935 F.3d 444

DON R. WILLETT, Circuit Judge, dissenting:
I repeat what I said last month: The entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.
Qualified immunity strikes an uneasy, cost-benefit balance between two competing deterrence concerns: "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." By insulating incaution, the doctrine formalizes a rights-remedies gap through which untold constitutional violations slip unchecked. The real-world functioning of modern immunity practice-essentially "heads government wins, tails plaintiff loses"-leaves many victims violated but not vindicated. More to the point, the "clearly established law" prong, which is outcome-determinative in most cases, makes qualified immunity sometimes seem like 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."
That said, as a middle-management circuit judge, I take direction from the Supreme Court. And the Court's direction on qualified immunity is increasingly unsubtle. We must respect the Court's exacting instructions-even as it is proper, in my judgment, to respectfully voice unease with them.
I
Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." While this bar is not insurmountable, it is sky-high. And it is raised higher when courts leapfrog prong one (deciding whether the challenged behavior violates the Constitution) to reach simpler prong two: no factually analogous precedent. Merely proving unconstitutional misconduct isn't enough. A plaintiff must cite functionally identical authority that puts the unlawfulness "beyond debate" to "every" reasonable officer. Last month, for example, the Eleventh Circuit, noting no "materially similar case" (thus no "clearly established law"), granted immunity to a police officer who fired at a family's dog but instead shot a 10-year-old child lying face-down 18 inches from the officer. Not only that, the court "expressly [took] no position" as to "whether a constitutional violation occurred in the first place." Translation: If the same officer tomorrow shoots the same child while aiming at the same dog, he'd receive the same immunity. Ad infinitum .
The Supreme Court demands precedential specificity. But it's all a bit recursive. There's no earlier similar case declaring a constitutional violation because no earlier plaintiff could find an earlier similar case declaring a constitutional violation. " Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one's answered them before. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell."
II
In recent years, individual Justices have raised concerns with the Court's immunity caselaw. Even so, the doctrine enjoys resounding, even hardening favor at the Court. Just three months ago, in a case involving the warrantless strip search of a four-year-old preschooler, a strange-bedfellows array of scholars and advocacy groups-perhaps the most ideologically diverse amici ever assembled-implored the Court to push reset. To no avail. This much is certain: Qualified immunity, whatever its success at achieving its intended policy goals, thwarts the righting of many constitutional wrongs.
Perhaps the growing left-right consensus urging reform will one day win out. There are several "mend it, don't end it" options. The Court could revisit Pearson and nudge courts to address the threshold constitutional merits rather than leave the law undeveloped. Even if a particular plaintiff cannot benefit (due to the "clearly established law" prong), this would provide moving-forward guidance as to what the law prescribes and proscribes. Short of that, the Court could require lower courts to explain why they are side-stepping the constitutional merits question. Or the Court could confront the widespread inter-circuit confusion on what constitutes "clearly established law." One concrete proposal: clarifying the degree of factual similarity required in cases involving split-second decisions versus cases involving less-exigent situations. The Court could also, short of undoing Harlow and reinstating the bad-faith prong, permit plaintiffs to overcome immunity by presenting objective evidence of an official's bad faith. Not subjective evidence of bad faith, which Harlow , worried about "peculiarly disruptive" and "broad-ranging discovery," forbids. And not unadorned allegations of bad faith. But objective evidence that the official actually realized that he was violating the Constitution.
Prudent refinements abound. But until then, as Judge Jones explains in today's principal dissent, the Supreme Court's unflinching, increasingly emphatic application of "clearly established law" compels dismissal.
III
I remain convinced that contemporary immunity jurisprudence merits "a refined procedural approach that more smartly-and fairly-serves its intended objectives." Yet I also remain convinced that a majority of the Supreme Court disagrees. My misgivings, I believe, are well advised. But we would be ill advised to treat the reform of immunity doctrine as something for this court rather than that Court.
For these reasons, I respectfully dissent.
JAMES C. HO and ANDREW S. OLDHAM, Circuit Judges, joined by JERRY E. SMITH, Circuit Judge, dissenting:
Apparently SUMREVs mean nothing.
In Luna v. Mullenix , 773 F.3d 712 (5th Cir. 2014), we sent a state trooper to a jury "in defiance" of "the concept and precedents of qualified immunity." 777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J., dissenting from denial of rehearing en banc). The Supreme Court summarily reversed us. Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 193 L.Ed.2d 255 (2015) (per curiam). Then they GVR'd us in this case and ordered us to reconsider our obvious error in light of Mullenix .
The en banc majority instead doubles down. That is wrong for all the reasons Judge Jones gives in her powerful dissent, which we join in full. We write to emphasize the en banc majority's unmistakable message: Four years after Mullenix , nothing has changed in our circuit.
I.
