Tournament: Memorial | Round: Octas | Opponent: Grace Mulry | Judge: Cara Day
The offense needs to be lined down.
1 Ought  is defined as used to express justice, moral rightness, or the like. Right action is simply the opposite of wrong action; it expresses that an action was morally allowable. We default to actions being right. To do otherwise would make actions that have no moral bearing such as breathing morally wrong. Also, this means the value is morality
2 Presume aff:
a) To affirm is defined by Dictionary.com  as
“to express agreement with or commitment to uphold; support”
meaning that we affirm if there is no negative offense because it can still be upheld.
b) We intuitively assume statements to be true than false – if I told you my name you’d assume that statement true unless there was some counter evidence to prove otherwise.
c) Structural skews. Out of 32,000 rounds, affs won 7 fewer rounds. Prefer theoretical to substantive presumption arguments since presumption only matters once substance is irresolvable meaning substantive presumption is incoherent. And, neg theory must be explicitly quantified. Absent quantification of abuse, any abuse in the AC is rectifying the skew the aff went into the round with.
Internalism and Externalism will always fail. Externalism are problematic because it’s not motivating. For example, util may be a good theory but nothing is motivating me to follow the rule. Conversely, internalism is problematic because it’s very subjective and we can’t create prohibitions on those morals. So, actions must be categorically binding to solve the problem. Only constitutive obligations can do this KATSAFANAS
Paul Katsafanas. Philosophy and Phenomenological Research Vol. LXXXIII No. 3, November 2011, Deriving Ethics from Action: A Nietzschean Version of Constitutivism. Boston University.
So what’s special about constitutive aims? The constitutive aim’s standard of success differs from these other standards in that it is intrinsic to the activity in question. You can play a chess game without aiming to enjoy it, and a chess game is not necessarily defective if not enjoyed. But you can’t play a chess game without aiming to achieve checkmate, so a chess game is necessarily defective if it does not achieve checkmate. Thus, the interesting feature of constitutive aims is that they generate intrinsic standards of success. Put differently, they generate non-optional standards of success. So the important point about constitutive aims is just this: if action has a constitutive aim, then that aim will be present in every instance of action. Thus, it will give us a non-optional standard of assessment for action, a standard that applies merely in virtue of the fact that something is an action.15 Constitutivism therefore has several powerful advantages over other methods of justifying normative claims. Constitutivism generates nonoptional normative conclusions by relying on a very spare claim about the connection between aims and standards of assessment (Success). It has the benefits of externalism, namely the capacity to generate non-optional norms; but it avoids the disadvantages of externalism, namely the problems of practicality and queerness.
We can only have moral obligations to our own lifeforms because of shared natural history. Shared natural history is important because in order to explain obligations to others we must be able to relate to everything about them. This would explain why we don’t have obligations to aliens or angels
We explain our actions through the life form which is constitutive of us
Thompson
Now, we are considering the possibility of an individual self-conscious, self-knowing animal, in the presence of the premise that this only Is only possible where self-consciousness is a it is characteristic of the form the individual bears and the premise that vital predication self-consciousness about individuals relates them to a form. The question is, what this tells us about the kind of life in question. Remember now, what was noted above, that all the predicable items anyone has ever imagined as attachable to oneself in self-knowledge are themselves vital predications: I'm in pain, I like this stuff, I think it's going to rain, I plan on returning to the united states one day. Pleasure and pain, thought and intention are all phenomena of life, and animal life. One's weight and height are not among the objects of possible self-knowledge. On our premises, then, the self-knower in apprehending such things is always and everywhere relating himself to his the form. In representing any animal as thinking or as in pain, I bring it to a certain formally distinctive unity; in representing it as bearing self-knowledge in respect of these things, I represent the animal as bringing itself to a unity of the same type. Self-consciousness is always implicitly form consciousness. And on our present premises, this will have to be is a feature of the life form itself: it belongs to the prosecution of such life to see things in the light of it, as we might say. Its representation is a part of it.
Thus the standard is advancing flourishing of the life form 

Prefer additionally:

1. Rule following paradox: External rules are indeterminate because there is no way to know the content of these rules Kripke explains
   Normally, when we consider a mathematical rule such as addition, we think of ourselves as guided in our application of it to each new instance. Just this is the difference between someone who computes new values of a function and someone who calls out numbers at random. Given my past intentions regarding the symbol ‘+’, one and only one answer is dictated as the one appropriate to ‘68+57'. On the other hand, although an intelligence tester may suppose that there is only one possible continuation to the sequence 2, 4, 6, 8,…, mathematical and philosophical sophisticates know that an indefinite number of rules (even rules stated in terms of mathematical functions as conventional as ordinary polynomials) are compatible with any such finite initial segment. So if the tester urges me to respond, after 2, 4, 6, 8, ... , with the unique appropriate next number, the proper response is that no such unique number exists, nor is there any unique (rule determined) infinite sequence that continues the given one. The problem can then be put this way: Did I myself, in the directions for the future that I gave myself regarding plus ‘+’, really differ from the intelligence tester? True, I may not merely stipulate that plus ‘+’ is to be a function instantiated by a finite number of computations. In addition, I may give myself directions for the further computation of plus ‘+', stated in terms of other functions and rules. In turn, I may give myself directions for the further computation of these functions and rules, and so on. Eventually, however, the process must stop, with ‘ultimate’ functions and rules that I have stipulated for myself only by a finite number of examples, just as in the intelligence test. If so, is not my procedure as arbitrary as that of the man who guesses the continuation of the intelligence test? In what sense is my actual computation procedure, following an algorithm that yields ‘125’, more justified by my past instructions than an alternative procedure that would have resulted in ‘5'? Am I not simply following an unjustifiable impulse?" Of course, these problems apply throughout language and are not confined to mathematical examples, though it is with mathematical examples that they can be most smoothly brought out. I think that I have learned the term 'table' in such a way that it will to apply to indefinitely many future items. So I can apply the term to a new situation, say when I enter the Eiffel Tower for the first time and see a table at the base. Can I answer a sceptic who supposes that by `table' in the past I meant tabair, where a 'tabair' is anything that is a table not found at the base of the Eiffel Tower, or a chair found there? Did I think explicitly of the Eiffel Tower when I first `grasped the concept of' a table, gave myself directions for what I meant by `table'? And even if I did think of the Tower, cannot any directions I gave myself mentioning it be reinterpreted compatibly with the sceptic's hypothesis?
   The only way to solve the paradox is to make internal rules because external ones are irresolvable. People must will that they are human no matter what, and this internal rule is not up for contestation. Thus the AC framework solves.
   2. Epistemology- Non-naturalism theories are epistemically inaccessible. Papineau   David Papineau, “Naturalism”. SEP, 2007.( http://plato.stanford.edu/entries/naturalism/) RP 7/3/13 Moore took this argument to show that moral facts comprise a distinct species of non-natural fact. However, any such non-naturalist view of morality faces immediate difficulties, deriving ultimately from the kind of causal closure thesis discussed above. If all physical effects are due to a limited range of natural causes, and if moral facts lie outside this range, then it follow that moral facts can never make any difference to what happens in the physical world (Harman, 1986). At first sight this may seem tolerable (perhaps moral facts indeed don't have any physical effects). But it has very awkward epistemological consequences. For beings like us, knowledge of the spatiotemporal world is mediated by physical processes involving our sense organs and cognitive systems. If moral facts cannot influence the physical world, then it is hard to see how we can‘t have any knowledge of them.
   We only know if something is good or bad if we have empirical evidence for it. For example, we only know the difference between a flower that is blooming and a flower that has cancer by past observations of which is which. This knowledge from experience becomes a priori knowledge as we are able to remember which condition is which. 

