Foundation Briefs
November/December Brief
Resolved: The United States ought to limit qualified
immunity for police officers.
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Table of Contents
Table of Contents .................................................................................................................................................... 1!
Definitions............................................................................................................................................................... 9!
Qualified Immunity ............................................................................................................................................. 9!
Definition of Qualified Immunity. LMW. .................................................................................................. 9!
Qualified Immunity examples. LMW. ...................................................................................................... 10!
Qualified immunity is not a stable body of law. LMW. ........................................................................... 10!
Qualified immunity can be interpreted in a way that takes into account societal conditions and prioritizes
individual rights. LMW. ........................................................................................................................... 11!
Definition of qualified immunity. LWZ ................................................................................................... 11!
Qualified immunity definition. LWZ ........................................................................................................ 12!
Qualified immunity definition. LWZ ........................................................................................................ 12!
Police Officers .................................................................................................................................................. 13!
Definition of a police officer. LMW. ........................................................................................................ 13!
Definition of Police Officer. LMW. ......................................................................................................... 13!
Topic Analysis One ............................................................................................................................................... 14!
Aff Evidence ......................................................................................................................................................... 23!
Prevents legal change ........................................................................................................................................ 24!
Qualified immunity masks the problems in civil rights law, preventing legal change. LMW. ................ 24!
By diffusing tension, qualified immunity prevents the public from rallying for change. LMW. ............. 25!
Qualified immunity is structured so that as many civil rights cases as possible can be dismissed. LMW.
................................................................................................................................................................... 25!
Supreme court affirms qualified immunity for unconstitutional conduct. DJS ........................................ 26!
Historically qualified immunity has led to segregation DJS .................................................................... 26!
When the law is not “clearly established”, qualified immunity allows a paradox to occur where the
courts never reach a conclusion. LMW. ................................................................................................... 27!
If a case ends in district court, as most do, then the decision is not enough to “clearly establish” law.
LMW. ........................................................................................................................................................ 27!
Too Difficult to Challenge ................................................................................................................................ 28!
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Contradictory decisions from different courts make “clearly established law” rare, which makes
qualified immunity almost absolute. LMW. ............................................................................................. 28!
Empirical evidence shows that qualified immunities’ “clearly established law” requirement allows more
than half of cases to be thrown out without investigation. LMW. ............................................................ 29!
The financial burden created by Qualified Immunity law makes it especially difficult for minorities to
seek damages. LMW. ................................................................................................................................ 30!
Judge bias makes it unlikely that the victim’s word will be held over the police officers’. LMW. ......... 30!
Juries for qualified immunity cases are often made up of white, middle-class men who have never
experienced police violence and cannot relate to the victims. LMW. ...................................................... 31!
Unequal resources in qualified immunity cases allow the state to win again and again. LMW. ............. 31!
Various aspects of qualified immunity law allow the state to drag their feet and prevent the discovery of
evidence. LMW. ........................................................................................................................................ 32!
Qualified Immunity leads to corrupt practices and cultural resistance DJS ............................................. 33!
Qualified immunity is ineffective because the economic theory that it is based on is not applicable to the
government. LMW. ................................................................................................................................... 34!
Overtime qualified immunity has evolved to be too strong and the courts have lost sight of its original
purpose. LMW. ......................................................................................................................................... 35!
The strength of Qualified immunity deters lawyers from pursuing damage actions. LMW. ................... 35!
The disorganized and contradictory applications of the constitution by the courts distract from the
original purpose of preventing rights violations. LMW. .......................................................................... 36!
Effective Policing ............................................................................................................................................. 37!
Abolishing qualified immunity would force the government to increase training and selection for police
officers. LMW. .......................................................................................................................................... 37!
Qualified Immunity harms the Police Officer DJS ................................................................................... 37!
Individual police officers have their own objectives, so the threat of suits may have no effect on their
daily actions. LMW. ................................................................................................................................. 38!
Police departments have a variety of interests and problems that conflict with limiting constitutional
violations. LMW. ...................................................................................................................................... 38!
Police Misconduct ............................................................................................................................................. 39!
Lawsuits against the police are not required to be reported, meaning that police misconduct is swept
under the rug. LMW. ............................................................................................................................... 39!
Qualified immunity suits have no deterrent effect on police misconduct. LMW. .................................... 39!
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Qualified immunity allows abusive police officers to continue to be promoted and spread their bad
influence. LMW ....................................................................................................................................... 40!
Empirics show that the lack of punishment for the first violation leads to an escalation of violence by
individual police officers. LMW. .............................................................................................................. 40!
Limiting qualified immunity would allow the public to hold police officers accountable for their
misconduct. LMW. ................................................................................................................................... 41!
Narrowing qualified immunity would decrease violations of constitutional law and increase the chances
of victims being compensated. LMW. ...................................................................................................... 42!
Police misconduct is often directed at minorities who are unlikely to win in court. LMW. .................... 43!
Without action, the cycle of police violence will continue and further polarize our nation. LMW. ........ 44!
The Supreme Court makes decisions that prevents victims from having proper recourse against the
police. LWZ .............................................................................................................................................. 45!
Qualified immunity protects officers from clearly unlawful behavior. LWZ .......................................... 47!
It’s impossible to hold police officers accountable because of qualified immunity. LWZ ...................... 48!
Qualified immunity is too strong – it’s a near absolute defense. LWZ .................................................... 48!
The United States should eliminate qualified immunity and replace it with a rule of strict liability. LWZ
................................................................................................................................................................... 49!
The role of juries has been undermined in excessive force cases. LWZ .................................................. 49!
We should eliminate qualified immunity in excessive force cases. LWZ ................................................ 50!
There are several benefits to this approach. LWZ .................................................................................... 51!
There is no single step to take to ensure police accountability but reforming qualified immunity is a
good place to start. LWZ .......................................................................................................................... 52!
There is no clarity in what counts as a clearly established right. LWZ .................................................... 53!
The concept of a clearly established right causes confusion. LWZ .......................................................... 54!
The deterrent power of lawsuits is not very powerful. LWZ .................................................................... 55!
The Courts have over extended the doctrine. LWZ .................................................................................. 56!
Qualified immunity has eroded law enforcement accountability. LWZ ................................................... 57!
Trust and legitimacy is an important part of law enforcement that qualified immunity reduces. LWZ .. 58!
Unrestrained police forces hurt relations between law enforcement and the community. LWZ ............. 59!
Amending qualified immunity is a good starting point for ensuring accountability. LWZ ..................... 60!
Simply providing more guidance and clarification can increase accountability. LWZ ............................ 60!
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By clearly establishing the concept of a clearly defined right, the Court would alleviate confusion . LWZ
................................................................................................................................................................... 61!
Attempts at a general standard for all classes of officials is problematic. LWZ ...................................... 62!
The Court should recognize that it has been overzealous in protecting officers. LWZ ............................ 62!
Mending the qualified immunity doctrine will allow more civil suits which increases accountability.
LWZ .......................................................................................................................................................... 63!
Adopting different immunity standards, clarifying vagueness, and acknowledging real world effects, the
Court will improve accountability. LWZ .................................................................................................. 63!
No Constitutional Basis .................................................................................................................................... 64!
Qualified immunity has no basis in constitutional law. LMW. ................................................................ 64!
Qualified immunity harms constitutional rhetoric and torts DJS ............................................................. 64!
It is possible to sue government entities. LWZ ......................................................................................... 65!
The Court’s interpretation is largely judge-made. LWZ .......................................................................... 65!
Domestic Violence ............................................................................................................................................ 66!
The government has a constitutional duty to intervene in domestic violence situations. LMW. ............. 66!
Police officers often discriminate against survivors of domestic violence by treating their 911 calls as
less important. LMW. ............................................................................................................................... 66!
Qualified immunity protects police officers who fail to intervene and protect survivors of domestic
violence. LMW. ........................................................................................................................................ 67!
Lack of “clearly established law” allows police officers to win these suits. LMW. ................................ 67!
LGBT ................................................................................................................................................................ 68!
Qualified immunity allows police officers who harass LGBT individuals such as in Sterling v. Borough
of Minersville to escape without punishment. LMW. .............................................................................. 68!
As in the case of Nabozny v. Podlesny, police officers can fail to protect LGBT individuals from
harassment and abuse based on their sexual orientation. LMW. .............................................................. 69!
The lack of “clearly established law” for LGBT minorities makes it extremely difficult to use equal
protection or due process protections in qualified immunity cases. LMW. ............................................. 69!
Qualified immunity allows courts to ignore precedents for LGBT rights. LMW. ................................... 70!
This has already empirically occurred in cases involving government officials other than police officers.
LMW. ........................................................................................................................................................ 70!
Since the harms of being “outed” as LGBT are predominantly emotional, the courts regard them with
less importance. LMW. ............................................................................................................................. 71!
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This also makes it unlikely for LGBT individuals to be awarded satisfactory damages. LMW. ............. 71!
The difficulty of proving causation also makes it difficult for LGBT individuals to win qualified
immunity cases. LMW. ............................................................................................................................. 72!
Constitutional Violations .................................................................................................................................. 73!
The exclusionary rule allows for the fourth amendment to be violated. DJS. .......................................... 73!
Police can exert qualified immunity by getting entering a house without a warrant. DJS ....................... 73!
Courts affirm excessive force violates fourth amendment. DJS ............................................................... 74!
Courts Bad ........................................................................................................................................................ 75!
Court system is flawed because of qualified immunity DJS .................................................................... 75!
Qualified immunity is often evoked with no merits—even on Supreme Court DJS ................................ 75!
There is no accurate way to determine the monetary amount that the plaintiff should be awarded in
qualified immunity cases. LMW. .............................................................................................................. 76!
The qualified immunity process is unnecessarily confusing and difficult for the courts. LMW. ............. 77!
Econ .................................................................................................................................................................. 78!
Qualified Immunity is not allocatively effective of governments moneys DJS ....................................... 78!
Fines and other economic sanctions against the government fail DJS ..................................................... 78!
Constitutional violations don’t warrant monetary sums of money given to defendants DJS ................... 79!
Police Brutality ................................................................................................................................................. 80!
Qualified immunity leads to an abuse of power by police DJS ................................................................ 80!
Qualified Immunity is essentially a large blanket to protect police brutality from prosecution DJS ...... 80!
New accountably does nothing to stop police from misconduct DJS ....................................................... 81!
Application Fails ............................................................................................................................................... 82!
Qualified immunity legally fails in a suit—it’s a two way street not a one way DJS .............................. 82!
A standard needs to be created for qualified immunity DJS .................................................................... 82!
The individual violation/general compensation system of qualified immunity is paradoxical. LMW .... 83!
Citizens are harmed .......................................................................................................................................... 84!
Qualified Immunity treats citizens as inferiors to the government DJS ................................................... 84!
Prosecutable Misconduct happens, and citizens are hurt as a result DJS ................................................. 84!
Neg Evidence ........................................................................................................................................................ 85!
More Effective Police Force ............................................................................................................................. 86!
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Qualified Immunity helps police not stress about actions in split second decisions DJS ......................... 86!
The purpose of Qualified Immunity is to minimize wasted time in court so that police officers can do
their job . LMW. ....................................................................................................................................... 86!
Court cases suggest that without qualified immunity police officers would be deterred from acting for
the public good. LMW. ............................................................................................................................. 87!
The various pressures on police officers make the early dismissal of cases through qualified immunity
crucial. LMW. ........................................................................................................................................... 87!
The majority of cases against police misconduct are not brought to court by innocent citizens but by
criminals already being prosecuted. LMW. .............................................................................................. 88!
Reduces Government Spending ........................................................................................................................ 89!
Abolishing Qualified Immunity would increase government spending. LMW. ...................................... 89!
Flexible ............................................................................................................................................................. 90!
The dominant qualified immunity approach allows the courts to make decisions based on societal needs
rather than current law. LMW. ................................................................................................................. 90!
The courts throughout history prove flexibility of qualified immunity DJS ............................................ 90!
There is a two-step process for qualified immunity DJS .......................................................................... 91!
Qualified Immunity in its nature is subjective and can evolve DJS ......................................................... 91!
Courts would limit Constitutional rights .......................................................................................................... 92!
Limiting qualified immunity would encourage courts to limit constitutional rights instead. This is
empirically proven. LMW. ....................................................................................................................... 92!
Courts are how a government solves injustices DJS ................................................................................ 93!
Qualified immunity protects police when constitutional violations are eminent DJS .............................. 93!
Stagnation of Law ............................................................................................................................................. 94!
Limiting qualified immunity causes constitutional stagnation DJS ......................................................... 94!
The Scott Rule and its relevance DJS ....................................................................................................... 94!
Qualified immunity protects justice and the legal system DJS ................................................................. 94!
Even if civilians do not win their qualified immunity cases, the refinement to the law may still be
valuable. LMW. ........................................................................................................................................ 95!
Fosters Rights and Oppurtunity ........................................................................................................................ 96!
Qualified Immunity actually develops individual rights DJS ................................................................... 96!
Eliminating Qualified Immunity disincentivizes people from joining the civil services DJS
.................. 96!
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Qualified immunity is the basis for moral principles DJS ........................................................................ 96!
Applications of Immunity ................................................................................................................................. 97!
Qualified immunity has a high standard to be used DJS .......................................................................... 97!
Protects Police ................................................................................................................................................... 98!
Qualified immunity does not allow actual harms to a person, unlike a state suit DJS ............................. 98!
Abolish .............................................................................................................................................................. 99!
A federal judge advocates that qualified Immunity should be abolished. LMW. .................................... 99!
Aff Counters........................................................................................................................................................ 100!
A2 Government Spending .............................................................................................................................. 101!
Qualified immunity is inefficient and costly. LMW. .............................................................................. 101!
A2 Protects Police from Lawsuit .................................................................................................................... 102!
Police can still be sued even with qualified immunity DJS .................................................................... 102!
Because police officers rarely pay, qualified immunity isn’t justified to protect officers from financial
liability. LWZ ......................................................................................................................................... 102!
Lawsuits against the police are rare and have little effect. LWZ ............................................................ 103!
Deterrent effect does not affect police conduct. LWZ ............................................................................ 103!
Combined evidence undermines the rationale for qualified immunity. LWZ ........................................ 104!
A2 Courts ........................................................................................................................................................ 105!
Supreme Court is only focused with efficiency, not correct decisions DJS ........................................... 105!
Qualified Immnity makes a fair trial involving a police officer very rare DJS ...................................... 105!
A2 Abolish ...................................................................................................................................................... 106!
Abolishing qualified immunity completely would just encourage the government to create a different
screening method. LMW. ....................................................................................................................... 106!
Neg Counters ...................................................................................................................................................... 107!
A2 Police Brutality ......................................................................................................................................... 108!
Qualified immunity suits are key to raising awareness of police brutality. Otherwise these issues often
go ignored. LMW. ................................................................................................................................... 108!
Courts are currently split on whether qualified immunity can be used in excessive force cases. LMW.
................................................................................................................................................................. 109!
A2 Make the officers pay ................................................................................................................................ 110!
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Changing the law so that police officers pay damages would only increase the invisibility of police
misconduct. LMW. ................................................................................................................................. 110!
Constitutional violations don’t warrant monetary sums of money given to defendants DJS ................. 110!
A2 Courts Reject ............................................................................................................................................. 111!
The courts throughout history have proven qualified immunity is a legal defense DJS ........................ 111!
The basis of descessions and other studies was overturned and disproved at a later date DJS .............. 111!
A2 Constitution ............................................................................................................................................... 112!
Interpretations of constitutional law are unavoidably tied to current societal contexts. LMW. ............. 112!
A2 Limits Legal Change ................................................................................................................................. 113!
Qualified immunity cases set precedents that allow the law to be refined. LMW. ................................ 113!
Cases ................................................................................................................................................................... 114!
Aff Case .......................................................................................................................................................... 115!
Introduction: ................................................................................................................................................ 115!
Contention One: .......................................................................................................................................... 116!
Contention Two: ......................................................................................................................................... 116!
Contention Three: ....................................................................................................................................... 117!
Neg Case ......................................................................................................................................................... 119!
Nov/Dec 2016 Definitions
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Definitions
Qualified Immunity
Definition of Qualified Immunity. LMW.
Jeffries, John. C. Jr. (David and Mary Harrison Distinguished Professor, the University of
Virginia School of Law). “What's Wrong With Qualified Immunity?” Florida Law
Review. Volume 62 September 2010
Qualified immunity protects government officers from damages liability for violating constitutional
rights. It does not constrain injunctions, exclusion of evidence, or the defensive assertion of rights in
government enforcement proceedings.' Nor does it apply to all damage actions. Officers performing
legislative, judicial, and certain prosecutorial functions have absolute immunity from the award of
money damages.2 At the other extreme, local governments, which can be sued only for constitutional
violations committed pursuant to official policy or custom,3 have no immunity at all for such
violations.4 But executive officers-including law enforcement officers of all sorts, prison guards,
school officials, health care providers, welfare administrators, and government employers-generally
enjoy qualified immunity from the award of money damages. That is true both for state and local
officers sued under 42 U.S.C. § 1983 and for federal officers sued under the analogous common-law
remedy of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.5 Qualified
immunity is thus the most important doctrine in the law of constitutional torts. It states the general
liability rule for damage actions seeking to vindicate constitutional rights. So what is "qualified
immunity"? Qualified immunity is the doctrine that precludes damages unless a defendant has
violated "clearly established' constitutional rights. More fully, damages are barred if "a reasonable
officer could have believed" his or her actions to be lawful "in light of clearly established law."7
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Qualified Immunity examples. LMW.
Armacost. Barbara. E. (Associate Professor, University of Virginia School of Law)
Qualified Immunity: Ignorance Excused. Vanderbilt Law Review. 1998
Qualified Immunity: The Notice Inquiry Actions under section 1983 can involve any one or more of a
dizzying array of constitutional claims 45 including illegal searches and seizures, retaliatory
discharges, cruel and unusual treatment of prisoners, and deprivations of life, liberty, or property
without due process of law to name only a few. These claims can be brought against an equally
broad range of governmental officials, including police officers, parole officers, social workers, school
teachers, and governors.146 The variety of claims and defendants notwithstanding, the Supreme
Court has articulated a one-size-fits-all test for determining whether any particular executive official
47 is entitled to receive a qualified immunity from suit.1
Qualified immunity is not a stable body of law. LMW.
Achtenberg. D. (Assistant Professor of Law, University of Missouri) Legal Theory:
Immunity Under 42 U.S.C. § 1983: Interpretive Approach And The Search For The
Legislative Will. Northwestern Law Review. 1992
Despite the issue’s importance, and despite more than two dozen decisions, the Supreme Court has
been unable to create a stable body of immunity law. For example, during the 19803 alone, litigants
were forced to deal with at least three different formulations of the qualified immunity standard.‘
Courts continue to struggle with the issue of whether private individuals are sometimes entitled to
“official” immunity.7 The Court has indicated that its previous holding that “municipalities have no
immunity from [compensatory] damages liability flowing from their constitutional violations”8 may
soon be drastically modified to provide immunity whenever a new decision “clearly breaks with
precedent.”9 The instability in immunity doctrine has not resulted from new historical insights casting
doubt on previous beliefs about the intent of the enacting Congress. In fact, when new insights have
been suggested, the Justices have frequently ignored them or found them to be outweighed by
considerations of stare decisis.10 Instead, this instability has resulted from inconsistent views of the
Court’s interpretive function. At various times, Justices have utilized at least five different approaches
to deter- mine § 1983 immunity issues. Yet their decisions contain only the most limited discussion of
the basis for selecting one approach rather than another. The Justices have neither attempted to
determine the enacting Congress’s intent about interpretive approach, nor explained, on general
jurisprudential grounds, their own choice of approach. Instead, they have either assumed that a
particular approach was self-evidently correct or else justified it by its use in previous cases.
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Qualified immunity can be interpreted in a way that takes into account societal conditions
and prioritizes individual rights. LMW.
Achtenberg. D. (Assistant Professor of Law, University of Missouri) Legal Theory:
Immunity Under 42 U.S.C. § 1983: Interpretive Approach And The Search For The
Legislative Will. Northwestern Law Review. 1992
Part II proposes an alternative interpretive approach which focuses on the values of the enacting
Congress. Under that approach, the Court may consider current societal conditions in deciding
immunity issues under § 1983. However, it must do so to implement the value structure of the 42nd
Congress rather than the current Justice’s own values. Part II demonstrates that the 42nd Congress
had a hierarchical value structure in which protection of individual rights was a hierarchically superior
goal, 12a, one which must be accomplished as fully as possible before other goals are even
considered. For members of the 42nd Congress, the obligation to protect individual rights was not
merely one laudable objective to be balanced against others. Rather, it was an indefeasible duty
which must be fulfilled on pain of dissolution of the moral basis of government.12 To implement the
Congressional will, the Court should recognize only those immunities that would be consistent with
that value structure
Definition of qualified immunity. LWZ
LII / Legal Information Institute, no date, "Qualified immunity,"
https://www.law.cornell.edu/wex/qualified_immunity
Qualified immunity: an overview “Qualified immunity balances two important interests—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.” Pearson v. Callahan (07-751).
Specifically, it protects government officials from lawsuits alleging that they violated plaintiffs’ rights, only
allowing suits where officials violated a “clearly established” statutory or constitutional right. When
determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable
official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this
analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court
considers the case. Qualified immunity is not immunity from having to pay money damages, but rather
immunity from having to go through the costs of a trial at all. Accordingly, courts must resolve qualified
immunity issues as early in a case as possible, preferably before discovery. Qualified immunity only applies to
suits against government officials as individuals, not suits against the government for damages caused by the
officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also
applies to most other executive branch officials. While judges, prosecutors, legislators, and some other
government officials do not receive qualified immunity, most are protected by other immunity doctrines.
Recently, in Pearson v. Callahan (07-751), the Supreme Court held that courts considering officials’ qualified
immunity claims do not need to consider whether or not the officials actually violated a plaintiff’s right if it is
clear that the right was not clearly established.
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Qualified immunity definition. LWZ
Edward C. Dawson [Assistant Professor of Law, Southern Illinois University School of
Law]. “Qualified Immunity For Officers’ Reasonable Reliance On Lawyers’
Advice” Northwestern University Law Review, Vol. 110, No. 3.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1236&c
ontext=nulr
The other sort of officer immunity, qualified immunity, is more limited and applies to protect the officer only
when the officer acts reasonably.57 Though qualified immunity is less than absolute, it is still quite robust,
protecting “all but the plainly incompetent or those who knowingly violate the law,”58 and the trend over time
has been towards making it stronger.59 Most of this Article is about qualified immunity, but before focusing on
qualified immunity doctrine, it is helpful to briefly note two other points that support this Article’s arguments
for considering lawyers’ advice as relevant to qualified immunity analysis.
Qualified immunity definition. LWZ
Edward C. Dawson [Assistant Professor of Law, Southern Illinois University School of
Law]. “Qualified Immunity For Officers’ Reasonable Reliance On Lawyers’
Advice” Northwestern University Law Review, Vol. 110, No. 3.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1236&c
ontext=nulr
Qualified immunity protects an officer from suit73 and liability for violating the law when the officer
mistakenly but reasonably believed that his conduct was legal.74 It only applies to officers performing
discretionary government functions,75 and the officer must raise qualified immunity as an affirmative
defense.76 Once the defense is raised, however, most circuits hold that the plaintiff has the burden to show that
the official’s conduct violated clearly established constitutional law.77 A vast literature on qualified immunity
has comprehensively summarized,78 critiqued,79 and even sometimes defended the doctrine.80
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Police Officers
Definition of a police officer. LMW.
Meese. Edwin (The National Institute of Justice, U.S. Department of Justice, and the
Program in Criminal Justice Policy and Management, John F. Kennedy School of
Government, Harvard University) “Community Policing and the Police Officer”
1993
The changed strategy of policing alters in important ways the content of the police officer's job. Police
responsibilities expand beyond attempting to control criminal activity-to preventing crime, promoting
order, resolving disputes, and providing emergency assistance in social crises. The officer's methods
and resources extend beyond arrests and citations. They now include mediation and negotiation,
referrals to other municipal agencies, and community mobilization. As police activity focuses on the
neighborhood, the demands on the basic police officer increase, as do the scope of responsibility and
the skills required. More fundamental than the change in skills, however, is the change in the basic
position of the police officer. Instead of primarily reacting to incidents, the officer analyzes, plans, and
takes the initiative. Instead of constantly looking up the bureaucratic chain of command for guidance
and assistance, the community police officer looks out toward the problems to be solved, and toward
the community's interests in helping to solve them. In community policing, the de facto discretion that
always existed (and that often was used well by police officers) is recognized and developed, rather
than limited or discouraged
Definition of Police Officer. LMW.
Criminal Justice USA (Non-commercial, informational criminal justice website)“How to
Become a Police Officer” 2016
The duties of a police officer, also known as a law enforcement officer, focus on protecting people
and property. They patrol the areas they are assigned, which sometimes include entire jurisdictions,
respond to calls, enforce laws, make arrests, issue citations, and occasionally testify in court cases.
They often make traffic stops, respond to domestic disturbances, and, at times, provide first aid to
someone involved in a traffic accident or injured in a domestic dispute until paramedics arrive. Much
of their time is divided between patrolling, writing reports, and filling out forms. In fact, police officers
now also perform the immigration duties once exclusive to INS agents, meaning that INS agents are
now essentially police officers.
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Topic Analysis One
Daniel J Smith
Overview'
`This!topic!provides!many!different!possible!areas!to!focus!on!especially!with!the!supreme!court.!To!first!
understand!this!topic!we!need!to!evaluate!the!3!Supreme!Court!cases!to!establish!a!base!for!the!topic.!!