The Supreme Court has not hesitated to redress similar intransigence from our sister circuits-often through the "extraordinary remedy of a summary reversal." Kisela v. Hughes , --- U.S. ----, 138 S. Ct. 1148, 1162, 200 L.Ed.2d 449 (2018) (Sotomayor, J., dissenting) (quotation omitted). See , e.g. , City of Escondido v. Emmons , --- U.S. ----, 139 S. Ct. 500, 202 L.Ed.2d 455 (2019) (per curiam) (summarily reversing the Ninth Circuit); Kisela , --- U.S. ----, 138 S. Ct. 1148, 200 L.Ed.2d 449 (per curiam) (same); District of Columbia v. Wesby , --- U.S. ----, 138 S. Ct. 577, 199 L.Ed.2d 453 (2018) (reversing the D.C. Circuit); White v. Pauly , --- U.S. ----, 137 S. Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam) (summarily reversing the Tenth Circuit); City and County of San Francisco v. Sheehan , --- U.S. ----, 135 S. Ct. 1765, 191 L.Ed.2d 856 (2015) (reversing the Ninth Circuit); Carroll v. Carman , 574 U.S. 13, 135 S.Ct. 348, 190 L.Ed.2d 311 (2014) (per curiam) (summarily reversing the Third Circuit); Wood v. Moss , 572 U.S. 744, 134 S.Ct. 2056, 188 L.Ed.2d 1039 (2014) (reversing the Ninth Circuit); Plumhoff v. Rickard , 572 U.S. 765, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (reversing the Sixth Circuit); Stanton v. Sims , 571 U.S. 3, 134 S.Ct. 3, 187 L.Ed.2d 341 (2013) (per curiam) (summarily reversing the Ninth Circuit); Reichle v. Howards , 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (reversing the Tenth Circuit); Ryburn v. Huff , 565 U.S. 469, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (per curiam) (summarily reversing the Ninth Circuit); Ashcroft v. al-Kidd , 563 U.S. 731, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (same); Brosseau v. Haugen , 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (same).
In each of these cases, the Supreme Court reminded lower courts that qualified immunity requires us not only to identify a clearly established rule of law, but to do so with great specificity. Everyone agrees, of course, that Ryan Cole has a constitutional right not to be seized unreasonably. But "that is not enough" to subject a police officer to the burdens of our civil litigation system. Saucier v. Katz , 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Supreme Court has "repeatedly told courts ... not to define clearly established law at [that] high level of generality." al-Kidd , 563 U.S. at 742, 131 S.Ct. 2074. Rather, "[t]he dispositive question is whether the violative nature of particular conduct is clearly established." Mullenix , 136 S. Ct. at 308 (citation omitted).
Only by identifying a specific and clearly established rule of law do we ensure that the officer had "fair notice"-"in light of the specific context of the case, not as a broad general proposition"-that his or her particular conduct was unlawful. Brosseau , 543 U.S. at 198, 125 S.Ct. 596 (citation omitted). See also , e.g. , Sheehan , 135 S. Ct. at 1776 ("Qualified immunity is no immunity at all if 'clearly established' law can simply be defined as the right to be free from unreasonable searches and seizures."); Wilson v. Layne , 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (same); Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (same).
So where is our clearly established law at issue here? Unbelievably, the en banc majority says we don't need any. That's so, they say, because "[t]his is an obvious case." Ante , at 453. That's obviously wrong for three reasons.
First, the Supreme Court to date has never identified an "obvious" case in the excessive force context. And the majority thinks this is the first? A case where a mentally disturbed teenager-who has a loaded gun in his hand with his finger on the trigger; who has repeatedly refused to be disarmed; who has threatened to kill anyone who tries to disarm him; who poses such a deadly threat that police have been deployed to protect innocent students and teachers at his nearby high school-turns toward the officers just ten to twenty feet away, giving them only seconds to decide what to do in response. Really?
Second, the Supreme Court has granted qualified immunity in much tougher cases than this one. In Plumhoff , for example, officers fired 15 shots and killed two unarmed men who fled a traffic stop. In Brosseau , an officer shot an unarmed man who refused to open his truck window. In Kisela , officers shot a woman who was hacking a tree with a kitchen knife. In Sheehan , officers shot an old woman holding a kitchen knife in an assisted-living facility. In all of these cases, the Court held the officers were entitled to qualified immunity.
Third, this is Mullenix all over again. There our court relied on clearly established law as articulated in Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Garner involved an unarmed man who fled from police after stealing $ 10. An officer fatally shot Garner in the back of the head as he attempted to climb a fence. Our court then extended Garner to Mullenix's case-which involved a man who led police on a high-speed car chase after violating his probation. A state trooper attempted to end the chase by shooting the speeding car's engine block-but he missed the engine, hit the driver in the face, and killed him. See Luna , 773 F.3d at 719-20 (discussing Garner ). The Supreme Court summarily reversed us because-as should be painfully obvious from the Court's serial reversals in this area-that's not how qualified immunity works. See Mullenix , 136 S. Ct. at 308-09 (holding our court erred in our extrapolation of Garner to new facts). And they GVR'd us in this very case to fix our mistakes in light of Mullenix . The Supreme Court's message could not be clearer.
Still, somehow, today's majority does not get it. Here, as in Mullenix , the majority attempts to rely on Garner to establish the governing rule of law. From Garner , the majority somehow divines a rule that an officer cannot shoot a mentally disturbed teenager holding a gun near his school. This is demonstrably erroneous. In fact, one thing that unites the Supreme Court's recent reversals in cases involving qualified immunity and excessive force is the attempt by lower courts to extrapolate Garner to new facts. See Mullenix , 136 S. Ct. at 308-09 ; Scott v. Harris , 550 U.S. 372, 381-82, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (same); Allen v. City of West Memphis , 509 F. App'x 388, 392 (6th Cir. 2012) (extrapolating Garner ), rev'd by Plumhoff , supra .
Moreover, there are additional parallels between Mullenix and this case. Consider the supposed requirement that an officer take some sort of non-lethal measure before using lethal force. In Mullenix , our court used the power of 20-20 hindsight to say that a reasonable officer should have used spike strips to stop the chase. See 773 F.3d at 720-21. The Supreme Court emphatically rebuked us. See 136 S. Ct. at 310. They told us that an officer does not have to expose himself or other officers to harm when the suspect has already refused to be disarmed. That meant Trooper Mullenix did not have to wait to see if the fleeing felon would shoot or run over the officer manning the spike strips. See id. at 310-11.
