Qualified immunity protects government officials from paying damages in lawsuits brought under 42 U.S.C. § 1983 unless a court finds that the official’s conduct violated clearly established law at the time of the act.1×1. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Recently, in Zadeh v. Robinson,2×2. 902 F.3d 483 (5th Cir. 2018). the Fifth Circuit held that Texas Medical Board (TMB) members who violated a doctor’s constitutional rights were entitled to qualified immunity.3×3. Id. at 495, 497–98. The Fifth Circuit reasoned that the TMB’s warrantless search of Dr. Joseph Zadeh’s medical records violated the Fourth Amendment.4×4. Id. at 493. The panel found no precedent, however, with a sufficiently “close congruence of facts”5×5. Id. to clearly establish that the conduct was unlawful.6×6. See id. at 494–95. Zadeh illustrates how such an analogically driven inquiry into clearly established law may result in a finding of qualified immunity even where there has been a demonstrated violation of a constitutional right. A broader inquiry focused instead on general constitutional principles, consistent with the U.S. Supreme Court’s decision in Hope v. Pelzer,7×7. 536 U.S. 730 (2002). would better balance rights protections with the concerns driving the qualified immunity doctrine.
On October 22, 2013, the TMB executed an administrative subpoena, searching Zadeh’s office for sixteen patients’ medical records.8×8. Zadeh, 902 F.3d at 487–88. Zadeh and one of his patients subsequently sued the TMB Executive Director and two TMB investigators under § 1983, claiming the warrantless search was a violation of their Fourth Amendment, due process, and privacy rights.9×9. Id. at 488. The U.S. District Court for the Western District of Texas partially granted the defendants’ motion to dismiss on the grounds that they were entitled to qualified immunity with respect to the due process and privacy claims,10×10. Order at 24, Zadeh v. Robinson, No. 15-CV-598 (W.D. Tex. Mar. 29, 2016), ECF No. 34. and also granted defendants’ motion for summary judgment on the grounds of qualified immunity with respect to plaintiffs’ Fourth Amendment claims.11×11. Order at 11, 14, Zadeh, No. 15-CV-598 (W.D. Tex. Feb. 17, 2017), ECF No. 108.
The Fifth Circuit affirmed.12×12. Zadeh, 902 F.3d at 495, 498. Writing for the panel, Judge Southwick13×13. Judge Southwick was joined by Judge Jolly. concluded that the warrantless search violated the plaintiffs’ Fourth Amendment rights,14×14. While plaintiffs appealed the adverse rulings with respect to all their constitutional claims, Zadeh, 902 F.3d at 488, the Fifth Circuit focused exclusively on the Fourth Amendment claims. but a lack of clearly established law finding such actions unconstitutional entitled the defendants to qualified immunity.15×15. Id. at 493–95. The court cited Cotropia v. Chapman,16×16. 721 F. App’x 354 (5th Cir. 2018). Although the Zadeh panel acknowledged that Cotropia was nonprecedential, the court nevertheless made the opinion a cornerstone of its analysis. in which the Fifth Circuit held that Supreme Court precedent clearly established that physicians were entitled to precompliance review of administrative subpoenas by a neutral decisionmaker prior to an administrative search of their office.17×17. See Zadeh, 902 F.3d at 489 (citing Cotropia, 721 F. App’x at 358). However, the court noted that in Cotropia, the defendant failed to argue for an exception to the warrant requirement based on New York v. Burger.18×18. 482 U.S. 691 (1987). In Burger, the Supreme Court established this exception in closely regulated industries where three criteria are met: (1) there is a substantial government interest in the regulatory scheme under which an inspection is made; (2) the warrantless inspection is necessary to further that regulatory scheme; and (3) the inspection program provides a “constitutionally adequate substitute” for a warrant.19×19. Id. at 702–03.
In Zadeh, the Fifth Circuit performed the Burger analysis that the Cotropia court had missed. First, the court determined that the medical industry as a whole is not a closely regulated industry.20×20. Zadeh, 902 F.3d at 490–91. The court reasoned that the relevant regulations largely concerned the prescription of controlled substances, not the entire medical profession; additionally, the court pointed out the medical industry’s heightened expectation of privacy.21×21. See id. The panel recognized that the subset of the medical industry that prescribes controlled substances could be a closely regulated industry.22×22. See id. at 491. However, the court declined to address the question of whether Zadeh’s prescribing behavior would place him in that closely regulated category.23×23. Id. at 492.
