Tournament: Isidore Newman | Round: 1 | Opponent: Woodlands DY | Judge: Shields, Jhari
Part one is Framework:
Resolved: The United States ought to limit qualified immunity for police officers.
I affirm, I value morality because ought implies a moral obligation, which means it’s a question of what state obligations are.
There is a moral tradeoff between citizens and the government in where they have checks on the government to make sure that it adheres to the needs of its citizens. Without it there is no body that is capable of maintaining a system of laws and no way of checking back the violations of rights. LOCKE:
John Locke (English Enlightenment thinker; known as the “Father of Classical Liberalism.”) “Two Treatises of Government.” 1689.
TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man. A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.¶ Sect. 5. This equality of men by nature, the judicious Hooker looks upon as so evident in itself, and beyond all question, that he makes it the foundation of that obligation to mutual love amongst men, on which he builds the duties they owe one another, and from whence he derives the great maxims of justice and charity. His words are,¶ The like natural inducement hath brought men us to know that it is no less their our duty, to love others than themselves; for seeing those things which are equal, must needs all have one measure; if I cannot but wish to receive good, even as much at every man's hands, as any man can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire, which is undoubtedly in others men, being of one and the same nature? To have any thing offered them repugnant to this desire, must needs in all respects grieve them as much as me; so that if I do harm, I must look to suffer, there being no reason that others should shew greater measure of love to me, than they have by me shewed unto them: my desire therefore to be loved of my equals in nature as much as possible may be, imposeth upon me a natural duty of bearing to them-ward fully the like affection; from which relation of equality between ourselves and them that are as ourselves, what several rules and canons natural reason hath drawn, for direction of life, no man is ignorant, Eccl. Pol. Lib. 1.¶ Sect. 6. But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as they can, to preserve the rest of humankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.
This is the basis of state obligation and demarcates the limits of their power. This places reciprocal limits on government power. Governments only have the legitimacy to act insofar as they protect their citizens rights. Implications:
A: Means state structures inevitable- fear of uncertainty means individuals will always band into a social order to maintain homeostasis- that order is what we call the state.
B: Sets a lithmus test for state action- if the state oversteps its boundaries or violates its citizens unduly, then it is illegitimate and citizens have the right to reform the system to keep it in line. This entails:
- Allowing citizens to properly check government action to ensure it doesn’t go out of control and
2. Ensuring that citizens have access to proper recourse against government injustices.
The result is a joint social contract, whereby each person recognizes the liberties of every other person to act freely in the pursuit of happiness. Thus, my value criterion is preserving the lockean social contract.
Part two is Accountability
Police Officers are too uncontrolled in the status quo. There’s no way of holding them accountable for anything.
Madar 14
Why It’s Impossible to Indict a Cop It’s not just Ferguson—here’s how the system protects police. By Chase MadarTwitter NOVEMBER 25, 2014
How to police the police is a question as old as civilization, now given special urgency by a St. Louis County grand jury’s return of a “no bill” of indictment for Ferguson, Missouri, police officer Darren Wilson in his fatal shooting of an unarmed teenager, Michael Brown. The result is shocking to many, depressingly predictable to more than a few. Can the cops be controlled? It’s never been easy: according to one old sociological chestnut, the monopoly on the legitimate use of violence is what defines modern government, and this monopoly is jealously protected against the second-guessing of puny civilians. All over the country, the issue of restraining police power is framed around the retribution against individual cops, from Staten Island to Milwaukee to Los Angeles. But is this the best way to impose discipline on law enforcement and roll back what even Republican appellate court appointees are calling rampant criminalization? Police shootings in America First, the big picture. Last year, the FBI tallied 461 “justifiable homicides” committed by law enforcement—justifiable because the Bureau assumes so, and the nation’s courts have not found otherwise. This is the highest number in two decades, even as the nation’s overall homicide rate continues to drop. Homicides committed by on-duty law enforcement make up 3 percent of the 14,196 homicides committed in the United States in 2013. A USA Today analysis of the FBI database found an average of about ninety-six police homicides a year in which a white officer kills a black person. The FBI’s police homicide stats are fuzzy, and they are surely an undercount, given that they come from voluntary reports to the FBI from police departments all over the country. That the federal government does not keep a strict national tally shows just how seriously it takes this problem. A crowdsourced database has sprung up to fill the gap, as has a wiki-tabulation. Perhaps the most disturbing thing about these police killings, many of them of unarmed victims, is that our courts find them perfectly legal. SCOTUS and the license to kill Chapter 563 of the Missouri Revised Statutes grants a lot of discretion to officers of the law to wield deadly