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++Part one is our experience
++WELCOME TO AMERICA! TRUMP IS THE PRESIDENT, YOUR VP SUPPORTS STATE FUNDED CONVERSION THERAPY, AND THE QUEER AND TRANS PANIC LEGAL DEFENSE MEANS ITS MY FAULT IF YOU MURDER ME
++
++American Bar Association 2013
++(American Bar Association Adopted by the House of Delegates August 12-13, 2013, Resolution http://lgbtbar.org/wp-content/uploads/2014/02/Gay-and-Trans-Panic-Defenses-Resolution.pdf )
++The “gay panic” and “trans panic” legal defenses are surprisingly long-lived historical artifacts, remnants of a time when widespread public antipathy was the norm for lesbian, gay, bisexual, and transgender (‘LGBT’) individuals. These defenses ask the jury to find that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. They characterize sexual orientation and gender identity as objectively reasonable excuses for loss of self-control, and thereby mitigate a perpetrator’s culpability for harm done to LGBT individuals. By fully or partially excusing the perpetrators of crimes against LGBT victims, these defenses enshrine in the law the notion that LGBT lives are worth less than others. Historically, the gay and trans panic defenses have been used in three ways to mitigate a charge of murder to manslaughter or justified homicide. First, the defendant uses gay panic as a reason to claim insanity or diminished capacity. The defendant alleges that a sexual proposition by the victim triggered a nervous breakdown in the defendant, and then claims to have been afflicted with “homosexual panic disorder.” This insanity defense has been discredited since 1973, when the American Psychiatric Association removed the diagnosis of homosexual panic disorder from its Diagnostic and Statistical Manual of Mental Disorders. However, the legal field has yet to catch up with medical progress, and variations on the defense are still being raised in court. Second, defendants make a gay panic argument to bolster a defense of provocation by arguing argue that the victim’s sexual advance, although entirely non-violent, was sufficiently provocative to induce the defendant to kill. Similarly, defendants make a trans panic argument for provocation by pointing to the discovery of the victim’s biological sex, usually after the defendant and victim have engaged in consensual sexual relations, as the sufficiently provocative act that drove the defendant to kill. Third, defendants use gay/trans panic arguments to strengthen their case for self-defense. In these cases, defendants contend that they reasonably believed the victim was about to cause them serious bodily harm because of the victim’s sexual orientation or gender identity. Although the threat of danger would otherwise fall short of the standard for self-defense, the defendant asserts that the threat was heightened solely due to the victim’s sexual orientation or gender identity.
++
++Queer people have been damned by the whole system- overkill is a symptom of a culture that accepts gratuitous violence against queer bodies. This produces an ontological condition where queer lives don’t matter at all-there is complete disposability.
++Stanley, fellow in departments of Communication and Critical Gender Studies, 2011, Eric A. Stanley, President’s Postdoctoral fellow in the departments of Communication and Critical Gender Studies at the University of California, San Diego. Along with Chris Vargas, Eric directed the films Homotopia (2006) and Criminal Queers(2013). A co\editor of the anthology Captive Genders: Trans Embodiment and the Prison Industrial Complex (AK Press, 2011) which won the Prevention for a Safe Society award and was recently named a finalist for a Lambda Literary Award, Eric’s other writing can be found in the journals Social Text, American Quarterly, and Women and Performance as well as in numerous collections, “Near Life, Queer Death: Overkill and Ontological Capture”, http://socialtext.dukejournals.org/content/29/2_107/1.abstract, 2011 ED
++Overkill is a term used to indicate such excessive violence that it∂ pushes a body beyond death. Overkill is often determined by the postmortem∂ removal of body parts, as with the partial decapitation in the case∂ of Lauryn Paige and the dissection of Rashawn Brazell. The temporality∂ of violence, the biological time when the heart stops pushing and pulling∂ blood, yet the killing is not finished, suggests the aim is not simply the end∂ of a specific life, but the ending of all queer life. This is the time of queer∂ death, when the utility of violence gives way to the pleasure in the other’s∂ mortality. If queers, along with others, approximate nothing, then the task∂ of ending, of killing, that which is nothing must go beyond normative times∂ of life and death. In other words, if Lauryn was dead after the first few stab∂ wounds to the throat, then what do the remaining fifty wounds signify?