I’m not sure where I stand on qualified immunity—I haven’t looked at its history closely enough—but I thought this was well put, in Judge Willett’s dissent yesterday in Villarreal v. City of Laredo (en banc):
[O]ne of the justifications so frequently invoked in defense of qualified immunity—that law enforcement officers need “breathing room” to make “split-second judgments”—is altogether absent in this case. This was no fast-moving, high-pressure, life-and-death situation. Those who arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far from having to make a snap decision or heat-of-the-moment gut call, spent several months plotting Villarreal’s takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute’s near-quarter-century of existence. This was not the hot pursuit of a presumed criminal; it was the premeditated pursuit of a confirmed critic.
Also, while the majority says the officers could not have “predicted” that their thought-out plan to lock up a citizen-journalist for asking questions would violate the First Amendment—a plan cooked up with legal advice from the Webb County District Attorney’s Office, mind you—the majority simultaneously indulges the notion that Villarreal had zero excuse for not knowing that her actions might implicate an obscure, never-used provision of the Texas Penal Code. In other words, encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.
In the upside-down world of qualified immunity, everyday citizens are demanded to know the law’s every jot and tittle, but those charged with enforcing the law are only expected to know the “clearly established” ones. Turns out, ignorance of the law is an excuse—for government officials. Such blithe “rules for thee but not for me” nonchalance is less qualified immunity than unqualified impunity. The irony would be sweet if Villarreal’s resulting jailtime were not so bitter, and it lays bare the “fair warning” fiction that has become the touchstone of what counts as “clearly established law.”