force, to the horror of many observers swooping in to the Ferguson story. The statute authorizes deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.” But this law is not an outlier, and is fully in sync with Supreme Court jurisprudence. The legal standard authorizing deadly force is something called “objective reasonableness.” This standard originates in the 1985 case of Tennessee v. Garner, which appeared at first to tighten restrictions on the police use of deadly force. The case involved a Memphis cop, Elton Hymon, who shot dead one Edward Garner: 15 years old, black and unarmed. Garner had just burgled a house, grabbing a ring and ten bucks. The US Supreme Court ruled that a police officer, henceforth, could use deadly force only if he “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The ruling required that the use of force be “objectively reasonable.” How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others. All this appeared to restrict police violence—even if, in the end, Officer Hymon was never criminally charged for fatally shooting Edward Garner. “Objectively reasonable”—what could be wrong with that? But in actual courtroom practice, “objective reasonableness” has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time. The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. Such was the case of Berkeley, Missouri, police officers Robert Piekutowski and Keith Kierzkowski, who in 2000 fatally shot Earl Murray and Ronald Beasley out of fear that the victims’ car was rolling towards them. Forensic investigations established that the car had not in fact lurched towards the officers at the time of the shooting—but this was still not enough for the St. Louis County grand jury to indict the two cops of anything. Not surprisingly then, legal experts find that “there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare,” says Walter Katz, a police oversight lawyer who served on the Los Angeles County Office of Independent Review until it disbanded in July of this year. According to Erwin Chemerinsky, dean of the UC Irvine Law School, recent Supreme Court decisions are not a path towards justice but rather a series of obstacles to holding police accountable for civil rights violations. An officer’s personal threat assessment is often bolstered by the fact that there are between 270 million and 310 million guns in the United States. Take a grand jury’s failure to indict the police officers who fatally shot John Crawford III, the black man holding a BB gun in a Walmart in Beavercreek, Ohio. In a country where shooting sprees are a regular occurrence, where guns are widely available at Walmart and where fake guns that look very similar to real guns are sold in the same store, the police officers’ fears were deemed reasonable enough for the grand jury to find no probable cause of criminal wrongdoing. That is how the Supreme Court police violence jurisprudence works, and it was firmly on the side of officer Sean Williams, just as it has now been found to be on Darren Wilson’s. Given the deference and latitude hardwired into the law, “there is just an underlying assumption that the officer did not engage in criminal activity,” says Katz. The first step to controlling the police is to get rid of the fantasy, once and for all, that the law is on our side. The law is firmly on the side of police who open fire on unarmed civilians. The sick joke of self-regulation
Unjust violence only continues to increase because police officers are protected by qualify immunity. Limiting is the only way to hold them accountable. Lindsey
De Stefan, Lindsey, "“No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct" (2016). Law School Student Scholarship. Paper 850. http://scholarship.shu.edu/student_scholarship/850
Of course, the most outwardly evident and alarming problem with qualified immunity jurisprudence has been its cumulative erosion of law enforcement accountability. Perhaps Erwin Chemerinsky summarized it best when he noted that “in recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations.”107 Many of the aforementioned procedural and substantive problems with the qualified immunity doctrine have contributed to what might be considered a deleterious byproduct. But recent Court decisions have also demonstrated a willingness to extend immunity in even the most egregious circumstances.108 For example, in Plumhoff v. Rickard, the Court held that three officers did not use excessive force and were entitled to qualified immunity when they had collectively fired fifteen shots at a fleeing car, causing the deaths of the driver and passenger.109 The incident ensued after one of the officers stopped the vehicle for having only one working headlight and, rather than exit the vehicle as the officer instructed, the driver instead sped away, prompting the officer and several others to give chase.110 Overturning both the district court and the court of appeals, the Supreme Court held that the use of deadly force was permissible because the driver “posed a grave public safety risk” and that firing fifteen times was not unreasonable because “the officers need not stop shooting until the threat is over.”111 Somewhat similarly, in Brosseau v. Haugen, the Court held that an officer was entitled to immunity when she shot an unarmed man in the back through the window of his Jeep—which was not moving—as a means of preventing his escape.112 The Court explained that the officer’s actions “fell in the ‘hazy border between excessive and acceptable force,’” but that previous Court decisions “by no means ‘clearly establish’ that Brosseau’s conduct violated the Fourth Amendment.”113
Holding police officers accountable is key. Current laws make it so that they can escape accountability. Carbado 16
Drew Carbado 16, Honorable Harry Pregerson Professor of Law, UCLA, "Blue-on-Black Violence: A Provisional Model of Some of the Causes," Georgetown Law Journal Vo. 104, 2016.