∂ The legal theory that is offered to nullify the practice of overkill often∂ functions under the name of the trans- or gay-panic defense. Both of these∂ defense strategies argue that the murderer became so enraged after the∂ “discovery” of either genitalia or someone’s sexuality they were forced to∂ protect themselves from the threat of queerness. Estanislao Martinez of∂ Fresno, California, used the trans-panic defense and received a four-year∂ prison sentence after admittedly stabbing J. Robles, a Latina transwoman,∂ at least twenty times with a pair of scissors. Importantly, this defense is∂ often used, as in the cases of Robles and Paige, after the murderer has∂ engaged in some kind of sex with the victim. The logic of the trans-panic∂ defense as an explanation for overkill, in its gory semiotics, offers us a∂ way of understanding queers as the nothing of Mbembe’s query. Overkill∂ names the technologies necessary to do away with that which is already∂ gone. Queers then are the specters of life whose threat is so unimaginable∂ that one is “forced,” not simply to murder, but to push them backward out∂ of time, out of History, and into that which comes before.27∂ In thinking the overkill of Paige and Brazell, I return to Mbembe’s∂ query, “But what does it mean to do violence to what is nothing?”28 This∂ question in its elegant brutality repeats with each case I offer. By resituating∂ this question in the positive, the “something” that is more often than not∂ translated as the human is made to appear. Of interest here, the category∂ of the human assumes generality, yet can only be activated through the∂ Social Text∂ Published by Duke University Press∂ 10 Stanley ∙ Near Life, Queer Death∂ Ahuja • Abu Zubaydah and the Caterpillar∂ specificity of historical and politically located intersection. To this end,∂ the human, the “something” of this query, within the context of the liberal∂ democracy, names rights-bearing subjects, or those who can stand as subjects∂ before the law. The human, then, makes the nothing not only possible∂ but necessary. Following this logic, the work of death, of the death that is∂ already nothing, not quite human, binds the categorical (mis)recognition∂ of humanity. The human, then, resides in the space of life and under the∂ domain of rights, whereas the queer inhabits the place of compromised∂ personhood and the zone of death. As perpetual and axiomatic threat∂ to the human, the queer is the negated double of the subject of liberal∂ democracy.∂ Understanding the nothing as the unavoidable shadow of the human∂ serves to counter the arguments that suggest overkill and antiqueer violence∂ at large are a pathological break and that the severe nature of these killings∂ signals something extreme. In contrast, overkill is precisely not outside of,∂ but is that which constitutes liberal democracy as such. Overkill then is∂ the proper expression to the riddle of the queer nothingness. Put another∂ way, the spectacular material-semiotics of overkill should not be read as∂ (only) individual pathology; these vicious acts must indict the very social∂ worlds of which they are ambassadors. Overkill is what it means, what it∂ must mean, to do violence to what is nothing
++
++And this shit is just going to get worse on a national level- president trump will appoint anti queer justices and congress is on his side.
++Michelangelo Signorile Queer Voices Editor-at-Large, The Huffington PostTHE BLOG Donald Trump’s Long-Held Promise To Pick Rabidly Anti-LGBT Supreme Court Justices 10/19/2016 08:21 am ET | Updated Oct 19, 2016, The Huffington Post INFORM • INSPIRE • ENTERTAIN • EMPOWERhttp://www.huffingtonpost.com/michelangelo-signorile/donald-trumps-promise-anti-lgbt-supreme-court_b_12551640.html
++In tonight’s third and final presidential debate between Hillary Clinton and Donald Trump in Las Vegas, moderated by Fox News’s Chris Wallace, the Supreme Court is one issue we’re told will be focused on. Donald Trump, however, made his intentions quite clear at the last debate, and many times before: He will appoint justices to the high court “very much in the mold of Justice Scalia.” You can’t hold up a better example of anti-LGBT extremism on the Supreme Court than Antonin Scalia, the most homophobic force ever on the court, who made hateful comments, on and office the court, about gay people for several decades. The late Scalia had compared homosexuality to bestiality, incest and child pornography and believed that banning homosexuality was similar to banning murder. Scalia not only wrote a blistering, unhinged dissenting opinion in the historic marriage equality case in 2015, Orbergefell v. Hodges; he was virulently opposed to striking down sodomy laws, writing the dissenting opinion in the Lawrence v. Texas
++
++And I’m still not done- even if well-meaning legislative efforts get passed, they still have negative effects- legislation paints too broad a brush and conflates protection with cohesion
++Natalie Knight, Joint J.D. and M.P.P. candidate at UCLA School of Law and UCLA Luskin School of Public Affairs, 2014, Keeping the closets in our classrooms: How the qualified immunity test is failing LGBT students , http://williamsinstitute.law.ucla.edu/wp-content/uploads/Knight-Natalie-Student-Note-2014.pdf, pp. 35-50
++Even well-intentioned statutes can have unintended consequences. For example, the Massachusetts Legislature passed a law that included many provisions designed to reduce bullying of LGBT students, but the law also included a provision requiring required school officials to notify parents of bullying incidents which could lead to intentionally or incidentally outing students to their parents. n110 Legislation to protect LGBT students from being outed in a school environment may also be very difficult to pass. Federal legislation would depend on congressional agreement, which can be hard to attain. n111 Since the current House majority leadership vehemently fought federal recognition of same-sex marriages, there is little reason to expect LGBT-friendly legislation would be considered in the current House. State legislation will almost certainly be more difficult to pass in some states, leaving perhaps many LGBT youth without statutory privacy protections.