So too here. In this case, the majority complains that the officers did not provide sufficient warning. But there was no clearly established law requiring Officers Cassidy and Hunter to announce themselves-while caught in an open and defenseless position-and hope not to get shot. That is particularly true here because officers previously ordered Cole to put down his gun, he refused, and he threatened to kill anyone who attempted to disarm him.
And in Mullenix , as here, we accused the police officers of being cowboys. Earlier on the day of the shooting, Trooper Mullenix received a negative performance review for "not being proactive enough as a Trooper"; so in the aftermath of the shooting, Mullenix said to his supervisor, "How's that for proactive?" 773 F.3d at 717 ; see also 136 S. Ct. at 316 (Sotomayor, J., dissenting). The panel opinions and en banc majority opinion in this case likewise seethe with innuendo that Officers Hunter and Cassidy were wannabe cowboys looking for a gunfight. We are in no position to make such accusations. No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school. And the Mullenix Court held that the qualified-immunity standard gives us no basis for sneering at cops on the beat from the safety of our chambers. See 136 S. Ct. at 310-11 (majority op.) (citing Brief for National Association of Police Organizations et al. as Amici Curiae ). Yet here we are. Again.
II.
The majority cannot dodge responsibility for today's decision by pointing to the limits of appellate jurisdiction. See ante , at 452-53 (majority op.); ante , at 457 (Elrod, J., concurring). We obviously lack interlocutory appellate jurisdiction to review the genuineness of an officer's fact dispute. See , e.g. , Johnson v. Jones , 515 U.S. 304, 313-14, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ; Kinney v. Weaver , 367 F.3d 337, 346-47 (5th Cir. 2004) (en banc) (applying Johnson v. Jones ).
But that does nothing to defeat jurisdiction where, as here, the factual disputes are immaterial . That is why the Supreme Court repeatedly has rejected such no-jurisdiction pleas from those who wish to deny qualified immunity. See, e.g. , Plumhoff , 572 U.S. at 771-73, 134 S.Ct. 2012 ; id. at 773, 134 S. Ct. 2012 (noting existence of genuine fact dispute did not defeat appellate jurisdiction in Scott v. Harris ).
All the fact disputes in the world do nothing to insulate this legal question: Is this an "obvious case" under Garner -notwithstanding a mountain of SUMREVs, GVRs, and pointed admonitions from the Supreme Court? The majority says yes. Ante , at 453. They obviously must have jurisdiction to say so. With respect, it makes no sense to say we lack jurisdiction to disagree with them.
III.
What explains our circuit's war with the Supreme Court's qualified-immunity jurisprudence? Two themes appear to be at play.
First, the majority suggests we should be less than enthused about Supreme Court precedent in this area, because it conflicts with plaintiffs' jury rights. To quote the panel: "Qualified immunity is a judicially created doctrine calculated to protect an officer from trial before a jury of his or her peers. At bottom lies a perception that the jury brings a risk and cost that law-enforcement officers should not face, that judges are preferred for the task-a judgment made by appellate judges." Cole v. Carson , 905 F.3d 334, 336 (5th Cir. 2018). Or in the words of today's majority: "The Supreme Court over several years has developed protection from civil liability for persons going about their tasks as government workers" (a rather curious way to describe the men and women who swear an oath to protect our lives and communities). Ante , at 446. But "the worker's defense" must yield, in cases like this, "in obeisance to [the] constitutional mandate" of a jury trial. Id.
We appreciate the majority's candor. But inferior court judges may not prefer juries to the Justices.
Second, some have criticized the doctrine of qualified immunity as a historical and contrary to the Founders' Constitution. Ante at 446 (suggesting denial of qualified immunity is commanded by "the Founders"); compare William Baude, Is Qualified Immunity Unlawful? , 106 CALIF. L. REV. 45, 49-61 (2018), with Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity , 93 NOTRE DAME L. REV. 1853, 1856-63 (2018) ; see also Zadeh v. Robinson , 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring dubitante), revised on petition for reh'g en banc , 928 F.3d 457, 473 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part).
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.
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, 118 S.Ct. 1584, 140 L.Ed.2d 759 (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:
[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted .... [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape , 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which converted an 1871 statute covering constitutional violations committed "under color of any statute, ordinance, regulation, custom, or usage of any State," Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law.
Id. at 611, 118 S.Ct. 1584.
Justices Scalia and Thomas ultimately concluded that it is better to leave things alone than to reconfigure established law in a one-sided manner. If we're not willing to re-evaluate all § 1983 precedents in a balanced and principled way, then it "is perhaps just as well" that "[w]e find ourselves engaged ... in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented-rather than applying the common law embodied in the statute that Congress wrote." Id. at 611-12, 118 S.Ct. 1584.
Translation: If we're not going to do it right, then perhaps we shouldn't do it at all.
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?
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:
[I]t cannot be disputed seriously that claims frequently run against the innocent as well as the guilty-at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties.
Harlow v. Fitzgerald , 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (alterations and quotations omitted); see also , e.g. , Sheehan , 135 S. Ct. at 1774 n.3 (noting "the importance of qualified immunity to society as a whole").
For those who have expressed concerns about a "one-sided approach to qualified immunity," Kisela , 138 S. Ct. at 1162 (Sotomayor, J., dissenting); see also Zadeh , 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting Kisela , 138 S. Ct. at 1162 (Sotomayor, J., dissenting)); 928 F.3d at 480 & n.61 (Willett, J., concurring in part and dissenting in part) (same), look no further than the majority opinion. The majority undoes the careful balance of interests embodied in our doctrine of qualified immunity, stripping the officers' defenses without regard to the attendant social costs.