A similar dynamic is at play in the civil process as well. Here, too, police officers can escape accountability. Here, too, part of the problem is that actors in the civil process—judges and juries—translate that violence into justifiable force by concluding that the officer’s conduct was reasonable. And here, too, explicit and implicit biases can inform a judge or jury’s determination that it was reasonable for an officer to think that a black male suspect posed a serious risk of harm or death to the police officer.188 Perhaps a more fundamental barrier to holding police officers accountable in the civil process is the doctrine of qualified immunity.189 That the purpose of this doctrine is to protect “all but the plainly incompetent or those who knowingly violate the law”190 is already a strong signal that the doctrine functions to protect police officers from liability. To understand the broader scope of the problem, a brief discussion of the doctrine of qualified immunity is necessary. Victims of police violence can sue police officers under Section 1983, a civil rights statute that permits plaintiffs to sue governmental officials for violating statutory or constitutional rights.191 In the excessive force context, plaintiffs typically assert that a police officer’s use of force violated the plaintiff’s Fourth Amendment right to be free from unreasonable seizures.192 Police officers can defend against such suits by asserting the defense of qualified immunity.193 Whether an officer prevails on this defense turns on whether that officer can show that (a) his/her conduct did not violate the plaintiff’s constitutional rights, or (b) assuming that his/her conduct did violate a constitutional right, that the right was not clearly established at the time the officer acted.194 With respect to whether the officer’s conduct violated the plaintiff’s constitutional rights, the standard, as in the criminal context, centers on reasonableness: whether a reasonable officer would have believed that the use of force was necessary.195 And, as in the criminal context, juries will often defer to an officer’s claim that he/she employed deadly force because he/she feared for his/her life.196 Moreover, implicit and explicit biases can inform their decision making.197 With respect to the “clearly established” doctrine, there are two problems with the standard. First, courts often avoid deciding the question of whether the officer’s conduct violated the Constitution and rule instead on whether the constitutional right in question was clearly established.198 The Supreme Court has made clear that lower courts are free to proceed in this way,199 making it relatively easy for courts to make the defense of qualified immunity available to a police officer without having to decideing whether the officer violated a constitutional right.200 This avoidance compounds the extent to which the law is unsettled. And, the greater the uncertainty about the law, the greater the doctrinal space for a police officer to argue that particular rights were not “clearly established” at the time the officer acted.201 In other words, the more courts avoid weighing in on the substantive question of whether police conduct violates the Constitution, the more leeway police officers have to argue that their conduct did not violate a clearly established right. Consider, for example, Stanton v. Sims. 202 There, the Court avoided the question of whether an officer’s entrance into a yard to effectuate the arrest of a misdemeanant violated the Fourth Amendment, but ruled that the right to avoid such an intrusion was not clearly established.203 Unless and until the Supreme Court expressly rules that, absent exigent circumstances, one has a right to be free from warrantless entry into one’s yard, courts will likely grant qualified immunity in cases involving such arrests.204
Qualified immunity doesn’t just mean that victims go without compensation–the "clearly established" right clause means courts can continue to avoid clarifying the scope of the law which prevents the law from ever becoming clearly established. Chen 15.
Alan K. Chen 15, professor of law at the University of Denver Sturm College of Law, "Qualified Immunity Limiting Access to Justice and Impeding Development of the Law," Human Rights Magazine Vol. 41, 2015.