++
++Seems pretty hopeless right? Not quite. Part two is the court.
++
++1st. The legal system contains one hope for queer humanity- individual courts can be LGBT friendly and set precedents that give predictable protections to queer peoples.
++Natalie Knight, Joint J.D. and M.P.P. candidate at UCLA School of Law and UCLA Luskin School of Public Affairs, 2014, Keeping the closets in our classrooms: How the qualified immunity test is failing LGBT students , http://williamsinstitute.law.ucla.edu/wp-content/uploads/Knight-Natalie-Student-Note-2014.pdf, pp. 35-50
++During the civil rights era, the courts played a leading role in recognizing and expanding civil rights for people of color. In this era of gay civil rights, the courts should not be the slower and less reliable vehicle for recognizing implicit rights. If courts were to more regularly apply the prong-one analysis of qualified immunity and faithfully adhere to the actual holdings of Supreme Court precedent, the law related to civil rights violations under § 1983 could provide both parties with the predictability they need and deserve from the law.
++
++However-Queer protections are unclear- current precedents make it nearly impossible for one to say that queers have ANY clearly established rights.
++Robin B. Wagner, J.D. Candidate Spring 2014, Are gay rights clearly established? The problems with the qualified immunity doctrine, Depaul Law Review, Spring, http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1029andcontext=law-review, p. 870-1
++limits the ability of an individual to bring, as a "private attorney general," a claim that would clarify the contours of clearly established rights a government official may not violate. B. The Clearly Established Constitutional Rights Regarding Sexual Orientation Several key challenges arise in evaluating the constitutional guarantees associated with sexual orientation. Courts have traditionally been reluctant to address sexual orientation as a status akin to race, religion, or gender. Instead courts sometimes framed constitutional issues raised by sexual minorities in terms of homosexual acts and conduct. n95 As Pamela Karlan explained: The situation of gay people provokes an "analogical crisis" because in some ways it involves regulation of particular acts in which gay people engage, and so seems most amenable to analysis under the liberty prong of the Due Process Clause, while in other ways it involves regulation of a group of people who are defined not so much by what they do in the privacy of their bedrooms, but by who they are in the public sphere. n96 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.
++
++This isn’t just about police action- qualified immunity prevents precedents that would establish protections for queer people in general.
