Tournament: Damus | Round: 2 | Opponent: Loyola AB | Judge: Scott Wheeler
1AC
Part 1 is Framework
The starting point of government deliberation has to be the individual and how they relate to the social world around them. Rules only gain their force if they are open to public criticism. This means we need a procedural democracy that transcends the exact content of any moral rule. . Adorno:

Adorno, Theodor. “Education after Auschwitz,” Critical Model

Since the possibility of changing the objective—namely societal and political— conditions is extremely limited today, attempts to work against the repetition of Auschwitz are necessarily restricted to the subjective dimension. By this I also mean essentially the psychology of people who do such things. I do not believe it would help much to appeal to eternal values, at which the very people who are prone to commit such atrocities would merely shrug their shoulders. I also do not believe that enlightenment about the positive qualities possessed by persecuted minorities would be of much use. The roots must be sought in the persecutors, not in the victims who are murdered under the paltriest of pretenses. What is necessary is what I once in this respect called the turn to the subject. One must come to know the mechanisms that render people capable of such deeds, must reveal these mechanisms to them, and strive, by awakening a general awareness of those mechanisms, to prevent people from becoming so again. It is not the victims who are guilty, not even in the sophistic and caricatured sense in which still today many like to construe it. Only those who unreflectingly vented their hate and aggression upon them are guilty. One must labor against this lack of reflection, must dissuade people from striking outward without reflecting upon themselves. The only education that has any sense at all is an education toward critical self-reflection. But since according to the findings of depth psychology, all personalities, even those who commit atrocities in later life, are formed in early childhood, education seeking to prevent the repetition must concentrate upon early childhood. I mentioned Freud’s thesis on discontent in culture. Yet the phenomenon extends even further than he understood it, above all, because the pressure of civilization he had observed has in the meantime multiplied to an unbearable degree. At the same time the explosive tendencies he first drew attention to have assumed a violence he could hardly have foreseen. The discontent in culture, however, also has its social dimension, which Freud did not overlook though he did not explore it concretely. One can speak of the claustrophobia of humanity in the administered world, of a feeling of being incarcerated in a thoroughly societalized, closely woven, netlike environment. The denser the weave, the more one wants to escape it, whereas it is precisely its close weave that prevents any escape. This intensifies the fury against civilization. The revolt against it is violent and irrational. A pattern that has been confirmed throughout the entire history of persecutions is that the fury against the weak chooses for its target especially those who are perceived as societally weak and at the same time—either rightly or wrongly—as happy. Sociologically, I would even venture to add that our society, while it integrates itself ever more, at the same time incubates tendencies toward disintegration. Lying just beneath the surface of an ordered, civilized life, these tendencies have progressed to an extreme degree. The pressure exerted by the prevailing universal upon everything particular, upon the individual people and the individual institutions, has a tendency to destroy the particular and the individual together with their power of resistance. With the loss of their identity and power of resistance, people also forfeit those qualities by virtue of which they are able to pit themselves against what at some moment might lure them again to commit atrocity. Perhaps they are hardly able to offer resistance when the established authorities once again give them the order, so long as it is in the name of some ideal in which they half or not at all believe. When I speak of education after Auschwitz, then, I mean two areas: first children’s education, especially in early childhood; then general enlightenment that provides an intellectual, cultural, and social climate in which a recurrence would no longer be possible, a climate, therefore, in which the motives that led to the horror would become relatively conscious. Naturally, I cannot presume to sketch out the plan of such an education even in rough outline. Yet I would like at least to indicate some of its nerve centers. Often, for instance, in America, the characteristic German trust in authority has been made responsible for National Socialism and even for Auschwitz. I consider this explanation too superficial, although here, as in many other European countries authoritarian behavior and blind authority persist much more tenaciously than one would gladly admit under the conditions of a formal democracy. Rather, one must accept that fascism and the terror it caused are connected with the fact that the old established authorities of the Kaiserreich decayed and were toppled, while the people psychologically were not yet ready for self-determination. They proved to be unequal to the freedom that fell into their laps. For this reason the authoritarian structures then adopted that destructive and, if I may put it so, insane dimension they did not have earlier, or at any rate had not revealed. If one considers how visits of potentates who no longer have any real political function induce outbreaks of ecstasy in entire populations, then one has good reason to suspect that the authoritarian potential even now is much stronger than one thinks. I wish, however, to emphasize especially that the recurrence or non-recurrence of fascism in its decisive aspect is not a question of psychology, but of society. I speak so much of the psychological only because the other, more essential aspects lie so far out of reach of the influence of education, if not of the intervention of individuals altogether. Very often well-meaning people, who don’t want it to happen again, invoke the concept of bonds. According to them, the fact that people no longer had any bonds is responsible for what took place. In fact, the loss of authority, one of the conditions of the sadistic-authoritarian horror, is connected with this state of affairs. To normal common sense it is plausible to appeal to bonds that check the sadistic, destructive, and ruinous impulse with an emphatic “You must not.” Nevertheless I consider it an illusion to think that the appeal to bonds—let alone the demand that everyone should again embrace social ties so that things will look up for the world and for people— would help in any serious way. One senses very quickly the untruth of bonds that are required only so that they produce a result—even if it be good—without the bonds being experienced by people as something substantial in themselves. It is surprising how swiftly even the most foolish and naive people react when it comes to detecting the weaknesses of their betters. The so-called bonds easily become either a ready badge of shared convictions—one enters into them to prove oneself a good citizen—or they produce spiteful resentment, psychologically the opposite of the purpose for which they were drummed up. They amount to heteronomy, a dependence on rules, on norms that cannot be justified by the individual’s own reason. What psychology calls the superego, the conscience, is replaced in the name of bonds by external, unbinding, and interchangeable authorities, as one could observe quite clearly in Germany after the collapse of the Third Reich. Yet the very willingness to connive with power and to submit outwardly to what is stronger, under the guise of a norm, is the attitude of the tormentors that should not arise again. It is for this reason that the advocacy of bonds is so fatal. People who adopt them more or less voluntarily are placed under a kind of permanent compulsion to obey orders. The single genuine power standing against the principle of Auschwitz is autonomy, if I might use the Kantian expression: the power of reflection, of self-determination, of not cooperating. I once had a very shocking experience: while on a cruise on Lake Constance I was reading a Baden newspaper, which carried a story about Sartre’s play Morts sans s ´epulchre, a play that depicts the most terrifying things.3 Apparently the play made the critic uneasy. But he did not explain this discontent as being caused by the horror of the subject matter, which is the horror of our world. Instead he twisted it so that, in comparison with a position like that of Sartre, who engages himself with the horror, we could maintain—almost maintain, I should say—an appreciation of the higher things: so that we could not acknowledge the senselessness of the horror. To the point: by means of noble existential cant the critic wanted to avoid confronting the horror. Herein lies, not least of all, the danger that the horror might recur, that people refuse to let it draw near and indeed even rebuke anyone who merely speaks of it, as though the speaker, if he does not temper things, were the guilty one, and not the perpetrators. With the problem of authority and barbarism I cannot help thinking of an idea that for the most part is hardly taken into account. It comes up in an observation in the book The SS State by Eugen Kogon, which contains central insights into the whole complex and which hasn’t come near to being absorbed by science and educational theory the way it deserves to be.4 Kogon says that the tormentors of the concentration camp where he spent years were for the most part young sons of farmers. The cultural difference between city and country, which still persists, is one of the conditions of the horror, though certainly neither the sole nor the most important one. Any arrogance toward the rural populace is far from my intentions. I know that one cannot help having grown up in a city or a village. I note only that probably debarbarization has been less successful in the open country than anywhere else. Even television and the other mass media probably have not much changed the state of those who have not completely kept up with the culture. It seems to me more correct to say this and to work against it than to praise sentimentally some special qualities of rural life that are threatening to disappear. I will go so far as to claim that one of the most important goals of education is the debarbarization of the countryside. This presupposes, however, a study of the conscious and unconscious of the population there. Above all, one must also consider the impact of modern mass media on a state of consciousness that has not yet come anywhere close to the state of bourgeois liberal culture of the nineteenth century. In order to change this state of consciousness, the normal primary school system, which has several problems in the rural environment, cannot suffice. I can envision a series of possibilities. One would be—I am improvising here—that television programs be planned with consideration of the nerve centers of this particular state of consciousness. Then I could imagine that something like mobile educational groups and convoys of volunteers could be formed, who would drive into the countryside and in discussions, courses, and supplementary instruction attempt to fill the most menacing gaps. I am not ignoring the fact that such people would make themselves liked only with great difficulty. But then a small circle of followers would form around them, and from there the educational program could perhaps spread further. However, there should arise no misunderstanding that the archaic tendency toward violence is also found in urban centers, especially in the larger ones. Regressive tendencies, that is, people with repressed sadistic traits, are produced everywhere today by the global evolution of society. Here I’d like to recall the twisted and pathological relation to the body that Horkheimer and I described in The Dialectic of Enlightenment. Everywhere where it is mutilated, consciousness is reflected back upon the body and the sphere of the corporeal in an unfree form that tends toward violence. One need only observe how, with a certain type of uneducated person, his language—above all when he feels faulted or reproached—becomes threatening, as if the linguistic gestures bespoke a physical violence barely kept under control. Here one must surely also study the role of sport, which has been insufficiently investigated by a critical social psychology. Sport is ambiguous. On the one hand, it can have an anti-barbaric and anti-sadistic effect by means of fair play, a spirit of chivalry, and consideration for the weak. On the other hand, in many of its varieties and practices it can promote aggression, brutality, and sadism, above all in people who do not expose themselves to the exertion and discipline required by sports but instead merely watch: that is, those who regularly shout from the sidelines. Such an ambiguity should be analyzed systematically. To the extent that education can exert an influence, the results should be applied to the life of sport. All this is more or less connected with the old authoritarian structure, with modes of behavior, I could almost say, of the good old authoritarian personality. But what Auschwitz produced, the characteristic personality types of the world of Auschwitz, presumably represents something new. On the one hand, those personality types epitomize the blind identification with the collective. On the other hand, they are fashioned in order to manipulate masses, collectives, as Himmler, H¨oss, and Eichmann did. I think the most important way to confront the danger of a recurrence is to work against the brute predominance of all collectives, to intensify the resistance to it by concentrating on the problem of collectivization. That is not as abstract as it sounds in view of the passion with which especially young and progressively minded people desire to integrate themselves into something or other. One could start with the suffering the collective first inflicts upon all the individuals it accepts. One has only to think of one’s own first experiences in school. One must fight against the type of folkways Volkssitten, initiation rites of all shapes, that inflict physical pain—often unbearable pain—upon a person as the price that must be paid in order to consider oneself a member, one of the collective.6 The evil of customs such as the Rauhn¨achte and the Haberfeldtreiben and whatever else such long-rooted practices might be called is a direct anticipation of National Socialist acts of violence.7 It is no coincidence that the Nazis glorified and cultivated such monstrosities in the name of “customs.” Science here has one of its most relevant tasks. It could vigorously redirect the tendencies of folk-studies Volkskunde that were enthusiastically appropriated by the Nazis in order to prevent the survival, at once brutal and ghostly, of these folk-pleasures. This entire sphere is animated by an alleged ideal that also plays a considerable role in the traditional education: the ideal of being hard. This ideal can also, ignominiously enough, invoke a remark of Nietzsche, although he truly meant something else.8 I remember how the dreadful Boger during the Auschwitz trial had an outburst that culminated in a panegyric to education instilling discipline through hardness. He thought hardness necessary to produce what he considered to be the correct type of person.9 This educational ideal of hardness, in which many may believe without reflecting about it, is utterly wrong. The idea that virility consists in the maximum degree of endurance long ago became a screen-image for masochism that, as psychology has demonstrated, aligns itself all too easily with sadism. Being hard, the vaunted quality education should inculcate, means absolute indifference toward pain as such. In this the distinction between one’s own pain and that of another is not so stringently maintained. Whoever is hard with himself earns the right to be hard with others as well and avenges himself for the pain whose manifestations he was not allowed to show and had to repress. This mechanism must be made conscious, just as an education must be promoted that no longer sets a premium on pain and the ability to endure pain. In other words: education must take seriously an idea in no wise unfamiliar to philosophy: that anxiety must not be repressed. When anxiety is not repressed, when one permits oneself to have, in fact, all the anxiety that this reality warrants, then precisely by doing that, much of the destructive effect of unconscious and displaced anxiety will probably disappear. People who blindly slot themselves into the collective already make themselves into something like inert material, extinguish themselves as self-determined beings. With this comes the willingness to treat others as an amorphous mass. I called those who behave in this way “the manipulative character” in the Authoritarian Personality, indeed at a time when the diary of H¨oss or the recordings of Eichmann were not yet known.10 My descriptions of the manipulative character date back to the last years of the Second World War. Sometimes social psychology and sociology are able to construct concepts that only later are empirically verified. The manipulative character—as anyone can confirm in the sources available about those Nazi leaders—is distinguished by a rage for organization, by the inability to have any immediate human experiences at all, by a certain lack of emotion, by an overvalued realism. At any cost he wants to conduct supposed, even if delusional, Realpolitik. He does not for one second think or wish that the world were any different than it is, he is obsessed by the desire of doing things Dinge zu tun, indifferent to the content of such action. He makes a cult of action, activity, of so-called efficiency as such which reappears in the advertising image of the active person. If my observations do not deceive me and if several sociological investigations permit generalization, then this type has become much more prevalent today than one would think. What at that time was exemplified in only a few Nazi monsters could be confirmed today in numerous people, for instance, in juvenile criminals, gang leaders, and the like, about whom one reads in the newspapers every day. If I had to reduce this type of manipulative character to a formula—perhaps one should not do it, but it could also contribute to understanding—then I would call it the type of reified consciousness. People of such a nature have, as it were, assimilated themselves to things. And then, when possible, they assimilate others to things. This is conveyed very precisely in the expression “to finish off” “fertigmachen”, just as popular in the world of juvenile rowdies as in the world of the Nazis. This expression defines people as finished or prepared things in a doubled sense. According to the insight of Max Horkheimer, torture is a manipulated and somewhat accelerated adaptation of people to collectives.11 There is something of this in the spirit of the age, though it has little to do with spirit. I merely cite the saying of Paul Val ´ery before the last war, that inhumanity has a great future.12 It is especially difficult to fight against it because those manipulative people, who actually are incapable of true experience, for that very reason manifest an unresponsiveness that associates them with certain mentally ill or psychotic characters, namely schizoids.
Government action is about the process of deliberation not finding an exact rule to follow in every circumstance. Generation of values requires the ability to speak out. . Singer 84

Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.