The!first!case!to!deal!with!the!issue!of!qualified!police!immunity!was!Bivens'v.'Six'Unknown'Named'
Agents!which!was!decided!in!1971.!In!this!case!Webster!Bivens!home!was!raided!by!six!federal!narcotic!agents!
looking!for!drugs!inside!of!his!house.!The!agents!did!not!have!a!warrant!to!ender,!but!proceeded!anyway.!
Filing!his!suit!over!illegal!search!and!seizure!Bivens!too!his!case!all!the!way!to!the!Supreme!Court.!In!its!
landmark!decision!the!court!decided!that!a!defendant!has!a!claim!to!monetary!compensation!if!no!other!
federal!remedy!is!in!place.!The!impact!of!this!case!is!that!it!allows!government!officials!to!be!accountable!for!
egregious!actions!and!blatant!violations.!This!new!limitation!on!qualified!immunity!for!officials!does!not!allow!
for!a!complete!violation!of!rights!by!the!government.!!
The!second!case!which!is!beginning!to!set!the!tone!for!qualified!immunity!in!modern!standards!is!
Harlow'v.'Fitzgerald'(1981).The!premise!of!this!case!is!that!Fitzgerald!was!fired!from!his!government!job!after!
he!testified!before!congress!on!the!matters!of!his!job.!Fitzgerald!believe!that!the!negative!testimony!that!he!
gave!got!him!fired!though!conspiracy!on!the!part!of!Harlow.!The!case!was!disputed!continuously,!but!
eventually!the!court!decided!that!Harlow!was!entitled!to!qualified!immunity!because!he!was!just!doing!his!job,!
even!though!he!had!some!discretion,!the!testimony!was!not!proven!to!be!why!Fitzgerald!was!fired.!The!impact!
coming!out!of!this!case!is!that!the!scope!of!qualified!immunity!has!become!broadened,!and!in!a!way!overrules!
parts!of!the!Bivens!case.!This!is!because!there!is!now!less!of!a!standard!to!prove!by!the!government!that!they!
were!not!acting!in!a!negative!manor!with!their!violations!of!someone’s!rights.!This!allows!for!a!greater!
violation!of!rights!of!an!individual!by!the!government,!even!if!it!was!egregious.!
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The!third!and!most!important!case!for!this!topic!is!that!of!Saucier'v.'Katz'(2001).'This!case!is!the!most!
recent,!which!is!important!because!this!is!what!the!court!has!most!recently!decided,!so!by!the!rules!of!case!
law!this!interpretation!can!be!argued!as!the!current!law.!In!this!case!Saucier,!a!military!police!officer,!arrested!
Katz!at!a!protest!during!a!speech!by!Vice!President!Gore.!Katz!sued!claiming!that!his!fourth!amendment!was!
violated!when!Saucier!used!“excessive!force”!arresting!him.!This!arose!a!key!facet!of!today’s!debate,!was!the!
force!used!knowingly!to!harm,!or!was!the!officer!just!doing!his!job?!The!court!sided!with!the!officer!in!a!
unanimous!decision!and!set!the!current!precedent.!Before!you!think!that!they!this!debate!is!skewed!to!one!
side,!take!a!breath!and!just!wait!a!minute.!This!case!is!important!to!this!topic!for!a!few!reasons,!but!for!mostly!
because!this!is!the!first!case!ever!to!deal!specifically!with!the!immunity!of!a!police!officer.!Police!now!have!a!
set!of!standards!that!allows!them!to!use!the!qualified!immunity!defense!in!a!legal!proceeding.!This!is!also!
relevant!because!most!of!the!cases!dealing!with!police!immunity!are!disputes!over!excessive!force.!
! To!readdress!this!issue!of!the!one!sided!debate,!in!reality!it!is!not!at!all.!Both!sides!have!a!lot!of!ground!
to!argue!under,!and!I!will!go!on!later!to!address!this!under!each!section.!However,!one!of!the!most!interesting!
points!that!comes!out!of!the!Katz!case!is!that!we!know!have!a!set!of!standards.!What!this!means!is!that!the!
police!are!not!always!entitled!to!this!right!of!qualified!immunity,!rather!it!has!some!judicial!discretion,!and!a!
lot!of!the!case!depends!on!the!circumstances!of!the!specific!case.!!
! Understanding!these!three!Supreme!Court!cases!is!very!pivotal!to!having!a!lot!of!success!on!this!topic.!
The!reason,!because!all!arguments!presented!are!going!to!have!some!roots!to!these!different!issues.!This!is!a!
very!constitutional!heavy!topic,!and!understanding!these!few!cases!is!key.!I!also!anticipated!a!lot!of!cases!to!be!
focused!on!the!constitution!or!on!specific!facets!of!the!law!that!come!from!it.!!
!
!
!
!
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Resolution'
This!resolution!is!a!unique!and!interesting!one!to!debate!for!a!few!reasons.!The!unique!wording,!how!it!
is!United!States!centric,!and!finally!the!specificity!of!the!topic.!First,!the!wording!of!the!topic!is!very!unique!
because!both!sides!can!argue!for!qualified!police!immunity,!the!only!difference!is!the!word!“limit.”!I!foresee!
this!word!becoming!a!key!facet!of!most!debates!in!some!fashion.!With!the!wording!like!it!is,!there!is!a!greater!
room!for!clash,!which!is!greatly!encouraged.!Second,!when!we!look!at!the!topic!as!United!States!centric,!we!
lose!some!of!the!more!moral!aspects!of!the!resolution,!however,!these!larger!ideals!are!still!going!to!
supersede!in!the!end.!The!key!distinction,!I!want!to!make!is!that!while!the!it!is!specific!to!one!location,!
providing!examples!from!other!countries!as!a!cross!comparison!is!great.!One!of!the!best!is!comparisons!is!with!
Whales,!where!they!have!experienced!similarities!to!the!US.!This!provides!another!layer!of!depth!to!the!
debate.!Finally,!this!topic!is!very!centered!into!one!specific!group!of!people,!police.!While!the!specificity!
maybe!very!good!for!clash,!it!provides!only!a!few!different!arguments.!I!would!be!prepared!for!cases!that!
broaden!the!immunity!to!absolute!or!try!to!involve!the!whole!entire!government.!
! When!we!dive!into!the!actual!core!of!the!resolution!we!can!see!that!is!at!its!most!basic!state!all!about!
freedoms.!The!freedoms!at!play!are!the!governments!and!the!individuals.!This!brings!about!the!age!old!
question!about!what!kind!of!government!is!the!best.!One!that!is!all!powerful!or!one!that!submits!to!the!
people.!This!is!what!most!of!the!good!debates!are!going!to!be!focused!around,!and!is!the!roots!of!any!good!
case.!
Aff'
' The!affirmative!in!this!resolution!is!unique!as!states!above!through!its!wording!and!breadth!of!topics!
available.!This!is!why!we!are!first!going!to!look!at!the!ground!that!pertains!to!the!affirmative.!Second,!begin!to!
evaluate!the!philosophical!frameworks!pertaining!to!the!topic!at!hand.!Finally,!we!are!going!to!begin!to!
formulate!some!unique!arguments!that!are!going!to!be!helpful!in!round.!!!
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! The!first!and!most!interesting!thing!about!this!topic!is!the!wording!is!framed!for!the!affirmative!
essentially.!Most!good!debaters!on!the!affirmative!are!going!to!realize!the!amount!of!breadth!that!the!
affirmative!has!to!make!an!argument.!A!lot!of!affirmative!cases!are!just!going!to!try!and!limit!the!use!of!
qualified!immunity!by!placing!more!restrictions!on!the!use!of!it.!We!can!look!to!the!Katz!case!for!example!that!
begins!to!place!a!limit!on!the!use!of!the!immunity!defense.!While!this!may!be!a!good!strategy!you!need!to!be!
very!specific!in!the!contention!portion!of!the!case.!What!I!mean!by!this!is!going!into!the!specific!ways!in!which!
you!want!to!limit!the!use!in!court.!There!are!many!different!ways!in!which!to!do!this!that!have!been!suggested!
in!the!literature!and!by!the!courts.!The!best!in!my!opinion!is!establishing!essentially!a!test!with!several!factors!
to!determine!if!that!defense!should!be!used.!One!of!the!main!advantages!to!doing!this!style!of!case!is!that!it!is!
going!to!be!very!easy!to!counter!a!negative!that!wants!to!talk!about!judicial!oversite.!All!you!would!need!to!do!
would!be!talk!about!how!the!more!subjective!matters!are!going!to!be!gone!with!a!test.!However,!this!is!not!
the!only!way!to!argue!this!resolution!on!the!affirmative.!!
! The!way!that!I!would!go!about!this!kind!of!resolution!is!going!to!be!a!complete!loss!of!immunity!for!
police.!It!is!important!to!note!that!limit!can!mean!just!a!little!or!all!of!a!given!action!based!on!your!definition.!
This!method!is!going!to!be!more!effective!in!my!opinion!because!it!allows!you!to!have!a!much!more!varied!
which!intern!means!more!unique!arguments.!You!no!longer!will!have!a!negative!arguing!the!difference!
between!what!you!are!offering!to!what!they!have.!In!an!analogous!form!what!is!the!difference!between!5!
apples!(negative)!and!4!apples!(affirmative),!the!division!between!the!two!sides!becomes!a!bit!more!complex!
when!you!view!it!in!this!way.!Also!arguing!for!a!complete!removal!of!the!immunity!is!going!to!be!a!good!
defense!when!the!affirmative!talks!about!other!types!of!governments.!This!is!because!what!you!are!wanting!is!
to!get!rid!of!all!the!immunity!for!people.!This!makes!defending!you!case!a!whole!lot!easier!than!if!you!had!just!
limited!it!a!little.!
! Once!we!have!chosen!are!desired!format!of!case!we!need!to!dive!into!the!more!philosophical!parts!of!
this!debate.!As!I!talked!about!earlier!a!lot!of!this!debate!is!coming!down!onto!the!Constitution.!With!this!at!the!
center!of!the!debate!we!are!going!to!begin!to!see!many!different!values!popping!up.!While!you!are!going!to!
have!your!traditional!justice!and!liberty!I!would!also!look!into!values!of!Constituently,!egalitarianism,!and!
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safety.!This!three!different!values!all!come!from!the!basis!of!protecting!the!basic!freedoms!of!the!people!in!the!
United!States,!but!are!stretching!it!a!bit!more!to!a!specific!area.!These!are!going!to!be!helpful!when!we!get!to!
the!cases,!because!you!are!going!to!want!to!have!a!nice!flow!throughout!the!case.!Safety!at!first!might!seem!to!
be!a!bit!out!there,!but!when!thinking!about!it!more!I!began!to!really!like.!This!value!would!best!be!paired!with!
a!criterion!of!minimizing!abuse!or!individual!rights.!This!framework!is!beginning!to!stretch!the!bounds!of!the!
topic,!because!now!we!are!looking!at!specific!abuse!by!the!police!on!its!individual!citizens.!When!paired!with!
some!solid!contentions!you!are!going!to!have!a!case!that!is!going!to!be!very!effective.!!
! The!second!area!I!want!to!focus!on!the!value!level!is!looking!at!the!legality!of!this.!You!will!see!in!the!
case!that!I!have!written!below!I!use!a!framework!of!The!Rule!of!Law.!This!framework!is!going!to!play!more!
specific!into!the!legality!of!the!issue,!which!as!discussed!is!a!major!facet.!This!also!serves!as!a!more!unique!
approach!on!the!Constitutional!issues,!because!The!Rule!of!Law!is!more!than!just!the!US,!it!is!something!that!is!
universal.!Also!it!has!unique!facets!to!it!specifically!dealing!with!equal!treatment!under!the!law.!A!good!case!
will!argue!that!giving!immunity!to!a!few!is!not!actually!equal!protection!under!the!law.!We!can!see!that!the!
affirmative!has!some!unique!ground!to!break!through!on!the!value!structure,!so!now!we!will!move!onto!the!
contention!level.!
! The!contention!level!is!really!going!to!be!key!in!this!debate!because!this!topic!is!so!heavy!and!rich!with!
material!to!address!depending!on!your!case.!Really!building!up!how!police!abuse!the!citizens!in!the!contention!
level!is!key!to!the!value!of!safety!having!any!real!strength,!and!the!same!applies!to!The!Rule!of!Law.!However,!
one!unique!contention!I!want!to!talk!about!is!with!the!legal!system.!One!very!unique!contention!I!really!like!
and!you!might!run!into!is!that!of!“government!insulation.”!What!this!is!in!a!nut!shell!is!that!the!government!
always!wants!to!protects!its!own,!and!qualified!immunity!is!one!way!in!which!it!does!that.!This!actually!one!of!
the!purest!ways!that!it!can!actually!do!that.!Furthermore,!since!it!is!inside!the!legal!system!there!is!going!to!be!
no!over!sight.!A!good!affirmative!is!going!to!realize!this!and!begin!to!add!it!to!their!case.!This!is!such!a!key!
argument!because!you!are!going!to!eliminate!the!credibility!of!the!negative!if!you!can!structure!it!correct.!
Essentially!this!could!be!linked!to!coercion!within!the!government!which!is!illegal.!You!then!begin!to!realize!the!
real!impact!of!this!contention!in!your!case.!!
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! When!looking!at!the!affirmative!at!a!deeper!level!we!begin!to!see!that!there!is!so!many!unique!areas!
for!exploration.!Depending!on!what!kinds!of!structure!you!are!going!to!try!and!use!there!is!going!to!be!a!lot!of!
support!for!that!topic.!Also!realizing!that!you!can!set!your!case!up!with!some!inherent!defense!is!going!to!be!
one!of!the!best!ways!you!can!give!a!great!1AR!and!win!the!round!in!the!end.!
!
Negative''
! With!the!sheer!amount!of!affirmative!area!that!there!is!to!argue,!there!would!seem!to!be!a!lot!for!the!
negative!to!have!to!defend.!However,!in!all!reality!the!negative!is!not!going!to!be!overwhelmed,!yet!have!a!lot!
of!unique!ground.!We!are!going!to!evaluate!this!side!of!the!debate!in!three!different!areas.!First!we!are!going!
to!take!a!look!at!the!defensive!strategies!that!are!at!play.!Second,!look!more!into!the!moral!and!legal!reasons!
for!immunity!for!police.!An!evolution!of!some!specific!contentions!will!round!us!out.!The!negative!might!be!
the!less!favored!side!for!this!debate,!yet!it!provides!some!of!the!best!arguments.!
! The!link!of!the!case!and!the!rebuttal!on!the!negative!side!is!what!is!going!to!separate!a!good!debater!
from!a!great!debate.!Mending!the!case!into!a!perfect!rebuttal!is!something!that!is!hard!to!do,!but!will!really!
help!you!out.!The!best!way!to!do!this!is!by!having!the!defensive!in!mind!from!the!very!beginning.!People!do!
this!by!running!a!very!deflective!case!or!running!some!other!styles!of!argumentation.!I!would!encourage!
people!to!have!a!more!defensive!case,!what!I!mean!specially!for!this!topic!is!having!a!lot!of!the!case!focus!on!
how!limiting!anything!is!inherently!bad.!One!of!the!best!arguments!for!this,!is!legislative!progress.!There!is!
actually!a!link!that!is!very!strong!between!limiting!a!policy!and!the!peoples!distrust!in!the!government.!This!
impact!of!distrust!in!government!is!so!huge,!because!the!whole!reason!people!came!out!of!the!state!of!nature!
is!to!have!their!rights!afforded!to!them!by!a!government.!When!the!government!loses!its!trust!the!legitimacy!
goes!down.!Playing!a!more!defensive!mode!like!described!is!one!great!option!for!this!topic.!
! The!other!way!that!you!could!structure!your!negative!case!is!with!a!not!this,!but!that!wording.!In!more!
technical!terms!this!could!be!considered!a!counter!plan!while!it!is!not!for!everyone,!this!topic!area!does!
provide!two!solid!ones.!First,!and!probably!the!best!is!going!to!be!advocating!for!total!immunity!for!police.!This!
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is!not!that!much!of!a!stretch!for!the!negative!debater,!so!it!is!going!to!be!more!common.!However,!the!benefit!
of!using!total!immunity!is!that!it!puts!them!on!the!same!level!as!all!other!government!officials!that!deal!with!
issues!of!the!law.!This!affords!some!equality!among!government!officials.!The!second!and!better!reason!is!that!
its!is!actually!going!to!incentivize!people!to!join!the!police!and!civil!service.!One!of!the!main!opinions!to!
joining,!is!the!fear!of!suit!for!doing!your!job.!Using!a!total!immunity!system!places!more!confidence!in!the!
system!and!individual.!This!distinction!is!also!important!because!unlike!qualified!immunity,!total!immunity!can!
never!be!rejected,!and!there!is!absolutely!no!test!or!consideration!for!its!use.!This!allows!the!debates!realm!to!
receive!a!gentle!nudge!and!places!more!of!a!burden!on!the!affirmative.!!
! The!second!and!more!unique!approach!for!the!negative!is!to!talk!frame!the!issue!about!body!cameras.!
This!is!actually!going!to!steer!the!debate!in!a!really!unique!area,!and!would!be!best!used!against!an!affirmative!
that!is!going!to!be!advocating!for!safety!or!a!similar!value.!The!whole!premise!of!the!case/!defense!strategy!
would!be!to!have!police!wear!these!cameras!so!we!know!what!they!are!doing.!This!is!going!to!eliminate!a!lot!
of!the!affirmatives!area!to!talk!about!police!outstretching!their!bounds!or!harming!their!own!citizens.!Aside!
from!the!amazing!defense!that!this!plan!is!creating!it!also!opens!the!negative!to!talk!about!government!
oversight,!which!would!be!argued!as!a!good!thing.!Multiple!studies!have!found!that!the!use!of!these!cameras!
actually!improves!the!quality!and!effectivity!of!the!police!department!that!is!wearing!them.!So!a!negative!
talking!about!these!body!cameras!is!actually!going!to!be!a!good!strategy!for!some!debaters!because!of!the!
amazing!defense!that!it!offers!with!the!added!ground!it!provides.!
! Besides!the!more!unique!and!stylized!areas!for!this!topic!there!lies!a!large!amount!of!moral!ground!
that!the!negative!is!actually!going!to!have!to!work!with.!While!there!will!always!be!the!usual!values!I!can!also!
see!values!such!as!autonomy,!security,!or!government!legitimacy.!Both!of!these!values!are!steaming!from!the!
protection!of!the!officer.!When!we!look!at!autonomy!on!face!it!does!not!seem!to!fit,!but!let!me!explain!how!
it’s!going!to!become!a!great!value.!Autonomy!at!its!core!is!letting!an!individual!act!in!a!manor!without!
restrictions!by!another!force.!This!is!key!when!an!officer!is!trying!to!make!a!split!second!decision.!If!they!have!
to!always!confide!to!the!law!at!its!strictest!sense,!policing!is!never!going!to!happen.!To!combat!this,!we!have!
to!let!these!officers!have!control!over!the!decisions!that!they!make,!even!if!they!do!violate!someone!else’s!
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rights.!The!reason!behind!this!is!most!of!the!time!the!police!aren’t!trying!to!go!out!and!harm!you!or!violate!
your!rights.!So!it!makes!no!sense!to!punish!them!for!trying!to!protect!the!people.!This!is!where!you!can!link!
into!safety!as!a!value.!!
Police!at!their!core!are!trying!to!protect!people,!so!when!we!look!at!their!actions!on!balance!they!do!
more!harms!than!good.!So!if!we!evaluate!this!resolution!through!a!Kantian!framework!as!long!as!the!police!are!
not!trying!to!harm!any!individuals!through!their!actions!the!ends!don’t!matter.!This!is!the!best!way!for!the!
negative!to!evaluate!the!resolution!because!of!the!case!law!that!is!created!through!Katz.!This!just!says!that!
police!cannot!use!the!immunity!defense!if!the!actions!where!egregious.!We!can!now!realize!the!link!between!
Kant!and!Katz,!which!provides!for!one!of!the!most!solid!negative!defenses.!
! The!final!value!that!I!think!is!going!to!be!a!good!one!to!use!is!going!to!be!government!legitimacy.!This!is!
closely!linked!to!the!case!dealing!with!body!cameras,!but!the!distinction!comes!in!where!the!roots!of!the!case!
are!coming!from,!either!philosophy!or!policy.!The!crux!of!why!you!would!want!to!value!legitimacy!goes!back!to!
the!issue!of!police!need!this!to!effectively!do!their!jobs.!Police!can’t!do!their!jobs!if!they!are!always!under!the!
distress!of!civil!prosecution.!This!is!actually!one!of!the!most!basic!reasons!that!police!where!given!immunity,!
but!throughout!history!the!government!has!changed!and!limited!it.!However,!in!order!to!make!the!most!
effective!government!and!society!police!need!to!be!protected.!Also!it!is!important!to!note!that!judges!have!
complete!immunity,!which!is!key!because!we!see!the!value!in!protecting!people!that!do!jobs!where!harmful!
actions!may!occur.!This!is!just!more!justification!for!giving!immunity!to!the!police.!!
! While!we!have!talked!about!a!lot!of!the!more!defensive!contentions!we!also!need!to!focus!on!the!
strictly!negative!area.!My!favorite!unique!contentions!is!that!qualified!immunity!actually!leads!to!an!increase!
in!individual!protection!and!rights.!There!was!a!really!cool!article!written!by!Hooi!where!he!talks!about!how!
the!courts!through!there!rulings!have!actually!increased!the!protection!of!the!individual!by!giving!police!more!
discretion.!He!cites!the!individual!doing!the!harm!may!not!be!getting!the!most!benefits,!but!rather!the!people!
that!are!all!around!them.!A!lot!of!people!forget!that!when!someone!is!taken!off!the!streets!the!society!
becomes!safer!for!the!people!around!them.!For!example,!if!a!murderer!is!taken!with!a!bit!of!excessive!force!it!
is!bad!that!his!rights!got!violated!without!intention,!but!now!the!lives!of!the!society!he!was!in!are!going!to!be!
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more!protected.!This!is!so!important!in!this!resolution!because!it!is!US!centric.!This!means!that!you!can!bring!
your!impacts!more!specifically!into!areas!and!actually!have!more!numerical!data!to!support!your!claim.!This!
unique!way!of!fostering!the!rights!for!the!individual!is!something!that!could!be!a!major!point!in!case.!
! The!negative!for!this!topic!has!a!lot!of!unique!areas!to!specifically!focus!on.!There!are!many!different!
ways!to!view!some!of!the!same!issues!depending!on!how!you!want!to!argue!them.!However,!what!this!topic!is!
coming!down!to!again!is!protections!of!rights.!The!negative!has!the!advantage!of!getting!rights!in!a!unique!way!
that!most!affirmatives!can’t!get.!Finally,!to!be!a!successful!negative!on!this!topic!you!need!to!be!able!to!blend!
both!offense!and!defense!in!a!seamless!manner.!!
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Aff Evidence
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Prevents legal change
Qualified immunity masks the problems in civil rights law, preventing legal change. LMW.
Hassel, Diana. (Associate Professor, Roger Williams University School of Law. B.A. 1979,
Mount Holyoke College; J.D. 1985, Rutgers, the State University of New
JerseyNewark. Assistant United States Attorney, Southern District of New York)
“Living a Lie: The Cost of Qualified Immunity” Missouri Law Review 1999
The problem with qualified immunity is not so much that the outcomes are sometimes unfair but the
fact that qualified immunity blocks a clear view of the real limitations that exist in civil rights law. Civil
rights law is, in effect, being designed in the dark. Distinctions are being made about the types of
cases that will receive compensation and the types that will not. These distinctions are not articulated
as such; instead, the results are understood to be the result of the qualified immunity defense. As we
have seen, for example, a procedural complaint in the context of an employment dispute is more
likely to survive the qualified immunity defense than is a complaint about whether a police officer used
excessive force in the arrest of a dangerous suspect. Rather than organizing civil rights law in these
categorical ways, however, qualified immunity makes the civil rights remedial system appear to be
about individual cases and the reasonableness of individual defendants.
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By diffusing tension, qualified immunity prevents the public from rallying for change. LMW.
Hassel, Diana. (Associate Professor, Roger Williams University School of Law. B.A. 1979,
Mount Holyoke College; J.D. 1985, Rutgers, the State University of New Jersey
Newark. Assistant United States Attorney, Southern District of New York) “Living
a Lie: The Cost of Qualified Immunity” Missouri Law Review 1999
Current qualified immunity doctrine serves as a means to diffuse conflict. Without a clear rule that
some kinds of civil rights harms will not be redressed, there is minimal pressure for change. This
"hiding of the ball" quality of qualified immunity is why, in spite of many expressions of dissatisfaction
with the system, there had been little effective rallying for change. The reason the discontent of the
participants in this system has not led to a significant change is that the terms of the debate are
defined by the immunity system rather than by the fundamental question of the extent of rights and
liabilities in civil rights actions. The civil rights remedial scheme organized around qualified immunity
thus has an inherently self-preserving or stabilizing quality. It allows for tinkering at the margins, but
fundamental recasting of the terms of the debate is unlikely. My assertion that qualified immunity has
a camouflaging effect on civil rights law is supported by a large body of scholarship that explores
legal regimes that define reality in a way that limits the ability of the participants in the system to
change it.'27 These scholars argue that when a legal system is accepted as being the only available
way to organize an activity and thus seems inevitable, the legal system encourages acceptance of
the status quo. 28 The insights gained by scholars working in this area are helpful to apply to the
qualified immunity standard in order to explore its hold on the civil rights imagination. This analysis
maps out the way a doctrine such as qualified immunity can develop into an obstacle to the very aims
it professes to accomplish.
Qualified immunity is structured so that as many civil rights cases as possible can be
dismissed. LMW.