Critics of qualified immunity point out that the breadth of the doctrine’s protection means that people like Savana Redding whose rights have been violated will go without compensation. Contrary to Marbury’s admonition, their rights can be violated, but they will receive no remedy. But there are broader social costs associated with qualified immunity as well. Because of the way the doctrine is structured, courts can decide an official is entitled to qualified immunity by concluding that They he or she have not violated a “clearly established” right without ever answering the question of whether his or her conduct did, in fact, violate the Constitution. This means that courts can dismiss constitutional rights claims without precisely clarifying the scope of the law. Constitutional doctrine, like the common law, evolves and is refined through series of court decisions. But qualified immunity interferes with this law-pronouncing function of the federal courts and reduces the amount of guidance about the meaning of the Constitution for both government officials and the public at large
. John C. Jeffries Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87, 99–100 (1999). To address this concern, the Court at one point instructed lower courts to order their decision making so that they first addressed whether the official’s conduct violated the Constitution before deciding whether They he or she had immunity from suit. Saucier v. Katz, 533 U.S. 194, 200 (2001). Thus, as in Savana Redding’s case, while she might not have benefited from the articulation of the relevant constitutional rule, at least similarly situated future plaintiffs could have benefited. But just a few years later, the Court reversed course and restored the lower courts’ discretion to determine in which order to decide those questions. Pearson v. Callahan, 555 U.S. 223, 242 (2009). There was some skepticism about how often lower courts addressed the merits question first, even under the Saucierregime, Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape, 78 UMKC L. Rev. 889, 927 n.247 (2010), or if, when they did, they recognized a previously unarticulated constitutional right. Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 Pepp . L. Rev. 667, 692– 93 (2009). In any event, lower courts now have a green light to avoid the “harder” constitutional law question and simply decide that defendants are entitled to immunity whether or not they violated the Constitution. What this means is that in cases involving cutting-edge issues of constitutional law, qualified immunity may itself prevent the law from ever becoming clearly established. A couple of examples will help illustrate this phenomenon. One area of First Amendment doctrine that is not yet fully developed is whether or not citizens have a right to surreptitiously record police officers during the course of their duties. In Kelly v. Borough of Carlisle, 622 F.3d 248, 259 (3d Cir. 2010), the court reviewed the First Amendment claim of an automobile passenger who attempted to videotape a police officer during a traffic stop. After discovering the passenger’s conduct, the officer arrested him and confiscated his camera. Id. at 251–52. Rather than address the merits of the passenger’s First Amendment claim, the Third Circuit instead found that the right to record police officers was not clearly established and affirmed the officer’s claim that he was entitled to qualified immunity. Id. at 262. Other federal courts have followed this same practice, thus failing to clarify or advance the relevant First Amendment law. See Szymecki v. Houck, 353 F. App’x 852, 852–53 (4th Cir. 2009).
Thus the plan: The United States Supreme Court ought to limit qualified immunity for police officers by changing the "clearly established right" clause to asking whether the defendant’s conduct was "clearly unconstitutional", and also implementing a four-part inquiry for cases in which the defendant’s actions were not obviously unconstitutional. Catlett 05.
Michael S. Catlett 05, JD, University of Arizona College of Law, "Clearly Not Established: Decisional Law and the Qualified Immunity Doctrine," Arizona Law Review Vol. 47, 2005.
In trying to decide whether a constitutional right is “clearly established,” courts should first determine whether the official’s actions were obviously unconstitutional. If so, the inquiry should end, and qualified immunity should not be available.193 If not, the court should consider the following factors: (1) Has the particular constitutional right ever been announced in binding precedent?;194 (2) If binding precedent has not pronounced such a constitutional right, has a consensus of cases (more than one or two) from federal circuit courts or the pertinent state court of last resort195 announced the particular constitutional right?;196 (3) Was the right pronounced as a broad statement of principle, or was the pronouncement closely tied to the particularized facts of the prior case?;197 (4) How recently was the constitutional right pronounced?
I have the right to clarify in CX
Part three is solvency
Asking whether the defendant’s actions were "clearly unconstitutional" as opposed to violating "clearly established rights" avoids legal technicalities that excuse egregious behavior and shifts the focus to common social duty.
Jeffries 10
John C. Jeffries 10, Professor, University of Virginia School of Law, Jr. "What’s Wrong with Qualified Immunity," Florida Law Review, Vol. 62, September 2010.