Moreover, we cannot respond adequately to problems faced in life by¶ generating abstract moral categories. Discussion of moral and legal choices¶ must focus on the rich context in which those problems occur. For some¶ purposes, it may be useful to characterize two persons as "employer" and¶ "employee" and to develop generalizations to describe and govern their¶ relationships. But it is important to remember that these are real people¶ we are talking about, and when we describe them in this way for the¶ purpose of judging what their relations should be like, we are closing our-¶ selves off from their actual life experiences. We can think impersonally¶ about a busboy as simply representing the table-clearing function; or we¶ can describe him, say, as a forty-year-old man, recently divorced, with¶ back trouble and money problems. As Robert Gordon argues, we need "to¶ unfreeze the world as it appears to common sense as a bunch of more or¶ less objectively determined social relations and to make it appear as (we¶ believe) it really is: people acting, imagining, rationalizing, justifying."'179¶ It may indeed be useful to develop general models to describe social life.¶ But when it comes time to make decisions, we should recognize that we¶ are making decisions rather than discovering ourselves. In making those¶ decisions, it is right to focus on the particular social context, to decide¶ whether our descriptive model actually applies in that case and whether¶ we are allowing the model to turn our attention away from facts that we¶ would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding¶ how to characterize situations, and in deliberating, conversing, intro-¶ specting, and judging.180 Expressive theory also emphasizes the communal¶ nature of theory and its complex relations with social life. The kernel of¶ truth in the idea of rational consensus is that all ideas and actions involve¶ relations among people. "Individuals do not simply 'have' opinions, they¶ form opinions. . . . The formation of opinions is not a private activity¶ performed by a solitary thinker."'' Traditional theorists have reified the¶ idea of rational consensus by treating it as a basis for what we do, as a¶ source of answers, as a generator of outcomes. But consensus, if it exists,¶ is not something that just happens to be there, that we could describe¶ accurately. It must be created, and the work of creating it is the work and¶ play of daily life, of living, contending, sharing, and being with other peo-¶ ple. Like law, consensus must be made, not found.182¶ Emphasis on the creative, communal nature of common understanding¶ creates an appropriate relationship between thought and action. The proc-¶ ess of generating values is something we do with others in the context of¶ relationships that continue over time.¶ Democratic politics is an encounter among people with differing in-¶ terests, perspectives, and opinions-an encounter in which they re-¶ consider and mutually revise opinions and interests, both individual¶ and common. It happens always in a context of conflict, imperfect¶ knowledge, and uncertainty, but where community action is neces-¶ sary. The resolutions achieved are always more or less temporary,¶ subject to reconsideration, and rarely unanimous. What matters is¶ not unanimity but discourse. The substantive common interest is¶ only discovered or created in democratic political struggle, and it re-¶ mains contested as much as shared. Far from being inimical to de-¶ mocracy, conflict-handled in democratic ways, with openness and¶ persuasion-is what makes democracy work, what makes for the¶ mutual revision of opinions and interest.'83¶ Legal theory can help create communal ties and shared values by freeing¶ us from the sense that current practices and doctrines are natural and¶ necessary and by suggesting new forms of expression to replace outworn¶ ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our¶ focus from viewing individuals as abstract citizens whose relations to each¶ other are governed by rights enforced by the state to viewing them as¶ active participants in shaping their relations in daily life. Such changes in¶ language may help focus our attention on facts we had previously ignored¶ and make us more keenly aware of alternative social arrangements.'85

The law can either be used to forward the claims of the powerless or to perpetuate those of the powerful. We embrace a system of politics that allows for the powerless to speak out. Balkin 08

Balkin, Jack M. "Critical legal theory today." (2008).

The relative autonomy of law from politics – rather than its complete¶ autonomy – simultaneously poses a threat and a promise. The threat is that law¶ will fail to do much more than ratify and legitimate the interests of the powerful;¶ the promise is that it might hold off the worst excesses of power by giving people¶ discursive and institutional tools to talk back to power, to restrain its selfishness¶ and inhumanity, and to imagine finer, better visions of human association.¶ The threat and the promise of law are joined together inseparably. What¶ gives law its power to legitimate is its ability to re-describe unjust and unfair¶ events, social practices and institutions in terms of valued ideals of human¶ association like consent, freedom, dignity, equality and fairness. In the hands of¶ lawyers and politicians, law can disguise, mystify and legitimate great injustices¶ using the very ideas and ideals we admire. But law can only do this because it¶ appeals to these values and claims to try to put them into practice through law.¶ Recourse to law forces the powerful to talk in terms in which the powerless can¶ also participate and can also make claims.¶ From this standpoint, law is not simply an efficient tool of power that¶ powerful people and powerful groups can wield any way they like. They do not¶ merely shape the world with it; rather it shapes them and their world, because¶ they have bought into law as a means of achieving and wielding power. Law¶ shapes their beliefs and desires, their sense of the appropriate and the¶ inappropriate, their conceptions of the possible and impossible. Law generates its¶ own institutions and its own demands; it creates its own culture, it is its own form¶ of life; it struggles with other forms of knowledge and power for dominance.¶ That struggle might lead to yet another form of professional power displacing older ones. But it might offer a space for something far more beneficial and¶ noble.¶ The critical approach to law—or at any rate, my version of it—has always¶ been doubled, has always reflected the Janus word “legitimate.” On the one hand,¶ powerful people have used law to subordinate others and secure their own¶ interests under the guise of promoting laudable goals like freedom, equality,¶ liberty, consent, community and human dignity. On the other hand, by choosing¶ to speak in the language of law, powerful people and interests can sometimes be¶ called to account because they try to legitimate what they are doing in those¶ terms. The people they take advantage of can argue that this is a misuse of law,¶ an illegitimate attempt at mystifying rhetoric. They can appeal to the values that¶ law seeks to protect to promote better, more just, and more humane practices and¶ forms of human association.¶ Important theoretical debates among critical scholars in the 1970s and¶ 1980s period revolved around which conception of law was the best one. Some¶ critical scholars adopted a largely pejorative conception, focusing primarily on¶ law’s defects. They argued that the rule of law was enmeshed in irreconcilable¶ contradictions; they denounced rights talk as sterile, useless and¶ counterproductive.5¶ Others, especially feminist and critical race theory scholars,¶ pointed out that rights discourse and rule of law values were among the few¶ resources that disempowered people had.6¶ Rule of law and rights talk were¶ potentially emancipatory discourses. They held a limited but important potential¶ for liberation and for contesting the arbitrary and unjust use of power.¶ These feminist and critical race theorists understood the deemphasized elements – the other side – of critical claims about the relative autonomy of law.¶ They well recognized that rule of law values and rights discourse were hardly¶ perfect – after all, they had been used repeatedly to justify slavery and the¶ subordination of women – but that they had also allowed people to speak out¶ against and to restrain the worst excesses of power. Even in a period of deep¶ skepticism and disillusionment about what law could do, these critical scholars¶ retained a sense of the political importance of rule of law values and rights¶ discourse. That is not because they believed in a strict autonomy of law from¶ politics, but because they understood the political values that legal culture and¶ rights discourse might serve. The best version of critical theory, I think, employs an ambivalent¶ conception of law rather than a pejorative conception: it recognizes law’s relative¶ autonomy from other forms of power in social life, and it understands the dual or¶ Janus-faced nature of that relative autonomy. It sees both law’s limitations in the¶ face of power and its possibilities as a means of channeling power and preventing¶ its most serious injustices.

Part 2 – The Police State
Qualified immunity reflects a culture of policing that justifies terrorizing black neighborhoods and lets police know they can get away with anything. Carter ‘15
Tom Carter – WSWS Legal Correspondent, a lawyer (https://www.wsws.org/en/articles/2014/02/24/cart-f24.html). “US Supreme Court Expands Immunity for Killer Cops.” Center for Research on Globalization. November 12, 2015. http://www.globalresearch.ca/us-supreme-court-expands-immunity-for-killer-cops/5488366 JJN
When a civil rights case is summarily dismissed by a judge on the grounds of “qualified immunity,” the case is legally terminated. It never goes to trial before a jury and is never decided on its constitutional merits. In March of 2010, Texas Department of Public Safety Trooper Chadrin Mullenix climbed onto an overpass with a rifle and, disobeying a direct order from his supervisor, fired six shots at a vehicle that the police were pursuing. Mullenix was not in any danger, and his supervisor had told him to wait until other officers tried to stop the car using spike strips. Four shots struck Israel Leija, Jr., killing him and causing the car, which was going 85 miles per hour, to crash. After the shooting, Mullenix boasted to his supervisor, “How’s that for proactive?” The Luna v. Mullenix case was filed by Leija’s family members, who claimed that Mullenix used excessive force in violation of the Fourth Amendment, part of the Bill of Rights. The district court that originally heard the case, together with the Fifth Circuit Court of Appeals, denied immunity to Mullenix on the grounds that his conduct violated clearly established law. The Supreme Court intervened to uphold the Mullenix’s entitlement to immunity—a decision that will set a precedent for the summary dismissal of civil rights lawsuits against police brutality around the country. This is the Supreme Court’s response to the ongoing wave of police mayhem and murder. The message is clear: The killings will continue. Do not question the police. If you disobey the police, you forfeit your life. So far this year, more than 1,000 people have been killed by the police in America. Almost every day, there are new videos posted online showing police shootings, intrusions into homes and cars, asphyxiations, beatings and taserings. Last week, two police officers in Louisiana opened fire on Jeremy Mardis, a six-year-old autistic boy, and his father Chris Few. The boy’s father had his hands up during the shooting and is currently hospitalized with serious injuries. His son succumbed to the police bullets while still buckled into the front seat of the car. The Supreme Court’s decision reflects the fact that in the face of rising popular anger over police killings, the entire political apparatus—including all of the branches of government—is closing ranks behind the police. This includes the establishment media, which has largely remained silent about Monday’s pro-police Supreme Court decision. The police operate with almost total impunity, confident that no matter what they do, they will have the backing of the state. Two weeks ago, a South Carolina grand jury refused to return an indictment against the officer who was caught on video killing 19-year-old Zachary Hammond. This follows the exoneration of the police who killed Michael Brown in Ferguson, Missouri, Eric Garner in New York City and Tamir Rice in Cleveland. The Obama administration’s position regarding the surge of police violence was most clearly and simply articulated by FBI director James Comey in aspeech on October 23. “May God protect our cops,” Comey declared. He went on to accuse those who film the police of promoting violent crime. Meanwhile, in virtually every police brutality case that has come before the federal courts, the Obama administration has taken the side of the police. On Monday, the Supreme Court went out of its way to cite approvingly anamicus curiae (friend of court) brief filed by the National Association of Police Organizations (NAPO), which defended Mullenix. With this citation, notwithstanding its ostensible role as a neutral arbiter and guarantor of the Constitution, the Supreme Court sent a clear signal as to which side it is on. During the imposition of de facto martial law in Ferguson last year, NAPO issued statements vociferously defending Michael Brown’s killer, labeling demonstrators as “violent outsiders,” and denouncing “the violent idiots on the street chanting ‘time to kill a cop!’” “Qualified immunity” is a reactionary doctrine invented by judges in the later part of the 20th century to shield public officials from lawsuits. As a practical matter, this doctrine allows judges to toss out civil rights cases without a jury trial if, in the judge’s opinion, the official misconduct in question was not “plainly incompetent” or a “knowing violation of clearly established law.” Over recent decades, the doctrine has been stretched to Kafkaesque proportions to shield police officers from accountability. In the landmark case ofTennessee v. Garner (1985), the Supreme Court held that it violates the Constitution to shoot an “unarmed, nondangerous fleeing suspect,” and required an imminent threat of death or serious bodily injury before the police could open fire. But the Supreme Court in its decision on Monday dismissed this language as constituting a “high level of generality” that was not “particular” enough to “clearly establish” any particular constitutional rights. Since cases that are dismissed on the grounds of qualified immunity do not result in decisions on the constitutional issues, this circular pseudo-logic ensures that no rights will ever be “clearly established.” It also ensures that, instead of the democratic procedure of a jury trial, cases involving the police will be decided by judges. The Supreme Court issued Monday’s decision without full briefing or oral argument, designating it “per curiam,” i.e., in the name of the court, not any specific judges. Justice Antonin Scalia filed a concurring opinion, displaying his trademark sophistry. According to Scalia, Mullenix did not use “deadly force” within the meaning of the Supreme Court’s prior cases, since he was shooting at a car, not a person. (Four bullets struck Leija, but none of the six shots struck the engine block at which Mullenix was supposedly aiming.) Justice Sonia Sotomayor filed the sole dissent, noting that this decision “renders the protections of the Fourth Amendment hollow,” and sanctions a “shoot first, think later” approach to policing. However, Sotomayor wrote that she would have used a “balancing” analysis instead, in which a “particular government interest” would need to be “balanced” against the use of deadly force. This “balancing” rhetoric mirrors the Obama administration’s justifications for assassination and domestic spying, according to which national security is balanced against democratic rights. The Bill of Rights itself—that old, yellow, forgotten piece of paper—does not make itself contingent on the subjective mental states of police officers, “clearly established law,” or the “balancing” of “government interests.” America confronts a massive social crisis. Decades of endless war and occupations abroad, the degradation of wages and living conditions at home, the enrichment of a tiny layer of financial criminals at the expense of the rest of the society, rampant speculation and corruption at the highest levels—these factors contribute to mounting social tensions and the danger, from the standpoint of the ruling class, of the growth of social opposition. Such opposition can already be seen, in its earliest stages, in the struggle by autoworkers against the sellout contract being imposed by the United Auto Workers union. Like the tyrant who proposes to solve the problem of hunger by imposing a hefty fine on everyone who starves, the Supreme Court’s decision Monday confirms that the entire social system has nothing to offer by way of a solution to the crisis except more of the same. The abrogation of democratic rights, torture, military commissions, drone assassinations, unlimited surveillance, the lockdown of entire cities, internment camps, beatings, murder, martial law, war—this is how the ruling class plans to deal with the social crisis. Notwithstanding the epidemic of police violence, the flow of unlimited cash and military hardware to police departments from the Department of Homeland Security and the Pentagon continues unabated. The buildup of the police as a militarized occupation force operating outside the law, pumped up and ready to kill, must be seen as a part of preparations by the ruling class for mass repression and dictatorship in response to the growth of working class opposition.