Now that is a one-sided approach to qualified immunity as a practical matter. And as Justices Scalia and Thomas have observed, it's also a one-sided approach to qualified immunity as an originalist matter: It abandons the defense without also reconsidering the source and scope of officers' liability in the first place. See Crawford-El , 523 U.S. at 611-12, 118 S.Ct. 1584 (Scalia, J., joined by Thomas, J., dissenting). To quote Justice Alito: "We will not engage in this halfway originalism." Janus v. Am. Fed'n of State, Cty., & Mun. Emps., Council 31 , --- U.S. ----, 138 S. Ct. 2448, 2470, 201 L.Ed.2d 924 (2018). See also id. (criticizing litigants for "apply[ing] the Constitution's supposed original meaning only when it suits them"); Gundy v. United States , --- U.S. ----, 139 S. Ct. 2116, 2131, 204 L.Ed.2d 522 (2019) (Alito, J., concurring in the judgment) ("[I]t would be freakish to single out the provision at issue here for special treatment.").
* * *
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.
STUART KYLE DUNCAN, Circuit Judge, joined by SMITH, OWEN, HO, and OLDHAM, Circuit Judges, dissenting:
The majority opinion overlooks or omits undisputed material facts showing that any reasonable officer would have viewed Ryan Cole as a severe threat. Before the shooting, the defendant officers: (1) were tracking a distraught suspect wandering through the woods armed with a loaded 9mm semi-automatic handgun; (2) who had earlier that morning off-loaded a cache of weapons and ammunition at a friend's house; (3) who had already refused to give up his pistol when confronted by the police; and (4) who had threatened to "shoot anyone who came near him." Cole did not dispute those facts and, indeed, convinced the district court they were irrelevant. Joining Judge Jones' dissent in full, I respectfully dissent on the additional grounds provided by these pre-encounter facts.
No one doubts some of the events on October 25, 2010-when the officers violently encountered Cole in the woods near Garland, Texas-are disputed. The question is whether those disputes are material . See, e.g., Bazan ex rel. Bazan v. Hidalgo Cty. , 246 F.3d 481, 483 (5th Cir. 2001) ("threshold issue" on qualified immunity appeal "is whether the facts the district judge concluded are genuinely disputed are also material "). Judge Jones' dissent compellingly shows they are not: Resolving all disputes in Cole's favor, the undisputed facts still show the officers violated no clearly established law. Jones Dissent at 458-59, 436-69. The majority thus errs by concluding that "competing factual narratives" bar it from deciding qualified immunity. Maj. at 446-47.
I write separately to emphasize what led up to the shooting, and also to explain why those undisputed events provide further reasons to reverse. The majority and Judge Jones focus on the shooting itself, as did the district court. But the prelude to the shooting gives unavoidable context for evaluating the officers' actions. Surprisingly, the district court did not even analyze those stage-setting facts, which it mistakenly deemed irrelevant. See Cole v. Hunter, No. 3:13-CV-02719-O, 2014 WL 266501, at *13 n.5 (N.D. Tex. Jan. 24, 2014) ; Cole v. Hunter , 68 F. Supp. 3d 628, 642-43 (N.D. Tex. 2014). So, to assess their impact, we must "undertake a cumbersome review of the record." Johnson v. Jones , 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). That extra work is sometimes imperative, as here, "to ensure that the defendant's right to an immediate appeal on the issue of materiality is not defeated solely on account of the district court's failure to articulate its reasons for denying summary judgment." Colston v. Barnhart , 146 F.3d 282, 285 (5th Cir. 1998), denying reh'g in 130 F.3d 96 (5th Cir. 1997).
This detailed record review (see Part I) compels two conclusions (see Part II). First, the district court erred by excluding the undisputed events before the shooting. That error-based on a misreading of our precedent-truncated the qualified immunity analysis. That alone requires reversing the summary judgment denial. Second, in light of those pre-encounter facts, the majority's insistence that this is an "obvious case" collapses. Maj. at 453-54. Given what confronted the officers, the majority cannot say what they did was "obviously" unlawful. The only thing obvious is that no case told the officers, clearly or otherwise, how to respond when they met Cole that morning, emerging from the woods with his finger on the trigger of a loaded gun.
By denying qualified immunity and making the officers run the gauntlet of trial, the majority sets a precedent that "seriously undermines officers' ability to trust their judgment during those split seconds when they must decide whether to use lethal force." Winzer v. Kaufman Cty. , 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting).
I.
The majority begins "around 10:30 a.m.," less than an hour before the shooting. Maj. at 447-48. But events began to unfold much earlier. Around 2 a.m. that morning, Cole knocked on the door of his friend, Eric Reed Jr., to show him "a 44 magnum revolver." Awakened by the knocking, Eric Jr.'s father (Eric Sr.) left his room, saw Cole with the gun, and told him to leave. Eric Jr. convinced Cole to leave the revolver because "he [did not] need to be carrying a weapon around."
Around 8 a.m., Eric Jr. gave his father Cole's gun. Eric Sr., a retired Sachse police officer, then notified Officer Vernon Doggett, who came to the Reeds'. Eric Jr. told his father and Doggett that "[Cole] told him there were more guns on the side of the house." There, they found "a double barrel shot gun with some shot gun shells and what appeared to be a plastic bag with 9mm bullets," which Doggett secured. Eric Jr. also explained Cole "had broken up with his girlfriend and was going to kill himself and his girlfriend."