Instead, the court concluded that even if Zadeh’s clinic could be categorized as a pain management clinic engaged in a closely regulated industry, warrantless search of it would not satisfy the Burger exception.24×24. Id. at 492–93. The panel decided that the first two Burger criteria were satisfied, as the State did have a substantial interest in regulating the prescription of controlled substances, and the warrantless inspection of medical records would aid in such regulation.25×25. Id. at 492. However, the court concluded that the relevant regulatory statute’s grant of subpoena authority and authority to inspect pain management clinics was not a constitutionally adequate substitute for a warrant, and therefore, the TMB’s administrative search did not meet the third Burger criterion.26×26. Id. at 492–93.
After concluding that Zadeh’s Fourth Amendment rights had been violated, the Fifth Circuit turned to whether clearly established law would defeat a qualified immunity defense.27×27. Id. at 493–95. To evaluate whether the unlawfulness of the TMB officials’ conduct was clearly established at the time of the violation, the court focused on whether reasonable officials would have believed that the Burger exception applied.28×28. Id. at 494. The TMB representatives cited Beck v. Texas State Board of Dental Examiners,29×29. 204 F.3d 629 (5th Cir. 2000). in which the Fifth Circuit held that an administrative search of a dentist’s office by the Texas State Board of Dental Examiners (TSBDE) met the requirements established by Burger.30×30. Id. at 638–39. The TMB officials in Zadeh reasoned that because they, like the TSBDE agents granted qualified immunity in Beck, were investigating prescriptions of controlled substances, it was not clearly established that their conduct was outside the Burger exception.31×31. Zadeh, 902 F.3d at 493–94. The plaintiffs in Zadeh, on the other hand, argued that Beck was “patently distinguishable.”32×32. Id. at 494.
The Fifth Circuit determined that any distinction between the case at hand and Beck had to be “sufficiently clear” such that reasonable TMB officials would have understood that their conduct was unlawful at the time of the search.33×33. Id. (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). The court examined whether there existed “a close congruence of the facts in the precedent”34×34. Id. at 493. such that “every reasonable official would interpret it to establish the particular rule the plaintiffs seek to apply.”35×35. Id. (quoting Wesby, 138 S. Ct. at 590). The panel concluded that the TMB investigators had no duty to resolve whether the conclusion drawn in Beck would have been drawn in their circumstances.36×36. Id. at 494. The Fifth Circuit therefore held that it was not clearly established that the TMB’s administrative search was beyond the Burger exception, so defendants were entitled to qualified immunity.37×37. See id. at 494–95. The court rejected plaintiffs’ argument that the search was invalid as a pretextual search because it was not performed “solely to uncover evidence of criminality.” Id. at 496. (quoting New York v. Burger, 482 U.S. 691, 698 (1987)). The court also held that the district court did not abuse its discretion in abstaining from deciding the requests for declaratory relief, id. at 496–97, and rejected plaintiffs’ argument that TMB Director Robinson was liable in her supervisory capacity, id. at 497.
Judge Willett concurred dubitante, critiquing the clearly established law prong of qualified immunity analysis.38×38. Id. at 498 (Willett, J., concurring dubitante). He agreed that Zadeh’s constitutional rights were violated and that because of qualified immunity, the individual defendants could not be subject to suit.39×39. See id. However, he argued that the doctrine was complex and unsatisfactory in that it required plaintiffs to cite “functionally identical precedent” yet remained unclear as to how indistinguishable existing precedent must be to defeat qualified immunity, rendering “the ‘clearly established’ standard neither clear nor established among our Nation’s lower courts.”40×40. Id. Judge Willett closed by “urging recalibration of contemporary immunity jurisprudence.”41×41. Id. at 499–500.