Impact calculus:

1. Prefer impacts to infinite ends because only they are constitutive to the life form. An infinite end is time general meaning it cannot be tied down to one instance. Actions that aim towards an infinite end that are necessary to be human outweigh. They are the constitutive features of a human that are willed throughout life. So, these ends are the most basic features of a person because everyone of the life form has to will them. This provides context to the natural kind so no alternative framework is needed and also provides a weighing mechanism between multiple features of a human.
   2. Next, In applying normative principles, we might discover a flaw in them. We should revise rather than reject the general principle to avoid the flaw. This interrogation and revision enables moral theories to guide actions in response to the non-ideal world. If we instead rejected the general principle, we'd be holding moral theories to a level of scrutiny that no principle could stand up to. We'd be left starting from specific situations to generate moral principles but this bottom up approach does not tell us what to do in each case, so no ought statements can be produced. There would be an infinite number of principles to cover each instance, instead we should start from the general and apply it to different instances. This is would make moral reasoning impossible because we’d have to wait for an instance to arrive to know how to respond to it.
   I advocate that the resolution ought to be adopted as a general principle --- however I’ll accept neg preferences on spec and implementation so long as they don’t force me to abandon the general maxim to avoid a useless T debate. 

I contend that the advocacy is consistent with the lifeform.
First, Health is an infinite end. Through the action of living people have to will health because it is a prerequisite for life. This action is time general because it cannot be tied down to a specific time. Since health is necessary for life and is time general, it is an infinite end. Rodl:
“We want to say that health is an end I have already achieved while pursuing it.10 And we want to say it is an end I never achieve as long as I am pursuing it. Is wanting health a paradox, then? No, but it is not a finite end. It does not admit the contrast that defines finite ends: the contrast of being on the way and having got there. A paradoxical description suggests itself when we attempt to conceive health through this contrast, that is, attempt to think it under the category of a finite end. An end to which the contrast of pursuing and having got does not apply is an infinite end. We need an account of the relation of the end to what serves it that defines infinite ends. Someone who cares about his health does certain things. He eats dry food, exercises, and so forth. Statements of this form – “He eats dry food”, “He exercises” – join a subject and an action habitually. A habitual judgment is time-general in the sense that judgments of all tenses may exemplify what it says. He went running yesterday, is playing tennis today, and will go swimming tomorrow: all of this shows that he exercises. If someone’s judgment “I want to be healthy” expresses his allegiance to an infinite end (if he is not sick and thinks of means of recovering, and if he does not want to get through a certain period without falling ill), then it will not be true if he merely thinks it would be nice to exercise and eat dry food. If he never, or only rarely, did any of these things, it would show that he does not want to be healthy (but, perhaps, only likes to say that he does). If he wants to be healthy, then he does things known to be healthy. He eats dry food, perhaps. So an infinite end judgment entails habitual judgments. Therefore, infinite end judgments are themselves time-general. He went running yesterday, is eating wholesome food today, and will refrain from lying in the sun at noon tomorrow: all this manifests his desire for health.11 ìI want to go cycling for the sake of my healthî is not an instrumental syllogism. We can say that it represents cycling as a means and health as an end. But the relation of means to ends has a different form in infinite ends. A finite end explains an action as a part of itself. When I am doing A because I want to do B, then I think that, in doing A, I am doing part of doing B. (It may be an improper part.) An infinite end explains an action as a manifestation of itself. When I am doing A because it is healthy, then I think that, in doing A, I am doing what someone does who is healthy. I think of myself as exemplifying a healthy man. Aristotle represents the form of the major premise of a practical syllogism by the schema, ìSuch a man ought to do such and suchî, equivalently, ìSuch a man does such and such.î12 When I am doing A because such a man does A, my action manifests my being such a man. This explains the infinity of infinite ends. A whole is exhausted by its parts; what is manifested is not exhausted by its manifestations. Infinite end judgments are time-general. This distinguishes adherence to infinite ends from inclinations. I may at a given moment feel like going to the movies, the very next moment feel like staying home, and a minute later again think that going to the movies would be nice. But it does not make sense to say that, at a given moment, I cared about my health, the next moment, I did not give a damn, and a minute later I again cared greatly about it. “I care about my health” is time-general. Since my desire for health manifests itself in actions at various times, it cannot be tied down to a moment. Inclinations are impotent to explain a temporally extended action because they refer to a moment. An infinite end manifests itself throughout the progress of the action and up to its end. In this sense, it always already contains the whole temporal extension of any action it explains. Infinite ends have the right temporality to underwrite the progress of action.”
Rodl, Sebastian. “Three Forms of Practical Reasoning.” Proceedings of GAP. Philosophy –Science – Scientific Philosophy. September 26. 2003.
Nuclear power is inherently unsafe.
Gronlund, Lochbaum, and Lyman`7(Lisbeth, David, Edwin, Lisbeth Gronlund is co-director and senior scientist of the UCS Global Security Program. David Lochbaum is director of the nuclear safety project in the UCS Global Security Program. Edwin Lyman is a senior staff scientist in the UCS Global Security Program. , Nuclear power in a warming world Assessing the Risks, Addressing the Challenges, Union of Concerned Scientist,  December 2007)
Nuclear power plants have experienced scores of more minor accidents and near-misses. These include an accident in Japan in December 1995, when the Monju reactor leaked sodium coolant, setting off a serious fire. Sodium burns fiercely when in contact with air and reacts violently when added to water, making it difficult to control. A recent example of a near-miss is the 2002 discovery that the Davis-Besse reactor in Ohio had a sizable hole in its head: only a thin skin of stainless steel kept radioactive materials from spreading within the plant. Continued operation for a few more months would have led to a Three Mile Island-style core meltdown, or worse (see Box 1).12 In fact, the Nuclear Regulatory Commission (NRC) has reported four dozen “abnormal occurrences” to Congress since 1986, and notified the International Atomic Energy Agency of 18 nuclear “events” since reporting began in 1992.13 While no technology can be perfectly safe, nuclear power is an inherently risky technology, and minimizing its risks requires stringent safety standards and practices. The United States has relatively strong safety standards for nuclear power.  However, serious safety problems continue to arise because the NRC does not adequately enforce those standards. Of course, accidents are not the only measure of safety, and the absence of accidents does not necessarily indicate that there are no safety problems. The number of U.S. reactors shut down for a year or longer to address numerous safety problems provides strong evidence of poor safety practices and inadequate NRC enforcement. A weak “safety culture” within the NRC itself prevents effective oversight. The agency also relies on flawed approaches to assessing risks and inspecting nuclear facilities, and its standards for preventing and mitigating severe accidents are too low. The NRC has recently taken steps to limit public participation in the reactor licensing process, even though past participation has led to improved safety. Moreover, rather than raising the bar for new reactor designs, the NRC is relying on existing standards, and federal limits on the liability of nuclear plant owners reduce incentives to improve the safety of future reactors. The NRC also suffers from an inadequate budget. These shortcomings indicate that the NRC needs to greatly strengthen its approach to nuclear power safety. 