Doggett was a resource officer for Sachse High School, where Cole and his girlfriend attended. He contacted Sergeant Garry Jordan, told him about the guns, and asked to meet at the school. Doggett reported that Cole "may be at school with a 9mm handgun." Another officer checked whether Cole was in class, and Jordan searched the parking areas for Cole.
Not finding him, Jordan went to Coles' and spoke to his parents. He learned that, the previous evening, officers had responded to a disturbance there. Officers had found Cole's father "holding Ryan down" because "he did not want [Cole] to leave the residence with the pocket knife that he had." He said "his son had a wild look in his eye and ... had been smoking K2." While the officers found there had been no assault, all agreed it was "a good idea for Cole to stay the night with a friend." The Coles had not seen Ryan since then but reported he had "apparently returned home during the night and had opened the gun safe, removed an unknown amount [sic ] of weapons, and reset the combination."
Meanwhile, Eric Jr. noticed Cole was back. He asked Cole if he was armed and Cole showed him a "38 revolver" and a "9mm semiauto." He convinced Cole to give him the revolver, but Cole told him he was not "getting the 9mm." Cole also said that the 9mm was loaded and that he did not "wanna use it on [Eric Jr.]" Cole stated that "he would shoot anyone who came near him." Cole left, and Eric Jr. called his father, who called the police.
Around 10:49 a.m., Officer Stephen Norris radioed "all available Sachse officers" to respond to the area of the Reed residence. He reported Cole was "observed running south of the location with 3 weapons, one a loaded 9mm." He also reported Cole was "irate and distraught and stated he would shoot anyone who came near him." Around the same time, Sachse Officer Michael Hunter was dispatched to assist Jordan at the Coles', but on arrival he was told by Sachse Officer Carl Carson he was not needed. As Hunter was leaving, he heard Norris' call advising Cole was "in the area ... with a gun." Hunter stated he "did not know the specifics of the call at this point," but proceeded to the Reeds' residence. In response to Norris' call, Jordan also left the Coles'.
Sachse Officer Martin Cassidy also received Norris' dispatch and went to the area Norris indicated. He was given Cole's description and advised that Cole was "armed with at least one handgun and possibly three." Cassidy spoke with Norris on the phone about "the proximity of Armstrong Elementary School to the location where [Cole] was last seen." Cassidy therefore went to check on the school and a nearby shopping center for any signs of Cole.
Meanwhile, Hunter arrived at the Reeds', where he met Jordan and Carson. Hunter overheard Eric Jr. say he had gotten "one gun" from Cole but that Cole had left "armed with a 9mm handgun." "Hunter put [Cole's] description out to other officers," and then he and Carson went to search for Cole. After speaking with the officers, Eric Jr. checked for more guns and found "6 firearms around [his] house."
Jordan then observed Officers Elliott and Sneed pass by in a patrol unit. Those officers found Cole nearby. Elliott reported that "Sneed ... advised [Cole] to show his hands." Instead, Cole "reached into his waist band and pulled a pistol and placed it to his head after about three steps and refused to obey Lt. Sneed['s] commands." When Jordan arrived, Sneed "drew his duty weapon and yelled at [Cole] to drop the weapon," but Cole refused. As Cole continued eastbound towards Highway 78, Sneed "warned [Cole] that [he] would shoot him in the back if he tried to get to the highway or walk toward any innocent bystanders." Cole "would occasionally turn his head and yell obscenities at [Sneed]." Two other officers then parked "directly in front of [Cole's] path." To avoid them, Cole turned "northbound and began walking the railroad tracks." Jordan was constantly updating dispatch about Cole's movements. "Suddenly, [Sneed] observed [Cole] cut eastbound and run up a hill and into the brush towards Highway 78." Dispatch reported that Cole was "off tracks coming through tree lines towards [Highway] 78."
Hunter, Carson, and Cassidy were monitoring Cole's movements from the dispatches. They arrived separately at the part of Highway 78 where Cole was thought to be. Hunter noted "[Cole] appeared to be walking towards the railroad track," and he advised Carson "[they] needed to go out to the highway and intercept [him]." Cassidy advised Carson to get out his taser and follow Cassidy. Hunter "parked further south on Highway 78 as [he] figured [Cole] would be on the railroad track paralleling Highway 78 at about [his] location." He guessed correctly. As Hunter "began to look for cover since [he] was out in the open," Cole "walked out from the brush approximately 10 to 20 feet from [Hunter]."
What followed was the shooting.
II.
Cole did not dispute these stage-setting events in opposing summary judgment. To the contrary, he argued any "prior events" before the shooting were "irrelevant." The district court agreed, excluding from its qualified immunity analysis the "events" from "earlier that morning," Cole , 2014 WL 266501, at *13 n.5, and focusing solely on what happened "immediately before and during the shooting." Cole , 68 F. Supp. 3d at 644. That mistake skewed the district court's analysis and provides yet another reason why we should reverse.
First, the district court erred by excluding everything that happened before the officers' five-second encounter with Cole. That approach artificially truncates the qualified immunity analysis. In assessing qualified immunity, we "[c]onsider[ ] the specific situation confronting [officers]," City & Cty. of San Francisco v. Sheehan , --- U.S. ----, 135 S. Ct. 1765, 1778, 191 L.Ed.2d 856 (2015), which "must be judged from the perspective of a reasonable officer on the scene[.]" Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). A "reasonable officer" does not shape his decisions based only on the seconds when he confronts an armed suspect; instead, he acts based on all relevant circumstances, including the events leading up to the ultimate encounter. See, e.g., Escobar v. Montee , 895 F.3d 387 (5th Cir. 2018) (courts evaluate excessive force claims "from the perspective of a reasonable officer on the scene, paying 'careful attention to the facts and circumstances of each particular case' ") (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ). That is precisely how the Supreme Court has instructed lower courts to assess whether force is excessive: The seminal case, Tennessee v. Garner , asks whether a seizure was justified, based not only on the immediate seizure, but on "the totality of the circumstances" facing the officers. 471 U.S. 1, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). And qualified immunity cases, both from the Supreme Court and our court, routinely consider the background facts that shaped an officer's confrontation with a suspect in order to evaluate the officer's ultimate use of force.
