Why a Trump-Appointed Judge Is Torching His Own Court’s Qualified Immunity Logic—and the Government Abuse It Enables
Concurrences are underrated. Though they don’t serve as the primary explanation for a court’s ruling, they can add crucial context to majority opinions and shape how we interpret them—and the law generally. For a reminder of this, we can look to the concurrence in the legal odyssey that is McMurry v. Weaver.
A short primer: In October 2018, Megan McMurry left her two kids—a 14-year-old daughter and 12-year-old son—in her gated apartment complex in Midland, Texas, while she traveled to a job interview in Kuwait. She hoped to relocate the family there to be closer to her husband’s deployment in the Middle East. McMurry arranged for a neighbor to check on the children while she was away and for co-workers to take her son to Abell Junior High School, where McMurry was a teacher. (Her daughter was homeschooled.)
When Alexandra Weaver, a school resource officer, was reminded of McMurry’s trip, she was dismayed (though it’s worth noting that McMurry had previously notified Weaver of the plan). Weaver told her supervisor, Officer Kevin Brunner, after which the two traveled to the McMurry home—which Weaver searched without a warrant—seized McMurry’s daughter sans a court order, declined to let her contact her father, and called Child Protective Services. The agency concluded the situation did not meet its threshold for abuse or neglect.
Brunner continued criminally investigating McMurry and had her arrested on charges of abandoning or endangering her children. A jury acquitted her in January 2020.
McMurry sued in October of that same year, alleging violations of the Fourth and 14th Amendments. The government has been fighting the suit since, asserting qualified immunity—the legal doctrine that inoculates state and local employees from having to face such lawsuits unless the plaintiffs can show that the misconduct violated “clearly established” constitutional law at the time. Put more plainly: Even if a court finds that the act was unconstitutional, victims often lose unless a prior court precedent was already on the books outlining the same violation with virtually identical facts. (The doctrine is, for example, the reason why two men were not allowed to sue the police officers who allegedly stole over $225,000 from them during the execution of a search warrant—because no previous ruling explicitly said stealing under such circumstances was illegal.)
Last month the U.S. Court of Appeals for the 5th Circuit rejected that defense in the McMurry case (again).
It was the right decision. But a concurring opinion from Judge James C. Ho, who was appointed in 2018 by President Donald Trump, lays bare both the absurdity of the state’s argument and the root, in his view, of why the government felt comfortable making it: the 5th Circuit itself.
Core to the government’s argument was the claim that Weaver did not necessarily seize McMurry’s daughter from her home—because her daughter was using it as a school. “Counsel theorizes that parents who choose to homeschool convert their private homes into public schools for Fourth Amendment purposes,” Ho writes. “As a result, police officers can take children away from their home, and prevent their parents from communicating with them, if they’re homeschooled.”
It is not unlike the government to make bizarre arguments in an attempt to avoid accountability. The more significant problem is that it often works. “Although it should be easy to dismiss counsel’s plainly erroneous defense,” Ho writes, “it’s profoundly disquieting that the defense finds so much support in our court’s precedents.”
This is indeed not the 5th Circuit’s first rodeo. In Morgan v. Swanson (2011), the court gave qualified immunity to a pair of Texas school officials who censored student speech that conveyed religious messag
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