Nuclear waste sites will inevitably create health problems for future generations.
Brook 98 Daniel, “Environmental Genocide: Native Americans and Toxic Waste,” American Journal of Economics and Sociology, Vol. 57, No. 1, Jan., pp. 105-113, http://www.jstor.org/stable/pdfplus/3487423.pdf
Unfortunately, it is a sad but true fact that "virtually every landfill leaks, and every incinerator emits hundreds of toxic chemicals into the air, land and water" (Angel 1991, 3). The U.S. Environmental Protection Agency concedes that "even if the . . . protective systems work according to plan, the landfills will eventually leak poisons into the environment" (ibid.). Therefore, even if these toxic waste sites are safe for the present generation-a rather dubious proposition at best-they will pose an increasingly greater health and safety risk for all future generations. Native people (and others) will eventually pay the costs of these toxic pollutants with their lives, "costs to which corporate executives are conveniently immune" (Parker 1983, 59). In this way, private corporations are able to externalize their costs onto the commons, thereby subsidizing their earnings at the expense of health, safety, and the environment.

Tournament: Spring Woods | Round: 1 | Opponent: Bilo Quick | Judge: Borot Quack
Because of the increasing risk of police violence, lack of regulation, and little accountability for police officers who hurt civians, I stand in affirmation Resolved: The United States ought to limit qualified immunity for police officers.

 
Definitions: 

Qualified Immunity is the removal of legal responsibility for civil lawsuits for Police officers. 

Schott '12 (Federal Bureau of Investigator "Qualified Immunity How It Protects Law Enforcement Officers." Sept. 2012 https://leb.fbi.gov/2012/september/qualified-immunity-how-it-protects-law-enforcement-officers) 

While law enforcement officers recognize the inherent risks of their occupation, they should be comforted by the description given by the Supreme Court as to the effect of the qualified immunity doctrine on one of those inherent risks—that of being sued civilly. In Harlow v. Fitzgerald, the Court explained that “government officials performing discretionary functions generally are shielded 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.”4 The plaintiff in Harlow, A. Ernest Fitzgerald, sued, among others, President Richard M. Nixon and one of his aides, Bryce Harlow, alleging that he was dismissed from his employment with the Air Force in violation of his First Amendment and other statutory rights. The defendants sought immunity from the lawsuit. While ruling on the issue of immunity, the Supreme Court distinguished the president from his aide. First, the Court noted that its “decisions consistently have held that government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.”5 

Police officers are defined as those who have been employed by a specific state to protect a certain community.
Baton Rouge Police Department, 2015 (the Municipal Fire and Police Civil Service Board., “Duties and Responsibilities of Police Officers” http://brgov.com/dept/brpd/pdf/police_duties.pdf) 

This is general and varied duty police work in the protection of life and property through the enforcement of laws and ordinances. Work involves the responsibility for performing routine police assignments that are received from police officers of superior rank. Work normally consists of checking of parking meters for violations, routine patrol, preliminary investigation and traffic regulation, and investigation duties in a designated area on an assigned shift which involve an element of personal danger and employees must be able to act without direct supervision and to exercise independent judgment in meeting emergencies. Employees may receive special assignments which call upon specialized abilities and knowledge usually acquired through experience as a uniformed officer. In addition, employees of the class may be required to assist other personnel of the police department in conducting interrogations, searches, and related duties as assigned, involving female prisoners or suspects, as well as in escorting females and juveniles to and from designated points. Assignments and general and special instructions are received from a superior officer who reviews work methods and results through reports, personal inspection, and discussion. 

Value and Criterion

The Value therefore is retributive justice. Which is defined as the appropriate just actions taken in response to a crime. 

Stanford encyclopedia of philosophy '14 ( "Retributive Justice" Published Jun. 18th 2014. http://plato.stanford.edu/entries/justice-retributive/) 

The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles: (1) that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment; (2) that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and (3) that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers. The idea of retributive justice has played a dominant role in theorizing about punishment over the past few decades, but many features of it—especially the notions of desert and proportionality, the normative status of suffering, and the ultimate justification for retribution—remain contested and problematic.

And 

Escaping punishment from the law denies judicial authority and, thus, is destructive to the institution of laws. 