By requiring that plaintiffs cite precedent with “a close congruence of the facts”42×42. Id. at 493 (majority opinion). to support a finding of clearly established law, the Fifth Circuit implicitly ignored Hope. In Hope, the Supreme Court held that case law involving materially similar facts is not necessary to defeat qualified immunity where official conduct is egregious enough to itself supply “fair warning” that the conduct violates a constitutional right.43×43. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Subsequent Supreme Court decisions that do not explicitly overrule Hope’s “fair warning” standard but nonetheless require a close congruence of facts raise the question as to whether Hope is still good law. See cases cited infra note 52. Zadeh highlights how defining clearly established law so narrowly as to require materially similar facts denies plaintiffs recovery even where there exists a legal principle rendering an official’s conduct clearly unconstitutional. To better balance the protection of constitutional rights with the promotion of government efficiency, the Fifth Circuit should leave room in its qualified immunity jurisprudence to find violations of clearly established law in cases of egregious facts as in Hope. Under this model, the Fifth Circuit — and other courts — should consider extending Hope’s obviousness inquiry to apply not only to clearly egregious conduct, but also to clearly established legal principles.
In Hope, the Supreme Court considered whether clearly established law prohibited prison guards from handcuffing a prisoner to an outdoor hitching post for seven hours with no bathroom breaks and minimal access to water.44×44. Id. at 734–35. The Court held that even though there were no earlier cases with “materially similar” facts that clearly established the unlawful-ness of such conduct, the defendants were not entitled to qualified immunity.45×45. Id. at 744–46. The Court reasoned that the prison guards’ conduct so obviously violated the Eighth Amendment that a state agency regulation, a U.S. Department of Justice report, and nonidentical but relevant precedent were sufficient to give respondents fair warning that their conduct was unlawful.46×46. See id. at 741–46 (reprimanding the Eleventh Circuit for applying a “rigid gloss” on the qualified immunity standard by requiring that facts of precedent be materially similar to the present case, id. at 739, and noting that “officials can still be on notice that their conduct violates established law even in novel factual circumstances,” id. at 741); see also United States v. Lanier, 520 U.S. 259, 271 (1997) (“In some circumstances . . . a very high degree of prior factual particularity may be necessary. . . . [But] in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question . . . .”); Mark R. Brown, The Fall and Rise of Qualified Immunity: From Hope to Harris, 9 Nev. L.J. 185, 204 (2008) (“The Supreme Court made clear in Hope . . . that factual similarity is not the touchstone of qualified immunity.”). However, subsequent Supreme Court decisions seem to conflict with the principle in Hope that materially similar facts in legal precedent need not exist to preclude the qualified immunity defense.47×47. See Karen Blum et al., Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633, 654 (2013) (arguing that since Hope, “the ‘fair warning’ formula has been virtually ignored by the Supreme Court”).
In Ashcroft v. al-Kidd,48×48. 563 U.S. 731, 741–43 (2011) (holding that former U.S. Attorney General John Ashcroft was entitled to qualified immunity because he did not violate clearly established law by authorizing federal prosecutors to arrest and detain terrorism suspects under the material witness statute). the Court held that it is not necessary for a plaintiff trying to defeat qualified immunity to produce “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”49×49. Id. at 741. The Court did not mention Hope in its decision; indeed, it cautioned that clearly established law cannot be defined “at a high level of generality.”50×50. Id. at 742. The Court reasoned that even if al-Kidd’s arrest was made under the pretext of ensuring that he appear as a material witness, there was no case law holding such objectively reasonable arrests unconstitutional.51×51. Id. at 741. Al-Kidd and similar Supreme Court cases52×52. See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 310 (2015) (concluding an officer did not violate clearly established law because “none of [the Court’s] precedents ‘squarely governs’ the facts here”); Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (holding that the relevant precedent did not clearly establish that the defendant’s conduct violated the Fourth Amendment because the facts of those cases did not “squarely govern the case here”). have weakened the validity of Hope’s fair warning principle, which the Supreme Court has declined to apply since.53×53. In Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011), the Fifth Circuit highlighted al-Kidd’s silence as to Hope and the tension between Hope’s fair warning standard and Supreme Court jurisprudence that advises courts not to “define clearly established law at a high level of generality.” Id. at 373 (citing al-Kidd, 563 U.S. at 742). In Zadeh, the Fifth Circuit ignored Hope’s principles, instead aligning itself with al-Kidd in requiring existing legal precedent with a “close congruence of the facts”54×54. Zadeh, 902 F.3d at 493. to place the unlawfulness of the officials’ conduct “beyond debate.”55×55. Id. at 494. This standard would require the Fifth Circuit to search for precedent that sufficiently tied to the particular facts of a case in every qualified immunity inquiry that came before it.