The district court's sole contrary authority was our statement in Rockwell v. Brown , 664 F.3d 985, 991 (5th Cir. 2011), that the excessive force inquiry "is confined to whether the [officer or another person] was in danger at the moment of the threat ." But the district court overread Rockwell . We made that statement in Rockwell to reject the notion that officers' negligence before a confrontation determines whether they properly used deadly force during the confrontation. See id. at 992-93 (rejecting argument that "circumstances surrounding a forced entry" bear on "the reasonableness of the officers' use of deadly force"). The cases Rockwell cited say that plainly. See, e.g., Fraire v. City of Arlington , 957 F.2d 1268, 1276 (5th Cir. 1992) ("[R]egardless of what had transpired up until the shooting itself, [the suspect's] movements gave the officer reason to believe, at that moment, that there was a threat of physical harm."). And the key case Rockwell quoted for the "moment-of-the-threat" point recognized that pre-confrontation events could "set the stage for what followed in the field." Bazan , 246 F.3d at 493.
By misreading our cases, the district court blinded itself to a rich vein of facts-facts Cole did not dispute below-that round out the picture of the officers' violent encounter with Cole. At a minimum, that error alone requires reversing the denial of summary judgment and remanding for reconsideration of the officers' actions in light of all relevant undisputed facts. See, e.g., White v. Balderama , 153 F.3d 237, 242 (5th Cir. 1998) (concluding "limited remand" was appropriate given "lack of specificity in ... district court's order denying summary judgment on the basis of qualified immunity").
Second, the undisputed pre-encounter events underscore why, contrary to the majority's view, this is far from an "obvious case." Maj. at 453-54. An "obvious case," the Supreme Court has explained, is one where an officer's actions are plainly unlawful under a generalized legal test, even if those actions do not contravene a "body of relevant case law." Brosseau , 543 U.S. at 199, 125 S.Ct. 596 (citing Hope v. Pelzer , 536 U.S. 730, 738, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ); see also, e.g., White v. Pauly , --- U.S. ----, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017) (an "obvious case" means that "in the light of pre-existing law the unlawfulness [of the officer's actions] must be apparent") (citing Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ) (cleaned up). As I understand the majority opinion, it believes this is an obvious case because a jury could find that (1) Cole "posed no threat" to the officers; (2) the officers fired "without warning"; and (3) the officers had "time and opportunity" to warn Cole, but did not. Maj. at 453. According to the majority, this scenario would plainly violate Garner 's generalized test that an officer may not use deadly force to apprehend a suspect who "poses no immediate threat to the officer," unless he warns the suspect "where feasible." Id. (quoting Garner , 471 U.S. at 11-12, 105 S.Ct. 1694 ).
Judge Jones' dissent shows that, even resolving all disputed facts in Cole's favor, the officers did not "obviously" violate Garner 's generalized test during the immediate shooting-that is, when in the space of five seconds at most, the officers met Cole at a distance of 10-20 feet as he backed out of the woods, still armed, and began to turn. Jones Dissent at 463-64. But if we include the undisputed facts leading up to the shooting, the notion that this is an "obvious case" crumbles. To believe that, we would have to blind ourselves to the facts that (1) the officers were searching for an irate, distraught suspect; (2) who was wandering through the woods armed with a loaded semi-automatic handgun; (3) who had refused police demands to turn over his weapon; (4) who had just that morning deposited a cache of weapons and ammunition at his friend's house; and (5) who had threatened to "shoot anyone who came near him." Those were the "totality of the circumstances" facing the officers, Colston , 130 F.3d at 100, and they were not disputed by Cole or the district court. Given those circumstances, the officers might have taken any number of actions when they met Cole in the woods that morning-they might have warned him, or shot him, or shot in the air, or retreated, or remained frozen in place to see what he would do. But to say it is "obvious" what they should have done is to denude the concept of an "obvious case" of any meaning.
Once stripped of the conceit that this is an "obvious case," the majority has nothing left to justify its holding. The Supreme Court has bluntly told us that, outside the "obvious case" scenario, " Garner ... do[es] not by [itself] create clearly established law[.]" White v. Pauly , 137 S. Ct. at 552. And, of course, the majority does not try to claim that the facts of Garner are anything like this case. In Garner , a police officer shot a fleeing, unarmed burglar in the back of the head. The officer admitted he did not even suspect the burglar was armed. See 471 U.S. at 3, 105 S.Ct. 1694 (noting the officer "saw no sign of a weapon" at the time he shot and, afterwards, admitted "[he] was 'reasonably sure' and 'figured' that [the suspect] was unarmed"). Apples and oranges does not capture the chasm between that case and this one.