Allen 1980 (R. E. Department of Philosophy and Classics, Northwestern University, Socrates and Legal Obligation, pg 85) 

 The key lies in the nature of judicial authority. To escape is to deny, not by word but by deed, not by uttering negative statements, but by positive breach, the authority of the verdict and sentence. That sentence was rendered according to law and, as legal, owes its authority precisely to that source. To deny the authority of a given sentence so rendered is to deny authority to any sentence rendered; but this is to deny authority to law itself, since it is to deny authority to its application. Since the application of law is essential to the existence of law, to act in breach of a given application is – by so much – destructive of all law. Since law without application is not law, and a city without law is not a city, the Laws of Athens claim that Socrates, if he escapes, will attempt so far as in him lies to destroy the City and its laws. Aristotle remarks, presumably with the Crito in mind, “Judicial decisions are useless if they take no effect; and if society cannot exist without them, neither can it exist without the execution of them.” This account of judicial authority rests, then, on a universalization argument, found nowhere else in ancient philosophy. It explains why, if this judgment as judicially rendered is not authoritative, then no judgment as judicially rendered is authoritative. This principle, it is claimed, is fundamental to the existence of a legal system. 

Since citizens are having their rights violated by officers and others, they ought to have access to retributive justice. Limiting qualified immunities is the only away to check back against bias insitutions and practices. 

Value Criterion: 

In order to ensure justice is accessible to victims, the value criterion is due process. Due process is the theory that every individual ought to have fair treatment through the normal judicial system. Due process ensures that a victim is able to receive justice for the crime, but also holds criminals accountable for their actions. 

Blacks Law Dictonary, 2014 (Black's Law Dictionary. "Due Process of Law". Page 500. http://foundationfortruthinlaw.org/Files/Black's-Law-Dictionary-Due-Process-Definition.pdf)

Law in its regular course of administration through courts of justice. Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution- that is. by the law of its creation-to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Pennoyer v. Neff 95 U.S. 733, 24 L.Ed. 565. Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law. An orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case. 

Holding persons accountable for their actions better ensures prevention of harmful actions. Accountability is key to reforming. Therefore Punishment should be aimed at correction of habits, not as retaliation. 

Allen, ’98 (R. E. Department of Philosophy and Classics, Northwestern University, Socrates and Legal Obligation, pg 79) 

The aim of just punishment is to make bad men better, to increase the measure of their human excellence, and thereby the measure of their happiness or well-being. Therefore, as it is better to suffer injustice than to do it, so it is also true that the unjust man, if he knew what is in his own interest, as he does not, would seek punishment for himself because of its medicinal value, for its effect of purifying the soul from the disease of wickedness. Punishment is imposed, when it is imposed rightly, not simply because of past wrongdoing, but for the sake of the soul of the wrongdoer – or if he is beyond cure, for the sake of himself and his fellows. This theory is distinct from the retributive theory in that it does not place positive as distinct form the instrumental value on human suffering as such, and does not measure the wickedness of an agent by the wickedness of his act. 

Observation 1:
Qualified Immunity is based on reasonableness.  
Therefore in order to limit the use of qualified immunity it is necessary to limit the reasonableness standard.  The affirmative thus ought to defend what mechanisms
Schott '12 (Federal Bureau of Investigator "Qualified Immunity How It Protects Law Enforcement Officers." Sept. 2012 https://leb.fbi.gov/2012/september/qualified-immunity-how-it-protects-law-enforcement-officers)

6Based on this reasoning, Harlow—Nixon’s aide—was entitled not to absolute immunity, but, rather, to qualified immunity. The Court then reexamined its earlier treatment of qualified immunity. Prior to this case, qualified or “good faith” immunity included both an objective and a subjective aspect. The subjective aspect involved determining whether the government actor in question took his “action with the malicious intention to cause a deprivation of constitutional rights or other injury.”7 This subjective determination typically would require discovery and testimony to establish whether malicious intention was present. Having to go through the costly process of discovery and trial, however, conflicted with the goal of qualified immunity to allow for the “dismissal of insubstantial lawsuits without trial.”8Recognizing this dilemma, the Court altered the test to determine whether qualified immunity was appropriate. The new test, as stated earlier, is that “government officials performing discretionary functions generally are shielded 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.”9 By applying the reasonable person standard, the Supreme Court established, for the first time, a purely objective standard to determine whether granting a government official qualified immunity was appropriate. While Harlow did not involve a law enforcement officer’s actions, the decision is significant because law enforcement officers are government officials who perform discretionary functions and may be protected by qualified immunity. This shield of immunity is an objective test designed to protect all but “the plainly incompetent or those who knowingly violate the law.”10 Stated differently (but just as comforting to law enforcement officers), officers are not liable for damages “as long as their actions reasonably could have been thought consistent with the rights they are alleged to have violated.”11 As protective as the language in these post-Harlowcases would suggest qualified immunity is, qualified immunity is not appropriate if a law enforcement officer violates a clearly established constitutional right.

 
Contention 1: Qualified Immunities allow for police officers to be violent. 

Subpoint A: Qualified immunity doesn’t allow for victims to receive justice. 

Qualified immunity allows for police officer’s to escape accountability when it comes to violent crimes. 

Sheng ‘12, (Philip. Professor at BYU. 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 Available at: http://digitalcommons.law.byu.edu/jpl/vol26/iss1/5) 

In Graham v. Connor, the United States Supreme Court announced for the first time that "all claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." 1 In other words, "the question is whether the officers' actions were 'objectively reasonable' in light of the facts and circumstances confronting thcm." 2 Application of the "objectively reasonable" standard in the context of excessive force cases ought to be rather straightforward; after all, the standard is fundamental to the American legal system. For example, in tort law, juries arc routinely asked to place themselves in the shoes of medical doctors, lawyers, and other professionals in an effort to determine what conduct is objectively reasonable under a given set of facts. 3 Likewise, in criminal law, where a defendant raises self-defense in response to a charge of murder or battery, juries must determine whether the force used was objectively reasonable in response to the perceived threat.4 The inquiry is often fact intensive, and like all questions of fact, should be entrusted to the jury. 5 As this paper seeks to explain however, in excessive force cases brought under 42 U.S.C. § 1983,6 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. 

Qualified Immunity allows for the justification of violence. And many victims receive no justice. 

