, are doctrinal, procedural, and pragmatic in nature. Nor has my unease with modern immunity practice led me to wage “war with the Supreme Court’s qualified-immunity jurisprudence.”

I am a fellow dissenter today, notwithstanding my unease, precisely because I believe the Court’s precedent compels it.

In short, I have not urged that qualified immunity be repealed. I have urged that it be rethought. Justice Thomas—no “halfway originalist”—has done the same. Ziglar, 137 S. Ct. at 1872 (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate case, we should reconsider our qualified immunity jurisprudence.”).

Ho and Oldham respond in kind:

In a footnote, Judge Willett notes that his criticism of the Supreme Court’s qualified immunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that makes his criticism harder, not easier, to defend.

If his concerns are based on practical and not originalist considerations, then he should address them to the Legislature, rather than attack the Supreme Court as “one-sided.” Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)).

He also invokes Justice Thomas’s opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But that opinion cites Justice Scalia’s opinion in Crawford-El, which (as we explained above) warns qualified immunity skeptics not to engage in halfway originalism.

For further reading, consider Judge Pryor’s en banc decision in U.S. v. Johnson. He sounded a very similar note about the role that circuit judges play in originalist constitutional interpretation:

We cannot use originalism as a makeweight when applying that analytic framework. Nor can we promise that Johnson would like the result if we did have the authority to approximate originalist outcomes by selectively trimming binding precedent around the edges. See, e.g., Collins v. Virginia, 138 S. Ct. 1663, 1676–77 (2018) (Thomas, J., concurring) (explaining that the law during the Founding period did not exclude illegally seized evidence and indeed “sometimes reflected the inverse of the exclusionary rule” because “that someone turned out to be guilty could justify an illegal seizure”) (citing Gelston v. Hoyt, 3 Wheat. 246, 310 (1818) (Story, J.); 2 William Hawkins, A Treatise of the Pleas of the Crown 77 (1721)); see also Janus v. AFSCME, 138 S. Ct. 2448, 2470 (2018) (rejecting the “halfway originalism” of parties who appeal to the original meaning “only when it suits them”). And we cannot use a halfway theory of judicial precedent to cut back on Terry while faithfully adhering to the exclusionary rule.

As an “inferior” court, U.S. Const. Art. III, § 1, we have no such authority: “The only Court that can properly cut back on Supreme Court decisions is the Supreme Court itself.” Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 966 (11th Cir. 2018) (emphasis added).

For some time, originalism existed primarily in the academy, and occasionally on the Supreme Court. No longer. As the number of originalist judges on the circuit courts continues to grow, these sorts of debates will occur with increasing frequency.