Chen. Alan. K. (Professor, University of Denver Sturm College of Law) “The Facts About
Qualified Immunity” Emory Law Journal. 2006.
Assuming the Court shapes qualified immunity doctrine in order to allocate the resolution of qualified
immunity claims to judges, it is worth exploring its possible reasons for doing so. By now, it should be
obvious that the Court has determined that the single most compelling justification for qualified
immunity is the limitation of the social costs of civil rights litigation. While giving lip service to the
importance of constitutional enforcement, the Court regularly signals its belief that a significant
number of civil rights cases are nothing but nuisance suits. Accordingly, early disposition is its
mantra. To achieve that goal, however, the Court must structure the doctrine so that cases can be
easily dismissed by trial courts.
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Supreme court affirms qualified immunity for unconstitutional conduct. DJS
Rudovsky, David. (University of Pennsylvania Law School Senior Fellow). "The Qualified
Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of
Constitutional Rights." University of Pennsylvania Law Review 138.1 (1989): 23-81
In an opinion by Justice Scalia, the Supreme Court held that qualified immunity protects public officials whose
unconstitutional conduct is objectively reasonable. The Court recognized that the test of " 'objective legal
reasonableness' "154 depends "upon the level of generality at which the relevant 'legal rule' is to be identified."'
5 5 The Court cautioned against using too broad a rule, since that would eliminate qualified immunity.' 5 6
"[T]he right the official is alleged to have violated must have been 'clearly established' in a more particularized,
and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right."' 5 7
Historically qualified immunity has led to segregation DJS
Rudovsky, David. (University of Pennsylvania Law School Senior Fellow). "The Qualified
Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of
Constitutional Rights." University of Pennsylvania Law Review 138.1 (1989): 23-81
In Pierson v. Ray the defendant police officers arrested the plaintiffs pursuant to a state statute later ruled
unconstitutional because it was used to enforce segregation of interstate transportation facilities. The Court
ruled that the officers were entitled to a qualified immunity from damages liability if they had probable cause
for the arrests and if they acted in good faith to prevent violence and not to punish blacks for using the white
waiting rooms. The Court thereby recognized one narrow exception for special treatment: an officer is immune
if she acts in good faith and is authorized by a state statute that subsequently is declared unconstitutional."
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When the law is not “clearly established”, qualified immunity allows a paradox to occur
where the courts never reach a conclusion. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) The Paradoxical Structure Of Constitutional Litigation Fordham Law
Review. 2007
And so the Court has developed-legislated, indeed-the doctrine of qualified immunity. An individual
government official will be held liable for unconstitutional conduct only if the unconstitutionality of the
conduct was already "clearly established" at the time he acted. 48 That standard thus raises two
questions: First, was the defendant's conduct unconstitutional? Second, was that unconstitutionality
clearly established at the time? A plaintiff can win only if the answer to both questions is "yes." Often,
it will be easier to answer the second question.49 If there are no cases directly on point, it might be
quicker to simply conclude that the law is unclear, rather than spend time and effort trying to
determine how the law ought to be clarified. But here is another paradox: If courts are systematically
drawn to answering the second question first, the law will never be clarified; every court will simply
duck reaching a constitutional conclusion. In areas where litigation posture, the Eleventh Amendment,
and Monell combine to relegate constitutional refinement to individual damages litigation, refinement
will never occur.
If a case ends in district court, as most do, then the decision is not enough to “clearly
establish” law. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) The Paradoxical Structure Of Constitutional Litigation Fordham Law
Review. 2007
A critical assumption of the Wilson-Saucier framework, of course, is that the law is actually being laid
down in stage one of the qualified immunity inquiry, in a fashion that parallels declaratory judgments.
The Court's goals would not be furthered if the first-stage answer were treated simply as dicta.55 But
this gives rise to a paradoxical pair of pyrrhic victories. Because the individual official has won the
case-judgment is entered for him on grounds of qualified immunity-he has neither the incentive nor
the right to appeal. 56 While the plaintiff of course has the right to appeal, he may have little incentive
or ability to do so.57 If the case ends at the district court, the process of constitutional refinement or
elaboration that motivated the Wilson-Saucier sequencing requirement will be undermined. Decisions
by district courts do not constitute binding precedent. 58 While the Supreme Court has not decided if
determining whether the law was "clearly established" at the time of the underlying events "should be
evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District
Court[s]," 59 several courts of appeals have held that district court decisions cannot "clearly establish"
constitutional law for purposes of § 1983 liability.60
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Too Difficult to Challenge
Contradictory decisions from different courts make “clearly established law” rare, which
makes qualified immunity almost absolute. LMW.
Jeffries, John. C. Jr. (David and Mary Harrison Distinguished Professor, the University of
Virginia School of Law). “What's Wrong With Qualified Immunity?” Florida Law
Review. Volume 62 September 2010
The second problem in ascertaining established law exacerbates the first. Since "clearly established"
must be sought in sources more specific than abstract principles, where may such sources be found?
The obvious answer is binding precedent-decisions of the Supreme Court, of the U.S. Court of
Appeals for the circuit where the issue arose, and of the U.S. district court for cases in that district.
But what about the decisions of other circuits? Or other districts? Or those of state courts? In short,
what are the sources that count in determining whether a right is "clearly established"? Not
surprisingly, the circuits disagree. The Eleventh Circuit limits the sources of "clearly established" law
to decisions of the Supreme Court, of the Eleventh Circuit, and of the highest state court of the
jurisdiction.40 Other circuits are willing to look beyond the law of their circuit, sometimes grudgingly
as in the Sixth Circuit,41 and sometimes quite broadly. The Ninth Circuit will apparently accept
"whatever decisional law is available,'A2 including decisions of other circuits, state courts, district
courts, and even unpublished district court opinions.43 The First, Fifth, Seventh, Eighth, and Tenth
Circuits are similarly latitudinarian." The narrower the category of cases that count, the harder it is to
find a clearly established right. Thus, a restrictive approach to relevant precedent beefs up qualified
immunity and makes its protections more difficult to penetrate. Under the Eleventh Circuit's approach,
a right would have to be squarely established over and over again, in circuit after circuit, before
violations could routinely be vindicated by awards of money damages nationwide. In my view, this is
too restrictive. When a narrow view of relevant precedent is added to the demand for extreme factual
specificity in the guidance those precedents must provide, the search for "clearly established" law
becomes increasingly unlikely to succeed, and "qualified" immunity becomes nearly absolute.
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Empirical evidence shows that qualified immunities’ “clearly established law” requirement
allows more than half of cases to be thrown out without investigation. LMW.
Stefan. L. (J.D. Candidate, 2017, Seton Hall University School of Law; B.A., Ramapo
College of New Jersey) ““No Man Is Above the Law and No Man Is Below It:” How
Qualified Immunity Reform Could Create Accountability and Curb Widespread
Police Misconduct” Seton Hall University 2016.
One problem with qualified immunity results from the so-called two-pronged inquiry. In 2001,
concerned that disposing of cases based solely on the “clearly established” prong would “stunt the
development” of constitutional law, the Court mandated that lower courts first decide whether there
was a constitutional violation before determining whether the right was clearly established.76 The
decision in Saucier v. Katz was, to say the least, unpopular,77 and in 2009, the Court unanimously
overruled the decision and once again left the procedural sequence to the discretion of lower
courts.78 But because courts are no longer required to address the two-part inquiry in any particular
order, the practical effect has been precisely what the Court feared in its Saucier decision: frequent
disposal of cases based on the perceived lack of a "clearly established" right without ever addressing
the merits of the constitutional claim.79 A recent survey of circuit court cases decided since Pearson
v. Callahan in 2009 demonstrates the frequency with which lower courts are disposing of cases
based on a lack of a clearly established law.80 The study, which analyzed 844 published and
unpublished Courts of Appeal opinions decided between 2009 and 2012, encompassing 1,460 total
claims, found that qualified immunity was granted in 1,055 of the claims, or approximately 72 percent
of the time.81 In 534 (or nearly 51 percent) of the claims in which the court granted immunity, the
court concluded that the right asserted was not clearly established.82 So in more than half of the
claims in which immunity was granted, the basis for the court’s holding was the absence of clearly
established law.
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The financial burden created by Qualified Immunity law makes it especially difficult for
minorities to seek damages. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
When a police officer uses excessive force against an individual, that individual can sue the officer for
violating her civil rights under 42 U.S.C. § 1983.1 Section 1983 actions seek damages or injunctions
against abusive police techniques. 2 Years after Congress enacted section 1983, 3 attorneys,
legislators and citizens are questioning the statute's effectiveness as a legal tool for deterring police
misconduct. There are three major weaknesses to section 1983 suits. First, these actions are difficult
and expensive to pursue.4 Since most victims of misconduct are minorities without financial
resources, only a small percentage of police brutality incidents become lawsuits. 5 Those victims who
are able to get legal representation face a long and arduous litigation process, because police
departments rarely settle section 1983 suits. 6
Judge bias makes it unlikely that the victim’s word will be held over the police officers’.
LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Second, the Supreme Court has severely limited the ability of plaintiffs to enjoin a particular police
technique, even one that frequently results in the use of excessive force. 7Third, juries are more likely
to believe the police officer's version of the incident than the plaintiff's. Often there are no witnesses,
or each side has an equal number of supporting witnesses. 8 For a variety of sociological and
psychological reasons, juries do not want to believe that their police officers are bad people or liars.9
Thus, plaintiffs rarely win absent help from independent corroborative witnesses or physical
evidence.10
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Juries for qualified immunity cases are often made up of white, middle-class men who have
never experienced police violence and cannot relate to the victims. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Even in the face of seemingly indisputable evidence, such as a videotape, an excessive force suit-
civil or criminal-becomes a credibility contest between the plaintiff and the police.68 The attorney
must overcome jury bias;69 juries almost always believe the police.70 Jurors are often white, middle-
class citizens71 who neither have been victims of police violence nor are likely to have witnessed
such violence in their communities. 72 Rather, juries tend to see police as protecting them from
criminals. 73 The typical citizen wants to believe that the police are not liars capable of such violence.
74 A plaintiff's attorney must overcome enormous psychological obstacles to convince a typical jury
that a police officer used excessive force. State court juries tend to be more ethnically and culturally
diverse and generally have less of a bias in favor of police.75 In contrast, federal district court juries
are drawn from a larger geographic area, which accounts for the more suburban, white, middle-class
makeup. Thus, some attorneys bypass section 1983, and instead sue under state tort theories to
prevent removal to federal court.76 Even though an attorney loses the federal court discovery
advantage when filing in state court, federal jury bias is so powerful that it can be worth the
tradeoff.77 Jury bias also affects punitive damage awards. Even if the jury finds for the plaintiff, it is
often reluctant to impose punitive damages. 78
Unequal resources in qualified immunity cases allow the state to win again and again. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Although the individual officer is the actual defendant in most police misconduct cases, the victim of
police brutality is, in reality, taking on the entire municipality. In California, for example, the law
mandates that the city provide the defense and pay any settlement or award. 37 The city sometimes
retains outside counsel in addition to using city attorneys to defend the suit. 38 Occasionally, the
police officers' union will hire its own counsel to provide additional defense for the officer. 39 Civil
rights attorneys claim that, in general, cities aggressively defend these suits to discourage litigation.
Even in cases in which the evidence in favor of the plaintiff is overwhelming, the city might choose
to take the case to trial.41 The city attorney's office has virtually unlimited resources, 42 and the
average suit lasts for many years, 43 costing hundreds of thousands of dollars in fees. 44 The result
is an expensive and difficult battle for civil rights attorneys and plaintiffs.
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Various aspects of qualified immunity law allow the state to drag their feet and prevent the
discovery of evidence. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Discovery battles contribute significantly to the length, cost, and difficulty of section 1983 litigation.45
A police department generally will not turn over disciplinary or personnel records unless a court
orders it to do So. 4 6 Attorneys litigating section 1983 suits in state court face a number of barriers to
obtaining these records. Officers' personnel records are confidential and immune from disclosure. 47
To gain access to an officer's personnel record containing information about any history of violence,
the plaintiff must show "good cause."' 48 Judges also have discretion to deny these motions if "justice
requires . . . [protecting] the officer or agency from unnecessary annoyance, embarrassment or
oppression."'49 Showing "good cause" can be difficult; state commissioners, who hear discovery
motions, tend to deny motions, 50 especially those that have the purpose of proving an officer's
history of violence.51 Attorneys attribute this to the political component-state commissioners are
appointed by judges, who are elected officials, and do not want to offend police departments.52 In
contrast, "[t]he Federal Rules provide for broad discovery. Under Rule 26(b)(1) of the Federal Rules
of Civil Procedure, 'relevance' is very loosely construed . . . -53 and thus access to records in federal
court is more readily obtainable.5 4 Moreover, attorneys claim that federal judges are more receptive
to plaintiffs' discovery motions, perhaps because federal judges are appointed for life and are less
likely to fear offending police departments. 5 Consequently, gaining access to disciplinary and
personnel records in federal court can be easier. (4) Interlocutory Appeals Public entities are allowed
to make interlocutory appeals on dispositive motions, such as those that assert a qualified immunity
defense.5 6 This one-sided privilege gives the city a tactical advantage and extends the length and
expense of litigation for the plaintiff's attorney.5 7 "Police misconduct actions can simply be 'piece-
mealed to death' by repeated appeal through the appellate process before a plaintiff can get to trial."'
58 Interlocutory appeals are yet another component that makes section 1983 suits difficult to pursue.
Another major barrier plaintiff's attorneys face is the "code of silence," or the "blue curtain." 59 The
code of silence that exists in every profession is even stronger among police officers out of necessity.
You depend on each other in life and death situations. This brotherhood/camaraderie is a strong
influence.... It is naive to think that cops under sworn testimony will not lie if caught in a bind. Cops
routinely cover up for each other at trial.60 While the code of silence exists, it differs from department
to department and is not impenetrable. 61 Indeed, some former officers have observed a decline in
the strength of the code of silence throughout the past decade.62 Nevertheless, an officer generally
will not speak up unless asked; 63 an officer who breaks the code may face ostracism. 64 As a result,
officers often perjure themselves, 65 or, at the very least, say they did not witness the event, rather
than speak out against a colleague. 66 When faced with suspected or known perjury, an attorney's
only recourse is to try to discredit or impeach the officer's testimony; state law provides that police
officers are exempt from submitting to lie detector tests.67 The existence of the code of silence turns
section 1983 suits into credibility contests. As the next section discusses, the police have the distinct
advantage because of jury bias.
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Qualified Immunity leads to corrupt practices and cultural resistance DJS
Chan, Janet (Profesor of Criminology at the University of Sidney) BL. "Governing police
practice: limits of the new accountability."The British journal of sociology 50.2
(1999): 251-270
The irony of the elaborate and seemingly comprehensive layers of account- ability requirements in New South
Wales is that incompetent, unethical and corrupt police practices continued within the police force. Although
the upper echelons of the force have eagerly adopted the managerialist dis- course and a great deal of structural
change has occurred at the administrative, educational and operational levels, policy and directives from the top
were not always followed at the local divisions, few quality control processes operated, and community
consultation was largely ritualistic and tokenistic (see Chan 1997a). It was in relation to police corruption,
however, that the most damning evidence emerged. Following a blaze of media publicity complete with video
clips of corrupt conduct and the dramatic roll-over of witnesses at public hearings, the Royal Commission
reported that a state of ‘systemic and entrenched corruption’ existed within the NSW Police Service (Wood
Report 1997: 84). Corruption was ‘entrenched’ in the sense that it was ‘ rmly established within the Police
Service’; it was ‘systemic’ in that it ‘has become accepted as part of the way of life or ethos of the Police
Service, and . . . a Signiant proportion of its membership either pursues or tolerates [it] at some stage of their
police careers’ (Wood Report 1997: 26).
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Qualified immunity is ineffective because the economic theory that it is based on is not
applicable to the government. LMW.
Levinson. Daryl. (Associate Professor, University of Virginia School of Law) “Making
Government Pay: Markets, Politics, and the Allocation of Constitutional Costs
2000
Instrumental analysis of private law damage remedies assumes rational economic actors in a market
environment. A privately owned factory forced by the tort system to pay $1000 in pollution costs
suffered by a downstream neighbor will continue to pollute if, and only if, the private benefits of its
pollution-producing activity exceed $1000. At least within the law and economics paradigm, we can
safely take for granted the rather strong assumptions upon which this analysis restx No one doubts;
for example, that a profit-maximizing firm will tend to ignore social costs that are not reflected in
financial outflows, or that it will take account of costs that are reflected in financial outflows and,
perhaps; change its behavior in response. What happens; however, when government is substituted
for the private firm in this analysis? This substitution takes place routinely in discussions of
constitutional remedies such as just compensation for takings; damages for constitutional torts and
the liability or property rule represented by the constitutional prohibition against federal
"commandeering" of state governments Each of these remedial systems seeks to deter government,
to some socially optimal extent, from violating constitutional rights by forcing government agencies to
internalize the costs of their constitutionally problematic conduct. But government does not internalize
costs in the same way as a private firm. Government actors respond to political incentives; not
financial ones-to votes; not dollars We cannot assume that government will internalize social costs
just because it is forced to make a budgetary outlay. While imposing financial outflows on government
will ultimately create political costs (and benefits), the mechanism is complicated and depends on the
model of government behavior used to translate between market costs and benefits and political
costs and benefits As this Article seeks to demonstrate by applying public choice models of
government behavior, government cannot be expected to respond to forced financial outflows like a
private firm. If the goal of making government pay compensation is to achieve optimal deterrence with
respect to constitutionally problematic conduct, the results are likely to be disappointing and perhaps
even perverse.
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Overtime qualified immunity has evolved to be too strong and the courts have lost sight of its
original purpose. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) Shoe-Horning, Shell Games, And Enforcing Constitutional Rights In
The Twenty-First Century. UMKC Law Review. 2010
Over the forty years since it began to articulate the contours of qualified immunity,72 the court has
made it easier and easier for defendants to assert it successfully. The Supreme Court encapsulated
its view with the pithy statement in Malley v. Briggs that qualified immunity protects "all but the plainly
incompetent or those who knowingly violate the law.",73 We should be asking ourselves why this is
so and recognizing something that the Supreme Court increasingly ignores: A central consequence of
qualified immunity is to leave the impact of constitutional violations where they fall. The Court has
become so fixated on the costs of litigation to defendants that it has stopped even acknowledging the
costs of unconstitutional conduct to victims.
The strength of Qualified immunity deters lawyers from pursuing damage actions. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) Shoe-Horning, Shell Games, And Enforcing Constitutional Rights In
The Twenty-First Century. UMKC Law Review. 2010
In its focus on the incentives affecting government officials, the Court seems to have lost sight of the
incentives influencing individual litigants' decisions. Absent the prospect of suppression, criminal
defendants face little incentive to litigate constitutional issues. So if the Court constricts the scope of
the exclusionary rule, criminal defendants will not seek "the law's elaboration., 79 Similarly, the
presence of a robust qualified immunity doctrine is likely to deter lawyers from taking § 1983
damages actions, thereby diminishing the amount of legal elaboration that occurs in those actions. At
the same time, the Court fails to explain its shift in focus from the context of criminal adjudication,
where it rejects suppression for penalizing the public "because the constable has blundered,"' to its
focus in the context of civil damages adjudication, where it rejects holding the constable accountable
because it worries he will be overdeterred given that he cannot capture the entire public benefit of his
actions. 81
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The disorganized and contradictory applications of the constitution by the courts distract
from the original purpose of preventing rights violations. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) The Paradoxical Structure Of Constitutional Litigation Fordham Law
Review. 2007
The central argument of this essay is that the process of constitutional litigation has itself become a
medley of scraps and patches. The United States Supreme Court has pieced together a crazy quilt of
constitutional doctrines that undercut its central goal of intelligently and efficiently refining broad
constitutional commands. Constitutional law is primarily a way of regulating governments. With
respect to those constitutional provisions that confer rights on specific individuals,4 one need not
insist that these rights must inevitably trump countervailing governmental interests 5 to recognize that
they should generally be protected by more than mere "liability rules" under which the government is
entitled to "destroy the initial entitlement if [it] is willing to pay an objectively determined value for it."'6
Put differently, the overarching purpose of constitutional law is to deter or prevent deprivations of
individuals' rights, and not simply to induce the government to internalize their costs or to compensate
individuals who suffer them after the fact.7
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Effective Policing
Abolishing qualified immunity would force the government to increase training and selection
for police officers. LMW.
Fallon and Meltzer. R. D. (Harry M. Cross Distinguished Visiting Professor of Law,
University of Washington; Pro- fessor of Law, Harvard University. ** Professor of
Law, Harvard University.) Harvard Law Review. June 1991
A body of official immunity law could easily be founded on the enduring, but now recessive, set of
assumptions that underlay the general fabric - despite some entrenched remedial gaps515 - of early
nineteenth-century practice.516 This approach would not allow the costs of government to be visited
entirely on victims who cannot, because of immunity doctrines, recover damages for constitutional
wrongs. At the same time, the harshness of a regime denying officials any immunity would pressure
government to provide indemnification and thereby internalize the costs of government,517 which in
turn would permit victims to obtain relief even if the official tortfeasors themselves were judgment-
proof. This approach would also induce government policymakers to implement cost-avoiding
measures, such as improved training and personnel selection.518
Qualified Immunity harms the Police Officer DJS
Chan, Janet (Profesor of Criminology at the University of Sidney) BL. "Governing police
practice: limits of the new accountability."The British journal of sociology 50.2
(1999): 251-270.
Officers who initiated internal investigations found themselves ‘trans- ferred, stalled in promotion, made the
subject of disciplinary complaints themselves, examined by investigators in a hostile way, and even forced to
resign’ (ibid.: 51). The Commission Report also cites evidence of a double standard which involved a ‘half-
hearted investigation’ of a complaint against the police but a vigorous pursuit of minor allegations against the
complainant, as well as fore-warning or leaking of information to police who were subject to internal
investigation.
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Individual police officers have their own objectives, so the threat of suits may have no effect
on their daily actions. LMW.
Levinson. Daryl. (Associate Professor, University of Virginia School of Law) “Making
Government Pay: Markets, Politics, and the Allocation of Constitutional Costs”
2000
To complicate matters still further, agency costs are present not just in principal-sponsor interactions
but also within the agency, in manager-employee interactions. The fact that managerial bureaucrats
have settled on a particular policy does not mean that lower-level officials will implement that policy in
perfect conformity with managerial design. Street-level officials will often have the incentives and
means to pursue their own objectives, which may well deviate from managerial preferences.
Police departments have a variety of interests and problems that conflict with limiting
constitutional violations. LMW.
Levinson. Daryl. (Associate Professor, University of Virginia School of Law) “Making
Government Pay: Markets, Politics, and the Allocation of Constitutional Costs”
2000
Suppose that a police commissioner recognizes this potential overdeterrence problem but is
motivated to maintain a socially optimal level of aggressive policing. (Where might this motivation
come from? Imagine that majoritarian or interest group politics have made this the reelection
maximizing strategy for city council members, who in turn have promised the police commissioner a
larger budget in exchange for cracking down on street disorder.) The commissioner will attempt to
adjust the incentives of street-level officers using a variety of carrots and sticks. For example, the
department may indemnify officers against personal liability and the costs of defending themselves at
trial (a routine, real-life strategy), while also offering rewards, in the form of bonuses or promotions,
for aggressive police work (lots of street searches, arrests, and the like). Unfortunately for the
commissioner, however, certain characteristics of government bureaucracy may impede efforts to
structure incentives by limiting the carrots and sticks at her disposal. Civil service laws, for instance,
limit the discretion of bureaucratic managers over wages, benefits, promotions, and terminations of
employees."7 (Although these laws are obviously not exogenous to government, in practice they are
sufficiently well entrenched that bureaucratic managers must accept them as given."8 ) In addition,
managers of public agencies that produce outputs that are difficult to observe and quantify, like police
departments, will have a difficult time monitoring the activity of subordinates."9
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Police Misconduct
Lawsuits against the police are not required to be reported, meaning that police misconduct is
swept under the rug. LMW.
Hennelly. R. (Award-winning investigative journalist, 30 years of experience writing about
federal, state, and local politics, law enforcement, and national security.) “Poisonous
cops, total immunity: Why an epidemic of police abuse is actually going
unpunished” Salon. May 2015
But this national blindspot about the scope and scale of police misconduct also extends to the
hundreds of millions of dollars paid out over the years by local, county, and state governments to
settle thousands of civil cases prompted by allegations of police misconduct and the use of excessive
and deadly force. There is no federal requirement that the nation’s 18,000 police agencies report
these settlements. Unless a local media outlet bothers digging, the public rarely learns just how
expensive police misconduct can be. When a media outlet does digs in, and follows the money, these
settlements can invariably help tell a bigger story. Thanks to the reporting by the Baltimore Sun,
readers learned that in a review of 100 lawsuits brought by civilians against the police, a sum of $6
million dollars was paid out to settle the claims. The paper discovered that the allegations that
surfaced in the Gray case, that police failed to get Gray medical attention in a timely manner, were
echoed in the civil suits, in which “dozens of residents accused police of inflicting severe injuries
during questionable arrests and disregarding appeals for medical attention.”
Qualified immunity suits have no deterrent effect on police misconduct. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Section 1983 suits generally do not deter abusive police behavior,90 except in rare instances when
there is either a large award, media attention, or both.91 This lack of deterrence comes about
because "[m]any officers lose nothing as a result of being sued. It costs them nothing fi nancially, it
never results in discipline, it has no effect on promotion, and it does not affect the way officers are
regarded by their peers and superiors."' 92 Moreover, the threat of a lawsuit is minimal; "only a small
minority of abuses will ever end up in a lawsuit and the police know that. '93 In addition, the process
of litigation is relatively painless for police officers because the city attorney assumes their defense.