Hope acknowledged that “general statements of the law are not inherently incapable of giving fair and clear warning.”56×56. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). The Supreme Court’s Fourth Amendment analysis is grounded in a baseline presumption that warrantless searches are per se unreasonable absent an applicable exception.57×57. See, e.g., Riley v. California, 573 U.S. 373, 382 (2014) (“In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”); Kentucky v. King, 563 U.S. 452, 459 (2011) (“Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. . . . But we have also recognized that this presumption may be overcome in some circumstances because ‘[t]he ultimate touchstone of the Fourth Amendment is reasonableness.’” (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006))); Mincey v. Arizona, 437 U.S. 385, 393 (1978) (stating that “a warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation’” (quoting Terry v. Ohio, 392 U.S. 1, 26 (1968))). Despite having fair warning of this well-established principle, the TMB investigators in Zadeh demanded immediate compliance with their subpoena request and searched Zadeh’s office.58×58. See Zadeh, 902 F.3d at 489. Furthermore, the context of medical records suggests heightened expectations of privacy — indeed, over the last forty-five years, the Supreme Court has identified only four industries where the history of close regulation is pervasive enough to override a reasonable expectation of privacy: liquor sales, firearms dealing, mining, and running an automobile junkyard.59×59. See City of Los Angeles v. Patel, 135 S. Ct. 2443, 2454 (2015). The infrequency with which the Burger exception has been invoked suggests that the panel could have found that the TMB investigators acted unreasonably in relying on the Burger exception to warrantless searches.60×60. Admittedly, the conduct of the TMB investigators does not rise to the level of egregiousness in Hope that led the Court to conclude that “[t]he obvious cruelty inherent in [the prison guards’ punishment] should have provided [them] with some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment.” Hope, 536 U.S. at 745. Although the panel may have still found qualified immunity after determining that, given the complexities of the Burger exception, the general legal principle against warrantless searches was insufficient to clearly establish the law, pursuing such an obviousness inquiry could still have bolstered the court’s clearly established law analysis.
The Fifth Circuit’s holding effectively denied Zadeh his constitutional rights even where the panel could have found that the legal principle barring such conduct was clearly established.61×61. See Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244 (2015) (“[T]he Court’s fundamental reshaping of the qualified immunity doctrine . . . has had the harmful, practical effect of limiting the ability of all persons to receive the protections of the Constitution.”). Importing the fair warning philosophy embodied in Hope might have mitigated this result. When formulating the proper standard for defining clearly established law, one must “balance § 1983’s concerns of prevention, compensation, and punishment with the competing concerns of overdeterrence, conservation of government funds, and fairness to defendants.”62×62. Caryn J. Ackerman, Fairness or Fiction: Striking a Balance Between the Goals of § 1983 and the Policy Concerns Motivating Qualified Immunity, 85 Or. L. Rev. 1027, 1033 (2006). Requiring materially similar facts in existing precedent risks skewing this balance, promoting government interests encompassed in qualified immunity while undermining the protection of constitutional rights.63×63. See David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138 U. Pa. L. Rev. 23, 77 (1989) (“The Court’s current approach unnecessarily subordinates constitutional protections to interests of governmental efficiency. . . . [A] qualified immunity standard that allows for a defense of ‘reasonable’ violations of rights invites a re-balancing of the substantive constitutional equation and the double counting of the governmental interests.”). Where a legal principle — such as the unreasonableness of warrantless searches — is well established but a situation lacks factually identical precedent, qualified immunity concerns such as overdeterrence are not legitimate reasons to eschew the protection of constitutional rights.64×64. See id. at 75–76. Hope recognized this principle and suggested that, in some cases, whether a law is clearly established can be based on whether officials had fair warning that their conduct was unlawful without factually similar precedent.65×65. See Hope, 536 U.S. at 739–41; see also Reinhardt, supra note 61, at 1246. Admittedly, the Fourth Amendment’s clearly established prohibition on warrantless searches may not have defeated qualified immunity in Zadeh, given the Burger exception. However, engaging in an inquiry that considers whether a legal principle is sufficient to give officials fair warning that their conduct violates constitutional rights enables courts to better balance the competing policy goals inherent in qualified immunity cases.