Qualified immunity makes questions of civil rights irrelevant. It shuts down democratic debates about which rights we should value and prevents forms of activism that fight for legal recognition. Hassel ‘99

Diana Hassel - Associate Professor, Roger Williams University School of Law. B.A. 1979, Mount Holyoke College; J.D. 1985, Rutgers, the State University of New JerseyNewark. “Living a Lie: The Cost of Qualified Immunity.” Missouri Law Review. Winter 1999. http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402andcontext=mlr JJN

IV. THE COST OF QUALIFIED IMMUNITY Qualified immunity has not been universally admired. A large body of literature critiques the defense and calls for its modification, elimination, or expansion. While these critiques serve to illuminate some fundamental problems with the qualified immunity doctrine, they do not address the central problem with qualified immunity-its camouflaging effect. By camouflaging effect, I mean the ability of qualified immunity to make the underlying pattern of civil. rights doctrine undiscernible. The existing critical focus on the strengths and weaknesses of qualified immunity fails to uncover the underlying patterns in the availability of Section 1983 remedies. A. Current Critiques There are vociferous critics of the qualified immunity doctrine who attack the doctrine as a whole. This commentary suggests that the problem with the qualified immunity doctrine is that it is applied to the wrong group of defendants or that it should be eliminated entirely. Those who believe that it should be eliminated entirely generally seek to substitute governmental liability for that of individual government officials. 6 Others believe that the problem is not with the defense but that its application should be available only to a certain small group of government officials." 7 The bulk of the criticism of qualified immunity looks closely at the structure of the defense and argues that it is internally contradictory or should be modified to provide better results. This criticism breaks into two main areas: the problems inherent in the "reasonableness" element". of the qualified immunity defense and the difficulties that result from the attempt to define "clearly established""' 9 law. The complaints concerning the "reasonableness" element note that while the objective reasonableness element is designed to protect the defendant from protracted litigation, the defense does not really quickly resolve a lawsuit. 120 The fact issues raised by the reasonableness element of the defense require a fact-finding hearing which makes it difficult to end lawsuits prior to trial.' 2 ' In a contradictory approach, the objectively reasonable element also has been described as being essentially a bar to judgment for the plaintiff in a civil rights action. Because qualified immunity is designed to protect defendants notjust from liability, but from participation in litigation, some argue that qualified immunity has become essentially indistinguishable from absolute immunity.' 22 The objectively reasonable standard is also seen as a mechanism for the distortion of constitutional law. The focus on the question of what a reasonable official would have understood the law to require leads to a "redefining of the substantive constitutional law" in a way that gives little clear guidance as to what the constitution requires and thus provides little guidance for future actions.'23 Commentators similarly claim that the impact of the clearly established element of the qualified immunity defense is inefficient, distorts the law, and is too difficult a standard for plaintiffs to overcome. It is inefficient and distorting because courts spend their time reconstructing what the law was in the past rather than setting forth clear guidance as to what the law requires. 124 The qualified immunity defense has also been assailed because of its requirement that a constitutional right must be clearly established before any liability can attach. This is a difficult standard to overcome. 2 ' The difficulty in identifying clear legal authority establishing the unlawfulness of a particular official's act may be too difficult a task and thus exclude meritorious claims. 26 There is then a body of literature examining the discrepancy between what the qualified immunity defense was meant to accomplish and how it actually works. The defense does not protect defendants in a meaningful way. At the same time, it makes a judgment for the plaintiff almost impossible to obtain. Therefore, the defense seems to be serving no one's interests. These well documented weaknesses suggest that qualified immunity's role is not to allow for just outcomes, but to provide some other service. What is missing from these critiques is an analysis of what function the current doctrine serves. In the next section, I explain that while qualified immunity often results in unfairness or inefficiency, the doctrine also provides a flexible mechanism by which divisive issues are seemingly resolved. This mechanism, however, has a cost. B. Qualified Immunity as a Disquise The problem with qualified immunity is not so much that the outcomes are sometimes unfair but the fact that qualified immunity blocks a clear view of the real limitations that exist in civil rights law. Civil rights law is, in effect, being designed in the dark. Distinctions are being made about the types of cases that will receive compensation and the types that will not. These distinctions are not articulated as such; instead, the results are understood to be the result of the qualified immunity defense. As we have seen, for example, a procedural complaint in the context of an employment dispute is more likely to survive the qualified immunity defense than is a complaint about whether a police officer used excessive force in the arrest of a dangerous suspect. Rather than organizing civil rights law in these categorical ways, however, qualified immunity makes the civil rights remedial system appear to be about individual cases and the reasonableness of individual defendants. Current qualified immunity doctrine serves as a means to diffuse conflict. Without a clear rule that some kinds of civil rights harms will not be redressed, there is minimal pressure for change. This "hiding of the ball" quality of qualified immunity is why, in spite of many expressions of dissatisfaction with the system, there had been little effective rallying for change. The reason the discontent of the participants in this system has not led to a significant change is that the terms of the debate are defined by the immunity system rather than by the fundamental question of the extent of rights and liabilities in civil rights actions. The civil rights remedial scheme organized around qualified immunity thus has an inherently self-preserving or stabilizing quality. It allows for tinkering at the margins, but fundamental recasting of the terms of the debate is unlikely. My assertion that qualified immunity has a camouflaging effect on civil rights law is supported by a large body of scholarship that explores legal regimes that define reality in a way that limits the ability of the participants in the system to change it.'27 These scholars argue that when a legal system is accepted as being the only available way to organize an activity and thus seems inevitable, the legal system encourages acceptance of the status quo. 28 The insights gained by scholars working in this area are helpful to apply to the qualified immunity standard in order to explore its hold on the civil rights imagination. This analysis maps out the way a doctrine such as qualified immunity can develop into an obstacle to the very aims it professes to accomplish. Particularly apposite to an analysis of civil rights law is the work that has been done on the change-inhibiting impact of the development of antidiscrimination law.129 In commenting on the effect of the adoption of equal rights rhetoric on the struggle to end racial inequality, Kimberle Crenshaw has concluded that "society's adoption of the ambivalent rhetoric of equal opportunity law has made it that much more difficult for Black people to name their reality. While equal employment opportunity law has been adopted, the material reality of most Black people has not improved."'30 In fact, improvement may be hindered by the existence of the equal opportunity law since it may undermine the political consensus necessary for change.' 3 ' Another commentator has suggested that "the language of rights undermines efforts to change things by absorbing real demands, experiences, and concerns into a vacuous and indeterminate discourse. The discourse abstracts real experience and clouds the ability of those who invoke rights rhetoric to think concretely about real confrontations and real circumstances.' 32 The existence of antidiscrimination law can thus create the appearance of improvements in racial equality while at the same time not encouraging fundamental change. 33 The focus on the intent of the actor in equal protection claims rather than the impact on the person experiencing the discrimination has also been criticized as an inhibitor to the elimination of racial inequality. 3 By paying exclusive attention to the blameworthiness of the defendant, an examination of the impact of the challenged practice on those complaining about it is lost. Fairness to the defendant, rather than eliminating discriminatory effect, is the central concern. These commentators suggest that the economic and social reality of race inequality is obscured by the existence of antidiscrimination law and by the success of a small exceptional group. As Derrick Bell has stated, "Discrimination claims when they are dramatic enough and do not threaten majority concerns, are given a sympathetic hearing, but there is a pervasive sense that definite limits have been set on the weight that minority claims receive when balanced against majority interests."'35 While it is unclear what the alternative to antidiscrimination law is, these critiques strongly argue that antidiscrimination law does not do what it suggests it will do and may, in fact, make a better system more difficult to imagine and thus to create. This current critique of antidiscrmination law can be used to understand how the qualified immunity standard affects the system of compensation for constitutional wrongs. One major similarity is the way in which the existence of Section 1983 siphons off pressure to create some other system of redress. The open-ended language of the Section 1983 statute seems to promise a powerful remedy against governmental abuse. As we have seen, qualified immunity severely limits that remedy, but on a case-by-case basis. There is no general prohibition against certain types of civil rights claims, only the seemingly individualized application of the qualified immunity defense. The fact that some types of claims are destined to fail because of the type of claim they are, not because of the particularized behavior of the defendant, is hidden. Adding to the illusion of a generally available remedy is the spectacular success of a few high profile cases. A few large recoveries in cases that present particularly compelling facts obscure the reality of the fruitlessness of most claims. 36 On the other side of the lawsuit, qualified immunity promises much more to the defendant than it delivers. The defense is supposed to protect government actors not only from liability but also from entanglement with litigation. The promise is often not kept because the qualified immunity defense presents a combination of fact and law questions that cannot be quickly disposed of prior to trial. However, the theoretical protection offered by the defense and the low incidence of actual judgments against government actors lulls government employees into acquiescence to the system. The emphasis that qualified immunity places on the reasonableness of the defendant's actions rather than on whether a constitutional right was violated is another way in which qualified immunity distorts civil rights law. Qualified immunity makes the essential issue of a civil rights claim the question of whether it would be too much of an inhibitor of government action to require a particular defendant to pay damages to the plaintiff. The focus is not, at least initially, on whether the plaintiffs constitutional rights were violated. This emphasis also makes it difficult to discern and consider which rights are or should be protected and which we are content not to protect with monetary compensation. Qualified immunity's harm is that it makes it difficult to see the policy choices made by courts in civil rights actions. Cloaking these policy choices in the qualified immunity doctrine avoids the possibility of an open debate concerning which civil rights should be protected and how. VI. CONCLUSION Given its obvious flaws, the continuation of qualified immunity as the key legal issue in civil rights cases can only be explained by the hidden purpose it serves; it avoids the divisive and perhaps unresolvable conflicts among participants in civil rights litigation. Qualified immunity accomplishes this conflict-avoiding function by giving judges wide latitude in making determinations about its application and by couching the outcomes of civil rights litigation in terms that make the substantive results difficult to perceive. These qualities account for the faithful adherence to a doctrine that is regarded as so unsatisfactory to so many. The problem with this conflict avoidance mechanism is that it allows unarticulated decisions to be made about the extent of liability for civil rights violations. Civil rights litigation does have limitations to it; every case is not given an opportunity to succeed. These determinations are being made; they are just not described as such. Using qualified immunity as a shield from the truth may buy us peace, but it keeps from us the tools required for reform.