Senkel 1999 ( Tara. Attorney in New York. Civilians Often Need Protection From the Police: Let's Handcuff Police Brutality 15 N.Y.L. Sch. J. Hum. Rts. 385 (1998-1999). http://heinonline.org/HOL/Page?public=falseandhandle=hein.journals/nylshr15andpage=385andcollection=journals#) 

While victims of police brutality can bring an action under section 1983217 against the police officer and the municipality, the police officer and municipality are each subject to liability under two different theories.218 Police officers are found liable iUnder the statute if, "while acting under color of state law, their actions violate a person's constitutional rights. 219 Municipalities are not liable under the theory of respondeat superior, but may be found liable if the police officer's conduct follows an official policy or practice of the municipality.220 There are differences between an action brought against a police officer and an action brought against a municipality, such as the defenses that can be asserted.2 Once a victim brings an excessive force claim against a police officer under section 1983, the officer may assert a defense of qualified immunity.222 In Graham, the Supreme Court did not address the issue of qualified immunity in Fourth Amendment excessive force claims. 223 However, the Court did discuss the qualified immunity defense in Harlow v. Fitzgerald. 224 In Harlow, A. Ernest Fitzgerald sued Bryce Harlow and Alexander Butterfield, Richard Nixon's White House aides, alleging they had been involved in a conspiracy to violate his constitutional and statutory rights.225 The Court held that the aides were protected by a qualified immunity. 226 The Court stated that: Bare allegations of malice should not suffice to subject governmental officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not clearly violate, established statutory or constitutional rights of which a reasonable person would have known. 227 The Court went on to state that by defining the limits of the qualified immunity doctrine in objective terms, it was not authorizing lawless conduct.228 Rather, the objective reasonableness of an official's acts protects the public interest by discouraging unlawful conduct and compensating victims. 229 If an official could be expected to know that an act would violate statutory or constitutional rights, the officer should not perform the act, and if a person was injured by the act, that person should have a cause of action. 230 However, if the official's duties require action be taken in which clearly established rights are not involved, "the public interest may be better served by action taken 'with independence and without fear of consequences.' 231 The objective reasonableness standard was also used in Anderson v. Creighton.232 In Anderson, FBI agent Russell Anderson was working with other law enforcement officers involved in a warrantless search of Robert Creighton's home.233 The search was performed because the FBI agent believed that a bank robbery suspect might be in the house.2 34 Creighton brought an action in state court against Anderson, asserting a Fourth Amendment violation.235 Anderson removed the suit to federal court and then filed a motion for summary judgment, contending the claim was barred by his qualified immunity.236 However, the Court of Appeals for the Eighth Circuit denied Anderson's motion, finding that Creighton demonstrated that Anderson violated Creighton's right to be protected from warrantless searches of his home. An exception from this constitutional right, the court noted, was if officers have probable cause or in situations where there are exigent circumstances.237

and

Senkel 1999 ( Tara. Attorney in New York. Civilians Often Need Protection From the Police: Let's Handcuff Police Brutality 15 N.Y.L. Sch. J. Hum. Rts. 385 (1998-1999). http://heinonline.org/HOL/Page?public=falseandhandle=hein.journals/nylshr15andpage=385andcollection=journals#)
The U.S. Supreme Court reversed, stating that it was concerned about the test of "clearly established law"238 because if the test were applied to cases at this level of generality, it would not have any relationship to the "objective legal reasonableness., 239 The Court also stated that plaintiffs would be able to change the rule of qualified immunity "into a rule of virtually unqualified liability of government agents by alleging a violation of extremely abstract rights." 240 The right must be clear enough that a reasonable governmental official would know that his conduct violates that right. 241 The question that must be asked is an objective, albeit fact specific one, whether a reasonable officer would violate others rights or could find that Anderson's search was lawful, "in light of clearly established law and the information the searching officers possessed.' '242 The court found that Anderson's "subjective belief about the search were irrelevant." 243 Furthermore,. in Owens v. City of Independence,244 the Court held that a municipality cannot allege a qualified immunity defense. The Court stated that "many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense." 245 Therefore, a municipality can only escape liability if it claims that a constitutional violation did not occur or that the police officer was not acting in good faith "pursuant to a policy, practice, or custom of the municipality. 246 Thus, if a police brutality victim brings an action against the police officer and municipality under section 1983, the Court will examine the claim under the Fourth Amendment and its reasonable standard to determine whether the police officer's conduct was excessive or unreasonable. Although police officers may assert a qualified immunity defense to the claim, municipalities are not afforded this defense.

Governmental accountability is key to democracy and justice. The status quo removes accountability causing the government to be illegitimate 

Bogdanor, '07 ( Vernon. Professor of Government, Brasenose College, Oxford University. "Legitmacy, Accountability and Democracy in the European Union." http://fedtrust.co.uk/wp-content/uploads/2014/12/FedT_LAD.pdf) 

The accountability of those who make political decisions to those who choose them is a fundamental part of democratic government. Indeed, it is part of a broader process of citizen control. Those who make decisions in a democracy need to gain the confidence of electors and convince them that they and their party are the right team. The voters pass judgement on the government, endorsing what it has done, or rejecting it in favour of the opposition. It is in this sense that politicians are accountable to the public. But, in addition, accountability is also exercised by directly elected representatives on behalf of the voters when they scrutinise the government of the day. For it is an important element of the democratic process that those who exercise power on the electorate’s behalf do so in a rational and transparent manner, with mistakes being publicised, discussed and punished where necessary. That, of course, is the case for freedom of information. Parliament, the media, civil society and interest groups all have a part to play in this continuing process of political accountability, which culminates in, but is by no means limited to, general elections every four or five years. Just as some might argue that the European Union is already legitimate because the Council of Ministers and the European Parliament are both directly elected, so also they might suggest that the Union is accountable since ministers of the member states are accountable to their national parliaments for the decisions they take in the Council of Ministers. The European Parliament, moreover, exercises oversight over the Commission, and it has been more vigorous in this regard in recent years. The Commission is in fact far from being the secretive organisation of popular myth. Indeed, interest groups in Brussels are often pleasantly surprised by the ease of access to civil servants and documents. The Council of Ministers has in the past met in private, with no official record of how member states vote on legislative proposals. But some member states regularly publicise their voting decisions and it has been rare for a government which is directly challenged about how it has voted on a particular issue to hide behind the veil of Council secrecy. Moreover, the Council has recently decided to hold its legislative sessions in public and this will certainly increase transparency for some aspects of its legislative work.