++
++Robin B. Wagner, J.D. Candidate Spring 2014, Are gay rights clearly established? The problems with the qualified immunity doctrine, Depaul Law Review, Spring, http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1029andcontext=law-review, p. 870-1
++who violate an individual's rights. n71 But the Gill, Lathrop, and Ambris plaintiffs seemingly presented the easiest cases - there was clear animus in each allegation of discrimination, and clear precedent from Romer that "'a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" n72 Yet one plaintiff got her day in court, n73 a second received the opportunity to press the case that discrimination against him was indeed unconstitutional, n74 and the third did not even get an opportunity to have the substance of her issues heard. n75 These cases illuminate problems with the qualified immunity doctrine that are gaining significance: the analysis results in a defendant-friendly environment in which it is harder to identify clearly established rights, and courts do not serve society by clarifying and defining rights so that future actors are put on notice. Despite the stated purpose of the first prong of the qualified immunity doctrine to put government actors on notice going forward, in practice, a ruling that there is a violation of a constitutional right without a ruling that the right was clearly established does not create effective notice. n76 Pamela Karlan has associated the qualified immunity doctrine with part of the Court's trend to "undermine the concept of the 'private attorney general' who brings suit to vindicate both her own claims and the broader public interest." n77 A court can issue declaratory and injunctive relief altering the practice of defendants who otherwise have qualified immunity from damage claims. n78 However, without attorney's fees or even minimal damages, a plaintiff may be reluctant to appeal a prong-one decision. n79 Moreover, a defendant may appeal the prong-one holding, but only by taking on the risk that an affirmation would create circuit-wide precedent, rather than a more limited district court holding. n80 When the Court in 2009 overturned the short-lived practice of requiring a prong-one analysis before prong two, it spared the district courts from tackling unnecessary constitutional questions when a reasonable person would not have known the right was clearly established (prong two). n81 Now that courts can rely primarily on prong two, as the Ambris court did, n82 and find that even if there were a right, it was not clearly established, an appeal is even less likely. And with fewer appeals, it is less likely that a right can be identified and established by court precedent. The Supreme Court has acted recently to remove the "clearly established" label from a right if there is disagreement among the circuits. n83 In Ashcroft v. al-Kidd, the Court reversed the Ninth Circuit on both prongs of its qualified immunity analysis, holding that it was not a violation of the Fourth Amendment to seize an individual under a material witness warrant when the government official has no intent to use him as a witness, and that no jurisdiction had ruled in such a way to clearly establish that such an action would be unconstitutional. n84 A year later in Reichle v. Howards, the Court reversed the Tenth Circuit's denial of qualified immunity to Secret Service agents who violated *880 the First Amendment by arresting a suspect in retaliation for comments they heard him make against the Vice President under their protection. n85 The Court averred that qualified immunity will not be granted when the legal issue is defined at a "high level of generality." n86 Additionally, the Court held that when the impact of a new Supreme Court
++
++Moreover, even when a protection is established, it is never ‘clearly established’, meaning police can perpetrate anti-queer violence with impunity.
++Robin B. Wagner explains this through the Lawrence case, J.D. Candidate Spring 2014, Are gay rights clearly established? The problems with the qualified immunity doctrine, Depaul Law Review, Spring, http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1029andcontext=law-review, p. 870-1
++Bowers decision Planned Parenthood of Southeastern Pennsylvania v. Casey. n134 But the opinion ranged beyond these cases' conceptions of liberty as "the absence of interference" by the state; n135 instead, the Court "described the liberty at issue as gay people's right to 'control their destiny,' because 'at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." n136 However, because the same decision concludes that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal life of the individual," n137 it can be inferred that there might be other situations in which a state could provide a legitimate interest that would justify such an intrusion. Indeed, Lawrence includes a long list of exceptions limiting the protection for individual sexual and moral choices. n138 *888 Both Karlan and Tribe interpret the Lawrence decision as a significant "doctrinal innovation" linking the "due process right to demand respect for conduct protected by the substantive guarantee of liberty" with "equality of treatment." n139 The Court in Lawrence identified the interrelatedness of the moral stigma attached to homosexual conduct and the ways in which laws against gay sex contributed to the social ostracization of homosexuals and burdened their rights to "equal liberty" through privacy inside the bedroom and dignity in society at large. n140 Despite the powerful statement for both due process and equality rights in Lawrence, most courts have not confirmed it as clearly established law. n141 In one of the few lower court decisions to embrace Lawrence for its full meaning, the Fifth Circuit invalidated a Texas law grounded in morality justifications. n142 Holding that Texas's ban on sex toys "impermissibly burdened the individual's substantive due process right to engage in private intimate conduct of his or her choosing," n143 the court explained that "to uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive." n144 The Fifth Circuit, then, has unequivocally accepted the holding of Lawrence - that one's intrinsic human dignity encompasses moral and sexual choices, and that these choices are constitutionally protected. 3. Avoiding the Clearly Established Law of Romer and Lawrence Rights related to sexual orientation provide a useful context for evaluating the doctrine of qualified immunity because of the unusual reasoning employed in Romer and Lawrence. By eschewing the standard forms of scrutiny applied in equal protection and due process considerations, these two cases, particularly Lawrence, have presented challenges to courts attempting to apply their holdings. n145 *889
++
++And, since rights for queers are not clearly established, current QI standards make it difficult for us to actually establish protections in the first place. Courts are incentivized to ignore the issue, allowing replications of anti-queerness.