The majority does claim that our 1996 decision in Baker v. Putnal , "clearly established" that the officers' conduct here was unlawful. Maj. at 453-54 (citing 75 F.3d 190, 193 (5th Cir. 1996) ). That is mistaken. In Baker , Officer Putnal was patrolling a crowded beach area when gunfire erupted. Id. Witnesses directed Putnal "toward a red car which they said contained the shooters." Id. He approached that car, but then saw two people sitting in another vehicle, a truck. Id. One of the truck's passengers, Wendell Baker, "turned in Putnal's direction ... [and] Putnal shot and killed [him]." Id. While a pistol was recovered from the truck, the plaintiffs denied Baker "was holding a pistol" when shot. Id. at 196. In other words, a jury could have found Baker was not holding a gun when Putnal killed him.
It is not hard to grasp the key difference between Baker and this case. When shot, Baker was possibly not even holding a gun. When shot, Cole was undisputedly holding a gun . Imagine this conversation between a police officer and the police department's lawyer:
OFFICER: I heard the Fifth Circuit just decided this Baker case. What does it tell me I should or shouldn't do in the field?
LAWYER: Well, Baker says you lose qualified immunity if you shoot someone sitting in a car doing nothing more threatening than just turning in your direction. In other words, someone you don't even see holding a weapon.
OFFICER: Makes sense. But tell me this. What if the person I approach is holding a gun?
LAWYER: Well, Baker doesn't speak clearly to that situation. I mean, the jury in Baker could have found the guy didn't even have a gun in his hand when the officer shot him.
In other words, contrary to the majority's view, Baker could not have "established clearly that Cassidy's and Hunter's conduct ... was unlawful" when they shot Cole as he emerged from the woods with his finger on the trigger of a loaded gun. Maj. at 453. To guide officers in the field, a controlling precedent must be "sufficiently clear that every reasonable [officer] would have understood that what he is doing violates" the Constitution. Mullenix , 136 S. Ct. at 308 (cleaned up). Baker does not come close.
The officers deserve qualified immunity on the excessive force claims. I respectfully dissent.
We do not challenge the majority's decision to leave in place fabricated evidence charges against these two officers and Officer Carson. Only Carson, who was present at the encounter but did not shoot, appealed the district court's refusal to dismiss that claim. The Supreme Court has not been clear on the constitutional basis for such a claim, so we have no ground to criticize the majority. Compare Manuel v. City of Joliet, --- U.S. ----, 137 S. Ct. 911, 197 L.Ed.2d 312 (2017), with McDonough v. Smith, --- U.S. ----, 139 S. Ct. 2149, 204 L.Ed.2d 506 (2019), (refusing to rule on the constitutional grounding of such claims).
Query why Officer Cassidy, whose shots didn't hit the victim, can be sued? This court has held that qualified immunity must be applied individually to each defendant. Meadours v. Ermel , 483 F.3d 417, 421-22 (5th Cir. 2007). But no one raised the point here.
The correct disposition if this court agrees there are material fact issues in dispute regarding qualified immunity would be to dismiss the appeal, because our appellate jurisdiction exists only over questions of law. Mitchell v. Forsyth, 472 U.S. 511, 529-30, 105 S. Ct. 2806, 2816-17, 86 L.Ed.2d 411 (1985).
The panel curiously described so-called clearly established law in both of its opinions with references to unpublished, non-precedential Fifth Circuit cases. The Supreme Court has expressed uncertainty over whether any circuit court cases, as opposed to its own decisions, may set out "clearly established law." See Dist. of Columbia v. Wesby, --- U.S. ----, 138 S. Ct. 577, 591 n. 8, 199 L.Ed.2d 453 (2018) ; Carroll v. Carman , 574 U.S. 13, 135 S. Ct. 348, 350, 190 L.Ed.2d 311 (2014) ; Reichle v. Howards , 566 U.S. 658, 665-66, 132 S. Ct. 2088, 2094, 182 L.Ed.2d 985 (2012). It is incredible that this court would cite our avowedly non-precedential decisions for that purpose.
This dissent focuses on the majority opinion because Appellees' briefing offered nothing in addition to the meager authorities cited by the majority to support their "clearly established law" theory.
In Mullenix, the Supreme Court reversed this court and held an officer entitled as a matter of law to qualified immunity when he shot, and killed, a suspect fleeing from the police in his car at high speed. Following Mullenix, the Supreme Court vacated the judgment and remanded Cole I, no doubt in part because Cole I heavily relied on the reversed panel decision in Mullenix .
For present purposes, we "address only the qualified immunity question, not whether there was a Fourth Amendment violation in the first place." Mullenix, 136 S. Ct. at 308 ; Pearson, 555 U.S. at 236, 129 S. Ct. at 818 (constitutional violation or qualified immunity may be decided first).
Worse, it treats as a disputed fact issue for immunity purposes what is clearly an issue of law. See Wyatt v. Fletcher , 718 F.3d 496, 502-03 (5th Cir. 2013).
Kisela v. Hughes , --- U.S. ----, 138 S. Ct. 1148, 1153, 200 L.Ed.2d 449 (2018) ; White , 137 S. Ct. at 552.
Turning on distinctly different facts, Garner alone does not establish pertinent clearly established law here, and the majority does not contend as much.
The majority cites Colston v. Barnhart , 130 F.3d 96, 100 (5th Cir. 1997), for the necessity of giving a warning "where feasible" before the use of deadly force. Oddly, Colston then immediately holds that the officer there "lying on his back with Colston nearby, had to immediately decide whether to shoot. In light of the totality of the circumstances facing Barnhart, Barnhart's failure to give a warning was not objectively unreasonable." Id. The feasibility of a warning is part of the overall Fourth Amendment analysis, not an independent sine qua non of official conduct.
Compare Wesby, 138 S. Ct. at 590 ("Of course, there can be the rare obvious case, where the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances. But a body of relevant case law is usually necessary to clearly establish the answer with respect to probable cause.") (internal citation and quotation marks omitted).