For the most part, officers are not involved in the litigation except for depositions and trial testimony.
94 Officers rarely show much concern, even in wrongful death suits, and uniformly approach suits
with the attitude that they had a right to do what they did.95 Some officers even treat the suits as a
joke.96 Thus, the cycle continues: attorneys sue the same officers over and over, and the officers are
back on the street the next day while the taxpayers bear the costs.
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Qualified immunity allows abusive police officers to continue to be promoted and spread
their bad influence. LMW
Hennelly. R. (Award-winning investigative journalist, 30 years of experience writing about
federal, state, and local politics, law enforcement, and national security.) “Poisonous
cops, total immunity: Why an epidemic of police abuse is actually going
unpunished” Salon. May 2015
“There is still a total disconnect between these payouts and an officer’s career,” says Andrew Stoll, a
Brooklyn based plaintiff lawyer whose firm has specialized in police tort claims. “We have seen
generations of officers who go on to become a sergeant and then a Lieutenant who we successfully
sued five times.” The New York’s Daily News reported in 2014 that one “hard charging” Bronx
narcotics detective was named in 28 lawsuits going back to 2006 that cost the city $884,000 to settle.
The newspaper identified 55 other officers out of the NYPD’s 34,000 who were each sued at least ten
times and cost the City $6 million in settlements.Lawsuits and settlements are just one way to track
police credibility and performance. Cynthia Conti-Cook is a staff attorney with the special litigation
unite of New York’s Legal Aid Society, and she’s working on a database that includes not only NYPD
officers whose names have surfaced in lawsuits, but also those whose sworn testimony was found by
the courts to be not credible, or who gathered evidence that was thrown out because the manner in
which they collected it was unconstitutional.“There maybe just a few bad apples, but they are
poisonous, because they can teach younger officers ways to write things up to avoid scrutiny,” says
Conti-Cook. “We don’t want to believe it. It’s hard to acknowledge that police officers that have so
much power over people’s lives are capable of abusing it.”
Empirics show that the lack of punishment for the first violation leads to an escalation of
violence by individual police officers. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Throughout the United States, the police officers who are sued for brutality are often repeat offenders.
97 "Patterns do exist. It is common for attorneys to have cases against officers with histories of
violence. These are not isolated incidents of violence. Officers have a pattern of escalation of
violence. It starts with a little violence as a rookie, and then escalates because no one stops it early
on."98 s Expert witnesses, city personnel, police officers, and attorneys who litigate section 1983
suits observe patterns of recidivism in their own practice and in that of their colleagues. 99
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Limiting qualified immunity would allow the public to hold police officers accountable for
their misconduct. LMW.
Wright. S. (Public Interest Lawyer, Columnist for Above the Law, Breaking Media)
“Want to Fight Police Misconduct? Reform Qualified Immunity” November 2015.
In order to truly hold police accountable for bad acts, civilians must be able to bring, and win, civil
rights suits themselves not rely on the Department of Justice, or special prosecutors, or civilian
review boards to hold officers accountable. And in order to both bring and win civil rights suits,
civilians need a level playing field in court. Right now, they don’t have one. Instead, police officers
have recourse to the broad protections of the judicially established doctrine of qualified immunity.
Under this doctrine, state actors are protected from suit even if they’ve violated the law by, say, using
excessive force, or performing an unwarranted body cavity search as long as their violation was
not one of “clearly established law of which a reasonable officer would be aware.” In other words, if
there’s not already a case where a court has held that an officer’s identical or near-identical conduct
rose to the level of a constitutional violation, there’s a good chance that even an obviously malfeasant
officer will avoid liability will avoid accountability. To bring about true accountability and change
police behavior, this needs to change. And change should begin with an act of Congress rolling back
qualified immunity. Removing the “clearly established” element of qualified immunity would be a good
start — after all, shouldn’t it be enough to deviate from a basic standard of care, to engage in conduct
that a reasonable officer would know is illegal, without having to show that that conduct’s illegality has
already been clearly established in the courts?
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Narrowing qualified immunity would decrease violations of constitutional law and increase
the chances of victims being compensated. LMW.
Achtenberg. D. (Assistant Professor of Law, University of Missouri) Legal Theory:
Immunity Under 42 U.S.C. § 1983: Interpretive Approach And The Search For The
Legislative Will. Northwestern Law Review. 1992
For more than forty years, 1 the Supreme Court has struggled with immunity under 42 U.S.C. § 1983.
2 The issue is an important one. Section 1983 is the principal statutory vehicle used to remedy
constitutional violations committed by state and local officials. Expansion or contraction of official
immunity under the statute effectively decreases or increases officials' incentives to avoid those
violations. A broader immunity doctrine will lead to more constitutional violations. 3 However, it will
also lead to a greater willingness to attempt potentially useful innovations whose constitutionality has
not yet been determined. 4 A narrower immunity doctrine will reduce the number of constitutional
violations. 5 In addition to reducing the number of constitutional violations, it will also reduce the
amount of uncompensated constitutional harm. When a constitutional wrong is committed, a narrower
im- munity doctrine will make it more likely that the victim will be compensated. This shifting of the
cost of constitutional harm does not decrease the total cost to society of constitutional violations.
However, it may allocate that cost in a more equitable way. However, it will also reduce officials'
willingness to experiment. Thus, the scope of official immunity under § 1983 has significant effects on
the level of practical protection provided by the Constitution and on the willingness of public officials
to innovate.
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Police misconduct is often directed at minorities who are unlikely to win in court. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
The typical victim of excessive force is a young African-American or Latino male, from a poor
neighborhood, often with a criminal record.13 Gays and lesbians, transients, drunks, and criminal
arrestees are also common targets of abuse. 14 On average, police abuse is not directed at white
citizens; 15 when an officer unknowingly beats a person with political influence, the city is likely to
settle the suit to minimize the embarrassment. 16 Unfortunately, these typical victims do not make
sympathetic plaintiffs, so their chances of recovery are small, and attorneys have little incentive to
take their cases. 17. When a plaintiff is poor, has minority group status or is a criminal, jurors are
likely to resolve doubts in favor of the police officers. Since few plaintiffs can afford counsel and most
suits are taken on a contingency basis,18 an attorney undertakes an enormous financial risk when
filing a section 1983 suit.19 An attorney will therefore be hesitant to accept a weak case or a case
without significant damages.20 A second common weakness to a case concerns the plaintiff's
witnesses. 21 These witnesses often suffer the same credibility problems as does the plaintiff. Many
altercations between police and victims of misconduct occur in poor neighborhoods. Witnesses tend
to be friends, family, or acquaintances of the plaintiff, and therefore lack the credibility of a
disinterested party.22 Such witnesses often have criminal histories as well. 23 This lack of credible
witnesses greatly reduces the chances for success, and is another reason attorneys will be reluctant
to accept a case. 24
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Without action, the cycle of police violence will continue and further polarize our nation.
LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Although it is not easy to place a numerical cost on the polarization of whites and under-privileged
minorities, this by-product of chronic, unaddressed police abuse is equally damaging to our
society.271 Police brutality alienates African-Americans and other minority groups, and it makes them
lose their belief in justice in this country. "This [loss of belief in justice] is usually the greatest harm
inflicted from police brutality. The bruises and cuts heal, but the disillusionment with society does not
go away. The result is generations of very angry and embittered youths. ' 272 Not surprisingly, this
anger manifests itself in the form of riots and crime.273 Furthermore, chronic police abuse
undermines the effectiveness and safety of all police officers. For instance, there is no question that
the Los Angeles Police Department-along with the L.A. County Sheriff's Department. . .- has suffered
immeasurably from the conduct of the officers in the Rodney King case. Following the King beating
and verdict, anti-LAPD venom is at an all time high: KILL THE LAPD... [is] scrawled on the walls in
South Central Los Angeles. So a small percentage of police stain the blue uniform and, by the
hostility they create, endanger the lives of thousands of innocent officers.274 Clearly, the public and
all police officers have a vested interest in stopping the recurring cycle of police brutality.
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The Supreme Court makes decisions that prevents victims from having proper recourse
against the police. LWZ
Erwin Chemerinsky [dean of the School of Law at the University of California, Irvine], 8-
26-2014, "How the Supreme Court Protects Bad Cops," New York Times,
http://www.nytimes.com/2014/08/27/opinion/how-the-supreme-court-protects-bad-
cops.html?_r=0
LAST week, a grand jury was convened in St. Louis County, Mo., to examine the evidence against the police
officer who killed Michael Brown, an unarmed black teenager, and to determine if he should be indicted.
Attorney General Eric H. Holder Jr. even showed up to announce a separate federal investigation, and to
promise that justice would be done. But if the conclusion is that the officer, Darren Wilson, acted improperly,
the ability to hold him or Ferguson, Mo., accountable will be severely restricted by none other than the United
States Supreme Court.
In recent years, the court has made it very difficult, and often impossible, to hold police officers and the
governments that employ them accountable for civil rights violations. This undermines the ability to deter
illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people,
the victims rarely have recourse.
The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found
that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in
West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight.
Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to
speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour.
Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.
The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in
favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk”
and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if
police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need
not stop shooting until the threat has ended.”
This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could
injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the
vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires,
or even taking the license plate number and tracking the driver down later.
The court has also weakened accountability by ruling that a local government can be held liable only if it is
proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an
employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This
encourages employers to control the conduct of their employees and ensures that those injured will be
compensated.
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A 2011 case, Connick v. Thompson, illustrates how difficult the Supreme Court has made it to prove municipal
liability. John Thompson was convicted of an armed robbery and a murder and spent 18 years in prison, 14 of
them on death row, because of prosecutorial misconduct. Two days before Mr. Thompson’s trial began in New
Orleans, the assistant district attorney received the crime lab’s report, which stated that the perpetrator of the
armed robbery had a blood type that did not match Mr. Thompson’s. The defense was not told this crucial
information.
Through a series of coincidences, Mr. Thompson’s lawyer discovered the blood evidence soon before the
scheduled execution. New testing was done and again the blood of the perpetrator didn’t match Mr.
Thompson’s DNA or even his blood type. His conviction was overturned, and he was eventually acquitted of all
charges.
The district attorney’s office, which had a notorious history of not turning over exculpatory evidence to
defendants, conceded that it had violated its constitutional obligation. Mr. Thompson sued the City of New
Orleans, which employed the prosecutors, and was awarded $14 million.
But the Supreme Court reversed that decision, in a 5-to-4 vote, and held that the local government was not
liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the majority, said that New
Orleans could not be held liable because it could not be proved that its own policies had violated the
Constitution. The fact that its prosecutor blatantly violated the Constitution was not enough to make the city
liable.
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Qualified immunity protects officers from clearly unlawful behavior. LWZ
Erwin Chemerinsky [dean of the School of Law at the University of California, Irvine], 8-
26-2014, "How the Supreme Court Protects Bad Cops," New York Times,
http://www.nytimes.com/2014/08/27/opinion/how-the-supreme-court-protects-bad-
cops.html?_r=0
Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved.
But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all
government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other
law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even
when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr.
Thompson’s case, also has absolute immunity to civil suits.
When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for
monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a
government officer can be held liable only if “every reasonable official” would have known that his conduct
was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable
officer would have known that the shooting constituted the use of excessive force and was not self-defense.
The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was
strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to
deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16
days and on supervised release for 14 months, even though the government had no intention of using him as a
material witness or even probable cause to arrest him. In each instance, the court stressed that the government
officer could not be held liable, even though the Constitution had clearly been violated.
Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and
the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many
more riots will it take before the Supreme Court changes course?
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It’s impossible to hold police officers accountable because of qualified immunity. LWZ
Evan Bernick [Assistant Director of the Center for Judicial Engagement at the Institute
for Justice], 5-6-2015, “Why Do Police Get Immunity?”, Foundation for Economic
Education, https://fee.org/articles/to-hold-police-accountable-dont-give-them-
immunity/
The sad fact is that is often effectively impossible to hold police officers accountable for unconstitutional acts.
That fact is attributable in large part to a potent well of unchecked power that many Americans have never
heard of. You will not find it in the Constitution. You will not find it in any federal law. It is a judge-made
doctrine, invented by the Supreme Court. It is called qualified immunity. And if those charged with enforcing
the law are to be kept within the bounds of their rightful authority, it must be abolished. Section 1983, the
federal law that allows citizens to sue for constitutional violations, is broad, unequivocal, and unambiguous. It
says that “every person” who is acting “under color of” law who causes a “deprivation of any rights… secured
by the Constitution and laws” “shall be liable to the party injured.” Section 1983 embodies a foundational
principle of justice that resonates with Americans who have never heard of Marbury v. Madison: where there is
a right, there is a remedy. But for decades, we have had rights without remedies. In the 1967 case of Pierson v.
Ray, the Supreme Court held that police officers sued for constitutional violations can raise “qualified
immunity” as a defense, and thereby escape paying out of their own pockets, even if they violated a person’s
constitutional rights. This decision was unabashedly policy-oriented: it was thought that government officials
would not vigorously fulfill their obligations if they could be held accountable for actions taken in good faith.
Under current law, the general rule is that victims of rights violations pay the costs of their own injuries.
Qualified immunity is too strong it’s a near absolute defense. LWZ
Evan Bernick [Assistant Director of the Center for Judicial Engagement at the Institute
for Justice], 5-6-2015, “Why Do Police Get Immunity?”, Foundation for Economic
Education, https://fee.org/articles/to-hold-police-accountable-dont-give-them-
immunity/
In practice, qualified immunity provides a near-absolute defense to all but the most outrageous conduct. The
Ninth Circuit has held that throwing a flash-bang grenade “blindly” into a house, injuring a toddler, isn’t
outrageous enough. Just last year, in Plumhoff v. Rickard, the Supreme Court decided that firing 15 bullets at a
motorist is a reasonable method to end the driver’s flight from the police. So much for “every person” “shall be
liable.” Qualified immunity shields police misconduct not only from liability but also from meaningful judicial
scrutiny. Private lawsuits are an essential tool in uncovering the truth about police misconduct. The discovery
process can yield information that makes broader policy changes within police departments possible. At trial,
judicial engagement — an impartial, evidence-based determination of the constitutionality of the officer’s
actions — can take place. Qualified immunity can cut this search for truth short. If qualified immunity is raised
as a defense before trial and the judge denies it, that decision is immediately appealable. If it is granted,
discovery stops, and there is no trial on the merits.
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The United States should eliminate qualified immunity and replace it with a rule of strict
liability. LWZ
Evan Bernick [Assistant Director of the Center for Judicial Engagement at the Institute
for Justice], 5-6-2015, “Why Do Police Get Immunity?”, Foundation for Economic
Education, https://fee.org/articles/to-hold-police-accountable-dont-give-them-
immunity/
What needs to happen? Simply put, qualified immunity has to go. It should be replaced with a rule of strict
liability for bona fide constitutional violations. There are a variety of possible rules. First, police officers could
be held personally liable for any rights violations. They’d need to carry personal malpractice insurance, just like
lawyers, doctors, and other professionals. Insurance companies are qualified and motivated judges of risk, and
they would provide another reasonable level of scrutiny on police conduct, policies, and training. Second, police
departments could be held liable for any rights violations by officers and punitive damages could be assessed
against individual officers for particularly outrageous conduct. Third, police departments could be required to
insure officers up to a certain amount — officers would have to purchase insurance to cover any costs in excess
of that amount. As ambitious as these reforms might seem, never underestimate the power of widespread public
outrage. In the case of Kelo, the Court’s cavalier treatment of property rights led to a number of laws protecting
citizens from eminent domain abuse in states across the country. Here, too, the public can force legislators to
respond. The question of how to ensure that officers exercise the authority delegated to them with the proper
vigor, while also keeping them within the limits of that authority, should be left in the first instance to elected
officials — subject to constitutional limits and the requirements of valid federal laws (like Section 1983).
Qualified immunity enables officers to flout those limits and those laws. We must replace the judicially-
invented impunity that police officers currently enjoy with a realistic avenue for the vindication of
constitutional rights.
The role of juries has been undermined in excessive force cases. LWZ
Philip Sheng [JD with Distinction, Brigham Young University, .1. Reuben Clark Law
School, Order of the Coif: B.A., Stanford University. John Arrillaga Scholar], An
"Objectively Reasonable" Criticism of the Doctrine of Qualified Immunity in Excessive
Force Cases Brought Under 42 U.S.C. § 1983, 26 BYU J. Pub. L. 99 (2012). Available at:
http://digitalcommons.law.byu.edu/jpl/vol26/iss1/5
As this paper seeks to explain however, in excessive force cases brought under 42 U.S.C. § 1983, the role of
juries has been essentially usurped by the doctrine of qualified immunity, such that judges are deciding what is
reasonable and enabling law enforcement officers to escape liability through ambiguities in the law. The
Supreme Court's attempt at harmonizing the doctrine of qualified immunity with its holding in Graham has only
caused greater confusion, and the only solution appears to be eliminating qualified immunity from excessive
force cases altogether.
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We should eliminate qualified immunity in excessive force cases. LWZ
Philip Sheng [JD with Distinction, Brigham Young University, .1. Reuben Clark Law
School, Order of the Coif: B.A., Stanford University. John Arrillaga Scholar], An
"Objectively Reasonable" Criticism of the Doctrine of Qualified Immunity in Excessive
Force Cases Brought Under 42 U.S.C. § 1983, 26 BYU J. Pub. L. 99 (2012). Available at:
http://digitalcommons.law.byu.edu/jpl/vol26/iss1/5
A better approach might be to eliminate qualified immunity altogether in excessive force cases; but rather than
create a whole new test, the Court should remove the question of reasonableness from the jury and allow judges
to decide whether the use of force was objectively reasonable. Under this approach, jury interaction would
remain much the same, except that after all the facts are resolved, the judge would decide the ultimate
constitutional question of reasonableness based on the jury's findings. While this would be a departure from
settled practice, it appears to have an adequate basis in the law. For instance, trial court judges already decide
the question of reasonableness on motions for summary judgment whenever facts arc undisputed or viewed in
the light most favorable to the plaintiff. Moreover, appellate judges routinely decide the question of
reasonableness every time an excessive force case goes on appeal. Judges are well-equipped, yet it seems odd
that the constitutional question of reasonableness only goes to the judge when facts are not in dispute, but at all
other times, is entrusted to the jury. It would perhaps make better sense to have the jury resolve the facts, and
have the judge decide the question of reasonableness based on those facts.
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There are several benefits to this approach. LWZ
Philip Sheng [JD with Distinction, Brigham Young University, .1. Reuben Clark Law
School, Order of the Coif: B.A., Stanford University. John Arrillaga Scholar], An
"Objectively Reasonable" Criticism of the Doctrine of Qualified Immunity in Excessive
Force Cases Brought Under 42 U.S.C. § 1983, 26 BYU J. Pub. L. 99 (2012). Available at:
http://digitalcommons.law.byu.edu/jpl/vol26/iss1/5
There are several benefits to this approach. First, it would eliminate the need for line drawing between Hope
and Brosseau, and courts would not have to worry about clearly established law. Second, the Court could retreat
from its "irreducibly murky" distinction between Graham and Harlow. If applied judiciously, Graham alone
provides law enforcement officers with adequate protection for reasonable mistakes. Third, even though they
would be denied qualified immunity, law enforcement officers would benefit by having judges decide the
constitutional question of reasonableness. Judges are in a better position to decide constitutional questions,
having been trained in the law and having developed expertise through experience. This approach would also
eliminate potential jury bias. While jury bias can cut both ways, consider the case of Jared Massey, a YouTube
sensation and public hero after being Tasered by a Utah Highway Patrol officer in 2007. an internal
investigation clearing the officer, the state settled for $40,000 rather than risk a jury awarding more. Fourth, the
approach would serve the same purposes as qualified immunity by allowing claims to be decided early on
summary judgment. If no material issues of fact remain in an excessive force case, instead of looking to see
whether there is a clearly established law, the judge would simply decide the case. This would not be an
unprecedented expansion of judicial power; as mentioned above, our legal system already allows judges to do
this in a variety of circumstances. Lastly, the approach would keep judges honest by holding them to the Fourth
Amendment standard. Granted there is still flexibility for judges to decide cases based on their own personal
ideologies, but the amount of discretion is far less than what the current doctrine of qualified immunity.
Nov/Dec 2016 Aff:
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There is no single step to take to ensure police accountability but reforming qualified
immunity is a good place to start. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
In recent months, it has been impossible to ignore the overwhelming presence of police violence in the media.1
Hardly a month has gone by without headlines asserting use of excessive force, brutality, or other misconduct in
some corner of the United States.2 It seems that no region of the nation has been unaffected by the violence,
with civilian deaths at the hands of law enforcement cropping up from San Francisco3 to New York City4 to
South Carolina,5 and almost everywhere in between. And with public confidence in law enforcement at a
twenty-two year low—with only 52 percent of U.S. citizens asserting that they have considerable confidence in
law enforcement6—the nation has clearly taken notice.7
Naturally, these violent incidents raise important questions for many Americans, regardless of locale or the type
of community in which they reside. Why is this happening? And how can we stop it? Unsurprisingly, extensive
media commentary has ultimately invited a myriad of proposed answers to these inquiries and has even
generated some potential solutions. Some point to a lack of education and opine that officers need more
comprehensive training to teach them how to "defuse the sorts of deadly racially charged confrontations" that
have recently been highlighted in numerous communities throughout the country.8 Others suggest that allowing
citizens to record police would create officer accountability, serve as a disciplinary basis for abusive behavior,
encourage the use of justified policing tactics, and generally deter misconduct.9 Others still suggest that police
culture is to blame since rookies shape their attitudes about the use of force based on the words and actions of
fellow officers,10 and because the warrior mentality of policing fosters an “us” versus “them” relationship
between law enforcement and citizens.11 In fact, a few experts have even suggested that there has not been a
wave of police violence, but that mainstream media is merely covering brutality more frequently and
comprehensively.12
Irrespective of whether there has been an increase in the incidence of brutality or whether the nation is merely
recognizing what has been an ongoing reality for many U.S. citizens, the existence of a problem is now
inescapably obvious. The solution, however, is decidedly less clear. Perhaps none of the aforementioned
proposals are the right answer. Alternatively, and more likely, maybe they are all the answer—at least partially
and in combination with a number of other considerations. It is improbable that a single factor can be deemed
the sole cause of widespread police misconduct. Of course, an elaborate problem with multiple dimensions will
require an equally multifaceted solution. In fact, any adequate resolution will likely require the cooperation of
many individuals and entities across various disciplines and industries.13 But no matter how winding, every
path to change must begin with a single step. And the most logical place to begin is by reforming the stringent
protection from civil liability enjoyed by law enforcement officers alleged to have violated individual
constitutional rights.
Nov/Dec 2016 Aff:
foundationbriefs.com Page 53 of 124
There is no clarity in what counts as a clearly established right. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
One problem with qualified immunity results from the so-called two-pronged inquiry. In 2001, concerned that
disposing of cases based solely on the “clearly established” prong would “stunt the development” of
constitutional law, the Court mandated that lower courts first decide whether there was a constitutional violation
before determining whether the right was clearly established.76 The decision in Saucier v. Katz was, to say the
least, unpopular,77 and in 2009, the Court unanimously overruled the decision and once again left the
procedural sequence to the discretion of lower courts.78 But because courts are no longer required to address
the two-part inquiry in any particular order, the practical effect has been precisely what the Court feared in its
Saucier decision: frequent disposal of cases based on the perceived lack of a "clearly established" right without
ever addressing the merits of the constitutional claim.79
A recent survey of circuit court cases decided since Pearson v. Callahan in 2009 demonstrates the frequency
with which lower courts are disposing of cases based on a lack of a clearly established law.80 The study, which
analyzed 844 published and unpublished Courts of Appeal opinions decided between 2009 and 2012,
encompassing 1,460 total claims, found that qualified immunity was granted in 1,055 of the claims, or
approximately 72 percent of the time.81 In 534 (or nearly 51 percent) of the claims in which the court granted
immunity, the court concluded that the right asserted was not clearly established.82 So in more than half of the
claims in which immunity was granted, the basis for the court’s holding was the absence of clearly established
law.