Sub point B: Qualified immunity increases violence 

The vagueness of reasonableness allows for police officers to not know the bright line of excessive force. This allows for police officers to be violent in their dealings with the public

Alpert and Smith, 1994 ( Geoffrey P. Alpert William C. Smith. Professors at University of South Carolina. How Reasonable Is the Reasonable Man: Police and Excessive Force. Journal of Criminal Law and Criminology Volume 85 Issue 2 Fall. http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6818andcontext=jclc) 

The Commission Report discussed the need for scrutiny of the police and the need for reform.3 Unfortunately, no one attempted to define excessive force or explain situations that went beyond the necessary force needed to achieve the police mission. This lack of definition has created an unfortunate situation for both the police and the public. One possible consequence of this deficiency is the lack of national and state-wide statistics on police use of force or excessive force. The shortage of comprehensive statistical information on police use of force has been explained by police officials:4 Agencies did not require reports of their use of force from their officers. The categories of force for which such reporting as most likely to be mandated were those with the most potential for death or serious bodily harm, such as shootings.... A majority of the agencies within each type reported that they reviewed all use of force reports. The remaining departments either reviewed selected reports or reported that they did not review these reports at all.

And

Alpert and Smith, 1994 ( Geoffrey P. Alpert William C. Smith. Professors at University of South Carolina. How Reasonable Is the Reasonable Man: Police and Excessive Force. Journal of Criminal Law and Criminology Volume 85 Issue 2 Fall. http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6818andcontext=jclc) 

Prior to 1989, most federal circuits followed the Fourteenth Amendment substantive due process "shocking to the conscience" standard enunciated by the Second Circuit in Johnson v. Glick. 0 UnderJohnson, the subjective mental state of the offending officer was relevant as a factor to help determine if an actionable injury had occurred.11 As a result, ambiguity existed in police misconduct cases regarding the standard of evaluation for claims of excessive force. With the United States Supreme Court's 1989 decision in Graham v. Connor,12 the significance of that intent gave way to the "objective reasonableness" standard of the Fourth Amendment in cases where "seizures" are deemed to have occurred. 13 One of the obvious problems created by a reasonableness standard is determining the appropriate level of reasonableness. Research results have indicated that police officers, especially street officers, are able to assess what is good police work and when force is excessive.' 4 This may explain why most accusations of excessive force are denied at the department level. Of course, it may also be that police officers band together, close ranks, and protect their fellow of ficers against accusations of excessive force. 15 In any case, it is not the police officer who will ultimately determine the reasonableness of another police officer's actions, as police officers will rarely be seated on a jury in a police misconduct case. Reasonableness may have several levels and several audiences. It is, however, the assessment of force by the civilian "reasonable person" that matters. And force may involve hands, batons, or other weapons if used appropriately and according to policy and training.16 Police officers escalate the use of force against a suspect-beginning with mere presence or verbal and visual commands, and concluding, if necessary, with the use of deadly force-in direct relation to the reason for which they must apprehend that suspect. To determine whether that force was justified, courts must analyze its necessity and reasonableness.' 7 It is precisely these terms that must be defined and understood. A definition of permissible and impermissible (excessive) force within Qualified immunity is necessary to stopping police violence. Current legal efforts to define the extent of officer qualified immunity serves as a starting point in the present effort to delineate reasonable standards of officer behavior in situations involving the use of force.

Police Violence is target communities of color. 

Hadden et. all '16 (Bernadette R. Hadden, MSW, PHD, is Assistant professor in the MSW program at Hunter College School of Social Work New York. Willie Tolliver, PhD. Associate Professor at Silberman School of Social Work.  Fabienne Snowden PHD. Professor at Hunter College School of Social Work. and Robyn Brown Manning, PHD. Professor at Hunter College School of Social "An authentic discourse: Recentering race and racism as factors that contribute to police violence against unarmed Black or African American men, Journal of Human Behavior in the Social Environment" http://www.tandfonline.com/doi/full/10.1080/10911359.2015.1129252#abstract) 

Police shootings of unarmed Black or African American men are occurring at alarming rates (Wihbey, 2014) and are indicative of a national trend of excessive force used by law enforcement agents on the bodies of people of color (American Civil Liberties Union ACLU, 2014). These incidents are happening inside and outside of Black and Hispanic neighborhoods (Carroll and Gonzalez, 2014), to low-income and middle-class Blacks or African Americans (Jones-Brown, 2009), and are frequently the result of routine encounters (ACLU, 2014). One of several challenges in obtaining an accurate count of the number of the police shootings of unarmed Black or African American men in the United States is that there are no nationally consistent measures of collecting these data (Department of Justice, 2015). This lack of standardized reporting, accompanied by public outrage, civil unrest, and community activism, calls for investigations into, and law enforcement reporting of, fatal police shootings of unarmed Black or African American men. Suggestions of racial profiling in police shootings have been presented as an explanation of the phenomenon of the disproportionate shooting of unarmed Black or African American men by law enforcement agents (Amajor, Sandars, and Pitts, 1999). In 2007 researchers found that in 10 of the United States’s largest cities, Blacks or African Americans were overly represented among victims of police shootings (Lowerstein, 2007). These findings were most visible in New York City, Las Vegas, and San Diego (Lowerstein, 2007). At a 2010 hearing calling for the investigation of police-involved shootings in Oakland, California, the National Association for the Advancement of Colored People (NAACP) reported that from 2004 and 2008, 37 of the 45 police shootings in that city were at Black or African American suspects (Bulwa, 2010). A report from the New York City Police Department (NYCPD) illustrates that between 2000 and 2013, 97 Blacks or African Americans, 41 Hispanics, and 21 Whites were killed by NYPD police officers (NYCPD, 2014). In other words, from 2000 to 2013, more Blacks or African Americans were killed by NYCPD weapon discharges than Latinos and Whites combined. These reports identify and document the phenomenon of Black or African American men being shot and/ or killed by police officers, despite the limitations in data tracking police shootings (Graham, 2015). However, they do not inform us of the incidence or prevalence of this phenomenon

Violence towards communities of color codify their bodies as the other. 

Rembert et. All ’15 (David A. Rembert, Jackson State University, PHD in civil Law. Jerry Watson Professor at Jackson University in Political and Rickey Hill Ph.D Policital Science. Professor of Political Science at Jackson State University. “A trilogy of trepidation: Diverse perspectives on police violence targeting African American males” Journal of Human Behavior in the Social Environment, 26:2, 227-235, DOI: 10.1080/10911359.2015.1083506)

Whiteness codifies the Black body and being as demonic, monstrous, and criminal. Black people have not just become the “other,” they have become the “other-worldly,” subjected to preemptive strikes by a system of society that has rendered them subhuman. Philosopher George Yancy puts the matter quite aptly when he submits the Black body “Is that which is to be feared and yet desired, sought out in forbidden white sexual adventures and fantasies; it is constructed as a source of white despair and anguish, an anomaly of nature, the essence of vulgarity and immorality” (Yancy, 2008, p. xvi). The dominant White class deploys its political and social power as racist iconography to maintain power. Therefore, the Black body is not free and autonomous; it is imprisoned, from birth, by an ideology of racial domination and ontologically reduced to a criminal. 