++
++Natalie Knight, Joint J.D. and M.P.P. candidate at UCLA School of Law and UCLA Luskin School of Public Affairs, 2014, Keeping the closets in our classrooms: How the qualified immunity test is failing LGBT students , http://williamsinstitute.law.ucla.edu/wp-content/uploads/Knight-Natalie-Student-Note-2014.pdf, pp. 35-50
++assert a Fourteenth Amendment privacy claim, only a Fourth Amendment privacy claim and a Fourteenth Amendment equal protection claim. The plaintiff chose not to appeal so Nguon's significance for future privacy cases is uncertain at best. n96 One important conclusion one could draw from Sterling
++and Nguon is that the qualified immunity inquiry greatly depends on judicial discretion. The contours of what counts as a "clearly established right" vary from circuit to circuit and are ultimately up to judges. Thus, the grant of qualified immunity in Wyatt is not a forgone conclusion at all. The qualified immunity inquiry does not require judges to demand as precise a precedent as was demanded in Wyatt. Indeed, in his dissent, Judge James Graves agreed with the district court judge who found that the coaches were not entitled to qualified immunity. n97 Judge Graves stated that while a Fifth Circuit court had "never explicitly held that a student has a right to privacy in keeping his or her sexual orientation confidential, an analysis of precedent compels the finding of such a right." n98 It is therefore fair to say that qualified immunity is not always a catch-22 for LGBT students, but it permits judges to make it one. Thus, as in many areas of the law, judges who understand LGBT issues are more likely to render LGBT-friendly decisions. The qualified immunity inquiry thus creates a catch-22 at worst and a gamble on a favorable judge at best. Surely, the privacy of LGBT students is worthy of more than a gamble. V. PROPOSED SOLUTIONS Progressive LGBT advocates are likely to want more than a judicial gamble to determine LGBT students' rights. There are several possibilities for surmounting the seemingly impossible hurdle that qualified immunity has created in this context. A. Reinstate Mandatory Sequencing of the Qualified Immunity Inquiry A possible solution would be to return to a sequenced qualified immunity inquiry which would require judges to first address whether the facts in the light most favorable to the plaintiff amount to the violation of a constitutional right. Only then could they proceed to whether the right was clearly established. As the Supreme Court has stated, "the two-step procedure promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable." n99 The outing of students by public school teachers and officials will probably never arise in a case where qualified immunity is unavailable since all public school teachers are protected by it. By requiring courts to engage in the first part of the inquiry, courts could determine that a particular set of facts, like the outing of a student to a parent by a teacher, is unconstitutional and then proceed to grant qualified immunity if the court found that a reasonable teacher would not have known that such an action was unconstitutional. n100 Thus, reinstating sequencing would resolve the catch-22 while still protecting qualified immunity's purpose of ensuring that government officials are not held liable for violations they would not reasonably have known about (if outing a student is indeed such a case in the first place). After a court has determined in one suit that a teacher or school official outing a student to her parent is unconstitutional, the decision would give notice to schools such that future defendants would have an increasingly difficult time showing that despite past rulings, a right is still not clearly established. n101 Empirical evidence supports that giving courts the discretion to address only the clearly established right prong when granting qualified immunity has led courts to avoid making a determination of whether a constitutional violation may have occurred. n102 Since the Supreme Court lifted the sequencing requirement, circuit courts have avoided the constitutional inquiry and granted qualified immunity in 24.6 of claims that were ultimately dismissed either due to a grant of immunity or due to the absence of a constitutional violation, compared to only 6.2 when sequencing was required. n103 Still, mandatory sequencing has raised concerns about its potential to create bad constitutional law since it requires judges to make constitutional determinations on a limited record with potentially low-quality briefs. n104 Additionally, a unanimous Supreme Court decided to lift sequencing in part because of the substantial criticism it received from judges. n105 Thus, while sequencing may help LGBT students, numerous judges are wary of its broader consequences and a return to sequencing is not especially
++
++
++This is a gateway issue- qualified immunity precedents spill over, justifying even larger abuses as not being prevented by ‘clearly established’ rights. This allows legislation with the sole intent of dehumanizing queers to become legal.