Nov/Dec 2016 Aff:
foundationbriefs.com Page 54 of 124
The concept of a clearly established right causes confusion. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
But perhaps somewhat ironically, the concept of a “clearly” established right is in and of itself less than clear,
and a great deal of confusion exists over what rights fall within this vague classification.83 In essence,
approximately 50 percent of the time, a court’s decision to grant immunity to an official is based on a muddled
and uncertain legal precept. In order to qualify as clearly established, “a right must be sufficiently clear that
every reasonable official would have understood that what he is doing violates that right."84 There are few
unambiguous bright-line rules in modern constitutional jurisprudence, and most doctrines are instead articulated
as relatively vague standards or balancing tests.85 In addition, because there are considerable distinctions in
terms of the structure, aim, and available alternative remedies of various constitutional rights, the general-
purpose nature of qualified immunity is problematic.86 Defining a clearly established law is straightforward
when the right is laid out in a stable and fairly specific doctrine, but when the rule changes, the new law only
becomes clearly established when a clarifying court decision is handed down.87 When such constitutional
rights are violated, qualified immunity allows officials to avoid liability because of a failure to anticipate
developments in the law.88 And although the Court held in 2002 that there need not be a case on point in order
to find clearly established law,89 it has nevertheless continued to grant qualified immunity in the absence of
similar precedent.90 Unsurprisingly, lower courts struggle with the question of whether a right is clearly
established, and the circuits have developed markedly varying approaches to the inquiry.91
Finally, year after year, despite attempts to clarify the doctrine, it seems that the Supreme Court has only further
added to the confusion of lower courts. Indeed, almost without fail, Supreme Court cases since Pearson have
apparently further expanded the qualified immunity doctrine by upholding its application in all manner of
diverse situations—seemingly in every set of circumstances with which it has been presented.92
Nov/Dec 2016 Aff:
foundationbriefs.com Page 55 of 124
The deterrent power of lawsuits is not very powerful. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
The judicial system’s somewhat naive faith in the power of civil suits as a deterrent has inadvertently
produced another problem in qualified immunity jurisprudence.93 This belief has generated concern in the
Supreme Court about overdeterrence—the notion that fear of being sued “is so strong that it can ‘dampen the
ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of
their duties.’”94 This trepidation about too much deterrence and its potentially chilling effect on government
operations has played a powerful role in shaping Court decisions toward limiting civil remedies.95 Of course,
lawsuits are intended to have this deterrent effect—indeed, are relied upon to have such effect as part of our
system of accountability for government officials. Unfortunately, reality suggests that the deterrent power of
lawsuits is not quite as potent as the Supreme Court envisions.96
The Court specifically fears that financial liability, in the form of paying compensatory damages to victims
whose constitutional rights an officer has violated, will be a vehicle of overdeterrence.97 But the widespread
practice of indemnification means that individual officers are almost never financially responsible for civil
judgments against them, practically eliminating any fiscal motivation for avoiding harmful conduct.98 In fact,
in many instances, even the police department that employs the officer suffers no direct financial consequences
because police litigation costs and damages awards are often paid from a city or insurer’s general budget.99 The
police department is not financially penalized, and thus has no incentive to discipline the officer or attempt to
prevent him from repeating the unconstitutional behavior in the future. And because law enforcement officials
are often unaware of the allegations set forth in lawsuits filed against them or their employees, officers’ conduct
often goes uninvestigated and undisciplined, and allegations of unconstitutional conduct do not affect
performance reviews or opportunities for promotion.100 Finally, although many law enforcement officers claim
that the threat of incurring liability deters them from misconduct, studies contrarily indicate that potential
liability does not actually alter most officers’ on-the-job actions.101
Nov/Dec 2016 Aff:
foundationbriefs.com Page 56 of 124
The Courts have over extended the doctrine. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
Although many of the weaknesses of qualified immunity can, for the most part, be considered unintended
consequences, one significant flaw was the Court’s deliberate decision to utilize a one-size-fits-all standard. In
early qualified immunity decisions, the Court acknowledged the possibility that the doctrine might apply
differently depending on the type of official involved in a particular situation.102 But, as it so commonly does,
the Court apparently altered its approach. For nearly four decades, the Court has applied the qualified immunity
doctrine as a standard applicable to all officials who do not enjoy absolute immunity.103 Indeed, the Court has
been explicit about its unwillingness “to complicate qualified immunity analysis by making the scope or extent
of immunity turn on the precise nature of various officials’ duties.”104 In so doing, the Court has overextended
the doctrine. It is essentially providing too much protection for lower- level officers because all officials not
entitled to absolute immunity now enjoy immunity that the Court “ha[d] developed for a quite different group of
high public office holders.”105 This is perhaps most problematic when a plaintiff alleges Fourth Amendment
violations because qualified immunity doctrine provides officers with two layers of liability protection:
qualified immunity’s reasonableness standard on top of the reasonableness already embodied in Fourth
Amendment substantive law.106
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Qualified immunity has eroded law enforcement accountability. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
Of course, the most outwardly evident and alarming problem with qualified immunity jurisprudence has been its
cumulative erosion of law enforcement accountability. Perhaps Erwin Chemerinsky summarized it best when he
noted that “[i]n recent years, the court has made it very difficult, and often impossible, to hold police officers
and the governments that employ them accountable for civil rights violations.”107 Many of the aforementioned
procedural and substantive problems with the qualified immunity doctrine have contributed to what might be
considered a deleterious byproduct. But recent Court decisions have also demonstrated a willingness to extend
immunity in even the most egregious circumstances.108
For example, in Plumhoff v. Rickard, the Court held that three officers did not use excessive force and were
entitled to qualified immunity when they had collectively fired fifteen shots at a fleeing car, causing the deaths
of the driver and passenger.109 The incident ensued after one of the officers stopped the vehicle for having only
one working headlight and, rather than exit the vehicle as the officer instructed, the driver instead sped away,
prompting the officer and several others to give chase.110 Overturning both the district court and the court of
appeals, the Supreme Court held that the use of deadly force was permissible because the driver “posed a grave
public safety risk” and that firing fifteen times was not unreasonable because “the officers need not stop
shooting until the threat is over.”111 Somewhat similarly, in Brosseau v. Haugen, the Court held that an officer
was entitled to immunity when she shot an unarmed man in the back through the window of his Jeep—which
was not moving—as a means of preventing his escape.112 The Court explained that the officer’s actions “fell in
the ‘hazy border between excessive and acceptable force,’” but that previous Court decisions “by no means
‘clearly establish’ that Brosseau’s conduct violated the Fourth Amendment.”113
Nov/Dec 2016 Aff:
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Trust and legitimacy is an important part of law enforcement that qualified immunity
reduces. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
In response to the officer-perpetrated violence and the national reaction thereto, President Obama created the
Task Force on 21st Century Policing in December 2014, to determine best practices for strengthening
relationships between law enforcement and the public while also aiming to reduce crime.114 In its Final Report,
the Task Force set forth myriad recommendations and action steps by which to implement such
recommendations, all of which aim at a paramount umbrella objective: fostering trust and legitimacy between
the police and the communities they serve.115 The Final Report is comprehensive in that it covers six general
topics and recommends collaboration not only among the various levels of government,116 but between
individual law enforcement agencies and local schools,117 higher-learning institutions,118 other local
jurisdictions,119 and individual and corporate members of the community.120 But the scope of the Task
Force’s assignment was limited to police-community interactions, and it advocates for holistic evaluation of the
criminal justice system in order to determine a plan for comprehensive criminal justice reform.121
Establishing police accountability is a palpable recurring theme of the Final Report. For example, the Task
Force encourages law enforcement agencies to foster transparency and ensure accountability by making
departmental policies freely available to citizens, regularly posting data about stops, summonses, arrests, crime,
and the like on the department website, and promptly and candidly communicating with the community about
serious incidents—including alleged officer misconduct.122 Additionally, the Task Force emphasizes the need
for policy reform to control the use of police force and urges departments to mandate external, independent
criminal investigations for cases of officer-involved shootings, in-custody deaths, and fatal use of force in order
to demonstrate transparency and rebuild trust.
Nov/Dec 2016 Aff:
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Unrestrained police forces hurt relations between law enforcement and the community. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
Unsurprisingly, police shootings in general tend to produce tension between the police and the policed,124 and
the fact that most of the incidents propagated through various forms of media since 2014 have involved the
deaths of unarmed citizens at the hands of police125 has only made matters worse. Regardless of whether the
number of police slayings has in fact increased, or whether the media is simply giving more attention to such
occurrences, the general relationships between law enforcement agencies and communities nationwide are
likely even further strained than in the case of more isolated, or seemingly more isolated, events.126 In
addition, multiple declinations of grand juries to indict officers involved in high-profile slayings of unarmed
citizens has further exacerbated the problem, inciting outrage, inspiring protests,127 and raising critical
questions about the extent of police accountability.128
Unfortunately, while the FBI plans to improve its system for gathering information about the use of force by
law enforcement by 2017, its data collection up to this point has been less-than- stellar.129 And although the
Washington Post undertook a year-long investigation in 2015 in order to accurately track the number of fatal
shootings by on-duty police officers,130 the fallibility of previous federal data makes it impossible to ascertain
how that total compares to prior years. Moreover, the Post’s report does not include other types of deaths at the
hands of police, such as in-custody deaths131 or deaths resulting from Tasers.132 However, it is noteworthy
that the Post’s figure of 986 lethal police shootings is more than double the FBI’s average annual tally for the
preceding decade.133 So, if nothing else, this stark disparity reveals that such occurrences are substantially
more prevalent than anyone was aware.
Of course, the Post’s figures are subject to varying interpretations, each of which have some merit. Some may
consider the recent shootings to be an unfortunate but nonetheless routine consequence of enforcing the laws.
On the other hand, nationwide protests have demonstrated that others consider civilian deaths at the hands of
police officers to be an insult to constitutional rights. And surely the opinions of many Americans lie
somewhere on the spectrum in between. While the statistical truth may forever remain a mystery, one thing is
clear: the need for change.134 The American public has lost trust in its law enforcement, not only because of
the perceived frequency of the use of lethal force, but because of subsequent investigations into such incidents,
which many view as biased.135 The nation is calling for reform,136 and various government agencies,137
branches of local government,138 and even the President139 have responded to the outcry. But although the
need for change has been duly acknowledged, the question of how to implement comprehensive reform on a
national scale remains unresolved.
Nov/Dec 2016 Aff:
foundationbriefs.com Page 60 of 124
Amending qualified immunity is a good starting point for ensuring accountability. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
Altering the qualified immunity doctrine is an excellent way to begin the path to restoring trust by establishing a
much-needed sense of accountability. Civil remedies are a good jumping off point because, as repeated failures
to indict officers—even in the face of video footage—have demonstrated, accountability via the criminal law is
a far-off possibility, if it is possible at all.
Prosecutors are generally disinclined to bring charges against law enforcement officers,140 and grand juries are
equally as hesitant to indict them.141 Independent investigations, as suggested by the Task Force, are an
excellent idea, but establishing a feasible system nationwide would take time. On the other hand, Supreme
Court amendment of the stringent immunity afforded to police officers could take effect relatively quickly.
Simply providing more guidance and clarification can increase accountability. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
Of course, this is easier said than done. The Court has increasingly enlarged the immunity afforded to police
officers in its recent decisions, and any 180-degree turnaround would likely require a change in Court
composition. But the current Court can nevertheless begin to firm up qualified immunity doctrine by simply
providing more guidance and clarification, thereby enhancing accountability and reaffirming trust between law
enforcement and their respective communities.
Nov/Dec 2016 Aff:
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By clearly establishing the concept of a clearly defined right, the Court would alleviate
confusion . LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
The concept of a clearly established right is, in many ways, a problem that requires solving. A substantial
number of cases are disposed of on the premise that a right was not “clearly established”—yet lower courts have
struggled for years with what those words actually mean. Arguably, then, at least some officers are escaping
liability simply because of the Court’s repeated failures to establish consistency in its qualified immunity
jurisprudence. But if the Court used qualified immunity opinions to demonstrate what qualifies as a clearly
established right by meticulously outlining its reasoning in answering whether a set of facts implicates such a
right, the Court could alleviate some confusion. In other words, rather than taking cases simply to overturn the
lower courts’ denial of immunity, it could take cases to affirm those denials or, alternatively, to reverse lower
courts’ grant of immunity. By so doing, the Court can give examples of what constitutes a right that is
“sufficiently clear that every reasonable official would have understood that what he is doing violates that
right,”142 and can give lower courts somewhat of a guide to follow.
By elucidating the contours of the clearly established right, the Court would alleviate some of the confusion of
lower courts and ensure that they are in fact applying that part of the test properly. Proper application of this
prong directly promotes accountability, as the public can rest assured that, at least in that regard, cases are not
being disposed of based merely on perplexity and uncertainty. Moreover, increased confidence about the clearly
established prong could foster a willingness to take on the second part of the test and, in so doing, advance the
development of constitutional law and clarify further constitutional rights.
Nov/Dec 2016 Aff:
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Attempts at a general standard for all classes of officials is problematic. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
The Court could also accept that its attempts at a general standard for all classes of officials that are not
otherwise entitled to absolute immunity has been problematic and hugely unsuccessful. Though the Court
apparently fears “complicating” qualified immunity, the doctrine is quite complicated as is, and adopting more
particularized classes of officials with different standards of immunity would not only assist lower courts in
properly analyzing immunity, but would promote justice in constitutional tort litigation. For example, the Court
could classify officials based on the approximate number of people with whom they come in contact, so to
speak, and that might therefore bring civil suits against them. A governor, for example, could theoretically face
a lawsuit from any resident of the state, and would thus be afforded more stringent protection—much like the
standard afforded to all officials now. But law enforcement officers, who come in contact with only the
residents of one town, city, or perhaps county, risk possible suits from a much smaller pool of people. The
threat of litigation would therefore be much less crippling on governmental function, and immunity protection
need not be so rigorous. In the case of allegations of Fourth Amendment violations, in light of the already-
existing reasonableness standard, immunity may be inappropriate altogether.
The Court should recognize that it has been overzealous in protecting officers. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
In addition, the Court could do its proverbial homework and take notice of the widespread indemnification of
officers that often results in a complete absence of financial or employment- related consequences for law
enforcement. If the Court stopped relying on its own intuition, and instead came to grip with the facts, it would
likely realize that it has been overzealous in protecting low-level officers, and be inclined to alter course
somewhat.
Nov/Dec 2016 Aff:
foundationbriefs.com Page 63 of 124
Mending the qualified immunity doctrine will allow more civil suits which increases
accountability. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
By beginning to mend the qualified immunity doctrine in these ways, the Court will allow more civil suits for
the vindication of constitutional rights to succeed. This will help to reduce the public mentality—strengthened
by recent events—that cops get away with everything, in every regard. Civil suits avoid subjecting law
enforcement to any criminal liability that, because of recent events, many laypersons believe is warranted.
While this may be true in select circumstances, reality demonstrates that criminal charges are highly unlikely to
stick against a police officer. But allowing more civil suits to go forward will serve as an important reminder to
both civilians and law enforcement that the police are not above the law, and that they are held accountable for
their wrongdoings. In turn, this accountability will begin to heal the relationship between law enforcement and
communities by serving as the first step on what will surely be a long path to rebuilding the trust that is so
crucial.
Adopting different immunity standards, clarifying vagueness, and acknowledging real world
effects, the Court will improve accountability. LWZ
De Stefan, Lindsey [J.D. Candidate, 2017, Seton Hall University School of Law; B.A.,
Ramapo College of New Jersey.], "“No Man Is Above the Law and No Man Is
Below It:” How Qualified Immunity Reform Could Create Accountability and Curb
Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper
850. http://scholarship.shu.edu/student_scholarship/850
By adopting different immunity standards for high-level and low-level officials, clarifying the vagueness
surrounding the definition of a “clearly established” right, and acknowledging the real-world effects of
indemnification, the Court can begin to repair some of the substantial flaws in its qualified immunity
jurisprudence. As it does, it will permit more constitutional tort suits to succeed, thereby fostering law
enforcement accountability. Because criminal liability is nearly impossible as a practical matter, and because
strategies like improving police training and recruiting tactics will likely take years to effectively implement,
civil suits are the (relatively) fastest way to demonstrate to the country that our officers are our guardians and
that they are accountable to us. It is thus the most immediate way to rebuild trust and begin healing the citizen-
police relationship.
Nov/Dec 2016 Aff:
foundationbriefs.com Page 64 of 124
No Constitutional Basis
Qualified immunity has no basis in constitutional law. LMW.
Balcerzack. Stephanie E. (Yale Law Journal, 1985) Qualified Immunity for Government
Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation. Vol.
95
In analyzing the scope of the immunity defense accorded government officials charged with
constitutional violations, it is important to note that the law of qualified immunity is entirely a creation
of the courts, without textual basis in either the Constitution or statutes In an effort to mitigate the
social costs that attend the litigation of suits against officials,11 the federal courts have consistently
drawn on common law doctrines of official immunity12 to fashion a defense for officials in the
constitutional realm.13 To appreciate the magnitude of the change worked by Harlow on the law of
qualified immunity, and its ominous implications for civil rights litigation in general,14 it is first
necessary to examine the develop ment and refinement of the qualified immunity doctrine in the
federal courts
Qualified immunity harms constitutional rhetoric and torts DJS
Jeffries, John C. (Dean of University of Virginia Law School) "The right-remedy gap in
constitutional law." The Yale Law Journal 109.1 (1999): 87-114.
The doctrinal home of fault in constitutional torts is the defense of qualified immunity. Originally described as
requiring a reasonable and good faith belief in the legality of the act in question, qualified immunity has been
reformulated as a purely objective inquiry. Today the question whether a reasonable officer could have believed
the act to be lawful.28 The reasonableness of a mistake as to unconstitutionality depends on the factual
circumstances, the clarity and specificity of the constitutional rule, and the knowledge that the defendant could
reasonably be expected to have.
Nov/Dec 2016 Aff:
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It is possible to sue government entities. LWZ
Edward C. Dawson [Assistant Professor of Law, Southern Illinois University School of
Law]. “Qualified Immunity For Officers’ Reasonable Reliance On Lawyers’
Advice” Northwestern University Law Review, Vol. 110, No. 3.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1236&c
ontext=nulr
One is that the Court has held that § 1983 allows suits against local and municipal government entities, as well
as individual officers.60 Local governments are liable, however, only when plaintiffs can show that a policy,
custom, or action of the municipal or local government caused the constitutional violation committed by the
individual officer.61 Under this approach, a municipal or local government may be liable when its express
policy or informal custom causes officers to violate the constitution,62 or when an official with policymaking
authority for the municipality caused the constitutional violation.63 Further, when a municipality is responsible
for a violation under these doctrines, it has no qualified immunity defense.64 In the lawyers’ advice scenario,
this means that local government could be liable if (1) it had a policy or custom of having its lawyers give
blanket sanction to officers without regard to the true state of the law to bolster those officers’ qualified
immunity defenses, which caused officers to violate rights; or if (2) the lawyer giving the advice was
sufficiently high ranking to be a policymaker for the local government, so that the lawyer’s approval amounted
to municipal policy authorizing the violation.65
The Court’s interpretation is largely judge-made. LWZ
Edward C. Dawson [Assistant Professor of Law, Southern Illinois University School of
Law]. “Qualified Immunity For Officers’ Reasonable Reliance On Lawyers’
Advice” Northwestern University Law Review, Vol. 110, No. 3.
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1236&c
ontext=nulr
The second point is that the Court’s interpretation of § 1983, and particularly its qualified immunity doctrine, is
largely judge-made,66 and has frequently been revised and reversed by the Court since 1961.67 The rules and
their changes are generally driven not by the text of the statute,68 which is relatively brief, but by reliance on a
shifting mix of legislative history,69 common law analogs,70 and policy considerations.71 The result has been
that § 1983 doctrine, and in particular, qualified immunity doctrine, is widely considered to be complex,
confusing, and sometimes contradictory.72 The Court’s demonstrated willingness to change the doctrine
supports this Article’s argument that adoption of the proposed test is feasible; the consensus that the doctrine is
complex and confusing supports this Article’s argument that the proposed test is better because it is simpler.
Nov/Dec 2016 Aff:
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Domestic Violence
The government has a constitutional duty to intervene in domestic violence situations. LMW.
Harper, Laura. S. (Cornell Law Review) Battered Women Suing Police For Failure To
Intervene: Viable Legal Avenues After Deshaney V. Winnebago County
Department Of Social Services 1990
The due process clause of the fourteenth amendment provides that "[n]o State shall ... deprive any
person of life, liberty, or property without due process of law."' 21 Battered women's substantive due
process claims under section 1983 typically allege a liberty deprivation resulting from the failure of
police to intervene in domestic assault situations. 22 Courts have acknowledged that an individual's
right to liberty may include the "right to personal security" 23 and the "right to be free from physical
harm and restraint. '24 In this context, the special relationship doctrine, derived from tort law,25 may
trigger the state's affirmative constitutional duty, under the due process clause, to provide protective
services. 26
Police officers often discriminate against survivors of domestic violence by treating their 911
calls as less important. LMW.
Harper, Laura. S. (Cornell Law Review) Battered Women Suing Police For Failure To
Intervene: Viable Legal Avenues After Deshaney V. Winnebago County
Department Of Social Services 1990
The equal protection clause of the fourteenth amendment requires that "[n]o State shall ... deny to
any person within its jurisdiction the equal protection of the laws." 3' Battered women bringing equal
protection claims under section 1983 usually argue that police differentiate between domestic
violence calls and nondomestic violence calls. This classification, they contend, results in less
protection to domestic violence victims than to nondomestic victims. 32 Therefore, because women
typically are the victims in domestic assaults, a police policy using this classification discriminates
against women.33
Nov/Dec 2016 Aff:
foundationbriefs.com Page 67 of 124
Qualified immunity protects police officers who fail to intervene and protect survivors of
domestic violence. LMW.
Harper, Laura. S. (Cornell Law Review) Battered Women Suing Police For Failure To
Intervene: Viable Legal Avenues After Deshaney V. Winnebago County
Department Of Social Services 1990
Should a battered woman plaintiff proffer sufficient evidence of an equal protection or due process
violation, municipal police officers can still assert a qualified immunity defense.47 Under the qualified
immunity doctrine, state officers performing discretionary functions48 are immune from lawsuits for
damages provided their conduct does not violate "clearly established statutory or constitutional rights
of which a reasonable person would have known." 49 A municipality itself, however, cannot invoke
the qualified immunity defense. 50 Thus, courts have allowed suits involving an unconstitutional
policy or custom to proceed against a city even when qualified immunity shields the individual police
officers who executed the challenged policy. 51 Because qualified immunity entitles an officer to
"immunity from suit," a defendant-officer must assert the defense on a motion for summary
judgment.52
Lack of “clearly established law” allows police officers to win these suits. LMW.
Harper, Laura. S. (Cornell Law Review) Battered Women Suing Police For Failure To
Intervene: Viable Legal Avenues After Deshaney V. Winnebago County
Department Of Social Services 1990
Section 1983 litigation involving battered women represents an evolving area of law in which the
Supreme Court has not ruled, lower courts have been inconsistent, and many court opinions have
either gone unpublished or cases have been dismissed due to settlements between the parties.58
Thus, police officers can argue that the law was not "clearly established" as an authoritative guide to
their conduct in responding to domestic violence situations. 59
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LGBT
Qualified immunity allows police officers who harass LGBT individuals such as in Sterling v.
Borough of Minersville to escape without punishment. LMW.
Weinstein. Brad. (B.A., Cornell University, 2001; candidate forJ.D., Cornell Law School,
2005; Senior Note Editor, Volume 90, Cornell Law Review) A Right with No
Remedy: Forced Disclosure of Sexual Orientation and Public Outing under 42
U.S.C. 1983. Cornell Law Review. 2005.
The officers arrested Marcus Wayman and his companion for underage drinking and brought them to
the Minersville Police Station for questioning) 5 At the station, Officer Wilinsky lectured the two boys
about the biblical prohibition against homosexuality,1 6 called them "queers,"'17 and threatened
Wayman that if he did not inform his grandfather that he was gay, Wilinsky would do so himself.',
After Wayman heard this threat, he informed his companion that he was going to kill himself. 1 9
Indeed, upon his release from police custody later that night, and on the heels of Wilinsky's threats,
Wayman took the only path that he saw fit at the time-he took his own life.20 Wayman's fear of public
outing was well-founded; the police officers later forced Wayman's seventeen-year-old companion to
tell his mother that he was gay.21 Marcus Wayman's tragic suicide prompted his mother, Madonna
Sterling, to file a federal civil rights action under 42 U.S.C. § 1983 against the officers, the police
department, and the Borough of Minersville.22 The basis of Ms. Sterling's civil rights claim was that
the police officers unconstitutionally deprived Marcus Wayman of his Fourteenth Amendment right to
privacy when they threatened to "out" him to his family.23 Following discovery, the defendants filed a
motion for summary judgment, claiming that they were immune from suit.2 4 The district court denied
summary judgment, ruling that the doctrine of qualified immunity did not protect the officers. 25 On
interlocutory appeal to the Third Circuit, the defendants challenged the qualified immunity ruling.26
The Third Circuit found that the officers were not entitled to qualified immunity because the right to
privacy in personal information, including sexual orientation, was a clearly established constitutional
right at the time of the incident.2 7 When the case went to trial, the jury found that the officers were
not liable for any wrongdoing.28 In a twenty-three page opinion, however, U.S. Magistrate Judge
Arnold C. Rapoport set aside the verdict, stating that he was "convinced that the weight of the
evidence in this case is against the defendants. '29 While the new trial was pending, the parties
settled the dispute for a mere $100,000.
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As in the case of Nabozny v. Podlesny, police officers can fail to protect LGBT individuals
from harassment and abuse based on their sexual orientation. LMW.
Logue and Buckel. Patricia and David. (Lambda Legal Defense and Education Fund)
“Fighting Anti-Gay Abuse in Schools: The Opening Appellate Brief of Plaintiff
Jamie Nabozny in Nabozny V. Podlesny, 4 Mich.J. Gender& L. 425 (1997).
The kicking lasted five to ten minutes, 13 while the other boys were standing around watching and
laughing. After the assault ended, Jamie went to the library and started to feel sick, so he went to the
principal's office and called home. 3 5 Jamie had stomach pain for three days and stayed out of
school.36 He did not tell his parents about the assault at that time.'37 When Jamie returned to school,
he told his counselor, Ms. Hanson, exactly what had happened.33 Hanson referred Jamie to the
school's police liaison, Dan Crawford, who maintained an office at the school.'39 Jamie spoke to
Crawford and told him he wanted to press charges, but Crawford dissuaded him by promising that he
would speak to the abusive students and that it would stop.40 Some minor punishment was imposed
on some students but at least three of the principal abusers, including Huntley, Roy Grande and Ryan
Goulan, continued the abuse. 4' Suspensions were not imposed. 42
The lack of “clearly established law” for LGBT minorities makes it extremely difficult to use
equal protection or due process protections in qualified immunity cases. LMW.