Excessive force is the worst manifestation of this form of structural violence – 4th amendment cases get shut down before they even have a chance. Jeffries ‘13

Jeffries Jr, John C - David and Mary Harrison Distinguished Professor of Law, the University of Virginia. "The Liability Rule for Constitutional Torts." Virginia Law Review (2013): 207-270.
Finally, special mention must be made of the case of excessive force.¶ The unconstitutional use of excessive force presents the most glaring¶ case of the inadequacy of current law. To some extent, that reflects the¶ intractability of the underlying problem of persuading officers who may¶ be excited, adrenalin-rushed, and fearful to be more restrained in the use¶ of force, especially deadly force. The intersection of qualified immunity¶ and excessive force claims raises in a particularly troubling context an¶ issue that can be put more generally: what role should qualified immunity¶ play for rights defined in terms of reasonableness? The question was¶ first raised by Justice Stevens in his dissent in Anderson,¶ 217 where the¶ majority applied qualified immunity to an unlawful search. Justice Stevens¶ objected to what he called a “double standard of reasonableness.”218¶ Since the Fourth Amendment forbids only “unreasonable” searches and¶ seizures, he argued, extending qualified immunity to invasions found to¶ violate that standard introduced “two layers of insulation from liability” and led to a logical contradiction: “I remain convinced that in a suit for¶ damages as well as in a hearing on a motion to suppress evidence, ‘an¶ official search and seizure cannot be both “unreasonable” and “reasonable”¶ at the same time.’”219 Since allowance for reasonable error was already¶ built into the definition of the constitutional right, Stevens argued,¶ allowing the officers to claim qualified immunity unjustifiably gave¶ them “two bites at the apple.”220 Writing for the majority, Justice Scalia¶ rejected the “‘reasonably unreasonable’ argument” as little more than a¶ play on words.221 The fact that Fourth Amendment doctrine (including¶ the warrant requirement and the specification of exigent circumstances)¶ had developed under the rubric of “unreasonable searches and seizures”¶ did not mean that one could not be reasonably mistaken about specific¶ questions. Application of qualified immunity to Fourth Amendment protections¶ was in principle no different from its application to any other¶ constitutional guarantee.¶ Logically, Scalia is right. The phrasing of the Fourth Amendment¶ does not preclude the possibility of reasonable mistake. On any of the¶ component issues of Fourth Amendment doctrine (probable cause, exigent¶ circumstances, and the like), an officer could be reasonably mistaken¶ about whether his or her conduct violated clearly established law.¶ Analytically, there is no conceptual contradiction in applying qualified¶ immunity to the Fourth Amendment. At a deeper level, however, Stevens has a point. That point arises not¶ from the fact that the Fourth Amendment uses the term “unreasonable”¶ but rather from the construction of a constitutional standard that seemingly¶ encompasses within its terms all possibility of reasonable mistake.¶ The archetype of such a standard, however, is not ordinary search and¶ seizure but the constitutional prohibition against excessive force.¶ The Supreme Court has said in Graham v. Connor that claims of excessive¶ force should be analyzed under the Fourth Amendment and that¶ the test is one of “objective reasonableness.”222 This label might suggest a standard that is cut-and-dried, but in fact it is highly variable and particular.¶ Factors such as the severity of the suspected crime and whether¶ the suspect is actively resisting arrest are not to be assessed “with the¶ 20/20 vision of hindsight” but from the perspective of the officer on the¶ scene, with limited time and information and under conditions of emergency.223¶ As the Court put it, “The calculus of reasonableness must embody¶ allowance for the fact that police officers are often forced to make¶ split-second judgments—in circumstances that are tense, uncertain, and¶ rapidly evolving—about the amount of force that is necessary in a particular¶ situation.”224 The result is a general concept, unmediated by specific¶ implementing rules or doctrines, that takes all relevant circumstances¶ into account. All the mistakes that an officer might make—such¶ as misidentifying the suspect or erroneously thinking him armed or¶ overestimating the risk of civil disorder if a loud-mouth is not subdued—are¶ subsumed within the constitutional standard, so long as those¶ mistakes are reasonable. To find a violation of the constitutional standard,¶ the court or jury must conclude that, taking into account all the circumstances¶ that might excuse misjudgment, the use of force was unreasonable.¶ To then say that the unreasonable use of force might¶ nevertheless be reasonable is indeed puzzling.¶ The Supreme Court (per Justice Kennedy) explained the matter as follows:¶ It is sometimes difficult for an officer to determine how the relevant¶ legal doctrine, here excessive force, will apply to the factual situation¶ the officer confronts. An officer might correctly perceive all of the¶ relevant facts but have a mistaken understanding as to whether a particular¶ amount of force is legal in those circumstances. If the officer’s¶ mistake as to what the law requires is reasonable, however, the officer¶ is entitled to the qualified immunity defense.225¶ This statement is confusing and has worked much mischief, but it is not¶ analytically unsound. The confusion arises from trying to imagine how a reasonable officer could be mistaken about the “relevant legal doctrine”¶ when it consists only of the injunction that the use of force be reasonable.¶ Every officer would know that, and not knowing it would itself be¶ unreasonable. It is nevertheless true that an officer on the scene and a¶ subsequent trier of fact might evaluate the reasonable use of force (from¶ the perspective of the officer on the scene, etc.) differently. In that case,¶ one might say, with the Supreme Court, that the officer would have a¶ “mistaken understanding as to whether a particular amount of force is¶ legal” and that if the officer’s misjudgment of that issue were very¶ slight, it might be deemed reasonable.226 By this reasoning, qualified¶ immunity would still have some role to play in borderline applications¶ of a constitutional standard based entirely on reasonableness.¶ An alternative understanding—which seems to me the better understanding—would¶ treat the trier of fact’s evaluation as conclusive of reasonableness,¶ as is done for example in negligence cases. Conceptually,¶ the difference between these approaches lies in whether one conceives¶ of the officer as trying to anticipate the judgment of a trier of fact (in¶ which case a borderline error might be deemed reasonable) or as trying¶ to adhere to the underlying standard governing both officer and trier of¶ fact (in which case the latter’s determination would be conclusive). The¶ latter characterization seems more appropriate in this context and is certainly¶ more straightforward, but the former characterization is more consistent¶ with the overall structure of qualified immunity, which traditionally¶ focuses on mistake as to legality.¶ Whatever view one takes of this matter, it seems plain that qualified¶ immunity would impart only a very slight addition to the protections¶ built into the constitutional standard for excessive force. Given that reasonable¶ mistakes and misjudgments preclude finding a constitutional violation¶ in the first place, it is hard to see much room for the operation of¶ qualified immunity. At most, it would add a very narrow zone of additional¶ protection in truly borderline cases.¶ This is not, however, the lesson of the cases. Courts have been told¶ that qualified immunity applies to claims of excessive force, that reasonable¶ mistakes in light of “clearly established” law should trigger qualified¶ immunity despite the “objective unreasonableness” of the actor’s¶ conduct, and that “clearly established” law depends on similar precedent.¶ This cumulation of messages, powerfully reinforced by Brosseau v. Haugen,¶ 227 has led many lower courts to reject civil liability for excessive¶ force in circumstances where such liability seems fully justified. As¶ usual, the culprit is the unlikelihood of finding another excessive-force¶ case in that jurisdiction with sufficiently similar facts.
Part 3 - The plan
The Supreme Court of the United States will limit qualified immunity by altering the ‘clearly established’ element of qualified immunity to be merely whether it was unconstitutional in civil suits claiming a violation of the 4th amendment due to excessive force. Wright ‘15
Sam Wright is a public interest lawyer who has spent his career exclusively in nonprofits and government. “Want to Fight Police Misconduct? Reform Qualified Immunity.” Above the Law. November 3, 2015. http://abovethelaw.com/2015/11/want-to-fight-police-misconduct-reform-qualified-immunity/?rf=1 JJN
As usual, I’ve not buried the lede: that something is qualified immunity reform. In order to truly hold police accountable for bad acts, civilians must be able to bring, and win, civil rights suits themselves — not rely on the Department of Justice, or special prosecutors, or civilian review boards to hold officers accountable. And in order to both bring and win civil rights suits, civilians need a level playing field in court. Right now, they don’t have one. Instead, police officers have recourse to the broad protections of the judicially established doctrine of qualified immunity. Under this doctrine, state actors are protected from suit even if they’ve violated the law by, say, using excessive force, or performing an unwarranted body cavity search — as long as their violation was not one of “clearly established law of which a reasonable officer would be aware.” In other words, if there’s not already a case where a court has held that an officer’s identical or near-identical conduct rose to the level of a constitutional violation, there’s a good chance that even an obviously malfeasant officer will avoid liability — will avoid accountability. To bring about true accountability and change police behavior, this needs to change. And change should begin with an act of Congress rolling back qualified immunity. Removing the “clearly established” element of qualified immunity would be a good start — after all, shouldn’t it be enough to deviate from a basic standard of care, to engage in conduct that a reasonable officer would know is illegal, without having to show that that conduct’s illegality has already been clearly established in the courts?

The AFF changes police behavior – lawsuits are used by departments to create reform and individuals know their behavior will be watched – they don’t’ even need to win the lawsuits. Schwartz 10
Schwartz, Joanna. "What Police Learn from Lawsuits." Cardozo Law Review, 2010. http://law.stanford.edu/wp-content/uploads/sites/default/files/event/265497/media/slspublic/What_Police_Learn_From_Lawsuits.pdf. SGK
Lawsuits are widely recognized to compensate and deter; this Article shows suits can also inform. In the departments in this study, lawsuits reveal allegations of misconduct that officials investigate and consider with other data for possible trends. The evidence developed in discovery and trial offers a detailed picture of underlying events that can help identify personnel and policy failures. Closed case files, compared with internal investigations, reveal weaknesses in internal procedures. And trends in settlements and judgments, like initial claim trends, highlight units that officials should more carefully review. Viewed in isolation or in conjunction with other data, lawsuits offer insights about the incidence and causes of individual and organizational failings. And armed with these insights, departments find ways to improve. This view of litigation – as a source of information that can be used to identify and reduce harm and error – parts company with prevailing understand- ings of lawsuits’ role in organizational performance improvement. In the standard story, lawsuits’ financial costs are expected to deter misbehavior.242 Others contend that police officials will be deterred by lawsuits only when the suits jeopardize political capital, bureaucratic and administrative needs, or crime control efforts.243 But all expect that it is lawsuits’ punitive effects that inspire performance improvement. High profile and costly cases can, most certainly, affect change in law enforcement. Indeed, several of the departments in this study began reviewing lawsuit data as a response to significant political and financial pressures.244 But these departments do not limit their attention to cases that garner high payouts or press attention. Instead, they gather information about legal claims, evidence, and dispositions of all cases, even those without financial and political ramifications. Deterrence theory also imagines that officials deciding which course of action to take weigh the costs of litigation against the benefits of the underlying conduct.245 But the policies in place in the departments in this study do not facilitate this sort of weighing. Departments would not, for example, track lawsuits alleging chokeholds and then decide whether to retrain their officers about the impropriety of chokeholds based on the costs of these suits.246 Instead, departments in this study would use lawsuits, with other data, to identify chokeholds as behavior that triggered a concentration of suits, civilian complaints, and/or use-of-force reports. The department then would conduct an investigation and identify ways to address the underlying policy, training, or personnel problems. And when a department looks for trends in payouts, officials do not weigh those judgments and settlements against the costs of potential policy changes. Instead, the concentration of settlements and judgments is treated as an indication of an underlying problem that is then investigated and analyzed. In differentiating department practices from deterrence models, I do not mean to suggest that these departments never engage in cost-benefit analysis. Indeed, department officials likely weigh the costs and benefits of their actions at multiple points during information gathering, analysis, and decisionmaking. When LASD’s Century Station was identified as having a high concentration of payouts, department officials likely considered the bureaucratic and administrative costs of focusing public attention on that station when deciding what course of action to pursue.247 When Portland’s auditor identified a number of incidents suggesting that officers did not understand their authority to enter a home without a warrant, department officials likely weighed the financial costs of various interventions before deciding to make a training video that clarified officers’ legal obligations.248 This type of cost-benefit analysis is far more nuanced and complex than is suggested by formal models of deterrence. And lawsuits’ role in this cost- benefit analysis is not as a “cost” but, instead, as one of many sources of information. Others have recognized that information generated by litigation can serve a regulatory function. Lawsuits challenging the gun industry, clergy sexual abuse, tobacco, and breast implant manufacturers have generated information that supplemented regulatory efforts.249 The revelation of damaging information can also pressure police departments to change their behavior.250 In these contexts, the public disclosure of litigation data caused third parties to influence organizations to improve. The departments in this study reveal that litigation can also generate information previously unavailable to the very entity that is sued. Although these departments view lawsuits as a valuable source of infor- mation, they recognize that the information is flawed.251 Information produced internally – through civilian complaints and use of force reports – is flawed as well.252 The approach of the departments in this study is not to ignore information because of its imperfections, but instead to review data from multiple sources with the hopes that imperfections will be minimized by a holistic approach. The Los Angeles Sheriff’s Department’s policies “consciously were fashioned to create multiple, new, and even redundant sources of information.”253

The AFF changes culture – it is a form of social condemnation that validates the claims of the survivor.  Armacost 98

Armacost 98 Barbara Armacost, Vanderbilt Law Review, April, 1998, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=90852, “Qualified Immunity: Ignorance Excused,” WP

If constitutional rights are especially valued in comparison with other kinds of rights, it follows that constitutional violations would be viewed by society as especially serious and deserving of opprobrium. There is reason to think this is so. Constitutional violations, especially those that are likely to give rise to section 1983 suits, involve abuses of power by governmental actors. The implications of official misconduct go far beyond the concrete harm to persons or property suffered by any one individual. Public officials are, after all, charged with upholding and enforcing the law and acting for the public good. When officials use their public offices to engage in lawbreaking, there is a betrayal of trust that is experienced not only by the individual, but by the entire community. n432 Consider, for example, *675 the public outcry that was engendered by the beating of Rodney King by Los Angeles police officers. The image of a circle of uniformed law enforcement officials beating an unarmed man lying crumpled on the ground is troubling in a way that a private beating is not. Similar reactions accompanied recent allegations that New York City police officers openly beat and sodomized (with a toilet plunger) a young Haitian immigrant in the bathroom at the police station. n433 When the malefactor is a governmental official whose injurious conduct was made possible by her official authority and position, "ordinary injury is augmented by the abuse of governmental power." n434 In such cases wrongdoing that could "be described as trespass, assault and battery, false imprisonment, or defamation takes on new urgency." n435 If the law-enforcers cannot be trusted to conduct themselves according to the law, then who can? Governmental abuse of power creates a sense of indignation on the part of the governed, and special opprobrium is reserved for abusers of the public trust. n436∂ If individual liability for constitutional violations entails wrongdoing and signals societal condemnation, then it would make sense to retain such liability even if the financial burden is ultimately borne by the governmental employer rather than by the individual official. n437 Indeed, in the criminal context it has been argued that the *676 moral blame entailed by a criminal conviction is more important in discouraging antisocial conduct than the threat of official sanctions. n438 One need not go that far to accept that the human desire to avoid societal opprobrium plays an important role in gaining compliance with the criminal law. n439 Similarly, the societal condemnation accompanying damages liability for constitutional violations enhances the law's power to reduce unconstitutional conduct and reinforce constitutional norms. Moreover, the stigma entailed in such liability plays an important role in communicating those norms, not only through final verdicts in courts but through public reaction to reported allegations of clear constitutional impropriety.