++Robin B. Wagner, J.D. Candidate Spring 2014, Are gay rights clearly established? The problems with the qualified immunity doctrine, Depaul Law Review, Spring, http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1029andcontext=law-review, p. 870-1
++l, "taxpayers have no duty of good faith to maximize the government's goals, and political officials, after Engquist, apparently have no duty of good faith to make discretionary decisions conform to the Constitution's goals." n203 Here the impact on future treatment of the qualified immunity doctrine becomes clear and alarming to potential plaintiffs. Where the Constitution or a statute has not specifically enshrined an applicable prohibition or external rule - that is, when no existing suspect classification or enumerated right is implicated - the courts may in the future only evaluate a law against whether it is rational or whether it is irrational, with no consideration of whether the government purpose was legitimate or illegitimate. n204 The key to how the qualified immunity doctrine will survive this emerging approach to rational-basis review lies in the definition of discretion. In a case central to the establishment of the judge-made qualified immunity doctrine, the Court explained that the doctrine shields "government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." n205 Romer's susceptibility to being ignored may depend on whether it is viewed as more closely allied with the highly deferential rational-basis cases or with the rational-review-with-bite cases. The first element in the Romer Court's reasoning illustrated the need to demonstrate that a classification bore merely a relationship, however tenuous, to a governmental goal. n206 The Romer Court adamantly rejected laws drawing classifications that disadvantaged a group and had no "independent and legitimate legislative end." n207 A law drawn for no purpose other than to disadvantage a specific group is, and should remain to be, seen as precisely the kind of irrational law the Constitution prohibits, even under the Roberts Court's articulation of rational-basis review. By contrast, the Romer majority's second line of reasoning, "that a bare ... desire to harm a politically unpopular group cannot constitute a
++
++
++
++Thus, part three is the plan:
++ The United States federal government should phase out the qualified immunity legal standard, instead applying strict liability standard to civil cases with police officers as defendants.
++Bernick 15 explains the plan-strict liability is the standard for every other form of processional.
++Evan Bernick (Assistant Director of the Center for Judicial Engagement at the Institute for Justice). “To Hold Police Accountable, Don’t Give Them Immunity.” Foundation for Economic Education.
++6 May 2015. https://fee.org/articles/to-hold-police-accountable-dont-give-them-immunity/
++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 widespreadpublicoutrage. InthecaseofKelo, theCourt’s cavalier treatmentofpropertyrightsled 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 plan isn’t extra t- I am specifying how I limit qualified immunity. Once you change a legal doctrine, something has to replace it. Thus it is a necessary to describe what doctrine replaces QI
++And, limit is defined as “a restriction on the size or amount of something permissible or possible” by Oxford (https://en.oxforddictionaries.com/definition/limit) By eliminating qualified immunity I am restricting it
++Part 4 is solvency
++All we have to do to win solvency is win an increase in the number of civil cases- the aff conceptualized these as test cases that allow for queer protections to be established by judicial precedents. Every one of our harms cards functions as a solvency argument.
++And, QI creates a chilling effect on civil claims
++Chen 15
++Alan K. Chen (The William M. Beaney Memorial Research Chair and professor of law at the University of Denver Sturm College of Law; experienced civil rights litigator and former ACLU staff attorney; does pro bono work in constitutional rights cases). “Qualified Immunity Liming Access to Justice and Impeding Development of the Law.” American Bar Association. Vol. 41 No. 1. 2015. http://www.americanbar.org/publications/human_rights_magazine_home/2015– vol–41-/vol–41–no–1—lurking-in-the-shadows–the-supreme-court-s-qui/qualified-immunitylimiting-access-to-justice-and-impeding-devel.html
++A final critique of qualified immunity is one that is difficult to prove empirically. Because of the many costs associated with this defense that I have identified above, plaintiffs and their attorneys may find that the game is not worth the candle. To prevail on a constitutional tort claim, which may not necessarily involve a large monetary recovery, the plaintiff must navigate the difficult path that the qualified immunity doctrine has hewn. They may be tied down for years litigating qualified immunity and defending multiple interlocutory appeals should they initially prevail on the qualified immunity claim in the trial court. Even with the incentive of attorney fee shifting under 42 U.S.C. § 1988, many plaintiffs may simply be discouraged from ever filing a constitutional tort claim because they anticipate that they will be drawn into a protracted and time consuming dispute. The suppression of potentially meritorious civil rights claims is a cost of qualified immunity that impedes access to justice in profound and troubling ways.
