Active Appellate Litigation

Zadeh v. Robinson, 19-676 (United States Supreme Court; distributed Dec. 11, 2019 for Jan. 10, 2020 conference)

1. Government actors seized medical records from a doctor without a warrant. 

2. The Fifth Circuit held the officers were entitled to qualified immunity.

3. Notable dissent from Judge (and former Texas Supreme Court Justice) Willett - at p. 25. 

   • “[D]eeper study has convinced me that the officials' constitutional misstep violated clearly established law… [and] has reaffirmed my broader conviction that the judge-made immunity regime ought not be immune from thoughtful reappraisal.” 

   • “Everyone agrees [Dr. Zadeh’s] Fourth Amendment rights were violated. But owing to a legal deus ex machina—the ‘clearly established’ prong of qualified-immunity analysis—the violation eludes vindication. At first I agreed with the panel majority that the government violated the law but not clearly established law. I was wrong. Beyond this case, though, I must restate my broader unease with the real-world functioning of modern immunity practice.” 

   • “[M]any courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding, no doubt. But the inexorable result is ‘constitutional stagnation’ — fewer courts establishing law at all, much less clearly doing so. 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. Heads government wins, tails plaintiff loses.” 

Lilly v. McLennan County, 18-51066 (5th Cir.) (orally argued Dec. 3, 2019)

1. Question presented: Are government actors immune under the doctrine of qualified immunity for failing to treat an inmate suffering from a life-threatening condition (i.e., a myocardial infarction) despite having knowledge of her condition for more than three hours prior to her death?

2. Apparently, “yes”. 

   • Brief

   • Reply

3. A Texas Ranger conducted an extensive report and attempted (albeit unsuccessfully) to have the jail’s medical doctor indicted by a grand jury.  

Jones v. Eder, 19-20223 (5th Cir.)

1. Can police officers reasonably arrest the People inside their homes for possession of controlled substances when residents of the home have prescriptions therefor? 

2. “Yes” (Lake, J.), based largely upon a decision from the Texas Court of Criminal Appeals.  See https://law.justia.com/cases/texas/court-of-criminal-appeals/1977/54976-3.html

3. I strenuously disagree on numerous grounds, including the text of the Fourth Amendment and the Interstate Commerce Clause of the United States Constitution 

   • Brief

   • Reply

   • Motion for Rehearing En Banc (denied, December 13, 2019)

4. I will be filing a petition at the United States Supreme Court within 90 days.