Trump Judicial Appointees Clash Over Qualified Immunity and ‘the Woke Constitution’
Federal judges Don Willett and James Ho share some surface similarities. They both sit on the U.S. Court of Appeals for the 5th Circuit and were both appointed to that court in 2017 by President Donald Trump. But when it comes to the roiling legal debate over qualified immunity, the two jurists stand miles apart.
Qualified immunity is the controversial legal doctrine that generally shields state actors, including police officers, from being held civilly liable if the conduct that they are being sued over does not violate what the Supreme Court has called “clearly established statutory or constitutional rights.”
Willett is one of the doctrine’s leading judicial critics. “Qualified immunity smacks of unqualified impunity,” he has written. In practice, the doctrine lets “public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”
Ho, by contrast, has argued that the cops are not getting enough judicial deference in qualified immunity cases. He has faulted his colleagues on the 5th Circuit for “second-guessing split-second decisions by police officers from the safety of our chambers.”
The two jurists clashed openly in Cole v. Hunter (2019), a case involving a family’s lawsuit over the police shooting of their mentally disturbed teenage son. Willett conceded that controlling SCOTUS precedent left the lower court with no choice but to give the officers qualified immunity. So Willett blasted away at the preceden
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