And Otherization is the internal link to other forms of violence. 

Bulter, ’04 (Professor at Berkley. Judith Bulter Precarious life :the powers of mourning and violence London. Print. )

I am referring not only to humans not regarded as humans, and thus to a restrictive conception of the human that is based upon their exclusion. It is not a matter of simple entry of the excluded into an established ontology, but an insurrection at the level of ontology, a critical opening up of the questions, What is real? Whose lives are real? How might reality be remade those who are unreal have, in a sense, already suffered the violence of derealization. What, then, is the relation between violence and those lives considered as "Unreal?" Does violence effect the unreality? Does violence take place on the condition of that unreality? If violence is done against those who are unreal, then from perspective of violence, it fails to injure or negate those lives since those lives area already negated. But they have a strange way of remaining animated and so must be negated again (an again). The derealization of 'Other' means that it is neither alive nor dead, but interminably spectral. The infinite paranoia that imagines the war against terrorism as a war without end will be one that justifies itself endlessly in relation to the spectral infinity of its enemy, regardless of whether or not there are established ground to suspect the continuing operation of terror cells with violent aims. How do we understand this derealization? It is one thing to argue that first, on the level of discourse, certain lives are not considered lives at all, they cannot be humanized, that they fit no dominant frame for human, and that their dehumanization occurs first, at this level, and that this level then gives rise to a physical violence that in some sense delivers the message of dehumanization that is already at work in the culture. It is another thing to say that discourse itself effects violence through omission.

Sub point C: limiting qualified immunity is key to reducing violence 

Wright, 2015 (Journalist and PHD in Law. "Want to Fight Police Misconduct? Reform Qualified Immunity." http://abovethelaw.com/2015/11/want-to-fight-police-misconduct-reform-qualified-immunity/)
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 avoidaccountability. 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?
Qualified Immunities allow for police officers to not be held accountable for violent offenses, increases their frequency, and causes otherization of communities of color. This decreases retributive justice for victims as well as denies their due process. The only way back to prevent this type of violence is by limiting qualified immunity. Therefore I stand in firm affirmation of the resolution.

Tournament: Clear Lake | Round: Quarters | Opponent: Gave Reveia | Judge: Miro Golo
First, the judge as an educator facilitates social change, the outright oppression of trans people calls for a
paradigmatic shift to total gender inclusion, Green1:
As trans people become more visible in our society, they become subject to further discrimination and violence. It is particularly incumbent on us, as sexuality educators, to heed the call and
embrace their role in progressing positive social change for this sexual minority. By including trans
people and related topics in our work, we educators can help to educate about and increase comfort with transness—that will
ultimately contribute to making the world a safer place for trans people. Just as sexuality educators and others in the 1990s were working hard to address the issues of gender discrimination against women (Griffin, 2007; Sears, 1992), it is
now time to shift this paradigm toward one that is inclusive of all gender identities.
To clarify this means that oppression faced by all beings is bad, including animals. Prefer because a) Allowing
the neg to decide the ROB moots 6 minutes of AC offense premised on a different ROB, I couldn’t have known
they would read a different one but they can conform to mine. b) Focusing on any other form of oppression re-
entrenches the cis-gender norm, means other roads to solving oppression are doomed to fail since they start
from an oppressive mindset, Green2 2:
An essential first step toward full trans inclusion is for us to examine our work and identify the ways in which we may be contributing to the marginalization of
transpeople in our current work. When we are minimally inclusive of transpeople and related issues in our curricula,
our work perpetuates systematic cisgender privilege, mirrors the overall marginalization of transpeople in greater society, and
ignores a powerful opportunity to advocate for a community that faces unnecessary and overtly cruel
discrimination (McCarthy, 2003). Examples of this minimal inclusion include when we choose not to be trans
inclusive for fear that it is distracting and detracts from our central content, when we assume that others will cover trans content in future lessons, or when we
make decisions not to use inclusive language as a default in our sexuality education work.
To clarify, my argument isn’t that this is the worst form of oppression but rather that this discourse should
occur.
Second, the increasing violence and oppression faced by individuals calls for a shift in the material conditions
experienced by these individuals, Rogers3:
The brutal death of a 36-year-old transgender woman in Kansas City, Mo., is the latest in what activists are calling
an alarming rise in anti-transgender violence. Tamara Dominguez, who was reported to have migrated from Mexico to escape
discrimination, was hit by a vehicle early Saturday and run over several times, making her the 17th transgender person reported
killed this year, according to data compiled by the National Coalition of Anti-Violence Programs. Most of the victims have been black or Hispanic. By
comparison, 12 killings of transgender people were recorded by the coalition in 2014, said Sue Yacka, a spokeswoman. Transgender activists believe the killing in
Kansas City was motivated by Ms. Dominguez’s gender identity. Randall Jenson, a representative for the Kansas City Anti-Violence Project who
has been working with Ms. Dominguez’s family, characterized her death as an “intentional act” meant to send a message.
And those are just the killings that are reported, said Kris Hayashi, executive director of the Transgender Law Center. Mr. Hayashi said
that recent media coverage had brought increased visibility to each victim, but that the killings reflected an “ongoing” state of crisis for
the community.
Means abstract K alternatives fail. They need to provide a concrete way of providing material change, not just
mindset shifts having some minute affect on material conditions. Means if they don’t have an alternative
method the aff is the only one with risk of offense on the ROB.
Therefore, the role of the ballot is to vote for the debater who best positively alters the material conditions of
marginalized groups. This requires state action, not just critical reflection- moving away from the state dooms
the lefts’ critique to failure—we must work within the state without being statist, meaning if the neg alt isn’t a
state policy I’m the only one with a risk of offense, Connolly4:
Before turning to possible strategies to promote these objectives, we need to face an objection posed by one segment of the left: "Don't you depend a lot upon the state,
when it must be viewed as the enemy?" My response is threefold. First, there is no way to take on global warming without engaging the state in the effort as well as
international agencies, and global warming is a key danger of this epoch. Second, it is less the state itself and more its existing subsidies and