++Part 4 is framing
++A is the ballot
++1st-the judge is an educator, two warrants
++A. Debate is primarily an educational setting, we represent schools in a school
++b. the ballot endorses a frame of truth, such as I affirm, educating students with it
++Second, Foucault’s conception of structure and the intellectual demonstrates the existence of ‘regimes of truth’ and the pivotal role intellectuals have in this capacity
++Rider, Shawn. "Michel Foucault: Truth and Power." Michel Foucault: Truth and Power. N.p., n.d. Web. 09 Nov. 2015.
++Foucault's ideas gravitate toward the ultra-highly complex and similarly politicized, leaving one to wonder what the real-world impact of his notions might be. The interviewers apparently shared this inquiry, and asked how all of Foucault's analysis of power relations could be used in life, and, specifically, what is the role of the intellectual? Foucault responds with a discussion of the the intellectual, who he says has gravitated from a "universal" intellectual to a "specific" intellectual. Foucault sees scientists and scholars who remain cloistered in their field as specific intellectuals, and cites the writers of old as the universal intellectuals: The intellectual par excellence used to be the writer: as a universal consciousness, a free subject, he was counterposed to the service of the State or Capital – technicians, magistrates, teachers. Even writers have been coopted in modern society by the structure of the "regime," the group that rules the society, including government and business. The society now looks to the university for its knowledge because of the intersection of multiple fields of study. This has incorporated even written expression into the structure of society and led to the devaluation of the "writer of genius" and the elevation of the "absolute savant." The absolute savant, "along with a handful of others, has at his disposal, whether in the service of the State or against it, powers which can either benefit or irrevocably destroy life." Writers who are sanctioned by a powerful structure now affect reality rather than simply tromping around in idealogical terrain. It woud seem that an intellectual could not be effective without the support of some structure, but Foucault makes an argument for individual efficacy. The structure is successful because it creates truth, and it is in this recognition that individuals can succeed: The important thing here, I believe, is that truth isn't outside power, or lacking in power … truth isn't the reward of free spirits, the child of protracted solitude, nor the privilege of those who have succeeded in liberating themselves. Truth is a thing of this world: it is produced only by virtue of multiple forms of constraint. And it includes regular effects of power. Each society creates a "regime of truth" according to its beliefs, values, and morales. Foucault identifies the creation of truth in contemporary western society with five traits: the centering of truth on scientific discourse, accountability of truth to economic and political forces, the "diffusion and consumption" of truth via societal apparatuses, the control of the distribution of truth by "political and economic apparatuses," and the fact that it is "the issue of a whole political debate and social confrontation." Individuals would do well to recognize that ultimate truth, "Truth," is the construct of the political and economic forces that command the majority of the power within the societal web. There is no truly universal truth at all; therefore, the intellectual cannot convey universal truth. The intellectual must specialize, specify, so that he/she can be connected to one of the truth-generating apparatuses of the society. As Foucault explains it: 'Truth' is to be understood as a system of ordered procedures for the production, regulation, distribution, circulation and operation of statements. 'Truth' is linked in a circular relation with systems of power which produce and sustain it, and to effects of power which it induces and which extend it. A 'regime' of truth. Because of this, Foucault sees "the political problems of intellectuals not in terms of 'science' and 'ideology,' but in terms of 'truth' and 'power.'" The question of how to deal with and determine truth is at the base of political and social strife
++Thus, the rob is to challenge regimes of heteronormative truth
++Robinson, Kerry, and Cristyn Davies. "Docile bodies an d heteronormative moral subjects: Constructing the child and sexual knowledge in schooling." Sexuality and Culture 12.4 (2008): 221-239.