A second suggestion would be to change the doctrinal formula for qualified immunity. Rather than asking whether the defendant violated a ―clearly established‖ right, I would ask whether the defendant‘s conduct was ―clearly unconstitutional.‖ By ―clearly unconstitutional,‖ I mean to signal that borderline violations would not trigger damages liability (though of course other remedies would be unaffected). This basic proposition aligns with current law, and in many circumstances, there would be no difference between the formulations. If, for example, there were a change or development in the law, until the new rule was settled, the law would not be ―clearly established‖ and conduct violating it would not be ―clearly unconstitutional.‖ This is the strongest case for qualified immunity, and it would be covered equally well by either formulation. The same would be true when the validity of a particular rule or doctrine is simply unresolved. Pearson v. Callahan is an example. ―Consent once removed‖ as a justification for warrantless searches had been approved by other circuits but not by the Tenth. Unless and until the Tenth Circuit ruled, a ―consent once removed‖ search would not violate a ―clearly established‖ right nor would it be ―clearly unconstitutional.‖ Qualified immunity would be upheld under either formulation. In other circumstances, restating qualified immunity would make a difference. Asking whether conduct violates a ―clearly established‖ right directs one‘s attention to the search for factually similar precedent and to the kind of ―lawyer‘s notice‖ that technical legal sources provide.79 Asking whether conduct is ―clearly unconstitutional‖ is less tied to precedent and less technical. Most importantly, it incorporates the notion of common social duty. Conduct would be clearly unconstitutional if it contravened factually specific precedent, as is currently true, or if it clearly and unambiguously contravened constitutional principles. The nature of the constitutional violation would matter, whether or not it had previously arisen on closely similar facts. The Fifth Circuit has said the fact ―that we are ‗morally outraged‘, or the ‗fact that our collective conscience is shocked‘ by the alleged conduct does not mean necessarily that the officials should have realized that it violated a constitutional right . . . .‖ 80 The statement is narrowly correct. Moral outrage does not necessarily mean that officers should have known they were acting unconstitutionally—but neither is it irrelevant. If the conduct does violate a constitutional right, outrageousness should preclude qualified immunity, whether or not the specific misconduct has been adjudicated before. Thus, for example, I would part company from the Fifth Circuit‘s decision in Doe v. Louisiana, where defendant social workers engaged in a ―nightmarish‖ ―witch hunt‖ of a father alleged (by them) to have sexually abused his daughter. The defendants suppressed reports of medical examinations, misrepresented the results of those examinations, used deception in obtaining a court order, and knowingly presented false information to prosecutors. Their charges were completely unfounded.81 Concurring in the judgment upholding qualified immunity, Judge Carolyn Dineen King said, ―That the actions of which Doe complains are egregious, however, does not mean that he has asserted the violation of a federally protected right . . . .‖82 Again, the statement is technically correct. Egregiousness does not establish unconstitutionality, but neither should it be irrelevant to damages liability. In my view, truly appalling unconstitutional misconduct should not be protected by qualified immunity. Egregiousness may be irrelevant in the search for ―clearly established‖ law,83 but it would not be irrelevant in determining whether conduct is ―clearly unconstitutional.‖ 84
Civil lawsuits spur systemic reform through investigations and public outcry–also, even if there’s indemnity that doesn’t answer our offense because victims still get REPARATIONS and RECOMPENSE. Cheh 96
Mary M. Cheh 96,Professor of Law, George Washington University "Are Lawsuits an Answer to Police Brutality?" in William A. Geller and Hans Toch, "Police Violence: Understanding and Controlling Police Abuse of Force," Yale University Press, 1996.
By contrast, the civil law, because of its greater flexibility and scope, has the potential to serve as the instrument of systemic reform. In adjusting rights and set-tling wrongs, civil remedies generally offer distinct advantages over criminal sanc-tions. First, a victim of police misconduct can sue on his or her own behalf and need not await the government’s decision to go forward. Second, an injured party need not overcome the heightened procedural protections afforded the criminally accused. For example, a plaintiff can prevail under a preponderance of evidence standard rather than proof beyond a reasonable doubt. Third, although the civil law, like the criminal law, can punish via its potential for imposition of punitive damages, the civil law provides compensation to victims who have been harmed by police misconduct. Recompense is beneficial in itself, and damage awards can spur reform if the costs of misbehavior are high. Fourth, civil lawsuits permit broad discovery of information and may provide a means to uncover police mis-behavior and stir public reaction. Finally, the civil law offers various possibilities for framing relief which go beyond punishment or compensation and include re-mediation. That is, the civil law offers equitable relief, via court injunction and specific orders, that can force a deficient department not only to pay for harm caused but to reform so that the harm is not likely to be repeated.