Wagner, Robin, B, (DePaul College of Law, Civil Law Expertise) Are Gay Rights Clearly
Established?: The Problems with the Qualified Immunity Doctrine, DePaul Law
Review (2014)
Furthermore, it is challenging to evaluate what rights exist in the rapidly changing landscape of
legislation relating to sexual minorities, state and federal court decisions on specific issues like
marriage and adoption, and social discourse on gay rights. Equal protection—the right associated
with the Gill, Lathrop, and Ambris decisions—traditionally focuses on an individual and her immutable
characteristics, such as race, gender, or national origin, although it has also been used to address the
rights of individuals sharing traits detested by the majority.97 One’s conduct, by contrast, is more
often associated with Due Process Clause protections of a liberty right, such as privacy, education, or
child rearing.98 Despite such distinctions, these rights and the analysis of them are often intertwined.
“Gay rights cases ‘just can’t be steered readily onto the strict scrutiny or the rationality track,’ let alone
onto the due process/conduct or the equal protection/status track.”99
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Qualified immunity allows courts to ignore precedents for LGBT rights. LMW.
Wagner, Robin, B, (DePaul College of Law, Civil Law Expertise) Are Gay Rights Clearly
Established?: The Problems with the Qualified Immunity Doctrine, DePaul Law
Review (2014)
It is tempting when reviewing how courts have misunderstood the Romer and Lawrence decisions to
criticize the Supreme Court decisions for their avoidance of the traditional equal protection and due
process analyses. The lack of levels-of-scrutiny language has indeed provided an excuse for the
lower courts to misinterpret and misapply the holdings. It is also tempting to call on Congress to enact
legislation that would include sexual orientation as a classification protected by civil rights laws like
Title VII. However, enough courts have correctly understood Romer and Lawrence as clearly
established constitutional protections for sexual minorities. Rather, the problem in vindicating these
rights in court lies with the qualified immunity doctrine. The Supreme Court’s growing mistrust of
anything short of a perfect consensus among circuits could allow less conscientious courts to
undermine these high-court precedents on a national level. Furthermore, because prong-one-only
rulings can create opportunities for both parties to appeal, district courts may be reluctant to engage
in the hard work of finding a violation when a second-prong ruling that the violation was not clearly
established would more often close the dispute and avoid appeal.
This has already empirically occurred in cases involving government officials other than
police officers. LMW.
Wagner, Robin, B, (DePaul College of Law, Civil Law Expertise) Are Gay Rights Clearly
Established?: The Problems with the Qualified Immunity Doctrine, DePaul Law
Review (2014)
In three cases of government officials denying their homosexual employees their clearly established
equal protection rights, three different courts in three different circuits arrived at different conclusions
regarding the availability of qualified immunity to the defendants.214 These three cases demonstrate
that the qualified immunity doctrine fails to serve its purpose of holding government officials
accountable for violations of clearly established rights, but otherwise protecting them from
unnecessary lawsuits that would distract them from their ministerial responsibilities.
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Since the harms of being “outed” as LGBT are predominantly emotional, the courts regard
them with less importance. LMW.
Weinstein. Brad. (B.A., Cornell University, 2001; candidate forJ.D., Cornell Law School,
2005; Senior Note Editor, Volume 90, Cornell Law Review) A Right with No
Remedy: Forced Disclosure of Sexual Orientation and Public Outing under 42
U.S.C. 1983. Cornell Law Review. 2005.
As discussed above, 15 1 perhaps the most difficult harm to quantify for purposes of a § 1983 action
is emotional distress. This difficulty stems from the fact that "[e]motional harms are unquantifiable,
irrational, inconsistent, and not easily subjected to a cause and effect analysis [and] . . . [our system
of jurisprudence tends to be concerned with quantifiable, rational, consistent and predictable results."'
52 Yet, an emotional response is the most likely harm to result from the threat of or actual disclosure
of one's sexual orientation. 1 5 3 These measurement problems ensure that the emotional distress
associated with disclosure of sexual orientation is not likely to be a compensable injury in a § 1983
claim.154
This also makes it unlikely for LGBT individuals to be awarded satisfactory damages. LMW.
Weinstein. Brad. (B.A., Cornell University, 2001; candidate forJ.D., Cornell Law School,
2005; Senior Note Editor, Volume 90, Cornell Law Review) A Right with No
Remedy: Forced Disclosure of Sexual Orientation and Public Outing under 42
U.S.C. 1983. Cornell Law Review. 2005.
The colorful and extraordinary facts in Sterling may obscure the difficulties of establishing damages
under § 1983. Where the plaintiff suffers a less tangible harm than in Sterling, such as depression or
a forced resignation from work, § 1983 analysis is murky and often unmanageable. There are various
environments in which a threat of disclosure may exist, and in each, courts applying § 1983
encounter several serious hurdles. For instance, where does the causal chain begin and end? What
kind of injury would suffice for recovery? These questions highlight the barriers to recovery in § 1983
litigation as applied to cases of threatened or actual forced disclosure of sexual orientation. Even if
the plaintiff proves a constitutional violation, the actual damages recoverable under § 1983 wildly
vary. Within the framework of common law tort,64 an aggrieved plaintiff who presents a meritorious
constitutional claim may recover either nominal, compensatory, or punitive damages.65 If the
government official violated a constitutional right but inflicted no actual physical or emotional
damages, the court will award the plaintiff only nominal damages, usually in the amount of one
dollar.6
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The difficulty of proving causation also makes it difficult for LGBT individuals to win
qualified immunity cases. LMW.
Weinstein. Brad. (B.A., Cornell University, 2001; candidate forJ.D., Cornell Law School,
2005; Senior Note Editor, Volume 90, Cornell Law Review) A Right with No
Remedy: Forced Disclosure of Sexual Orientation and Public Outing under 42
U.S.C. 1983. Cornell Law Review. 2005.
Causation-The Proximate Cause Problem As in common law tort, the plaintiff in a § 1983 action has
the burden of establishing a causal link between the injury and the unlaw ful conduct.' 16 Specifically,
the plaintiff "must allege specific, concrete facts demonstrating that the challenged practices harm[ed]
him."' 17 Further, the plaintiff must establish a reasonable causal link between the defendant's
conduct and the constitutional right deprived.' I8 Moreover, where this relationship does not exist, the
plaintiff may not even have standing in federal court in an action against that defendant. 19 The
causal link in Sterling is self-evident. Marcus Wayman left a note for his grandfather saying: "I'm sorry
Grandpa, I found my future. I won't let everyone's life be ruined by mine."120 The last line of Marcus's
note, expressing the fear that disclosure would harm not only his own life, but the lives of his family,
provides a clear causal connection. In reality, however, most cases probably do not have this sort of
unmistakably expressed statement to satisfy the causal requirement. One significant problem in
determining causation is establishing proximate cause. An intervening event in the causal chain of
events destroys proximate cause, 121 as does a situation in which the consequences of the
constitutional deprivation is wholly unforeseeable.122 For instance, if an officer threatens to disclose
an individual's sexual orientation and then, prior to doing so, a third party reveals the individual's
sexuality, the initial threat may not be seen as the proximate cause of the injury.'23
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Constitutional Violations
The exclusionary rule allows for the fourth amendment to be violated. DJS.
Urbonya, Kathryn R.(Profesor of Law at College of William and Mary) "Problematic
Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a
Police Officer's Use of Excessive Force." Temple Law Review 62.1 (1989): 61-116.
In Leon, the Court articulated two standards of reasonableness as it created a good faith exception to the
exclusionary rule, a judicially created remedy that prohibits the prosecution from introducing illegally seized
evidence during a criminal proceeding. The Leon Court stated that even if a search was unreasonable within the
meaning of the fourth amendment, the evidence seized pursuant to an invalid warrant may be admitted if the
police officer's seizure was ''objectively reasonable."
170
In creating an objective good faith exception to the
exclusionary rule, the Court tied its application of the exclusionary rule to the application of the Harlow
qualified immunity standard. The Court stated that an officer's reliance upon a magistrate's decision to issue a
warrant must be "objectively reasonable," as defined by the Harlow standard. In making this connection, the
Leon Court stated that police officers must have a reasonable knowledge of the law. The Court framed the
question as "whether a reason- ably well trained officer would have known that the search was illegal despite
the magistrate's authorization."174
Police can exert qualified immunity by getting entering a house without a warrant. DJS
Urbonya, Kathryn R.(Profesor of Law at College of William and Mary) "Problematic
Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a
Police Officer's Use of Excessive Force." Temple Law Review 62.1 (1989): 61-116.
The Malley Court's interpretation of the Harlow standard was not surprising because the Leon Court had
previously discussed the Harlow standard. Malley, like Leon, stated that reliance on a warrant must be
objectively reasonable. In Anderson v. Creighton,
a warrantless search case, the Court's interpretation of the
Harlow standard was not inextricably tied to its decisions in Leon and Ma/ley
9
In determining that police
officers could assert qualified immunity for a warrantless search of an individual's home, the Anderson Court
expanded the scope of immunity by broadly interpreting Harlow's standard of objective reasonableness for
fourth amendment claims. The expansion occurred because of the Court's definition of "clearly established
law," its unwillingness to be controlled by the language of the fourth amendment, its explicit rejection of
relating the scope of immunity to an official's discretion and responsibilities, and its recognition that discovery
at times may be necessary to resolve summary judgment motions asserting qualified immunity.
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Courts affirm excessive force violates fourth amendment. DJS
Urbonya, Kathryn R.(Profesor of Law at College of William and Mary) "Problematic
Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a
Police Officer's Use of Excessive Force." Temple Law Review 62.1 (1989): 61-116.
The Court stated that officials "seize" a person within the meaning of the fourth amendment whenever they
restrain that person's ability to walk away. To determine the constitutionality of a seizure, the Court asserted, a
court must consider the totality of the circumstances when balancing "'the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the importance of the governmental interests alleged to
justify the intrusion.' " In examining whether officers may use deadly force to seize a fleeing suspect, the Court
held that the fourth amendment permitted the use of deadly force as a reasonable response if the suspect
threatened the officers with a weapon or if the officers had "probable cause to believe that [the suspect had]
committed a crime involving the infliction of serious physical harm."
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Courts Bad
Court system is flawed because of qualified immunity DJS
Jeffries, John C. (Dean of University of Virginia Law School) "The right-remedy gap in
constitutional law." The Yale Law Journal 109.1 (1999): 87-114.
The rhetoric of constitutional law looks to the past. It emphasizes fidelity to precedent, respect for tradition, and
acceptance of prior practice. Constitutional argument regularly invokes the intent of the Framers, even when
they had none,33 and uses a variety of techniques for claiming continuity while embracing innovation.
Sometimes the past is described at such a high level of abstraction that the reference has no meaning.34
Sometimes precise and detailed description deployed to resolve unrelated questions.35 Sometimes the Court
finds elaborate instructions in legislative silence;36 at other times, the Court ignores a silence that speaks loud
and clear.37 And sometimes, of course, the Court simply imagines a prior history to suit current needs.38
Qualified immunity is often evoked with no meritseven on Supreme Court DJS
Beermann, Jack M. (Professor of Law at Boston University) "Qualified Immunity and
Constitutional Avoidance."Supreme Court Review 2009.1 (2009): 139-179.
The most noteworthy aspect of Justice Alito’s opinion is the absence of an explanation for not reaching the
merits in Pearson before finding that the defendants were entitled to qualified immunity. The opinion leapt
directly from the catalog of costs and benefits of the Saucier procedure to an analysis of whether the law was
clearly established. Although the Court’s analysis of those benefits and costs may contain hints concerning the
types of cases in which the merits should or should not be reached, there is no explicit discussion of the issue.
The opinion simply ignores the issue. It contains no standard for lower courts (or the Court itself) to apply in
deciding whether to reach the merits.
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There is no accurate way to determine the monetary amount that the plaintiff should be
awarded in qualified immunity cases. LMW.
Levinson. Daryl. (Associate Professor, University of Virginia School of Law) “Making
Government Pay: Markets, Politics, and the Allocation of Constitutional Costs
2000
To further complicate matters, the mismatch between compensatory damages and constitutional
wrongdoing is not just qualitative, but quantitative as well. Corrective justice possesses the greatest
intuitive appeal where the wrongful gains and losses are proportional, paradigmatically where the
wrongdoer appropriates property from the victim and then is made to return it (or to disgorge
something of determinately equivalent value).218 Under the current system of constitutional tort
damages, however, the relationship between wrongful gains and losses is seldom proportional and
often entirely arbitrary. Con- 219 sider two cases of free speech violations. In the first case, govern-
ment enforces an ordinance prohibiting "live entertainment" against an adult entertainment
establishment featuring nude dancing, forcing it out of business. In the second, the government
breaks up a peaceful political demonstration in order to squelch criticisms of the current
administration. On most understandings of the values protected by the First Amendment, the
"wrongdoing" inflicted by the second violation far exceeds that inflicted by the first. ° To the extent that
the wrongfulness of the government's activity in the two cases correlates with its (or society's)
wrongful gains, corrective justice may require proportionality of compensation. Yet the plaintiff in the
first case could be entitled to substantial constitutional tort damages, compensating him for the
financial loss of his business. The plaintiffs in the second case, in contrast, would be hard pressed to
prove any substantial injuriesat best, they might collect some money for dignitary or emotional harms.
Because the losses suffered by the individual victims in these cases are merely coincidental to the
constitutional harms inflicted on society as a whole, and correspondingly coincidental to the
government's (or, again, society's) wrongful gain, there is no morally significant relationship between
the constitutional wrongdoing and the level of monetary damages.
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The qualified immunity process is unnecessarily confusing and difficult for the courts.
LMW.
Eskow and Cole. Lisa, Kevin (*Associate, Bickerstaff, Heath, Smiley, Pollan, Kever &
McDaniel, L.L.P., Austin, Texas. J.D., Stanford Law School, 1996, -Partner,
Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., Austin, Texas. J.D.,
University of Texas, Austin, 1990) “The Unqualified Paradoxes Of Qualified
Immunity: Reasonably Mistaken Beliefs, Reasonably Unreasonable Conduct, And
The Specter Of Subjective Intent That Haunts Objective Legal Reasonableness”
Baylor Law Review 1998
While the concept of the "reasonably mistaken belief' has given some courts pause, the paradoxical
notion of "reasonably unreasonable conduct" has stopped courts in their tracks. In the Fourth
Amendment context, where reasonableness is the touchstone for a constitutional search, arrest, or
use of force," courts have had great difficulty analytically separating the two steps of the qualified
immunity inquiry-i.e., differentiating between step one, the plaintiff's demonstration of the violation of a
clearly established constitutional right, and step two, the defendant's showing of the objective legal
reasonableness of the conduct notwithstanding the violation .4
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Econ
Qualified Immunity is not allocatively effective of governments moneys DJS
Dunahoe, Alexandra White.(Law Clerk for the United States Court of Appeals)
"Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence
Economics and Transitory Prosecutors."NYU Ann. Surv. Am. L. 61 (2005): 45.
With the publication of Posner’s seminal treatise on the subject, the developing law and economics discourse
was trans- formed into a coherent legal theory.
By demonstrating the primacy of efficiency, or the “allocation of
resources in which value is maximized” in the law,Posner argued that “many legal doctrines rest on inarticulate
groping’s toward efficiency.”… his model of efficiency is concerned not with whether a potential reallocation
will make certain individuals worse off, but rather with whether society’s aggregate utility has been
maximized.Thus, under the Kaldor-Hicks definition, a transaction or reallocation is efficient if the winners
could compensate the losers, whether or not they actually do.
Posner broadly describes Kaldor-Hicks efficiency
as “wealth maximization,” and he employs the concept to lay the foundation for his comprehensive economic
analysis of the common law, public law, business law, wealth and income distribution, legal process, and even
constitutional law.
Fines and other economic sanctions against the government fail DJS
Dunahoe, Alexandra White.(Law Clerk for the United States Court of Appeals)
"Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence
Economics and Transitory Prosecutors."NYU Ann. Surv. Am. L. 61 (2005): 45.
Economic analysis of prosecutorial misconduct is helpful in defining and conceptualizing both the nature of the
problem as well as the propriety of alternative proposed solutions. Within this context, we might view
efficiency goals on two inter-related levels. The first level focuses on imposing sanctions as a means of
obtaining the appropriate level of behavior by prosecutors (meaning the care and attention that prosecutors
devote to not infringing upon both the rights of the accused and the legal, ethical and professional strictures
operating upon their office). The second level focuses on ensuring that such sanctions do not unnecessarily
reduce the level of the activity involved (meaning both the number of instituted criminal prosecutions and the
aggressiveness, for lack of a better word, of the prosecution itself).
Excessive fines or sanctions will produce
inefficiency on both levels.
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Constitutional violations don’t warrant monetary sums of money given to defendants DJS
Nahmod, Sheldon.(Professor of Law at University of Chicago) "Constitutional Damages and Corrective
Justice: A Different View." Virginia Law Review (1990): 997-1022.
Jeffries argues that the affirmative defense of qualified immunity, inasmuch as it implicates negligence,29
constitutes the primary fault element in section 1983 litigation involving individual liability for compensatory
damages.30 Because of this, he goes on to reject the position that "any violation of the Constitution is an act of
wrongdoing" that is inherently a fault for which corrective justice requires compensation.31 He then concludes
that "there is . . . no noninstrumental basis for compensatory liability without proof of fault."32
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Police Brutality
Qualified immunity leads to an abuse of power by police DJS
Rudovsky, David. (University of Pennsylvania Law School Senior Fellow). "The Qualified
Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of
Constitutional Rights." University of Pennsylvania Law Review 138.1 (1989): 23-81
In City of Los Angeles v. Lyons,6 1 the Court refused to grant injunctive relief to a plaintiff who had suffered
permanent physical injuries when a police officer administered a "chokehold" in effecting an arrest, even
though the record demonstrated that this police practice was commonly used in circumstances not justifying
such force. 62 The practice had caused sixteen deaths during a period of several years. 6' The Court determined
that the past injury had no continuing effects sufficient to provide standing for prospective relief and that the
plaintiff was unable to show that he, as opposed to any other citizen, would again suffer the same
unconstitutional conduct.64 Of particular significance to the Court was Lyons' failure to show that the
chokehold was authorized by city policy.65 The Court viewed the use of the chokehold in the circumstances of
the particular case, in which the plaintiff alleged no provocation or resistance on his part, as aberrational and
unauthorized. 6 Equitable relief was justified only if "the City ordered or authorized police officers to act in
such manner."67
Qualified Immunity is essentially a large blanket to protect police brutality from prosecution
DJS
Rudovsky, David. (University of Pennsylvania Law School Senior Fellow). "The Qualified
Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of
Constitutional Rights." University of Pennsylvania Law Review 138.1 (1989): 23-81
Harlow's standard was broader than necessary, immunizing actions which an official in some circumstances
could reasonably be expected to know violate constitutional rights. By focusing on the applicable legal norms,
however, it had the virtue of limiting immunity to situations where officials were most likely acting without
specific constitutional guidance. 16 What is particularly troubling about Anderson, therefore, is the adoption of
a standard that looks to whether the conduct had been previously clearly proscribed in a setting where the
constitutional standard itself is defined by notions of reasonableness.' 64
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New accountably does nothing to stop police from misconduct DJS
Chan, Janet (Profesor of Criminology at the University of Sidney) BL. "Governing police
practice: limits of the new accountability."The British journal of sociology 50.2
(1999): 251-270.
If the new accountability represents the aspirations of advanced liberal democratic societies to govern ‘at a
distance’, then the NSW experience suggests that these aspirations are not always translated into practice, but as
Miller and Rose (1990: 10–11) note, failure is an integral component of ‘government’, even though the ‘will to
govern’ is unshaken. The new accountability’s project of managing the risk of official misconduct is continually
frustrated by evidence of its failure and the attendant swing back to punitive control strategies. Police
accountability is demanded more aggressively now in New South Wales than ever: while people have lost trust
in the integrity of their public institutions, they continue to place their trust on the promises of more and better
accountability which has repeatedly failed them.
5
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Application Fails
Qualified immunity legally fails in a suitit’s a two way street not a one way DJS
Chen. A. K. The Burdens Of Qualified Immunity: Summary judgment And The Role Of
Facts In Constitutional Tort Law” The American University Law Review. 1994.
In institutional terms, [the] relationship [between injury and negligence] is expressed by the lawsuit between the
parties, with its assumption that the transference of a single sum can simultaneously satisfy the plaintiffs
entitlement against the defendant and discharge the defendant's debt to the plaintiff. If a parallel doctrinal
relationship exists, particularization of the plaintiff through causation must allow for linkage to the defendant,
and particularization of the defendant through wrongdoing must similarly allow for linkage with the plaintiff.79
A standard needs to be created for qualified immunity DJS
Hassel, Diana. (Professor of Law at Roger Williams University) "Living a Lie: The Cost of
Qualified Immunity." Mo. L. Rev 64 (1999): 123.
The threshold step in applying the qualified immunity defense is determining whether the facts the plaintiff has
asserted establish the violation of a constitutional right.
6
The court addresses this question before moving on to
the more nuanced analysis of the remainder of the standard: "In analyzing qualified immunity claims, we first
ask if a plaintiff has asserted the violation of a constitutional right at all, and then assess whether the right was
clearly 67 6 established at the time of the defendant's actions. In Barneyv. Pulsipher, for example the court
considered whether the defendant's actions violated the Eighth Amend mentor the Equal Protection Clause. If
the plaintiff's claims do not state a violation of the law, the court need not reach the issue of whether clearly
established law was violated.
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The individual violation/general compensation system of qualified immunity is paradoxical.
LMW
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) Shoe-Horning, Shell Games, And Enforcing Constitutional Rights In
The Twenty-First Century. UMKC Law Review. 2010
There is something deeply ironic about a system of constitutional litigation that requires showings of
individualized harm in order to satisfy requirements of justiciability, standing, and causation, but that
then veers away from individualized compensation in favor of general deterrence as the primary,
verging on the sole, value to be served by litigation. Most recently, in Pearson v. Callahan,74 the
Court abandoned the requirement, adopted in Saucier v. Katz,75 that courts first address the
question whether a plaintiff had alleged or established a constitutional violation before addressing the
defendant's entitlement to qualified immunity. Regardless of how one resolves the empirical debate
over whether the Saucier two-step "order of battle" ultimately results in more or less expansive
interpretations of constitutional rights,7 6 it undeniably contributes to the elaboration of constitutional
doctrine that will influence future government action.77
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Citizens are harmed
Qualified Immunity treats citizens as inferiors to the government DJS
Pierce, Clay J. "Misapplication of Qualified Immunity: Unfair Procedural Burdens for
Constitutional Damage Claims Requiring Proof of the Defendant's Intent, The."
Fordham L. Rev. 62 (1993): 1769.
Eventually, it became clear that litigating issues regarding defendants' knowledge of the law imposed too great a
burden on government officials.
6
" Because lower courts construed issues regarding defendants' knowledge of
the law as questions of fact, it was extremely difficult for defendants to have frivolous cases dismissed at the
summary judgment stage.
62
As a result, officials were exposed to trial as well as to broad ranging discovery,
both of which the Harlow Court regarded as "pecu
liarly
disruptive
to effective
government.,
Prosecutable Misconduct happens, and citizens are hurt as a result DJS
Dunahoe, Alexandra White.(Law Clerk for the United States Court of Appeals)
"Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence
Economics and Transitory Prosecutors."NYU Ann. Surv. Am. L. 61 (2005): 45.
A review of the scholarship analyzing the problem of prosecutorial misconduct suggests that the primary
concern centers on that deliberate, flagrant, pervasive, and prejudicial prosecutorial abuse which denies a
defendant’s constitutional right to a fair trial, and is frequently committed by repeat prosecutorial offenders.
97
The reason for this concern, and the prosecutorial actions implicating such concerns, appears more contentious.
Most obviously, the “right to a fair trial” embodies and implicates the procedural protections found in the Fifth,
Sixth, and Fourteenth Amendments. Yet, in individual cases, rights that are generally of great significance may
be entirely trampled upon with little or no overall effect on the fairness of the proceeding. Sometimes these
violations are encompassed under the doctrine of harmless error. Yet many scholars still decry this “harmless”
prosecutorial misconduct, apparently operating from the view that a measure of a fair trial is its adherence to
stated processes.
Thus, to some extent, departing from the functional approach to prosecutorial immunity in
favor of delineating specific categories of prosecutorial misconduct subject to sanction will undoubtedly prove
controversial.
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Neg Evidence
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More Effective Police Force
Qualified Immunity helps police not stress about actions in split second decisions DJS
Groer, Maureen, (Professor at South Florida College of Nursing) et al. "Salivary measures
of stress and immunity in police officers engaged in simulated critical incident
scenarios." Journal of Occupational and Environmental Medicine 52.6 (2010): 595-
602.
Interventions for police officers for recognizing and coping with occupational and life stress have, until
recently, been fairly conventional. Crisis intervention strategies using peer support groups have been used.
8
Psychologic therapy and anger manage- ment programs have been made available and many precincts have
counselors on staff. Self-help books for stress management have been written for police officers. Often police
officers do not avail themselves of these approaches, as they tend to hold in their feelings and distress to
maintain their “America’s finest” personal.
The purpose of Qualified Immunity is to minimize wasted time in court so that police officers
can do their job . LMW.
Chen. Alan. K. (Professor, University of Denver Sturm College of Law) “The Facts About
Qualified Immunity” Emory Law Journal. 2006.
The Court's absolute immunity doctrine is driven in part by a concern that officials who perform these
functions are highly likely to be subject to suits from persons disgruntled by their actions, such as
criminal defendants, prisoners, losing litigants, and the minority side in the legislative process. Implicit
in this assumption is that many or most of these claimants' actions will be vindictive nuisance suits.
According to the Court, without immunity, officials performing these functions would likely be
inundated by such claims, overwhelming them and interfering with their ability to perform their jobs.26
One of the putative advantages of the Court's categorical, functional approach to absolute immunity is
that it facilitates prompt resolution of such claims at an early stage in the lawsuit.27 Presumably, this
minimizes the aggravation imposed on officials who are sued.