Tournament: Grapevine | Round: 1 | Opponent: Hockaday ES | Judge: Lawrence Zhou
See Open Source

Tournament: Alta | Round: 2 | Opponent: Park City HS Debate BM | Judge: Nick Mussenzveig
Framework
Rule of Law
The standard should be preserving the rule of law

First, the rule of law animates democracy- its crucial to rights protections and reducing all forms of violence
Rummel 91 – Professor of Political Science @ University of Hawaii R.J. Rummel, THE RULE OF LAW:TOWARDS ELIMINATING WAR AND DEMOCIDE, S peech given to the ABA National Security Conference on "The Rule of Law in United States Foreign Policy and the New World Order. Washington, D.C., October 10-11, 1991. pg. http://www.hawaii.edu/powerkills/ABA.SPEECH.HTM
Obviously we are all riding a democratic wave. The technology of the mass media has brought us all together (and who can forget watching the coup and its defeat unfolding in Moscow) and in its universal availability and content it has carried implicitly the message of democracy and freedom. And freedom and the rule of law itself has become the most universally accepted political idea. The components of this idea are clear in broad brush although the details, as always, are subject to academic dispute. These are political rights, such as to compete and choose one's candidates for political power, equal and secret ballot, and freedom to organize and protest against office holders; and civil rights, such as freedom of religion, organization, and speech. Often we collectively refer to these rights by the term Rule of Law, a basic constitutional order that protects these rights and that lies above the whims of government, groups, and individuals. But in our enthusiasm for the global movement toward democracy we should ask ourselves why we support it. A century and more ago the answer would have been almost automatic, as it was for the writers of the American Constitution. It is a natural law, an inalienable right, a self-evident principle that people should be free. But natural law is no longer intellectually popular and indeed the idea is now so strange that journalists cannot understand the references to it by conservative nominees to the Supreme Court. They classify it along with such sayings as, "God wills it." A currently more respectable justification for democracy is that freedom is a fundamental human value and desire. People want to live their own lives, pursue their own interests as free from the meddling of others as possible. If such intrusion is necessary, they want to play a role in determining the who, what, and when of it. And since this is what people universally want it is what they should have. Although the non sequitur in this argument is glaring--one cannot derive a "should" from a "want" or "desire" alone--it at least can be made respectable by reference to the Social Contract Theory of justice. That is, if we argue that a just social system is one whose fundamental principles people would universally choose if they were blind to their selfish interests (if they had no knowledge of where they would end up in that system--rich or poor, tall or fat, black or white), then persuasive is the argument that people would choose as their first principle freedom under the Rule of Law. But this approach to justifying democracy has been unsatisfactory to many. We live in a utilitarian age and it is hardly strange that the major justification for democracy should be in terms of its consequences. Particularly, that where people are free under law that is fair and equally applied to all, they are most happy. Of course, this utilitarian justification itself is subject to question. What is happiness? Although people prefer happiness to sadness, grief, and pain, do they really know what will make them happy? The democrat argues that we really do not know what makes people happy in general and that this is something that only they can decide for themselves, and if for some issues it must be determined generally, as with regard to pollution or public education, it should be through publicly elected representatives under law. And the democratic individualist has argued further with their democratic socialist friends that the free market is a necessary mechanism through which individuals have the greatest choice as to what will make them happy, both in the relative diversity and cheapness of goods and in the creation and dissemination of wealth. This utilitarian argument for democracy is what has now won the battle for the minds of men. Democracy, it is widely believed, assures the happiness of the greatest number because it provides freedom and wealth (through economic development). There is much to quibble about this, as can be seen in the arguments between Democrats and Republicans and among liberals and conservatives of both parties, and I do not intend to get into these debates. But leaving these details aside, I think that we can accept this as the general argument of the American, Soviet, or Chinese democrat (even those who favor social democracy no longer mean full-scale socialism but now mean a free market qualified by government welfare, safety nets, regulation, and limited government ownership of basic services and production, such as in the public health sector). But those who make this utilitarian argument for democracy have missed perhaps the strongest possible justification. Democracy preserves human life. In theory and fact, the more democratic two states, the less deadly violence between them; and if they are both democratic, lethal violence is precluded altogether. That is, democratic states do not make war on each other. Moreover, the less democratic two states, the more probable war between them. And also, the less democratic a state, the more likely will occur internal warfare. This is not all. Perhaps least surprising is that the less democratic a government, the more likely that it will murder its own citizens in cold blood, independent of any foreign or domestic war. Now, war is not the most deadly form of violence. Indeed, I have found that while about 37,000,000 people have been killed in battle in all foreign and domestic wars in our century, government democide (genocide and mass murder) have killed over 150,944,000 million more, and I am still counting. And over 85 percent of these were killed by totalitarian governments. Table 1 lists the partial data (these data are still in the process of being collected) on "mega-murderers"--governments that have killed a million or more people outside of warfare. These megamurderers form, of course, an elite group. The list of regimes--kilomurderers--murdering "only" in the thousands is much longer and would include, for example, communist Afghanistan, Angola, Laos, Ethiopia, North Korea, and Rumania, as well as authoritarian Argentina, Burundi, Chile, Croatia (1941-44), Czechoslovakia (1945-46), Indonesia, Iran, Rwanda, Spain, Sudan, and Uganda. There is no case of democratic central governments killing en masse their own citizens. The point is this. If a utilitarian justification for democracy is to be given, then in addition to the happiness that follows from freedom and the from wealth produced by the free market, democracy preserves and extends human life. It does this through the life extending benefits of the market (as in food production). But most important, it does this through the reduction of deadly violence. Democracy is the successful institutionalization of the forces, culture, and techniques of non-violence. This is also what we should be shouting from the roof tops. This is also what should be the substance of our utilitarian justification for democracy. Yes, freedom. Yes, development. Yes, happiness. But yes, also life for those saved from murder by their own governments and death from war. Nothing is certain about the future, but this is true of all predictions based on past events, natural or social. Within this limitation think about this. By fact and theory we appear to have within the power of democracy the opportunity to end war, genocide, and mass murder, and minimize revolutionary and civil violence. And the epochal movement of our times is toward universal democracy. 

Second, Rule of law is a gateway to every disad impact
RHYNE ‘58 – FORMER PRESIDENT AMERICAN BAR ASSOCIATION
LAW DAY SPEECH, VOICE OF AMERICA, 1958 http://www.abanet.org/publiced/lawday/rhyne58.html)
The rule of law has been the bulwark of our democracy. It has afforded protection to the weak, the oppressed, the minorities, the unpopular; it has made it possible to achieve responsiveness of the government to the will of people. It stands as the very antithesis of Communism and dictatorship. When we talk about “justice” under our rule of law, the absence of such justice behind the Iron Curtain is apparent to all. When we talk about “freedom” for the individual, Hungary is recalled to the minds of all men. And when we talk about peace under law—peace without the bloodbath of war—we are appealing to the foremost desire of all peoples everywhere. The tremendous yearning of all peoples for peace can only be answered by the use of law to replace weapons in resolving international disputes. We in our country sincerely believe that mankind’s best hope for preventing the tragic consequences of nuclear-satellite-missile warfare is to persuade the nations of the entire world to submit all disputes to tribunals of justice for all adjudication under the rule of law. We lawyers of America would like to join lawyers from every nation in the world in fashioning an international code of law so appealing that sentiment will compel its general acceptance. Man’s relation to man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The most important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased international relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely die together. History teachers that the rule of law has enabled mankind to live together peacefully within nations and it is clear that this same rule of law offers our best hope as a mechanism to achieve and maintain peace between nations. The lawyer is the technician in man’s relationship to man. There exists a worldwide challenge to our profession to develop law to replace weapons before the dreadful holocaust of nuclear war overtake our people. It is said that an idea can be more powerful than an atom because strength today resides in man’s mind—not his muscle. We lawyers of the world must take the idea of peace under the rule of law and make it a force superior to weapons and thus outlaw wars of weapons. Law offers the best hope for order in a disordered world.  The law of force or the force of law will rule the world. In the field of human conduct the law has never confessed failure. The struggle for a world ruled by law must go on with increased intensity. We must prove that the genius of man in the field of science and technology has not so far outstripped his inventiveness in the sphere of human relations as to make catastrophe inevitable. If man can conquer space he can also solve the need for legal machinery to insure universal and lasting peace.

Rights
The starting point of government deliberation has to be the individual and how they relate to the social world around them. Rules only gain their force if they are open to public criticism. This means we need a procedural democracy that transcends the exact content of any moral rule. . Adorno:

Adorno, Theodor. “Education after Auschwitz,” Critical Model

Since the possibility of changing the objective—namely societal and political— conditions is extremely limited today, attempts to work against the repetition of Auschwitz are necessarily restricted to the subjective dimension. By this I also mean essentially the psychology of people who do such things. I do not believe it would help much to appeal to eternal values, at which the very people who are prone to commit such atrocities would merely shrug their shoulders. I also do not believe that enlightenment about the positive qualities possessed by persecuted minorities would be of much use. The roots must be sought in the persecutors, not in the victims who are murdered under the paltriest of pretenses. What is necessary is what I once in this respect called the turn to the subject. One must come to know the mechanisms that render people capable of such deeds, must reveal these mechanisms to them, and strive, by awakening a general awareness of those mechanisms, to prevent people from becoming so again. It is not the victims who are guilty, not even in the sophistic and caricatured sense in which still today many like to construe it. Only those who unreflectingly vented their hate and aggression upon them are guilty. One must labor against this lack of reflection, must dissuade people from striking outward without reflecting upon themselves. The only education that has any sense at all is an education toward critical self-reflection. But since according to the findings of depth psychology, all personalities, even those who commit atrocities in later life, are formed in early childhood, education seeking to prevent the repetition must concentrate upon early childhood. I mentioned Freud’s thesis on discontent in culture. Yet the phenomenon extends even further than he understood it, above all, because the pressure of civilization he had observed has in the meantime multiplied to an unbearable degree. At the same time the explosive tendencies he first drew attention to have assumed a violence he could hardly have foreseen. The discontent in culture, however, also has its social dimension, which Freud did not overlook though he did not explore it concretely. One can speak of the claustrophobia of humanity in the administered world, of a feeling of being incarcerated in a thoroughly societalized, closely woven, netlike environment. The denser the weave, the more one wants to escape it, whereas it is precisely its close weave that prevents any escape. This intensifies the fury against civilization. The revolt against it is violent and irrational. A pattern that has been confirmed throughout the entire history of persecutions is that the fury against the weak chooses for its target especially those who are perceived as societally weak and at the same time—either rightly or wrongly—as happy. Sociologically, I would even venture to add that our society, while it integrates itself ever more, at the same time incubates tendencies toward disintegration. Lying just beneath the surface of an ordered, civilized life, these tendencies have progressed to an extreme degree. The pressure exerted by the prevailing universal upon everything particular, upon the individual people and the individual institutions, has a tendency to destroy the particular and the individual together with their power of resistance. With the loss of their identity and power of resistance, people also forfeit those qualities by virtue of which they are able to pit themselves against what at some moment might lure them again to commit atrocity. Perhaps they are hardly able to offer resistance when the established authorities once again give them the order, so long as it is in the name of some ideal in which they half or not at all believe. When I speak of education after Auschwitz, then, I mean two areas: first children’s education, especially in early childhood; then general enlightenment that provides an intellectual, cultural, and social climate in which a recurrence would no longer be possible, a climate, therefore, in which the motives that led to the horror would become relatively conscious. Naturally, I cannot presume to sketch out the plan of such an education even in rough outline. Yet I would like at least to indicate some of its nerve centers. Often, for instance, in America, the characteristic German trust in authority has been made responsible for National Socialism and even for Auschwitz. I consider this explanation too superficial, although here, as in many other European countries authoritarian behavior and blind authority persist much more tenaciously than one would gladly admit under the conditions of a formal democracy. Rather, one must accept that fascism and the terror it caused are connected with the fact that the old established authorities of the Kaiserreich decayed and were toppled, while the people psychologically were not yet ready for self-determination. They proved to be unequal to the freedom that fell into their laps. For this reason the authoritarian structures then adopted that destructive and, if I may put it so, insane dimension they did not have earlier, or at any rate had not revealed. If one considers how visits of potentates who no longer have any real political function induce outbreaks of ecstasy in entire populations, then one has good reason to suspect that the authoritarian potential even now is much stronger than one thinks. I wish, however, to emphasize especially that the recurrence or non-recurrence of fascism in its decisive aspect is not a question of psychology, but of society. I speak so much of the psychological only because the other, more essential aspects lie so far out of reach of the influence of education, if not of the intervention of individuals altogether. Very often well-meaning people, who don’t want it to happen again, invoke the concept of bonds. According to them, the fact that people no longer had any bonds is responsible for what took place. In fact, the loss of authority, one of the conditions of the sadistic-authoritarian horror, is connected with this state of affairs. To normal common sense it is plausible to appeal to bonds that check the sadistic, destructive, and ruinous impulse with an emphatic “You must not.” Nevertheless I consider it an illusion to think that the appeal to bonds—let alone the demand that everyone should again embrace social ties so that things will look up for the world and for people— would help in any serious way. One senses very quickly the untruth of bonds that are required only so that they produce a result—even if it be good—without the bonds being experienced by people as something substantial in themselves. It is surprising how swiftly even the most foolish and naive people react when it comes to detecting the weaknesses of their betters. The so-called bonds easily become either a ready badge of shared convictions—one enters into them to prove oneself a good citizen—or they produce spiteful resentment, psychologically the opposite of the purpose for which they were drummed up. They amount to heteronomy, a dependence on rules, on norms that cannot be justified by the individual’s own reason. What psychology calls the superego, the conscience, is replaced in the name of bonds by external, unbinding, and interchangeable authorities, as one could observe quite clearly in Germany after the collapse of the Third Reich. Yet the very willingness to connive with power and to submit outwardly to what is stronger, under the guise of a norm, is the attitude of the tormentors that should not arise again. It is for this reason that the advocacy of bonds is so fatal. People who adopt them more or less voluntarily are placed under a kind of permanent compulsion to obey orders. The single genuine power standing against the principle of Auschwitz is autonomy, if I might use the Kantian expression: the power of reflection, of self-determination, of not cooperating. I once had a very shocking experience: while on a cruise on Lake Constance I was reading a Baden newspaper, which carried a story about Sartre’s play Morts sans s ´epulchre, a play that depicts the most terrifying things.3 Apparently the play made the critic uneasy. But he did not explain this discontent as being caused by the horror of the subject matter, which is the horror of our world. Instead he twisted it so that, in comparison with a position like that of Sartre, who engages himself with the horror, we could maintain—almost maintain, I should say—an appreciation of the higher things: so that we could not acknowledge the senselessness of the horror. To the point: by means of noble existential cant the critic wanted to avoid confronting the horror. Herein lies, not least of all, the danger that the horror might recur, that people refuse to let it draw near and indeed even rebuke anyone who merely speaks of it, as though the speaker, if he does not temper things, were the guilty one, and not the perpetrators. With the problem of authority and barbarism I cannot help thinking of an idea that for the most part is hardly taken into account. It comes up in an observation in the book The SS State by Eugen Kogon, which contains central insights into the whole complex and which hasn’t come near to being absorbed by science and educational theory the way it deserves to be.4 Kogon says that the tormentors of the concentration camp where he spent years were for the most part young sons of farmers. The cultural difference between city and country, which still persists, is one of the conditions of the horror, though certainly neither the sole nor the most important one. Any arrogance toward the rural populace is far from my intentions. I know that one cannot help having grown up in a city or a village. I note only that probably debarbarization has been less successful in the open country than anywhere else. Even television and the other mass media probably have not much changed the state of those who have not completely kept up with the culture. It seems to me more correct to say this and to work against it than to praise sentimentally some special qualities of rural life that are threatening to disappear. I will go so far as to claim that one of the most important goals of education is the debarbarization of the countryside. This presupposes, however, a study of the conscious and unconscious of the population there. Above all, one must also consider the impact of modern mass media on a state of consciousness that has not yet come anywhere close to the state of bourgeois liberal culture of the nineteenth century. In order to change this state of consciousness, the normal primary school system, which has several problems in the rural environment, cannot suffice. I can envision a series of possibilities. One would be—I am improvising here—that television programs be planned with consideration of the nerve centers of this particular state of consciousness. Then I could imagine that something like mobile educational groups and convoys of volunteers could be formed, who would drive into the countryside and in discussions, courses, and supplementary instruction attempt to fill the most menacing gaps. I am not ignoring the fact that such people would make themselves liked only with great difficulty. But then a small circle of followers would form around them, and from there the educational program could perhaps spread further. However, there should arise no misunderstanding that the archaic tendency toward violence is also found in urban centers, especially in the larger ones. Regressive tendencies, that is, people with repressed sadistic traits, are produced everywhere today by the global evolution of society. Here I’d like to recall the twisted and pathological relation to the body that Horkheimer and I described in The Dialectic of Enlightenment. Everywhere where it is mutilated, consciousness is reflected back upon the body and the sphere of the corporeal in an unfree form that tends toward violence. One need only observe how, with a certain type of uneducated person, his language—above all when he feels faulted or reproached—becomes threatening, as if the linguistic gestures bespoke a physical violence barely kept under control. Here one must surely also study the role of sport, which has been insufficiently investigated by a critical social psychology. Sport is ambiguous. On the one hand, it can have an anti-barbaric and anti-sadistic effect by means of fair play, a spirit of chivalry, and consideration for the weak. On the other hand, in many of its varieties and practices it can promote aggression, brutality, and sadism, above all in people who do not expose themselves to the exertion and discipline required by sports but instead merely watch: that is, those who regularly shout from the sidelines. Such an ambiguity should be analyzed systematically. To the extent that education can exert an influence, the results should be applied to the life of sport. All this is more or less connected with the old authoritarian structure, with modes of behavior, I could almost say, of the good old authoritarian personality. But what Auschwitz produced, the characteristic personality types of the world of Auschwitz, presumably represents something new. On the one hand, those personality types epitomize the blind identification with the collective. On the other hand, they are fashioned in order to manipulate masses, collectives, as Himmler, H¨oss, and Eichmann did. I think the most important way to confront the danger of a recurrence is to work against the brute predominance of all collectives, to intensify the resistance to it by concentrating on the problem of collectivization. That is not as abstract as it sounds in view of the passion with which especially young and progressively minded people desire to integrate themselves into something or other. One could start with the suffering the collective first inflicts upon all the individuals it accepts. One has only to think of one’s own first experiences in school. One must fight against the type of folkways Volkssitten, initiation rites of all shapes, that inflict physical pain—often unbearable pain—upon a person as the price that must be paid in order to consider oneself a member, one of the collective.6 The evil of customs such as the Rauhn¨achte and the Haberfeldtreiben and whatever else such long-rooted practices might be called is a direct anticipation of National Socialist acts of violence.7 It is no coincidence that the Nazis glorified and cultivated such monstrosities in the name of “customs.” Science here has one of its most relevant tasks. It could vigorously redirect the tendencies of folk-studies Volkskunde that were enthusiastically appropriated by the Nazis in order to prevent the survival, at once brutal and ghostly, of these folk-pleasures. This entire sphere is animated by an alleged ideal that also plays a considerable role in the traditional education: the ideal of being hard. This ideal can also, ignominiously enough, invoke a remark of Nietzsche, although he truly meant something else.8 I remember how the dreadful Boger during the Auschwitz trial had an outburst that culminated in a panegyric to education instilling discipline through hardness. He thought hardness necessary to produce what he considered to be the correct type of person.9 This educational ideal of hardness, in which many may believe without reflecting about it, is utterly wrong. The idea that virility consists in the maximum degree of endurance long ago became a screen-image for masochism that, as psychology has demonstrated, aligns itself all too easily with sadism. Being hard, the vaunted quality education should inculcate, means absolute indifference toward pain as such. In this the distinction between one’s own pain and that of another is not so stringently maintained. Whoever is hard with himself earns the right to be hard with others as well and avenges himself for the pain whose manifestations he was not allowed to show and had to repress. This mechanism must be made conscious, just as an education must be promoted that no longer sets a premium on pain and the ability to endure pain. In other words: education must take seriously an idea in no wise unfamiliar to philosophy: that anxiety must not be repressed. When anxiety is not repressed, when one permits oneself to have, in fact, all the anxiety that this reality warrants, then precisely by doing that, much of the destructive effect of unconscious and displaced anxiety will probably disappear. People who blindly slot themselves into the collective already make themselves into something like inert material, extinguish themselves as self-determined beings. With this comes the willingness to treat others as an amorphous mass. I called those who behave in this way “the manipulative character” in the Authoritarian Personality, indeed at a time when the diary of H¨oss or the recordings of Eichmann were not yet known.10 My descriptions of the manipulative character date back to the last years of the Second World War. Sometimes social psychology and sociology are able to construct concepts that only later are empirically verified. The manipulative character—as anyone can confirm in the sources available about those Nazi leaders—is distinguished by a rage for organization, by the inability to have any immediate human experiences at all, by a certain lack of emotion, by an overvalued realism. At any cost he wants to conduct supposed, even if delusional, Realpolitik. He does not for one second think or wish that the world were any different than it is, he is obsessed by the desire of doing things Dinge zu tun, indifferent to the content of such action. He makes a cult of action, activity, of so-called efficiency as such which reappears in the advertising image of the active person. If my observations do not deceive me and if several sociological investigations permit generalization, then this type has become much more prevalent today than one would think. What at that time was exemplified in only a few Nazi monsters could be confirmed today in numerous people, for instance, in juvenile criminals, gang leaders, and the like, about whom one reads in the newspapers every day. If I had to reduce this type of manipulative character to a formula—perhaps one should not do it, but it could also contribute to understanding—then I would call it the type of reified consciousness. People of such a nature have, as it were, assimilated themselves to things. And then, when possible, they assimilate others to things. This is conveyed very precisely in the expression “to finish off” “fertigmachen”, just as popular in the world of juvenile rowdies as in the world of the Nazis. This expression defines people as finished or prepared things in a doubled sense. According to the insight of Max Horkheimer, torture is a manipulated and somewhat accelerated adaptation of people to collectives.11 There is something of this in the spirit of the age, though it has little to do with spirit. I merely cite the saying of Paul Val ´ery before the last war, that inhumanity has a great future.12 It is especially difficult to fight against it because those manipulative people, who actually are incapable of true experience, for that very reason manifest an unresponsiveness that associates them with certain mentally ill or psychotic characters, namely schizoids.
Government action is about the process of deliberation not finding an exact rule to follow in every circumstance. Generation of values requires the ability to speak out. . Singer 84

Singer, Joseph William. "The player and the cards: nihilism and legal theory." The Yale Law Journal 94.1 (1984): 1-70.

Moreover, we cannot respond adequately to problems faced in life by¶ generating abstract moral categories. Discussion of moral and legal choices¶ must focus on the rich context in which those problems occur. For some¶ purposes, it may be useful to characterize two persons as "employer" and¶ "employee" and to develop generalizations to describe and govern their¶ relationships. But it is important to remember that these are real people¶ we are talking about, and when we describe them in this way for the¶ purpose of judging what their relations should be like, we are closing our-¶ selves off from their actual life experiences. We can think impersonally¶ about a busboy as simply representing the table-clearing function; or we¶ can describe him, say, as a forty-year-old man, recently divorced, with¶ back trouble and money problems. As Robert Gordon argues, we need "to¶ unfreeze the world as it appears to common sense as a bunch of more or¶ less objectively determined social relations and to make it appear as (we¶ believe) it really is: people acting, imagining, rationalizing, justifying."'179¶ It may indeed be useful to develop general models to describe social life.¶ But when it comes time to make decisions, we should recognize that we¶ are making decisions rather than discovering ourselves. In making those¶ decisions, it is right to focus on the particular social context, to decide¶ whether our descriptive model actually applies in that case and whether¶ we are allowing the model to turn our attention away from facts that we¶ would otherwise consider to be important. Expressive theory emphasizes the active role of the theorist in deciding¶ how to characterize situations, and in deliberating, conversing, intro-¶ specting, and judging.180 Expressive theory also emphasizes the communal¶ nature of theory and its complex relations with social life. The kernel of¶ truth in the idea of rational consensus is that all ideas and actions involve¶ relations among people. "Individuals do not simply 'have' opinions, they¶ form opinions. . . . The formation of opinions is not a private activity¶ performed by a solitary thinker."'' Traditional theorists have reified the¶ idea of rational consensus by treating it as a basis for what we do, as a¶ source of answers, as a generator of outcomes. But consensus, if it exists,¶ is not something that just happens to be there, that we could describe¶ accurately. It must be created, and the work of creating it is the work and¶ play of daily life, of living, contending, sharing, and being with other peo-¶ ple. Like law, consensus must be made, not found.182¶ Emphasis on the creative, communal nature of common understanding¶ creates an appropriate relationship between thought and action. The proc-¶ ess of generating values is something we do with others in the context of¶ relationships that continue over time.¶ Democratic politics is an encounter among people with differing in-¶ terests, perspectives, and opinions-an encounter in which they re-¶ consider and mutually revise opinions and interests, both individual¶ and common. It happens always in a context of conflict, imperfect¶ knowledge, and uncertainty, but where community action is neces-¶ sary. The resolutions achieved are always more or less temporary,¶ subject to reconsideration, and rarely unanimous. What matters is¶ not unanimity but discourse. The substantive common interest is¶ only discovered or created in democratic political struggle, and it re-¶ mains contested as much as shared. Far from being inimical to de-¶ mocracy, conflict-handled in democratic ways, with openness and¶ persuasion-is what makes democracy work, what makes for the¶ mutual revision of opinions and interest.'83¶ Legal theory can help create communal ties and shared values by freeing¶ us from the sense that current practices and doctrines are natural and¶ necessary and by suggesting new forms of expression to replace outworn¶ ones. For example, Gabel and Harris have suggested replacing our cur- rent rights orientation with a power orientation.'84 They would shift our¶ focus from viewing individuals as abstract citizens whose relations to each¶ other are governed by rights enforced by the state to viewing them as¶ active participants in shaping their relations in daily life. Such changes in¶ language may help focus our attention on facts we had previously ignored¶ and make us more keenly aware of alternative social arrangements.'85

The law can either be used to forward the claims of the powerless or to perpetuate those of the powerful. We embrace a system of politics that allows for the powerless to speak out. Balkin 08

Balkin, Jack M. "Critical legal theory today." (2008).