See fn. 4, supra .
Manis v. Lawson , 585 F.3d 839 (5th Cir. 2009).
This en banc court consists of the sixteen active judges, plus two senior judges who were on the original panel. Of those sixteen active judges, nine join the majority opinion.
I especially refer the reader to Part I of Judge Duncan's dissent, which sets forth the context and narrative of red-flag facts that easily justify qualified immunity. All three dissents persuasively explain the law of qualified immunity that the majority overlooks.
Winzer v. Kaufman Cty. , 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting), petition for rehearing en banc pending :
The implications of the majority's mistakes cannot be minimized. The majority decides that qualified immunity can be endangered by an affidavit filed at summary judgment that creates a fact issue nowhere else supported by record evidence.
Worse still, it seriously undermines officers' ability to trust their judgment during those split seconds when they must decide whether to use lethal force. Qualified immunity is designed to respect that judgment, requiring us to second-guess only when it clearly violates the law. The standard acknowledges that we judges-mercifully-never face that split second. Indeed, we never have to decide anything without deliberation-let alone whether we must end one person's life to preserve our own or the lives of those around us.
The qualified immunity standard stops this privilege from blinding our judgment, preventing us from pretending we can place ourselves in the officers' position based on a cold appellate record. It prevents us from hubristically declaring what an officer should have done-as if we can expect calm calculation in the midst of chaos.
The majority opinion, written from the comfort of courthouse chambers, ignores that deference. Instead, it warns officers that they cannot trust what they see; they cannot trust what their fellow officers observe; they cannot trust themselves when posed with a credible threat. It instructs them, in that pivotal split second, to wait. But when a split second is all you have, waiting itself is a decision-one that may bring disastrous consequences.
Zadeh v. Robinson , 928 F.3d 457, 474 (5th Cir. 2019) (Willett, J., concurring in part, dissenting in part).
Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (flagging these "two important interests").
Zadeh , 928 F.3d at 479.
See, e.g. , State Oil Co. v. Khan , 522 U.S. 3, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (overruling prior precedent whose unsoundness had been "aptly described" by the court of appeals).
See, e.g. , Richard Fallon, Jr., et al., Hart and Wechsler's The Federal Courts and the Federal System 1047-50 (7th ed. 2015) (noting the difficulties of applying the clearly-established-law test); Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness , 23 WM. & MARY BILL RTS. J. 913, 925 n.68 (2015) ("[W]hether a right is found to be 'clearly established' is very much a function of which circuit (and I would add, which judge) is asking the question, and how that question is framed.").
Harlow v. Fitzgerald prevents plaintiffs from relying on subjective evidence of bad faith. 457 U.S. 800, 815-16, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Id. at 817, 102 S.Ct. 2727.
Zadeh , 928 F.3d at 481 (Willett, J., concurring in part, dissenting in part).
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.").
The Supreme Court issues GVRs when, as here, legal error infects the judgment below. See , e.g. , Hicks v. United States , --- U.S. ----, 137 S. Ct. 2000, 2000-01, 198 L.Ed.2d 718 (2017) (Gorsuch, J., concurring) (defending GVR because "[a] plain legal error infects this judgment" and because petitioner "enjoys a reasonable probability of success" in getting judgment reversed on the merits); id. at 2002 (Roberts, C.J., dissenting) ("[W]ithout a determination from this Court that the judgment below was wrong or at least a concession from the Government to that effect, we should not, in my view, vacate the Fifth Circuit's judgment."). As the cert petition explained, our panel denied qualified immunity "based on the same rationale" on "which this Court reversed in Mullenix ." Pet. at i, 2016 WL 4987324, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----. We think it obvious the Supreme Court GVR'd because it agreed. And tellingly, the majority does not offer an alternative theory to explain the GVR. We ignore the Court's message at our peril. See, e.g. , Smith v. Mitchell , 437 F.3d 884 (9th Cir. 2006) (granting habeas relief to a state prisoner because the evidence was insufficient to prove she shook her grandbaby to death); Patrick v. Smith , 550 U.S. 915, 127 S.Ct. 2126, 167 L.Ed.2d 861 (2007) (GVR'ing i/l/o Carey v. Musladin , 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) ); Smith v. Patrick , 519 F.3d 900 (9th Cir. 2008) (again granting habeas relief); Patrick v. Smith , 558 U.S. 1143, 130 S.Ct. 1134, 175 L.Ed.2d 967 (2010) (GVR'ing i/l/o McDaniel v. Brown , 558 U.S. 120, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010) ); Smith v. Mitchell , 624 F.3d 1235 (9th Cir. 2010) (again granting habeas relief); Cavazos v. Smith , 565 U.S. 1, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (SUMREV'ing).
Those social costs are particularly stark today given widespread news of low officer morale and shortages in officer recruitment. See, e.g. , Ashley Southall, When Officers Are Being Doused, Has Police Restraint Gone Too Far? , N.Y. Times , July 25, 2019, at A22; Martin Kaste & Lori Mack, Shortage of Officers Fuels Police Recruiting Crisis , NPR (Dec. 11, 2018, 5:05 AM), https://n.pr/2Qrbrnq; Jeremy Gorner, Morale, Policing Suffering in Hostile Climate, Cops Say; 'It's Almost Like We're the Bad Guys,' Veteran City Officer Says , CHI. TRIB., Nov. 27, 2016, at 1.
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 473 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 , --- U.S. ----, 137 S. Ct. 1843, 1872, 198 L.Ed.2d 290 (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.

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