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Court cases suggest that without qualified immunity police officers would be deterred from
acting for the public good. LMW.
Chen. Alan. K. (Professor, University of Denver Sturm College of Law) “The Facts About
Qualified Immunity” Emory Law Journal. 2006.
The Court's earlier cases suggested that qualified immunity protects officials from the unfairness of
being sued for performing their public duties, particularly when the line between constitutional and
unconstitutional conduct is often unclear.34 They also asserted that qualified immunity is necessary
to guard against "overdeterrence," the idea that exposure to liability will deter officials not only from
unconstitutional actions, but also from lawful conduct that advances the public good.
The various pressures on police officers make the early dismissal of cases through qualified
immunity crucial. LMW.
Rosen. M. (Michael M. Rosen is an attorney in San Diego at Fish & Richardson PC, an
intellectual property law firm. In 2003-2004 he served as a law clerk to The Honorable
Marilyn L. Huff, Chief Judge of the U.S. District Court for the Southern District of
California.) “In Support Of The Doctrine Of Qualified Immunity In Excessive Force
Cases, With Some Suggestions For Its Improvement” Golden Gate University Law
Review. 2005
Public policy seeks to balance the need to protect law enforcement officers from frivolous lawsuits
against the desire to support citizens in serious ones. This section addresses various data and policy
arguments presented by police unions and others in favor of early dismissal of unworthy cases. Most
importantly, these arguments revolve around costs and deterrence. Groups like the National
Association of Police Organizations ("NAPO") argue that litigation against law enforcement has
proliferated over the years and that officers and/or their employers are forced to spend increasing
amounts of money defending against frivolous suits. They also argue that the specter of a trial
negatively affects officers' behavior on the job in a serious way." The trend of "depolicing" or of
civilian municipal leadership failing to support the efforts of law enforcement has exacerbated the
situation, as was evident from an interview I conducted with Detective Jesse H. Grant, an Oakland,
California, police officer. ,.
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The majority of cases against police misconduct are not brought to court by innocent citizens
but by criminals already being prosecuted. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) Shoe-Horning, Shell Games, And Enforcing Constitutional Rights In
The Twenty-First Century. UMKC Law Review. 2010
The Fourth and Fifth Amendments' constraints on police practices are enforced largely as defenses to
criminal Prosecutions, rather than as claims for relief in independent civil proceedings. I have
questioned elsewhere the systemic deflection of attention away from "law enforcement behavior that
does not directly undergird criminal prosecutions-such as the harassment of innocent citizens or even
the use of substantial physical force to arrest criminal suspects., 54 But the fact that criminal
defendants, unlike other individuals who wish to challenge police practices, are provided with counsel
combines with a range of incentives, some good and some perverse, to lead appointed counsel to
devote a substantial share of their efforts to motions seeking to exclude unconstitutionally obtained
evidence. 55
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Reduces Government Spending
Abolishing Qualified Immunity would increase government spending. LMW.
Fallon and Meltzer. R. D. (Harry M. Cross Distinguished Visiting Professor of Law,
University of Washington; Pro- fessor of Law, Harvard University. ** Professor of
Law, Harvard University.) Harvard Law Review. June 1991
In addition, it is not always easy for even a well- administered government to absorb the costs of all of
its officials' constitutional violations. Consider the conundrum confronting a state tax official who is
advised that there is one chance in ten that a tax will be invalidated. Efforts to persuade the
legislature to amend the law may be improvident, and perhaps futile as well,338 and insurance is
likely to be unavailable. For a police chief who is aware of a similar risk that an effective investigative
technique may be invalidated, insurance could not possibly protect against the risk that criminal
convictions will be reversed on constitutional grounds. Were lightning to strike, however, the cost to
the state could be overwhelming.
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Flexible
The dominant qualified immunity approach allows the courts to make decisions based on
societal needs rather than current law. LMW.
Achtenberg. D. (Assistant Professor of Law, University of Missouri) Legal Theory: Immunity Under 42
U.S.C. § 1983: Interpretive Approach And The Search For The Legislative Will. Northwestern
Law Review. 1992
Under the currently dominant approach, Justices implicitly treat the statute as having authorized the
Court to develop principles of immunity under § 1983 based solely on its own view of sound public
policy. Under this approach, neither the text nor the common law is seen as significantly restricting
the Court’s freedom to expand or contract the contours of § 1983 immunity doctrine. These
approaches represent a continuum of diminishing jurisprudential conservatism. As one moves along
that continuum from the Literalist Approach to the Delegation Approach, one sees less deference to
statutory language and congressional intent, less belief that law is fixed and unchanging, and less
commitment to the notion that the judicial function is a merely mechanical one of “finding” the law.
One sees greater willingness to let decisions be affected by changing societal needs and by the
Justices’ individual views of sound public policy.
The courts throughout history prove flexibility of qualified immunity DJS
Hooi, Michael J. (Law Professor at The University of Florida) "Qualified Immunitity:
When is a Loss Ultimately a Win?."Florida Law Review 60.4 (2012): 979.
Yet, by explaining that Garner did not clearly establish a right that controlled the outcome in Scott,
the Court
showed that the two Saucier inquiries can overlap. The Scott Court, accordingly, had the opportunity to
reconsider Saucier’s fixed order of battle.
The Court could have used Scott as precedent to allow the lower
federal courts to conduct the Saucier inquiries in the order that they find appropriate under the circumstances of
the individual cases before them.
The Scott Court could have done that by not announcing the new rule.
But by
announcing the new rule, the Scott Court further developed individual rights.
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There is a two-step process for qualified immunity DJS
Hooi, Michael J. (Law Professor at The University of Florida) "Qualified Immunitity:
When is a Loss Ultimately a Win?."Florida Law Review 60.4 (2012): 979
The Supreme Court disagreed and established a two-step “fixed order- of-battle rule”
for the federal courts to
follow in qualified immunity cases. The first step is to determine “whether a constitutional right would have
been violated [by the officer] on the facts alleged.” If not, then the officer is entitled to qualified immunity.
But
if so, then “the next, sequential step is to ask whether the right was clearly established” when the alleged
violation occurred.
Unless the right was clearly established, the court will grant qualified immunity.
The Saucier
Court believed that the legal standards for officer conduct would be more clearly developed through case law
with the fixed order of battle than without it.
Qualified Immunity in its nature is subjective and can evolve DJS
Hassel, Diana. (Professor of Law at Roger Williams University) "Living a Lie: The Cost of
Qualified Immunity." Mo. L. Rev 64 (1999): 123.
[Qualified immunity] allow[s] the decision maker to take into account all relevant factors or the totality of the
circumstances. Thus, the application of a standard in one case ties the decision maker's hand in the next case
less than does a rule-the more facts one may take into account, the more likely that some of them will be
different the next time.
6
'
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Courts would limit Constitutional rights
Limiting qualified immunity would encourage courts to limit constitutional rights instead.
This is empirically proven. LMW.
Fallon. R. H. (Ralph S. Tyler, Jr. Professor of Law, Harvard Law School) “Asking the
Right Questions About Officer Immunity” Fordham Law Review. 2011
As another possible response to a world without official immunity, the Supreme Court might diminish
the scope of at least some substantive constitutional rights. Indeed, I think I can identify cases in
which the Court has already trimmed the scope of constitutional rights for the purpose of stemming
what it has regarded as an undue flood of suits for damages into federal court. Expressing concerns
that the Due Process Clause should not become a font of tort law, the Court held in Paul v. Davis48
that a plaintiff whose name and photograph had been included in a police flyer identifying active
shoplifters had not alleged an actionable due process violation because mere harm to reputation
does not count as a deprivation of constitutionally protected “liberty.”49 Paul’s narrow interpretation of
the due process right, which found little support in prior decisions,50 was almost certainly “motivated
by concerns about the section 1983 remedy” and the social costs of “the wholesale federalization of
tort claims against state and local government officials and the corresponding prospect of massive
damages liability.”51 The Court further narrowed its interpretation of constitutionally protected due
process rights, apparently in response to the same concern, in Parratt v. Taylor,52 which held that
random and unauthorized deprivations of liberty and property do not violate the Due Process Clause
unless and until a state has failed to provide post-deprivation corrective process.53 46. See Fallon &
Meltzer, supra note 10, at 1779–87. Again voicing concerns about the social costs of permitting §
1983 and the Due Process Clause to become fonts of tort law, the Court pared back the scope of
previously recognized due process rights once more in Daniels v. Williams,54 which held that merely
negligent deprivations of liberty and property do not violate the Fourteenth Amendment.55 With the
Court having shrunk the scope of the due process guarantee in Paul, Parratt, and Daniels, it is easy
to imagine the Justices similarly circumscribing other rights if, in the absence of official immunity, they
regarded the social costs of damages actions as too high. For example, the Court could plausibly
respond to a flood of suits seeking damages for unreasonable searches and seizures by holding that
if any reasonable person could think a search reasonable, it is not unreasonable.56
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Courts are how a government solves injustices DJS
McCarthy, Thomas.(Professor of Political and Social Philosophy at Northwestern)
"Coming to terms with our past, part II on the morality and politics of reparations
for slavery." Political Theory 32.6 (2004): 750-772.
But it is not only monetary compensation that they seek: nonmonetary forms of redress are equally important,
both “material”—for example, programs, policies, and institutional reforms designed to correct inequalities in
housing, health care, education, job training, and the like—and “symbolic”—for example, public
acknowledgments, official apologies, memorials, commemorations, museums, curricular reforms, and the like.
As in many of the other reparations struggles mentioned above, the ultimate aim is to involve the national
government in redressing, through legislation, the legacy of injustice in which it has been deeply implicated.
Judicial resources are a means to those ends
Qualified immunity protects police when constitutional violations are eminent DJS
Beermann, Jack M. (Professor of Law at Boston University) "Qualified Immunity and
Constitutional Avoidance."Supreme Court Review 2009.1 (2009): 139-179.
Repeated successful interposition of the immunity defense in similar cases could stunt the development of the
law and allow government officials to violate constitutional rights with impunity. This would happen when a
damages suit was the only realistic way to raise a constitutional issue .In such situations, the court would not
reach the merits of the constitutional claim if the right alleged was not clearly established at the time of the
challenged conduct.
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Stagnation of Law
Limiting qualified immunity causes constitutional stagnation DJS
Beermann, Jack M. (Professor of Law at Boston University) "Qualified Immunity and
Constitutional Avoidance."Supreme Court Review 2009.1 (2009): 139-179.
The Supreme Court’s elimination of the subjective element of the qualified immunity defense in constitutional
tort cases had the unanticipated effect of creating the potential for constitutional stagnation. The Supreme Court
has not yet successfully dealt with this problem. The Court’s most recent effort to address the problem is itself
highly problematic because it stated no standard that federal courts should apply in deciding whether to reach
the constitutional merits in any particular case.
The Scott Rule and its relevance DJS
Hooi, Michael J. (Law Professor at The University of Florida) "Qualified Immunitity:
When is a Loss Ultimately a Win?."Florida Law Review 60.4 (2012): 979
The Scott rule is therefore not the inefficient and unnecessary rule that it may appear at first to be. The rule is
fundamentally an extension of precedent. And although it seems counterintuitive, the Scott Court traveled the
path of least resistance by ruling on a constitutional question when that ruling might have been unnecessary to
resolve the case.
In so doing, the Court avoided the more challenging tasks of deciding whether to reconsider
Saucier and of determining a new standard of review for qualified immunity cases. Instead, the Court ensured
that future plaintiffs in excessive-force cases will continue to have their day in court. Thus, while Scott was a
loss for the individual plaintiff Harris, it was ultimately a win for the federal courts’ role in developing
individual rights.
Qualified immunity protects justice and the legal system DJS
Dunahoe, Alexandra White.(Law Clerk for the United States Court of Appeals)
"Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence
Economics and Transitory Prosecutors."NYU Ann. Surv. Am. L. 61 (2005): 45.
A similar analysis applies to the related method for coing prosecutorial abuses through professional disciplinary
sanctions. A frequently cited passage from Imbler v. Pachtman justifies immunizing prosecutors from civil
liability, in part, because of their peculiar amenability to discipline: “[A] prosecutor stands perhaps unique,
among officials whose acts could deprive persons of constitutional rights, in his amenability to professional
discipline by an association of his peers.”
119
Indeed, the most frequently articulated goals of professional
discipline systems coincide neatly with the goals of deterrence remedies for prosecutorial misconduct: the
protection of the public,
120
the protection of the administration of justice,
121
and the preservation of
confidence in the legal profession.
12
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Even if civilians do not win their qualified immunity cases, the refinement to the law may still
be valuable. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) The Paradoxical Structure Of Constitutional Litigation Fordham Law
Review. 2007
Wilson v. Layne itself illustrates an important point. Defendants may often still win: Having decided
unanimously that the Fourth Amendment is violated when media ride-alongs permit the press to enter
an individual's home when the police execute a warrant,53 the Court then determined 8-1 in the next
section of its opinion that the rule would not have been clear to a reasonable police officer before it
had announced it.54 But although the individual officer wins, and the plaintiff thus takes nothing, the
law has been refined and government officials-and more importantly, the agencies that employ them
(and that actually pay the costs of defending them even in these refining lawsuits)-are on notice that
they must change their conduct. That is probably why car chase shows have replaced COPS
episodes involving police confronting shady characters inside their homes.
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Fosters Rights and Oppurtunity
Qualified Immunity actually develops individual rights DJS
Hooi, Michael J. (Law Professor at The University of Florida) "Qualified Immunitity:
When is a Loss Ultimately a Win?."Florida Law Review 60.4 (2012): 979.
By articulating the rule, the Scott Court struck a balance between the often-competing values of maintaining the
judicial role of developing individual rights, and judicial efficiency.
88
Although the rule does not appear on its
face to identify any limits on what a police officer may do to stop a fleeing driver,
89
the Scott Court,
paradoxically, developed individual rights by attempting to clarify their scope vis-à-vis the use of force by
police officers.
9
Eliminating Qualified Immunity disincentivizes people from joining the civil services DJS
Mathes, William C., and Robert T. Jones. (Chief United States District Judge, and
Assistant United States Attorney) "Toward a Scope of Official Duty Immunity for
Police Officers in Damage Actions." Geo. LJ 53 (1964): 889.
There
is reason to think that the threat of civil liability might
dis-
courage
responsible people from entering
public service. Immunity
from
individual liability for performance of official police
duties should
remove
whatever deterrent here exists.
Qualified immunity is the basis for moral principles DJS
Chen. A. K. “The Burdens Of Qualified Immunity: Summaryjudgment And The Role Of
Facts In Constitutional Tort Law” The American University Law Review. 1994.
The constitutional
tort remedy furthers important values
by compensating
individuals harmed by
unconstitutional official
conduct
and
by deterring public officials from engaging
in future infractions
.
t
It also
recognizes the importance of constitutional rights
and
affirms respect for moral principles.
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Applications of Immunity
Qualified immunity has a high standard to be used DJS
Hassel, Diana. (Professor of Law at Roger Williams University) "Living a Lie: The Cost of
Qualified Immunity." Mo. L. Rev 64 (1999): 123.
Duncan Kennedy describes a rule as a legal directive that" requires [the judge] to respond to the presence
together of each of a list of easily distinguishable factual aspects of a situation by intervening in a determinate
way."
'55
In contrast, a standard is a legal directive that "requires the judge both to discover the facts of a
particular situation and to assess them in terms of the purposes or social values embodied in the standard."
56
The qualified immunity defense is a standard and thus shares the qualities of other legal standards.
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Protects Police
Qualified immunity does not allow actual harms to a person, unlike a state suit DJS
Dunahoe, Alexandra White.(Law Clerk for the United States Court of Appeals)
"Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence
Economics and Transitory Prosecutors."NYU Ann. Surv. Am. L. 61 (2005): 45.
Naming the prosecutor responsible for misconduct in a judicial opinion or otherwise is perhaps the most
personal sanction available. While this point requires little belaboring, the advantage that this carries is
noteworthy. Rather than attempting to impose sanctions on the prosecuting agency, or even the state, as a
whole, this method assures that the costs of prosecutorial misconduct will be felt individually by the offender.
Hence, censure and publicity effectively responds to Levinson’s critique that attempts to influence government
behavior by manipulating the cost-benefit calculus of high-level government officials may not always translate
into agency-wide change. Likewise, this approach serves to at least partially counterbalance the insulation that
assistant prosecutors enjoy from the political process.
115
Personal reprimands against low-level state
prosecutors, whose reputations are still in the formative stages, does provide one potentially useful approach to
manipulating the cost-benefit calculus of these individual state actors.
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Abolish
A federal judge advocates that qualified Immunity should be abolished. LMW.
King. Andrew. (Author at Mimesis Law, Law publication) “Keep Qualified
Immunity…For Now” Mimesis Law. 2016
In some ways, the screening mechanism is opposite of the procedural screening done under AEDPA.
At the pleading stage, qualified immunity often peeks over to the facts and, in large measure,
determines the severity of the alleged misconduct, dismissing the less severe conduct, such as mere
negligence. On the other hand, AEDPA leads to disposing of many claims without regard to the merit.
Although recently the Supreme Court has begun to throw up procedural hurdles in civil rights actions
too. Still, like AEDPA, it’s successful at screening out lawsuits early. In this light Judge Newman
makes three recommendations: But Congress needs to strengthen Section 1983 in three ways. First,
the defense of qualified immunity should be abolished. If an officer violates the Constitution, the victim
should win the lawsuit, just as he or she wins when hit by an officer negligently driving his vehicle.
Second, the city (or county or state) that employs the officer should pay a damage award, just as a
governmental employer pays for injury caused by an officer’s negligent driving. A jury would be more
willing to rule against a city than to make a police officer pay out of his own pocket. Third, the local
U.S. attorney, not just the victim of the unconstitutional conduct, should be authorized to bring the
suit. When federal law has been violated, a federal lawyer should act on behalf of the victim. A jury is
more likely to take the matter seriously if a U.S. attorney sues than when the victim is the plaintiff,
who can sometimes be perceived as a not very respectable member of the community.
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Aff Counters
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A2 Government Spending
Qualified immunity is inefficient and costly. LMW.
Chen. A. K. (Assistant Professor, University of Denver College of Law) “The Burdens Of
Qualified Immunity: Summary judgment And The Role Of Facts In Constitutional
Tort Law” The American University Law Review. 1994.
The open-ended nature of the immunity standard causes a paradoxical effect. Originally designed to
alleviate the social costs of constitutional tort litigation, qualified immunity instead has institutionalized
a cumbersome and costly system for resolving constitutional tort claims. This creates the ultimate
irony: a doctrine specifically designed to alleviate the social costs of constitutional tort litigation may in
fact have the opposite effect. The qualified immunity doctrine and the litigation surrounding its
application may actually be increasing the social costs of these cases, creating what can be called
"secondary burdens," the social costs associated with litigating immunity questions themselves.
Empirical evaluation of these costs may lead the courts to reassess the doctrine's policy ramifications.
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A2 Protects Police from Lawsuit
Police can still be sued even with qualified immunity DJS
Jeffries, John C. (Dean of University of Virginia Law School) "The right-remedy gap in
constitutional law." The Yale Law Journal 109.1 (1999): 87-114.
In practice, both absolute immunity and absolute liability are less important than they first appear. The
apparently categorical bar against state liability for constitutional violations can be evaded by suing state
officers.20 For reasons of pragmatic calculation rather than federal coercion, states and localities routinely
defend their employees against damage actions and indemnify them against adverse judgments.21 Thus, the
nominal immunity of states under the Eleventh Amendment and ? 1983 typically translates (indirect) state
liability via an officer suit, provided that the officer's qualified immunity can be overcome.22 Liability hinges
on proof of fault.
Because police officers rarely pay, qualified immunity isn’t justified to protect officers from
financial liability. LWZ
Joanna C. Schwartz, Assistant Professor of Law, University of California, Los Angeles,
School of Law. “Police Indemnification” New York University Law Review. Vol.
89:885. June 2014.
https://www.prisonlegalnews.org/media/publications/Police%20Indemnification%2
0Joanna%20Schwartz%20N.Y.U.%20L.%20Rev.%202014.pdf
Given that law enforcement officers in my study only rarely—and only in a few jurisdictions—contributed to
settlements or judgments, their median contribution was $2250, and no officer paid more than $25,000,259
qualified immunity can no longer be justified as a means of protecting officers from the financial burdens of
personal liability.260 Supreme Court doctrine supports the conclusion that there is less—if any—need for
qualified immunity if police officers are not financially responsible for settlements and judgments entered
against them. The Court has held that private prison guards are not entitled to qualified immunity in part
because private actors’ insurance “increases the like- lihood of employee indemnification and to that extent
reduces the employment-discouraging fear of unwarranted liability potential applicants face.”261 The Court has
also held that municipalities are not entitled to qualified immunity in part because concerns about the “injustice
. . . of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise
discretion”262 are “simply not implicated when the damages award comes not from the official’s pocket, but
from the public treasury.”263
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Lawsuits against the police are rare and have little effect. LWZ
Joanna C. Schwartz, Assistant Professor of Law, University of California, Los Angeles,
School of Law. “Police Indemnification” New York University Law Review. Vol.
89:885. June 2014.
https://www.prisonlegalnews.org/media/publications/Police%20Indemnification%2
0Joanna%20Schwartz%20N.Y.U.%20L.%20Rev.%202014.pdf
Indeed, some will contend that widespread indemnification, in combination with other characteristics of
policing and police misconduct litigation, reduces the deterrent effect of lawsuits nearly to zero. Officers across
the country engage in tens of millions of civilian inter- actions—and use force against civilians hundreds of
thousands of times—each year.267 Yet even people who believe the police have mis- treated them rarely take
legal action.268 And even when officers are sued, the suits have limited—if any—negative ramifications for
officers’ employment.269 Moreover, as Daniel Meltzer has observed, there are limited regulatory and other
external influences “reinforcing the incentive, created by potential tort liability, to avoid harm-causing
activities.”270
Deterrent effect does not affect police conduct. LWZ
Joanna C. Schwartz, Assistant Professor of Law, University of California, Los Angeles,
School of Law. “Police Indemnification” New York University Law Review. Vol.
89:885. June 2014.
https://www.prisonlegalnews.org/media/publications/Police%20Indemnification%2
0Joanna%20Schwartz%20N.Y.U.%20L.%20Rev.%202014.pdf
A critical question, then, in determining whether qualified immu- nity is necessary to protect against officer
overdeterrence is the extent to which officers’ behavior is influenced by the threat of being sued despite the near
certainty that they will be indemnified. John Jeffries commented, regarding his conversations with police officer
trainees at the FBI, that he was “struck by [officers’] aversion to being sued, even when they were confident
that no judgment would be satisfied from their personal resources.”279 Other studies have found law enforce-
ment officers and administrators “only worry moderately about work- related lawsuits filed by citizens.”280
And even officers who worry about being sued may not change their behavior as a result. Studies have found
that “the prospect of civil liability has a deter- rent effect in the abstract survey environment but that it does not
have a major impact on field practices.”281 One study, which involved both surveys and the observation of
thousands of encounters between officers and members of the public, concluded that officers who “initi- ated
aggressive behaviors . . . do not seem to be deterred to any sub- stantial extent by concerns about liability” and
that, contrary to assumptions about lawsuits’ deterrent effects, officers who had previ- ously been sued were
more aggressive than officers who had not.282 Some may argue that these studies show qualified immunity to
be per- forming its intended function—lessening the impact of the threat of liability on officer behavior. But if
officers’ mindsets regarding the prospect of being sued can be attributed to qualified immunity, the doctrine is
overperforming: Although qualified immunity is intended to protect against overdeterrence, available studies
indicate that officers’ behavior is currently not influenced to any substantial extent by the threat of litigation.
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Combined evidence undermines the rationale for qualified immunity. LWZ
Joanna C. Schwartz, Assistant Professor of Law, University of California, Los Angeles,
School of Law. “Police Indemnification” New York University Law Review. Vol.
89:885. June 2014.
https://www.prisonlegalnews.org/media/publications/Police%20Indemnification%2
0Joanna%20Schwartz%20N.Y.U.%20L.%20Rev.%202014.pdf
Evidence that police officers almost never financially contribute to settlements and judgments, evidence that
lawsuits have little nega- tive impact on police officers’ employment, and evidence that officers’ behavior is not
influenced to any substantial extent by the threat of being sued all undermine the Supreme Court’s current
rationales for qualified immunity.283 Even if one believes that police officers need some manner of protection
against the ill effects of litigation, there is no doctrinal, empirical, or logical basis for current stringent qualified
immunity standards, which are designed to “provide[ ] ample protec- tion to all but the plainly incompetent or
those who knowingly violate the law.”284 Qualified immunity should be eliminated or restricted to comport
with this evidence unless and until an alternative, empirically grounded justification can be offered for the
defense.285
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A2 Courts
Supreme Court is only focused with efficiency, not correct decisions DJS
Dunahoe, Alexandra White.(Law Clerk for the United States Court of Appeals)
"Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence
Economics and Transitory Prosecutors."NYU Ann. Surv. Am. L. 61 (2005): 45.
Like much of the common law, the Supreme Court’s prosecutorial immunity case law may be characterized as
an “inarticulate groping[] toward efficiency.”The fear of over-deter-rence clearly played a principal role in the
Imbler Court’s grant of absolute immunity.
Conversely, critics of absolute immunity appeal to escalating
incidents of egregious prosecutorial misconduct, suggesting problems of under-deterrence. Yet, as the following
sections outline, economic analysis of government behavior and decision making highlights certain limits of the
economic approach, and, while the paradigm maintains its usefulness in this arena, these limits require a close
examination of the particular incentives and disincentives influencing the parties under examination.