++Schools, as a discursive field, are sites where technologies of power produce ‘regimes of truth’ that uphold the hegemonic social, political and moral values of dominant and powerful groups (Foucault 1977). This is obvious within the syllabi that we examine in this discussion, in which children are constructed as heteronormative subjects. Schooling as a disciplining state apparatus has a compulsory captive audience––docile bodies––through which to constructs knowledge and discipline heternormative moral subjects. Foucault’s concept of the powerknowledge nexus operates through hegemonic discourses that are perpetuated through curricula, rules and regulations, philosophies, policies, and pedagogical practices that prevail in schooling (Foucault 1977). The regulative and repetitive practices of schooling become part of children’s habitus as they tap into the cultural, social and economic capital valued in schooling (Bourdieu 1991). Habitus refers to the dispositions, perceptions, and attitudes generated throughout an individuals’ cultural history that can enable or prohibit effective exchange or accumulation of one’s capital (Robinson and Jones-Diaz 2006). However, it is important to point out that part of the way that education is transformed is through teachers’ critical approach towards pedagogy and the curriculum. Some teachers question what constitutes ‘official knowledge’ within the mainstream curriculum to reshape and contest the power of dominant groups. Syllabi are also interpreted by individual teachers, who can include perspectives that challenge regimes of truth operating in schools. So despite our critique of educational syllabi in this paper, we need to acknowledge that some teachers would have challenged the representation of knowledge about health and its presentation. It is also important to acknowledge that even though we critique the lack of specific Docile Bodies and Heteronormative Moral Subjects 123 detail in the syllabi on sexual identity, we do so with an awareness that some teachers may have used this space (marked by an absence of definition around sexual identity) to address issues of non-heterosexuality. However, this potential ‘queer space’ may also be counteracted by other forms of regulation, including students’ surveillance of heteronormative values, or the introduction of additional policies, such as the Controversial Issues Policy that has operated along side the syllabi in NSW schools since the 1970’s.
++
++AND-You should focus on the differential allocation of humanness: structural inequality justifies the discursive forces that distribute access to intelligibility along the demarcating line of the construction of the human. You are compelled not to question who mitigates against the most “physical” violence, instead focus on disrupting the forces that control the production of the human by prioritizing resistance to normative violence, which prefigures and predetermines the orientation, agency, and sovereignty.
++Wilcox 2015 (Lauren B., University Lecturer in Gender Studies and the Deputy Director of the Centre for Gender Studies at the University of Cambridge, “Bodies of Violence: Theorizing Embodied Subjects in International Relations,” 187-188)CJQ
++The core conclusion that the previous discussion suggests is that ethics and responsibility cannot only be considered a matter of responding to others as if “we” and “they” existed as socially and politically separate entities. By taking embodiment seriously as an effect of, and cause of, entangled engagements, responsibility is rethought as accountability for who and what “matters” in the world—and who and what does not matter—in sharp contrast to discourses of “responsibilization” that shift the site of ethics onto individuals, as in neoliberal discourses. We are mutually entangled with each other such that we cannot separate. Our bodies themselves do not precede social entanglements, and thus we cannot consider an ethics of violence differently from existing frameworks that separate bodily existence from power. Rather than ethics being conceptualized as the proper treatment of others, “ethics is therefore not about the right response to a radically exterior/ized other, but about responsibility and accountability for the lively relationalities of becoming of which we are a part” (Barad 2007, 393). Responsibility has to do less with seeking security than with resisting regimes of inequality by addressing what Athena Athenasiou describes as “the differential allocation of humanness; the perpetually shifting and variably positioned boundary between those who are rendered properly human and those who are not” (Butler 2013, 31). The broader implications of theorizing bodies as precarious and bound to one another in their production as seemingly autonomous entities is that the question of ethical responsibility lies not only in protecting or rescuing those who have been constructed as grievable but also in the challenging of those discursive practices that constitute some people as grievable tragedies in death, others as justifiably killable. Because we are formed through the violence of norms, it is incumbent upon us to resist imposing the same violence on others (Butler 2009, 169). Butler posits a mode of protection, but it is clear that she does not mean, or does not only mean, the protection of an existing body from violence. Protection from violence is also a struggle with the social and political norms that structure the production of livable lives: to be responsible, to protect from violence in this instance is to work to lessen the violent effects of the norm, to trouble the power of bodily norms to mark certain lives as unlivable and unreal. Responsibility is about where the “cut” between self and other is made. We do not have recourse to the “god’s eye view,” to approach the question of ethics in terms of a disconnected appraisal of a situation in which “we” have no part. Our constitution in and through the world is not only a matter of our perspective being limited or partial. Our subjectivity is a material engagement in the world, creating it as it produces knowledge about it. Taking seriously the bodily precariousness means being attentive to the discourses that produce certain subjects as inhuman or as only bleeding, suffering bodies outside the full political context under which we and they are constituted.

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	1	+2016-11-12 16:52:33.179

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	1	+Erica Stickna

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	1	+North Crowley Reed Aff

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	1	+3- Queer Protections AC vol one

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	1	+Cypress Bay

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