The relative autonomy of law from politics – rather than its complete¶ autonomy – simultaneously poses a threat and a promise. The threat is that law¶ will fail to do much more than ratify and legitimate the interests of the powerful;¶ the promise is that it might hold off the worst excesses of power by giving people¶ discursive and institutional tools to talk back to power, to restrain its selfishness¶ and inhumanity, and to imagine finer, better visions of human association.¶ The threat and the promise of law are joined together inseparably. What¶ gives law its power to legitimate is its ability to re-describe unjust and unfair¶ events, social practices and institutions in terms of valued ideals of human¶ association like consent, freedom, dignity, equality and fairness. In the hands of¶ lawyers and politicians, law can disguise, mystify and legitimate great injustices¶ using the very ideas and ideals we admire. But law can only do this because it¶ appeals to these values and claims to try to put them into practice through law.¶ Recourse to law forces the powerful to talk in terms in which the powerless can¶ also participate and can also make claims.¶ From this standpoint, law is not simply an efficient tool of power that¶ powerful people and powerful groups can wield any way they like. They do not¶ merely shape the world with it; rather it shapes them and their world, because¶ they have bought into law as a means of achieving and wielding power. Law¶ shapes their beliefs and desires, their sense of the appropriate and the¶ inappropriate, their conceptions of the possible and impossible. Law generates its¶ own institutions and its own demands; it creates its own culture, it is its own form¶ of life; it struggles with other forms of knowledge and power for dominance.¶ That struggle might lead to yet another form of professional power displacing older ones. But it might offer a space for something far more beneficial and¶ noble.¶ The critical approach to law—or at any rate, my version of it—has always¶ been doubled, has always reflected the Janus word “legitimate.” On the one hand,¶ powerful people have used law to subordinate others and secure their own¶ interests under the guise of promoting laudable goals like freedom, equality,¶ liberty, consent, community and human dignity. On the other hand, by choosing¶ to speak in the language of law, powerful people and interests can sometimes be¶ called to account because they try to legitimate what they are doing in those¶ terms. The people they take advantage of can argue that this is a misuse of law,¶ an illegitimate attempt at mystifying rhetoric. They can appeal to the values that¶ law seeks to protect to promote better, more just, and more humane practices and¶ forms of human association.¶ Important theoretical debates among critical scholars in the 1970s and¶ 1980s period revolved around which conception of law was the best one. Some¶ critical scholars adopted a largely pejorative conception, focusing primarily on¶ law’s defects. They argued that the rule of law was enmeshed in irreconcilable¶ contradictions; they denounced rights talk as sterile, useless and¶ counterproductive.5¶ Others, especially feminist and critical race theory scholars,¶ pointed out that rights discourse and rule of law values were among the few¶ resources that disempowered people had.6¶ Rule of law and rights talk were¶ potentially emancipatory discourses. They held a limited but important potential¶ for liberation and for contesting the arbitrary and unjust use of power.¶ These feminist and critical race theorists understood the deemphasized elements – the other side – of critical claims about the relative autonomy of law.¶ They well recognized that rule of law values and rights discourse were hardly¶ perfect – after all, they had been used repeatedly to justify slavery and the¶ subordination of women – but that they had also allowed people to speak out¶ against and to restrain the worst excesses of power. Even in a period of deep¶ skepticism and disillusionment about what law could do, these critical scholars¶ retained a sense of the political importance of rule of law values and rights¶ discourse. That is not because they believed in a strict autonomy of law from¶ politics, but because they understood the political values that legal culture and¶ rights discourse might serve. The best version of critical theory, I think, employs an ambivalent¶ conception of law rather than a pejorative conception: it recognizes law’s relative¶ autonomy from other forms of power in social life, and it understands the dual or¶ Janus-faced nature of that relative autonomy. It sees both law’s limitations in the¶ face of power and its possibilities as a means of channeling power and preventing¶ its most serious injustices

Case
Harms

SCOTUS ruled in Saucier V Katz that a duplicative “double reasonableness” standard must be applied in 4th amendment cases. This has disrupted the balance of immunity jurisprudence tilting the playing field overwhelmingly in favor of police gutting section 1983 and civil rights protections broadly
Brown 03
(Peter A., JD - Qualified Immunity Illogically Applies to Excessive Force Claims Suffolk University Law Review 2003 36 Suffolk U. L. Rev. 607 )
In Saucier v. Katz, the Supreme Court considered whether the duplicative objective reasonableness analysis is necessary to protect law enforcement in civil rights cases alleging excessive force. n32 The Court upheld the application of qualified immunity in excessive force complaints, thereby providing an additional layer of protection to law enforcement. n33 Declaring qualified immunity protects reasonable mistakes of both fact and law, the Court concluded that the mere application of Graham's factor test would not sufficiently address the goals underlying qualified immunity. n34 Surprisingly, the Court never addressed whether a Fourth Amendment violation actually occurred in this case. n35 Due to its procedural posture, the Court presumed a constitutional deprivation and continued to clarify the proper analysis for qualified immunity. n36 Concerned over the Ninth Circuit's approach, which enables section 1983 cases to get to trial whenever there is a material dispute of fact, the Court emphatically reinforced the policies behind the doctrine and reversed the denial of summary judgment. n37 In Saucier, the Court blatantly sacrificed policy for sound legal reasoning while attempting to protect law enforcement officials from frivolous lawsuits. n38 *613 The Court created an incoherent qualified immunity analysis, which undoubtedly will contribute to ongoing confusion. n39 Specifically, the Court's decision may chill future claims, significantly hindering the ability of individuals to vindicate constitutional violations. n40 Most importantly, Saucier neglected Graham's extensive protection of law enforcement. n41 Graham contained sufficient protections to law enforcement, and as such, the Court in Saucier did not confront any legitimate concerns that officers would be liable for conduct that they did not know violated the law. n42 Additionally, the Court's mistake of fact versus mistake of law distinction is inapposite, because Graham provides for a fact-specific analysis pertaining to the deprivation element. n43 The Court focused heavily on the effect that the Ninth Circuit's approach would have had on otherwise dismissed claims. n44 This insubstantial concern lacks merit because lower courts consistently dismiss excessive force cases based on the Fourth Amendment, never reaching qualified immunity. n45 Saucier ignored precedent by sacrificing, rather than balancing, the competing policy interests and covertly altering section 1983 litigation in excessive force cases. n46 *614 In Saucier v. Katz, the Court considered the role of qualified immunity in excessive force cases. The Court foreclosed its prior attempts to strike a fair balance between competing interests by favoring a judicially created defense over civil rights remedies. Rejecting the strength of its own decision in Graham, the Saucier Court created an illogical and undue hurdle for civil rights plaintiffs attempting to vindicate constitutional violations.
The 4th amendment already provides broad protection for police conduct-Saucier goes too far in protecting police at the expense of civil rights through duplicative legal sleight of hand
Shapiro et al, 01
(JD - Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663 Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924 Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41 Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522 (U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M. KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )
The qualified immunity defense is not applicable to claims of excessive force under the Fourth Amendment. The standard for determining whether excessive force has been used in a particular case is identical to the standard for determining whether an officer is entitled to qualified immunity from liability for a Fourth Amendment violation. To prove a Fourth Amendment violation, the plaintiff must demonstrate that the officer acted in an objectively unreasonable manner and, in determining reasonableness, the fact-finder must make “allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989). As the courts have consistently recognized, the Fourth Amendment itself provides the officer with a wide zone of protection. The officer can use a range of force in response to perceived danger and need not use the least force necessary under the circumstances. *6 Once it is determined that the force that was used was objectively unreasonable, a defense of qualified immunity is logically inconsistent with the Fourth Amendment determination because it is measured by the same “objective reasonableness” standard. A police officer cannot have an objectively reasonable belief that the force used was necessary (thus entitling him to qualified immunity) when it has already been determined that an objectively reasonable officer could not have believed that the force used was necessary (thus establishing a Fourth Amendment violation). Any such findings would be irreconcilable. At the very least, the two inquiries merge into a single analytic question. Qualified immunity is available in probable cause determinations because of the difficult legal issues that may be presented in any particular decision to arrest or search. No such difficult legal issues are presented in the excessive force context: the sole question for the officer is whether force is necessary to effect an arrest or other police action, or to defend oneself or others from harm. Given the broad protection the officer has under Graham, no officer who acts unreasonably for Fourth Amendment purposes could be said to act reasonably in terms of qualified immunity. The existence of such broad protection in the Fourth Amendment itself, moreover, eliminates any fear that officers will be unreasonably chilled from acting in the absence of a separate qualified immunity defense. Petitioner's suggested standard for determining qualified immunity in the context of an excessive force claim demonstrates the duplicative nature of such an enterprise. According to petitioner, where a court has determined that the force used was objectively unreasonable, it would still have to ask whether this fact would be “obvious” to the officer. But in reaching the conclusion that the force was unreasonable in the first place under the Graham standard, the court will have considered this fact and already decided that it would *7 have been apparent to an objectively reasonable officer that the force was excessive.
Duplicative immunity is a threat to freedom- it eviscerates the 4th amendment by allowing illogical exceptions
Shapiro et al, 01
(JD - Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663 Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924 Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41 Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522 (U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M. KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )
The Supreme Court has justified immunity doctrines as approximating of the scope of public-official liability that prevailed when §1983 was enacted. See Richardson v. McKnight, 521 U.S. 399, 402-07, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997); Wyatt v. Cole, 504 U.S. 158, 164, 112 S.Ct. 1827, 118 L.Ed. 2d 504 (1992). Fair enough in many parts of the law, but not when dealing with the fourth amendment. Until this century police faced absolute liability (in trespass or battery) for their acts; probable cause and reasonableness were defenses, and immunity (on top of these defenses) was unheard of. … All the great early opinions defining the scope of freedom from official intrusion resolve damages claims, without a hint that if the officers behaved unreasonably they might still be immune from liability. Thus a general doctrine of official immunity, independent of legal uncertainty, is not only anti-textual but also anti-historical in fourth amendment cases. 234 F.3d at 356. Allowing a qualified immunity defense in this type of case will serve no legitimate purpose and can only serve to eviscerate the protections of the Fourth Amendment's proscription against excessive force.

1983 is crucial to the rule of law- it’s the lynchpin of rights protections
Pittman 12
(JD candidate - Nathan R., UNINTENTIONAL LEVELS OF FORCE IN § 1983 EXCESSIVE FORCE CLAIMS William and Mary Law Review William and Mary Law Review May, 2012 William and Mary Law Review 53 Wm. and Mary L. Rev. 2107)
The evolution of § 1983 has transformed the statute that was once almost a dead letter into the preeminent vehicle for the vindication of constitutional rights. Section 1983 has become more than just a tort statute, and the normative values that underlie it speak to society's promise to protect constitutional rights and uphold the rule of law. To facilitate this end, the Supreme Court has expunged subjective intent from the excessive force analysis, instead relying on objective reasonableness to assess a plaintiff's claims. The vindication of the right to be free from excessive force, however, is constrained by vagueness in the excessive force doctrine and the development of the qualified immunity standard, which stretches toward absolute immunity. This concern is heightened in unintentional level of force cases, because the misuse of the reasonable mistake standard, even in egregious cases in which qualified immunity has been denied, invites the same errors that qualified immunity can create. By relying on reasonable mistake analysis, courts abdicate their role under § 1983 to protect constitutional rights.