Qualified Immnity makes a fair trial involving a police officer very rare DJS
Chen. A. K.“The Burdens Of Qualified Immunity: Summaryjudgment And The Role Of
Facts In Constitutional Tort Law” The American University Law Review. 1994.
The Court
has established two separate immunity doctrines-
absolute immunity
and qualified immunity-to
mitigate
the potential
problems
it associates with constitutional tort
liability. Limited
classes
of officials, such as
legislators,
prosecutors,
and judges,
are
entitled to
absolute immunity, which categorically bars
any
constitutional
tort action
against such officials when they are sued
for actions
taken in the
course of their official
functions. Officials entitled
to ab-
solute immunity
are not subject to suit for any official act,
even if
done
maliciously or intentionally.
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A2 Abolish
Abolishing qualified immunity completely would just encourage the government to create a
different screening method. LMW.
King. Andrew. (Author at Mimesis Law, Law publication) “Keep Qualified
Immunity…For Now” Mimesis Law. 2016
Finally, that brings us back to qualified immunity. If you get rid of qualified immunity, then you’ll simply
have to create another screening mechanism. Governments are usually well-insured, often well-
funded, typically risk adverse, and can perpetually refill the treasury through taxes—so long as
taxpayers stay put, anyhow. This makes them tempting defendants, as impecunious defendants
usually are not sued. On top of that, a defendant who prevails in a civil rights action usually gets
attorney’s fees awarded. Mostly, but for qualified immunity, it’s a bonanza for plaintiff’s lawyers.
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A2 Police Brutality
Qualified immunity suits are key to raising awareness of police brutality. Otherwise these
issues often go ignored. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
Second, the lawsuits bring political attention to the issue of police brutality because of the high cost to
taxpayers.25 8 ("Sometimes the only thing that draws attention to police brutality suits is the cost. The
high cost to taxpayers results because local governments refuse to settle early in the cases and force
these cases to trial. If tile city government intervened much earlier, costs would be minimal."); see
also, McGreevy, supra note 143, at 1 (city council members questioned Police Chief Gates about a
pattern of police misconduct before approving settlements of twelve suits); Conservatives and
liberals are united by their outrage over the large monetary awards, and they bring pressure on the
city and the police to address the problem.259 Third, the suits educate the public and keep the issue
of police misconduct in the news. 260 "News coverage ... galvanizes public support. So the goal of a
suit may not be to win, but to get the word out there. Suits turn public attention on the problem and
can end up getting a com munity coalition going. ' 261 The suits also educate citizens who sit on the
jury, which is an important part of the process since most middle-class citizens are unaware of the
prevalence of police brutality.262 Civil fights attorneys believe that this greater public awareness and
scrutiny of police brutality has brought change.263 "Fifteen years ago, [police officers] would beat
people up all the time. Today, there are more limits on police. Police are aware of this and are much
more careful not to beat people up in public. People are also more sensitized to the issue and won't
tolerate as much violence."'264
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Courts are currently split on whether qualified immunity can be used in excessive force
cases. LMW.
Eskow and Cole. Lisa, Kevin (*Associate, Bickerstaff, Heath, Smiley, Pollan, Kever &
McDaniel, L.L.P., Austin, Texas. J.D., Stanford Law School, 1996, -Partner,
Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., Austin, Texas. J.D.,
University of Texas, Austin, 1990) “The Unqualified Paradoxes Of Qualified
Immunity: Reasonably Mistaken Beliefs, Reasonably Unreasonable Conduct, And
The Specter Of Subjective Intent That Haunts Objective Legal Reasonableness”
Baylor Law Review 1998
A split currently exists among the circuits. Compare Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir.
1998) (holding, despite conflict with other circuits, that no conflict exists between a jury finding that an
officer used excessive force and a finding of reasonableness for purposes of qualified immunity)
(citing Brown v. Glossip, 878 F.2d 871, 873-74 (5th Cir. 1989) (concluding that qualified immunity
remains an available defense to an excessive force claim)), petition for cert. filed, 67 U.S.L.W. 3285
(U.S. Oct. 6, 1998) (No. 98-578), with Frazell v. Flanigan, 102 F.3d 877, 887 (7th Cir. 1996)
(determining that jury finding of excessive force "effectively forecloses [defendant's] immunity
defense," because jury found that "a reasonable police officer in Flanigan's position would not have
believed that the force ... was justified under the circumstances. That conclusion means that, as a
legal matter, [defendant's] immunity defense must fail."); Alexander v. County of Los Angeles, 64 F.3d
1315, 1322 (9th Cir. 1995)
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A2 Make the officers pay
Changing the law so that police officers pay damages would only increase the invisibility of
police misconduct. LMW.
Patton. Allison. L. (Member, Third Year Class; B.A. 1988, University of California,
Berkeley.) Hastings Law Journal. 1993
One obvious solution would be to change state law so that police officers pay for their own defense
and damages in a section 1983 suit. This is not an effective solution, however, because it would
deprive plaintiffs of a deep pocket. Attorneys and plaintiffs would have a disincentive to pursue
section 1983 litigation since a victory would not necessarily result in the payment of attorneys' fees
and damage awards. For example, under a similar cause of action against a government employee
for a violation of civil rights, a Bivens suit,276 the individual employee must pay his own defense and
damages.27 7 According to attorney A.J. Kutchins, one of the attorneys who litigated the well-known
Brian Wilson suit,278 the lack of a deep pocket proved to be financially problematic in Wilson's
suit.279 "There is an assumption that there is a remedy for these government violations because
Bivens is on the books, but for all practical purposes the defendant is judgment-proof. '280
Furthermore, the government must be made accountable to give it the incentive to develop policies
and procedures to control police officers. Large monetary awards and media attention in section 1983
suits provide incentive for police and city officials to examine police department practices.281 Large
payouts to plaintiffs by cities also help galvanize public and political support for police reform.282
Therefore, switching economic accountability to the individual officer is not an effective solution.
Constitutional violations don’t warrant monetary sums of money given to defendants DJS
Nahmod, Sheldon.(Professor of Law at University of Chicago) "Constitutional Damages
and Corrective Justice: A Different View." Virginia Law Review (1990): 997-1022.
Jeffries argues that the affirmative defense of qualified immunity, inasmuch as it implicates negligence,29
constitutes the primary fault element in section 1983 litigation involving individual liability for compensatory
damages.30 Because of this, he goes on to reject the position that "any violation of the Constitution is an act of
wrongdoing" that is inherently a fault for which corrective justice requires compensation.31 He then concludes
that "there is . . . no noninstrumental basis for compensatory liability without proof of fault."32
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A2 Courts Reject
The courts throughout history have proven qualified immunity is a legal defense DJS
Nahmod, Sheldon.(Professor of Law at University of Chicago) "Constitutional Damages
and Corrective Justice: A Different View." Virginia Law Review (1990): 997-1022.
Unfortunately, Jeffries's reliance on qualified immunity doctrine for the proposition that section 1983 liability is
negligence-based is not convincing. It is true that the Supreme Court ruled in Anderson v. Creighton42 that a
"law enforcement officer who participates in a search that violates the Fourth Amendment may [not] be held
person- ally liable for money damages if a reasonable officer could have believed that the search comported
with the Fourth Amendment."43 However, the reference to reasonableness in Anderson is misleading because
the Court intended something very different from negligence. It announced that a law enforcement officer is not
liable unless she violated clearly-settled fourth amendment law, determined as of the date of the challenged
conduct."
The basis of descessions and other studies was overturned and disproved at a later date DJS
Nahmod, Sheldon.(Professor of Law at University of Chicago) "Constitutional Damages
and Corrective Justice: A Different View." Virginia Law Review (1990): 997-1022.
Unfortunately, Jeffries's reliance on qualified immunity doctrine for the proposition that section 1983 liability is
negligence-based is not convincing. It is true that the Supreme Court ruled in Anderson v. Creighton42 that a
"law enforcement officer who participates in a search that violates the Fourth Amendment may not be held
person- ally liable for money damages if a reasonable officer could have believed that the search comported
with the Fourth Amendment."43 However, the reference to reasonableness in Anderson is misleading because
the Court intended something very different from negligence. It announced that a law enforcement officer is not
liable unless she violated clearly-settled fourth amendment law, determined as of the date of the challenged
conduct."
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A2 Constitution
Interpretations of constitutional law are unavoidably tied to current societal contexts. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) Shoe-Horning, Shell Games, And Enforcing Constitutional Rights In
The Twenty-First Century. UMKC Law Review. 2010
That passage appears in a work entitled The Common Law, but the observation is equally true when
it comes to the rules by which governments should be governed-namely, constitutional law. "Felt
necessities"? Think about how the Great Depression inflected the Supreme Court's approval of
Minnesota's mortgage moratorium2 or how World War II and the Cold War influenced the Supreme
Court's decisions in the White Primary Case3 or Brown v. Board of Education.4 "Prevalent moral and
political theories"? How about Lawrence v. Texas5 as a reflection of the gay rights movement or the
Reapportionment Revolution as the triumph of a particular theory of political equality? 6 "Intuitions of
public policy"? As the papers in this symposium illustrate, the contours and limitations of 42 U.S.C. §
1983 and Bivens7 litigation--the former is virtually judge-created law and the latter entirely sodepend
heavily on policy concerns such as over- and under-deterrence of government actors. "Prejudices"?
What else can explain some of Chief Justice Taney's language in Dred Scott? or Justice Holmes's
own eugenics-driven language in Buck v. Bell?9 The kinds of forces that shaped constitutional law in
the twentieth century are likely to find their counterparts in the twenty-first. For example, the liberal
pleading principles set out in Conley v. Gibson'° were surely informed by the Court's sense that racial
discrimination within labor unions was a serious problem. So, too, although the more stringent
pleading requirements for claims of purposeful discrimination announced in Ashcroft v. IqbalI are
being applied trans-substantively, 2 the majority's intuitions were obviously informed by the fact that
the case in front of it involved detentions in the wake of the September 11 attacks. 13 The text of
Federal Rule of Civil Procedure 8 has not changed in a material respect, but the Court's experience
and its intuitions about the world have. In short, perspective-how an issue is framed-matters. In this
essay, I explore two ways in which contemporary constitutional adjudication reflects this fact.
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A2 Limits Legal Change
Qualified immunity cases set precedents that allow the law to be refined. LMW.
Karlan. P. (Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford
Law School.) The Paradoxical Structure Of Constitutional Litigation Fordham Law
Review. 2007
Damages litigation offers an opportunity not only to compensate individuals who have been injured by
unconstitutional conduct, but to refine constitutional law as well. As one of the elements of a plaintiffs
case, he must prove that the defendant violated the Constitution. That holding serves as a precedent,
providing future guidance to governmental entities regarding the scope of constitutional constraints.
The prospect of future damages can induce the government to change its policies to avoid further
liability.
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Cases
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Aff Case
[Daniel J Smith]
Introduction:
Our sense of fairness tells us that people should pay for the wrong the do. –Lewis B. Smedes
Thus I affirm the resolution Resolved: The United States ought to limit qualified immunity for police officers.
Definition:
Qualified Immunity
Jeffries, John. C. Jr. (David and Mary Harrison Distinguished Professor, the University of
Virginia School of Law). “What's Wrong With Qualified Immunity?” Florida Law Review.
Volume 62 September 2010
Qualified immunity protects government officers from damages liability for violating
constitutional rights. It does not constrain injunctions, exclusion of evidence, or the defensive
assertion of rights in government enforcement proceedings.' Nor does it apply to all damage
actions. Officers performing legislative, judicial, and certain prosecutorial functions have absolute
immunity from the award of money damages.2 At the other extreme, local governments, which can
be sued only for constitutional
Any legitimate government recognizes that each individual has an inalienable right to just treatment.
It is for reason that my Value will be Justice. Justice is defined by the business dictionary as, “The fair
and proper administration of laws conforming to the natural law, [a moral conduct], that all persons, are to be
treated equally and without prejudice. Alexander Hamilton, one of the United States’ founding fathers referred
to justice as “the first duty of society.” Justice serves as the fundamental value of any ideal nation, meaning that
it must be valued above all else in today’s debate.
My value criterion today will be The Rule of Law. The rule of law is defined by dictionary.com as
“The principle that all people and institutions are subject to and accountable to law that is fairly applied and
enforced.” In order for a government to be just, it must follow a fairly applied and enforced law, but if the law is
not being set like this in an area, then it is the people's obligation to correct the law to achieve fairness. Only
when police are held accountable for their actions, and concur with the law, will justice ever be achieved.
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Contention One:
Contention 1- Governments have a moral obligation to correct injustice
Throughout history, governments of many countries have committed deliberate discriminatory acts
against their people. These government actions were often legal, approved by legislatures and courts as well as
the majority of citizens. In retrospect, these actions seem unjust, but what, if anything, should current
governments do about them? Sometimes governments respond to charges of historical injustice by downplaying
the magnitude of the harm or even denying that the events occurred, but this does not mean that they don't have
an obligation to correct them.
Thoms Mccarthy COMING TO TERMS WITH OUR PAST, PART II On the Morality and Politics of
Reparations for Slavery Northwestern professor of social and political philosophy December 2004
“As in many of the other reparations struggles mentioned above, the ultimate aim is to involve the national
government in redressing, through legislation, the legacy of injustice in which it has been deeply
implicated. Judicial resources are a means to those ends”
Qualified immunity puts the police above the law, and that is never just, governments need to reinstall justice by
limiting immunity. The courts should be used to correct injustice not create it. This links to my framework,
because when courts act moral and correct actions, the law and justice are upheld.
Contention Two:
Contention 2- Qualified Immunity doesn’t stop police misconduct
Abuse by the police has become all to common in our society today. The police are just like every other citizen
and should be held to the same standards.
Qualified immunity leads to an abuse of power by police
Rudovsky, David. "The Qu1alified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional
Rights." University of Pennsylvania Law Review 138.1 (1989): 23-81
In'the City of Los Angeles v. Lyons,6 1 the Court refused to grant injunctive relief to a plaintiff who had
suffered permanent physical injuries when a police officer administered a "chokehold" in effecting an
arrest, even though the record demonstrated that this police practice was commonly used in circumstances
not justifying such force. 62 The practice had caused sixteen deaths during a period of several years. 6' The
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Court determined that the past injury had no continuing effects sufficient to provide standing for prospective
relief and that the plaintiff was unable to show that he, as opposed to any other citizen, would again suffer
the same unconstitutional conduct.64 Of particular significance to the Court was `the use of the chokehold
in the circumstances of the particular case, in which the plaintiff alleged no provocation or resistance on his
part, as aberrational and unauthorized. 6 Equitable relief was justified only if "the City ordered or authorized
police officers to act in such manner."67
The problem lies in that the court found that the police were doing wrong, but let them off with no punishment. !
!
Janet Chan, BL. "Governing police practice: limits of the new account ability."The British journal of
sociology 50.2 (1999): 251-270.
If the new accountability represents the aspirations of advanced liberal democratic societies to govern ‘at a
distance’, then the NSW experience suggests that these aspirations are not always translated into practice, but as
Miller and Rose (1990: 10–11) note, failure is an integral component of ‘government’, even though the ‘will to
govern’ is unshaken. The new accountability’s project of managing the risk of official misconduct is
continually frustrated by evidence of its failure and the attendant swing back to punitive control
strategies. Police accountability is demanded more aggressively now in New South Wales than ever: while
people have lost trust in the integrity of their public institutions, they continue to place their trust on the
promises of more and better accountability which has repeatedly failed them.
5
Because the police are acting in a immoral fashion they must be punished and qualified immunity must be
limited. When police are placed in a such a high position that they can violate the law that is not just. This links
back to the criterion, because the law needs to be applied equally to all, and if it is not, then said law is immoral.
Contention Three:
Contention 3- Qualified immunity is not fair to the citizens
Governments can be to powerful, and if they are it is the peoples right to rebel against tyranny like Martin
Luther King did with injustice in his day. The modern day injustice is the insulation from prosecution given to
police and government officials. The system is created to never let them be harmed.
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Chen. A. K.“The Burdens Of Qualified Immunity: Summary judgment And The Role Of Facts In
Constitutional Tort Law” The American University Law Review. 1994.
The Court
has established two separate immunity doctrines-
absolute immunity
and qualified immunity-
to mitigate
the potential
problems
it associates with constitutional tort
liability. Limited
classes
of officials,
such as legislators,
prosecutors,
and judges,
are
entitled to
absolute immunity, which categorically bars
any constitutional
tort action
against such officials when they are sued
for actions
taken in the
course of their
official functions. Officials entitled
to ab-
solute immunity
are not subject to suit for any official act,
even if
done
maliciously or intentionally.
There has been a system created to insulate harm and abuse by the police, and in order to protect the basic
liberates and freedoms of the American people qualified immunity needs to be limited.
The case links back into the framework by first presenting the government’s obligations. Government needs to
use the courts to foster protection from tyranny and the law. Second, however, police are being protected by
them, and using them to there advantage to take advantage of the system. To reinstall justice through the
application of the rule of law qualified immunity needs to be limited.
Thus, I affirm
[Daniel J Smith]
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Neg Case
Introduction
Since this case discusses the negative impacts of crime, a good core value for this case would be morality, while
a good value criterion would be maximizing societal well-being. The moral ethic of “utilitarianism” describes
why society well-being is important to maximize. The case discusses why crime negatively impacts societal
well-being, and why qualified immunity allows police officers to be their most effective at stopping crime.
Contention One:
Violent crime destroys the quality of life in the United States. LMW.
Berman. Mark. (Mark Berman covers national news for The Washington Post and
anchors Post Nation, a destination for breaking news and stories from around the
country.) “Violent crime and murders both went up in 2015, FBI says” September
26 2016
Homicides in the United States went up by more than 10 percent in 2015 over the year before, while
violent crime increased by nearly 4 percent in the same period, according to new statistics released
Monday by the FBI. All told, the country reported its highest estimated violent crime rate in three
years, and while these numbers are far below those seen one or two decades earlier, they mark a
sharp increase following two years of declines, the FBI’s summary of crime figures showed. The long-
awaited FBI report was released amid heightened scrutiny of violent crime in the United States,
propelled by an increase in homicides in a number of major cities and repeated comments from
Republican presidential candidate Donald Trump. “The report shows that there was an overall
increase in violent crime last year, making clear what each of us already knows: that we still have so
much work to do,” Attorney General Loretta E. Lynch said Monday in Little Rock. “Violent crime
endangers lives, destroys families and paralyzes neighborhoods … In some ways, violence affects all
of us — and so all of us have a responsibility to end it.”
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The police are key to preventing crime. LMW.
NIJ. National Institute of Justice. “Five Things About Deterrence” Website. June 6 2016
Police deter crime by increasing the perception that criminals will be caught and punished. The police
deter crime when they do things that strengthen a criminal’s perception of the certainty of being
caught. Strategies that use the police as “sentinels,” such as hot spots policing, are particularly
effective. A criminal’s behavior is more likely to be influenced by seeing a police officer with handcuffs
and a radio than by a new law increasing penalties.
Qualified Immunity minimizes wasted time in court so that police officers can do their job .
LMW.
Chen. Alan. K. (Professor, University of Denver Sturm College of Law) “The Facts About Qualified
Immunity” Emory Law Journal. 2006.
The Court's absolute immunity doctrine is driven in part by a concern that officials who perform these
functions are highly likely to be subject to suits from persons disgruntled by their actions, such as
criminal defendants, prisoners, losing litigants, and the minority side in the legislative process. Implicit
in this assumption is that many or most of these claimants' actions will be vindictive nuisance suits.
According to the Court, without immunity, officials performing these functions would likely be
inundated by such claims, overwhelming them and interfering with their ability to perform their jobs.26
One of the putative advantages of the Court's categorical, functional approach to absolute immunity is
that it facilitates prompt resolution of such claims at an early stage in the lawsuit.27 Presumably, this
minimizes the aggravation imposed on officials who are sued.
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The various pressures on police officers make the early dismissal of cases through qualified
immunity crucial. LMW.
Rosen. M. (Michael M. Rosen is an attorney in San Diego at Fish & Richardson PC, an
intellectual property law firm. In 2003-2004 he served as a law clerk to The
Honorable Marilyn L. Huff, Chief Judge of the U.S. District Court for the Southern
District of California.) “In Support Of The Doctrine Of Qualified Immunity In
Excessive Force Cases, With Some Suggestions For Its Improvement” Golden Gate
University Law Review. 2005
Public policy seeks to balance the need to protect law enforcement officers from frivolous lawsuits
against the desire to support citizens in serious ones. This section addresses various data and policy
arguments presented by police unions and others in favor of early dismissal of unworthy cases. Most
importantly, these arguments revolve around costs and deterrence. Groups like the National
Association of Police Organizations ("NAPO") argue that litigation against law enforcement has
proliferated over the years and that officers and/or their employers are forced to spend increasing
amounts of money defending against frivolous suits. They also argue that the specter of a trial
negatively affects officers' behavior on the job in a serious way." The trend of "depolicing" or of
civilian municipal leadership failing to support the efforts of law enforcement has exacerbated the
situation, as was evident from an interview I conducted with Detective Jesse H. Grant, an Oakland,
California, police officer. ,.
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Contention Two:
Contention 2: Without qualified immunity, people would be deterred from joining the police
force.
Being a police officer is a difficult job, and police agencies are already struggling to fill
vacancies. LMW.
Burns. Christopher. (Writer for Bangor Daily News,) “Why Maine police departments
have a hard time filling jobs”.
Law enforcement agencies in the midcoast and Washington County have made news recently
because they’re having an increasingly hard time finding qualified candidates to fill vacancies. The
same goes for police forces in the state’s largest cities and throughout much of the country: A
shrinking pool of candidates have made recruitment more difficult than in the past. “Law enforcement
across the board have for some time seen a decline in people applying for positions,” Portland police
Chief Michael Sauschuck said. There are several factors that have led to the recruitment difficulties
departments face, including federal jobs created by the war on terror, military deployments to Iraq and
Afghanistan, economic pressures facing millennials saddled with mounting debt and higher demands
placed on prospective officers, according to a 2010 RAND study. Much of what is known about the
recruitment troubles, however, is largely anecdotal.
Without qualified immunity, people would be strongly deterred from taking on jobs as police
officers. LMW.
Schott. Richard J. (Writer for FBI Bulletin, J.D.) “Qualified Immunity How It Protects
Law Enforcement Officers”. FBI Law Enforcement Bulletin. 2012
The Supreme Court found no reason to differentiate between the other defendants in this case and
Filarsky. In fact, the Court found several reasons for treating them the same. Among those reasons
was that “[a]ffording immunity not only to public employees but also to others acting on behalf of the
government similarly serves to ‘ensure that talented candidates [are] not deterred by the threat of
damages suits from entering public service.’”57 The Court noted the hypocrisy that would result if
some people doing a job for the government could be sued personally, while government employees
performing the same tasks would be protected by qualified immunity.
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Additionally, current police officers would be deterred from acting.
Court cases suggest that without qualified immunity police officers would be deterred from
acting for the public good. LMW.
Chen. Alan. K. (Professor, University of Denver Sturm College of Law) “The Facts About
Qualified Immunity” Emory Law Journal. 2006.
The Court's earlier cases suggested that qualified immunity protects officials from the unfairness of
being sued for performing their public duties, particularly when the line between constitutional and
unconstitutional conduct is often unclear.34 They also asserted that qualified immunity is necessary
to guard against "overdeterrence," the idea that exposure to liability will deter officials not only from
unconstitutional actions, but also from lawful conduct that advances the public good.
Contention Three:
Contention 3: Qualified immunity reduces legal costs which would prevent the police force from functioning.
Police agencies across the country are already struggling with budget cuts and lack of
funding, which makes it difficult for them to control crime. LMW.
US Department of Justice. Community Oriented Policing Services. “The Impact of the
Economic Downturn on American Police Agencies”. 2011
The economic downturn of the past several years has devastated local economies and their local law
enforcement agencies. Sworn to protect and serve the public, law enforcement faces a bleak outlook.
The nation’s law enforcement agencies are confronting severe budget cuts and unmanageable
layoffs, and they are fundamentally changing how they keep the public safe. COPS compiled data
from a number of current surveys and data sets, which show the impact that the current economic
climate has had on law enforcement agencies nationwide.** Layoffs, furloughs, and unfilled jobs
mean less public safety By the end of the year, it’s expected that nearly 12,000 police officers and
sheriff’s deputies will have been laid off. An estimated 28,000 officers and deputies have faced week-
long furloughs in 2010. An estimated 53 percent of counties are working with fewer staff today than
just one year ago. 2011 could produce the first national decline in law enforcement officer positions in
at least the last 25 years. Budget cuts have a heavy impact Over one-third of the agencies that
applied for 2011 COPS officer hiring funding reported an operating budget drop of greater than 5
percent between 2009 and 2011. Nearly a quarter of American cities surveyed have made cuts to
public safety budgets.
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Abolishing Qualified Immunity would further increase government spending. LMW.
Fallon and Meltzer. R. D. (Harry M. Cross Distinguished Visiting Professor of Law, University of
Washington; Pro- fessor of Law, Harvard University. ** Professor of Law, Harvard
University.) Harvard Law Review. June 1991
In addition, it is not always easy for even a well- administered government to absorb the costs of all of
its officials' constitutional violations. Consider the conundrum confronting a state tax official who is
advised that there is one chance in ten that a tax will be invalidated. Efforts to persuade the
legislature to amend the law may be improvident, and perhaps futile as well,338 and insurance is
likely to be unavailable. For a police chief who is aware of a similar risk that an effective investigative
technique may be invalidated, insurance could not possibly protect against the risk that criminal
convictions will be reversed on constitutional grounds. Were lightning to strike, however, the cost to
the state could be overwhelming.