2 Shifting Paradigms: Moving Beyond “Trans 101” in Sexuality Education ELI R. GREEN, MA, Med Widener University, Chester, PA, USAAmerican Journal of Sexuality Education, 5:1–16, 2010 Copyright © Taylor and Francis Group, LLC ISSN: 1554-6128 print /
1554-6136 online DOI: 10.1080/15546121003748798Address correspondence to Eli R. Green, Widener University, Center for Education, Hyatt Hall, c/o Human Sexuality Education Program, Chester, PA 19013. E-mail: EliRGreen@gmail.com
3 Seventeen Transgender Killings Contrast With Growing Visibility By KATIE ROGERS AUGUST 20, 2015 New York Times
4 2k8 William, Professor of Political Science at John Hopkins, Capitalism and Christianity, American Style, page numbers are at the bottom of the card.
priorities that are at issue. If you were to oppose both the market and the state you might reduce the democratic left to pure critique, with no
presentation of positive possibilities and strategies. But critique is always important and never enough, as the left has
begun to rediscover and as the American right has known for forty years. Third, although one must acknowledge the issues of cumbersome state
bureaucracy, corporate cronyism, and state corruption, all three increased radically when the evangelical-capitalist resonance machine achieved
hegemony, and they will get worse unless eco-egalitarians enter the fray at the interceded levels of
micropolitics, microeconomic experiments, and the state. It is unwise to act as if the state must always be what it has become.
Challenging the media is critical in this respect, making it become a watchdog of corporations, the state, religious movements, and the multiple imbrications
between them. My view, as becomes clear in the next few pages, is that no interim agenda on the left can proceed far without
finding expression in state policy, and state policy must draw inspiration from microeconomic experiments initially launched outside its canopy:
microeconomic experiments and creative state policies must inform each other. We thus seek to include the state without becoming
statist. Those who invest hope in revolutionary overthrow may oppose such a combination. I suspect that revolution, were it to occur, would undermine rather than
vitalize democratic culture.29

Thus, I affirm that you should limit the tranny porn qualified immunity.

Qualified Immunity dismisses cases before trials which prevents enshrining specific
rights in precedents because a specific decision for QI about a law not being
established doesn͛t spill over to other cases – that allows courts to determine that
sexual orientation is not an important category and that discrimination against them
by police or otherwise don͛t matter – LGBTQ+ rights are never established in trials and
never get to be things police or even other areas of law have to respect – and police
and others don͛t have to respect that those rights exist because they don͛t apply to
them – sick card, Wagner 13͛
Robin B. Wagner, Are Gay Rights Clearly Established?: The Problems with the Qualified Immunity
Doctrine, 63 DePaul L. Rev. 869 (2014) Available at: http://via.library.depaul.edu/law-
review/vol63/iss3/7
Seventh Circuit Judge Richard Posner critiqued the qualified immunity doctrine over twenty years ago, remarking that ͞the easiest cases don͛t even arise.͟70 Judge Posner͛s point was that if
a new claim had squarely fit the exact precedent in which the law or right had been clearly established, the doctrine could not provide meaningful protection from government officials who
violate an individual͛s rights.71 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.͛͟72 Yet one plaintiff got her
day in court,73 a second received the opportunity to press the case that discrimination against him was indeed unconstitutional,74 and the third did not even get an opportunity to have the
substance of her issues heard.75 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.76 Pamela Karlan has associated the qualified immunity doctrine with part of the Court͛s trend to ͞undermine the concept of the ͚private attorney
general͛ who brings suit to vindicate both her own claims and the broader public interest.͟77 A court can issue declaratory and injunctive relief altering the practice of defendants who
otherwise have qualified immunity from damage claims.78 However, without attorney͛s fees or even minimal damages, a plaintiff may be reluctant to appeal a prong-one decision.79
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.80
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).81 Now that courts can rely primarily on prong two,
as the Ambris court did,82 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 established͟ label from a right if there is disagreement among the
circuits.83 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.84 A year later in Reichle v. Howards, the Court reversed the Tenth Circuit͛s denial of qualified immunity to Secret Service agents who violated the First
Amendment by arresting a suspect in retaliation for comments they heard him make against the Vice President under their protection.85 The Court averred that qualified immunity will not be
granted when the legal issue is defined at a ͞high level of generality.͟ 86 Additionally, the Court held that when the impact of a new
Supreme Court ruling has not yet been determined with regard to circuit- level precedent on a related
question, the entire area is considered sufficiently in flux that a reasonable official should not be
denied qualified immunity.87 Scholars and commentators have reacted to these two decisions with concern that the Court is developing a new doctrine for how courts
may find ͞clearly established law.͟ One commentator noted that the Reichle decision may have severely narrowed ͞clearly established law,͟ particularly for circuit-level precedent, because it
precluded finding the law clearly established in that circuit when ͞it was at least arguable͟ that the Supreme Court ruling affected the circuit precedent on a separate, but related issue.88 And
Orin Kerr added his concern on the Reichle ruling that circuit precedent, without consensus among other circuits, may no longer be sufficient to clearly establish the law in that home circuit.89
While a third commentator viewed this decision as a narrow ruling, he nonetheless noted that the Court did not rule on the substance of the alleged violation, but only that the average federal
agent would not have found clear guidance on the law due to the differences among circuits.90 The Reichle decision drew heavily on the Pearson v. Callahan and al-Kidd precedents to justify
its focus only on the second, ͞clearly established͟ prong of qualified immunity analysis.91 This line of cases may imply a significant change emerging to restrict the ability of lower courts to
identify ͞clearly established͟ constitutional rights and thereby deny qualified immunity.92 Justice Kennedy͛s concurrence in al-Kidd suggested a new paradigm for analyzing qualified immunity
that would create a different standard for finding ͞clearly established law͟ when the defendants were federal officials.93 The Reichle Court, rather than finding immunity only for a federal
agent acting in a landscape of circuit disagreement, held, perhaps more broadly, that when it is arguable but not clear that a Supreme Court ruling may affect existing circuit precedent, the
government official receives qualified immunity.94 The Supreme Court has, in the past few years, ruled in ways that may deter courts from prospectively establishing law through a prongone
analysis and that curtail the ability of lower courts to find ͞clearly established law͟ in their own precedents that run counter to the decisions of sister circuits. An implicit insistence seems to
have emerged from these decisions that, absent a Supreme Court ruling or federal statute, only a true ͞consensus of persuasive authority͟ can define ͞clearly established law͟ for the denial of
qualified immunity. Ultimately, the current state of the qualified immunity doctrine 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