To reconcile the ambiguity in Supreme Court precedent on clearly established law, courts may consider moving toward a two-category approach based on the obviousness of a general constitutional principle. In the “obvious” category, a relevant statute or generally established constitutional principle would be enough to clearly establish the law, even where the facts of precedent are not identical.66×66. See Amelia A. Friedman, Note, Qualified Immunity in the Fifth Circuit: Identifying the “Obvious” Hole in Clearly Established Law, 90 Tex. L. Rev. 1283, 1284–85 (2012). In the “nonobvious” category, plaintiffs may be required to cite precedent of factual particularity to clearly establish the law. A two-category approach hinging on obviousness would require courts to standardize certain criteria. Courts must determine when a violation is “obvious.”67×67. See Richard B. Golden & Joseph L. Hubbard, Jr., Section 1983 Qualified Immunity Defense: Hope’s Legacy, Neither Clear Nor Established, 29 Am. J. Trial Advoc. 563, 584–85 (2006) (commenting on the challenge that lower courts face in applying an objective test to determine whether an official’s conduct is an obvious enough constitutional violation to meet Hope’s “ambiguous” fair warning standard, id. at 584).
One approach might be derived from Vinyard v. Wilson.68×68. 311 F.3d 1340 (11th Cir. 2002). In Vinyard, the Eleventh Circuit applied a three-category analysis of fair warning: (1) in “obvious clarity” cases, a federal statute or constitutional provision is specific enough to clearly establish the law even in the absence of case law;69×69. Id. at 1350. (2) where an official’s “conduct is not so egregious as to violate” a constitutional right “on its face,” the court should turn to case law, which can include “broad statements of principle” that “are not tied to particularized facts”;70×70. Id. at 1351. and (3) where there is “no case law with a broad holding ‘of X’ that is not tied to particularized facts,” clearly established law requires “precedent that is tied to the facts.”71×71. Id. (emphasis omitted). A case may therefore be “obvious” if, in an authoritative decision not tied to particularized circumstances, the court concluded that a general constitutional rule gives fair warning that certain conduct is per se unconstitutional. Al-Kidd, for example, was perhaps a “nonobvious” case because there was no binding precedent that held that pretextual arrests were per se unconstitutional at the time of the plaintiff’s arrest.72×72. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In contrast, Hope argued that punishment amounting to unnecessary infliction of “wanton and unnecessary”73×73. Hope v. Pelzer, 536 U.S. 730, 738 (2002). pain is generally recognized by precedent as an Eighth Amendment violation.74×74. See id. at 737–38. This would suggest that Hope was an “obvious” case.
Qualified immunity has received much criticism for its dependence on a judge’s subjective inquiry: there is broad judicial discretion in the determination of whether clearly established law exists.75×75. See, e.g., Aaron Belzer, The Audacity of Ignoring Hope: How the Existing Qualified Immunity Analysis Leads to Unremedied Rights, 90 Denv. U. L. Rev. 647, 679 (2012) (“The lack of guidance about the clearly established requirement leaves the availability of a remedy up to the caprice of a judge who may or may not require a high degree of factual similarity.”). Zadeh illustrates the key policy concerns that are implicated by the Fifth Circuit’s narrow, fact-specific definition of clearly established law. A framework that, like the Eleventh Circuit’s Vinyard test, both acknowledges recent Supreme Court decisions’ emphasis on factual similarity and integrates Hope’s focus on fair warning, may better carry out the purposes of the qualified immunity doctrine while promoting the protection of constitutional rights. To effect this result, courts may consider moving toward a two-category approach based on the obviousness of the constitutional violation at issue.