Solvency

The Supreme Court ought to limit qualified immunity in excessive force cases 

The plan strikes a goldilocks middle ground by eliminating massive pro police bias in existing immunity jurisprudence
Stoelting 89
(David P, JD and co-chair of the International Criminal Law Committee, QUALIFIED IMMUNITY FOR LAW ENFORCEMENT OFFICIALS IN SECTION 1983 EXCESSIVE FORCE CASES 1989 University of Cincinnati Law Review. University of Cincinnati 1989 58 U. Cin. L. Rev. 243)
Although the Court in Anderson purported to be following Harlow, it in effect heightened the burden for plaintiffs to overcome a summary judgment motion on the basis of qualified immunity. Plaintiffs alleging excessive force are expected to show that no reasonable officer could have believed the actions were reasonable, taking into account the particular facts as perceived by the defendant at the time. n132 As a result, the Court comes close to reintroducing subjective elements into the immunity question by calling for consideration of the officer's perceptions. n133 This is tantamount to requiring plaintiffs to show an intent on the part of the officer to unconstitutionally use excessive force, which could effectively transform qualified immunity for police officers into the absolute immunity enjoyed by judges and legislators. The Court in Anderson characterized Harlow as a "guarantee of immunity." n134 However, Anderson itself comes closer to extending to police officers an impenetrable degree of immunity. The opinion is *262 full of concern with the law enforcement official who must defend his actions in court, n135 but it is silent as to vindicating the rights of the section 1983 plaintiff. Of course, some section 1983 actions are groundless and should be resolved before trial. n136 In these cases, though, a motion for summary judgment because of insufficient evidence or a Rule 12(b)(6) motion to dismiss is the proper tool. When a plaintiff's section 1983 excessive force claim is dismissed before trial because of qualified immunity, the message to the plaintiff is that there is no remedy and that the original intent behind section 1983 has been abrogated. n137 IV. CONCLUSION When police officers use excessive force, a constitutional right is violated. The framers of section 1983 intended for there to be a private right of action against state officials for such constitutional violations. Qualified immunity for police officers short-circuits a plaintiff's ability to have constitutional rights vindicated in the courts. The wide discretion granted to police officers in Anderson, combined with the Court's admonitions to dispose of section 1983 cases at the summary judgment stage, means that qualified immunity could become an insurmountable obstacle for section 1983 plaintiffs. Thus, the Supreme Court should abolish qualified immunity for police officers in excessive force cases and thereby reaffirm section 1983 as a guarantor of constitutional rights.

The aff is goldilocks- it protects officers while eliminating judicial confusion and bias
Sheng 11
(Philip, JD with distinction @ Bringham Young, B.A., Stanford University, John Arrillaga Scholar. An "Objectively Reasonable" Criticism of the Doctrine of Qualified Immunity in Excessive Force Cas-es Brought Under 42 U.S.C. § 1983 BYU Journal of Public Law 2011 The BYU Journal of Public Law 26 BYU J. Pub. L. 99)
In light of the confusion after Saucier, Hope, and Brosseau, the Court should consider reformulating the doctrine of qualified immunity, at least in the context of excessive force cases. The Ninth Circuit's approach in Saucier was persuasive - recognizing that Harlow and Graham are substantially the same inquiry and denying qualified immunity in favor of the jury deciding the question of reasonableness. Apparently however, the Supreme Court felt that this approach did not provide law enforcement officers with sufficient protection for reasonable mistakes. One explanation could be that the Court is wary of juries having to apply a constitutional standard on a consistent basis. n82 If that is the case, the following approach could be a reasonable alternative to qualified immunity in excessive force cases. A better approach might be to eliminate qualified immunity altogether in excessive force cases; but rather than create a whole new test, the Court should remove the question of reasonableness from the jury and allow judges to decide whether the use of force was objectively reasonable. Under this approach, jury interaction would remain much the same, except that after all the facts are resolved, the judge would decide the ultimate constitutional question of reasonableness based on the jury's findings. While this would be a departure from settled practice, it appears to have an adequate basis in the law. For instance, trial court judges already decide the question of reasonableness on motions for summary judgment whenever facts are undisputed or viewed in the light most *109 favorable to the plaintiff. n83 Moreover, appellate judges routinely decide the question of reasonableness every time an excessive force case goes on appeal. n84 Judges are well-equipped, yet it seems odd that the constitutional question of reasonableness only goes to the judge when facts are not in dispute, but at all other times, is entrusted to the jury. It would perhaps make better sense to have the jury resolve the facts, and have the judge decide the question of reasonableness based on those facts. There are several benefits to this approach. First, it would eliminate the need for line drawing between Hope and Brosseau, and courts would not have to worry about clearly established law. Second, the Court could retreat from its "irreducibly murky" n85 distinction between Graham and Harlow. If applied judiciously, Graham alone provides law enforcement officers with adequate protection for reasonable mistakes. Third, even though they would be denied qualified immunity, law enforcement officers would benefit by having judges decide the constitutional question of reasonableness. Judges are in a better position to decide constitutional questions, having been trained in the law and having developed expertise through experience. This approach would also eliminate potential jury bias. While jury bias can cut both ways, n86 consider the case of Jared Massey, a YouTube sensation and public hero after being Tasered by a Utah Highway Patrol officer in 2007. n87 Despite an internal investigation clearing the officer, the state settled for $ 40,000 rather than risk a jury awarding more. n88 Fourth, the approach would serve the same purposes as qualified immunity by allowing claims to be decided early on summary judgment. If no material issues of fact remain in an excessive force case, instead of looking to see whether there is a clearly established law, the judge would simply decide the case. This would not be an unprecedented expansion of judicial power; as mentioned above, our legal system already allows judges to do this in a variety of circumstances. Lastly, the approach would keep judges honest by holding them to the Fourth Amendment standard. Granted there is still flexibility for judges to decide cases based on their own personal *110 ideologies, but the amount of discretion is far less than what the current doctrine of qualified immunity allows. n89 In conclusion, the doctrine of qualified immunity is incompatible with excessive force cases. Both qualified immunity and the Fourth Amendment constitutional standard focus on reasonableness, and the Supreme Court's attempts to distinguish the two have made qualified immunity cases near impossible to predict. Under Brosseau, a plaintiff will be hard-pressed to find case law that is materially similar in a world of "limitless factual circumstances." n90 Under Hope, law enforcement officers arguably have fair warning of everything. The difficulty is fashioning a rule that balances these two extremes, something the Supreme Court has not been able to do. Asking whether the constitutional violation is "obvious," as suggested in Brosseau, is no more helpful than asking whether the constitutional violation is clearly established. The reality that it is possible for law enforcement officers to "reasonably act unreasonably" is evidence that the doctrine of qualified immunity needs to be eliminated from excessive force cases, or the Supreme Court needs to fashion a whole new test.

Pre-empt biz

Apply a strict filter to all negative arguments- if they aren’t
A. About the use of excessive force
B. Based on legal reasoning other than Anderson V. Creighton
Then their evidence comes from inaccurate and incoherent legal scholarship and should be ignored
Shapiro et al 01
(JD - Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004 (212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663 Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924 Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41 Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522 (U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M. KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )
In the rare situation where the standard for qualified immunity and the constitutional claim are identical, qualified immunity cannot be a separate defense to a claim of a constitutional violation. In the excessive force context, once it *10 is determined that an objectively reasonable officer would not have used the force in question, it makes no sense -- indeed it is conceptually incoherent -- to assert that the very same objectively reasonable officer could have believed that the force was reasonable. In other words, a police officer cannot have an objectively reasonable belief that his conduct was lawful when the unlawfulness of that conduct rests on a determination that an objectively reasonable officer would not have acted in the same way in the same circumstances. A significant number of lower federal courts have held that the Fourth Amendment and the qualified immunity doctrine pose precisely the same legal issue and that any differing determinations would be legally irreconcilable. See, e.g., McNair v. Coffey, 234 F.3d 352 (7th Cir. 2000); Frazell v. Flanagan, 102 F.3d 877, 886-87 (7th Cir. 1966) (“once a jury has determined under the Fourth Amendment that the officer's conduct was objectively unreasonable, that conclusion necessarily resolves for immunity purposes whether a reasonable officer could have believed that his conduct was lawful”); Scott v. District of Columbia, 101 F.3d 748 (D.C.Cir. 1996), cert. denied, 520 U.S. 1231 (1997); Alexander v. County of Los Angeles, 64 F.3d 1315 (9th Cir. 1995); Roy v. City of Lewiston, 42 F.3d 691 (1st Cir. 1994); Street v. Parham, 929 F.2d 537 (10th Cir. 1991); Ramirez v. City of Reno, 925 F.Supp. 681, 687-89 (D.Nev. 1996)(“intrinsic analytical incompatibility of an excessive force claim with a qualified immunity claim” given the objective reasonableness test; the “two lines of inquiry converge”); Landy v. Irizarry, 884 F.Supp. 788 (S.D.N.Y. 1995). 4 *11 Petitioner, in arguing for a qualified immunity defense in excessive force cases, relies almost exclusively on Anderson v. Creighton, 483 U.S. 635. In our view, arguments based on Anderson are significantly misplaced. There, this Court ruled that the qualified immunity doctrine is applicable in cases alleging Fourth Amendment violations for warrantless searches or arrests without probable cause or exigent circumstances. The Court reasoned that where an officer is found to have violated the Fourth Amendment by making an arrest or conducting a search without the requisite cause or suspicion, the officer is entitled to the defense of qualified immunity if an objectively reasonable officer could have believed that probable cause existed. Anderson is premised on the understanding that the “reasonableness” element of probable cause is different from the “objectively reasonable” standard of qualified immunity. That is because the probable cause determination will often require the drawing of *12 fine legal lines. 5 Recognizing that reality, this Court held in Anderson that given the “difficulty of determining whether particular searches or seizures comport with the Fourth Amendment … law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable … are entitled to qualified immunity.” Id. at 644 (emphasis added). Thus, in the probable cause context, a police officer might mistakenly violate a citizen's rights without acting unreasonably. The probable cause determination for a search or seizure always requires an officer to decide whether the known facts would warrant a reasonable officer to believe that a crime has been committed or that a search would disclose contraband or material of evidentiary value, Gerstein v. Pugh, 420 U.S. 103 (1975), and must be made pursuant to evolving legal doctrine under the Fourth Amendment. Consider, for example, this Court's jurisprudence concerning investigatory stops or arrests of persons based on information provided by anonymous informants. In Alabama v. White, 496 U.S. 325 (1990), the Court determined that information from an anonymous source would justify an investigatory stop if critical predictive details were corroborated by the police. In Florida v. J.L., 529 U.S. 266 (2000), the Court declined to extend White to situations where the anonymous source provided information regarding a man with a gun at a certain location, and police investigation led to an observation of a person fitting the general description at that location. In the wake of J.L. (and this Court's opinion in Illinois v. Wardlow, 528 U.S. 119 (2000)), there will no *13 doubt be close cases, depending upon the information received, the observations of the officers and other relevant factors. See, e.g., United States v. Valentine, 232 F.3d 350 (3d Cir. 2000) (stop based on anonymous informant who personally provided information to police). And in some of these cases, an officer will make a stop on information that a court will later declare to be insufficient to satisfy the Fourth Amendment; yet, given the lack of a particularized legal standard, the officer may still have acted in an objectively reasonable manner. No such legal difficulties face the officer who must determine how much force to use in a particular incident, whether in self-defense or in effectuating an arrest. This Court ruled in Graham that police officers act consistently with the Fourth Amendment when their conduct is objectively reasonable -- a nontechnical and deferential constitutional doctrine that reflects well established and commonly held judgments on the limits of police force. 6 This standard provides a margin of error, precludes “Monday morning quarterbacking” by a court, permits the officer a wide range of reasonable responses, and does not require the officer to make finely tuned legal determinations. Thus, once it has been determined that an officer has acted in an excessive fashion, it is not possible to claim that an objectively reasonable officer could have thought these actions to be proper. In many “tense, uncertain and rapidly evolving” situations, reasonable force may comprise a range of options or responses that the officer might employ. Different officers in the identical situation, each behaving reasonably, might elect to use a baton, a chemical agent, a take-down hold, or *14 a different technique; and each might use greater or lesser force, within a reasonable range, in employing the chosen technique. 7Recognition that reasonable force may include a range of responses is consistent with this Court's observation in Graham that “the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” 490 U.S. at 396. Understanding that the Fourth Amendment recognizes a range of forcible responses as reasonable also implements this Court's injunction in Graham that there be “allowance for the fact that police officers are often forced to make split-second judgments.” Id. at 396-97. How wide the allowance or range may be “requires careful attention to the facts and circumstances of each particular case.” Id. at 396. In some cases, the facts and circumstances may be simple enough that the range of permissible options available to the officer will be quite narrow. In some circumstances no use of force is reasonable if none *15 is required. See Cox v. Treadway, 75 F.3d 230, 234 (6th Cir.), cert. denied, 519 U.S. 821 (1996); Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983). In others, the difficulties confronting officers making split-second, life and death decisions may raise sufficient problems that the range of responses that should be deemed reasonable may be quite broad. The critical point is that this “zone of protection” in use of force cases is provided as part of the Fourth Amendment reasonableness standard itself. And where, as here, the standard for determining qualified immunity is the same as that for deciding the constitutional question itself, the defense is superfluous. This is not a matter of semantics or linguistic similarity; rather, it is a case of doctrinal identity. In determining whether an officer's use of force was within a range of reasonable options, the jury is also (and necessarily) answering the question whether a reasonable officer “could have believed” his use of force “to be lawful.” Anderson v. Creighton, 483 U.S. at 638. Once this question is answered, there is no other inquiry that must be resolved in order to impose liability. 8 The existence of such broad protection in the Fourth Amendment itself, moreover, eliminates any fear that officers will be unreasonably chilled from acting in the absence of a separate qualified immunity defense.

Err aff- consensus of experts agree
Pittman 12
(Nathan R., JD candidate, UNINTENTIONAL LEVELS OF FORCE IN § 1983 EXCESSIVE FORCE CLAIMS William and Mary Law Review William and Mary Law Review May, 2012 William and Mary Law Review 53 Wm. and Mary L. Rev. 2107)
The qualified immunity doctrine has drawn substantial scholarly criticism. Though some scholars have defended some aspects of the immunity, it has been broadly criticized, particularly with regard to those claims that rest on the Fourth Amendment and its reasonableness standard.