Gilmour Academy SW Fairness 1AC November-December 2016

Sebastian Williams Qualified Immunity

1AC
I affirm that the United States ought to limit qualified immunity for police officers.
To clarify the round, I offer the following observations:
First, the Supreme Court ruled in Harlow v Fitzgerald that qualified immunity “protects ‘government
officials . . . from liability for civil damages insofar as their conduct does not violate clearly established ...
rights of which a reasonable person would have known.’”
https://scholar.google.com/scholar_case?case=13486920831186038844&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Second, the resolution uses the word limit as “a restriction on the size or amount of something
permissible or possible.” This means that it is the burden of the aff to advocate for a restriction in size of
qualified immunity, but not a full out ban. This distinction is important – I can still say qualified
immunity is good as a principle, it just that I need to argue why it is too large in the status quo.
Because the resolution is a question of whether people are due qualified immunity in their judicial system,
I value justice, defined as giving each their due. Since the resolution is a question of what the law ought
to be in order to be most consistent with principle of justice, the value criterion is promoting fairness
before the law. Fairness before the law ensures that individuals ability to interact with the legal and
judicial systems are equal and reciprocal. For example, a law that would prevent someone from being able
to file a lawsuit based off arbitrary factors like race would be inconsistent with my value criterion. There
are two key reasons to prefer my value criterion:
First, fairness is a necessary prerequisite to any government institution because unfair laws cause people
to rebel and destroy government institutions. Law Professor Paul Robison explains this principle when
he writes:
Robinson, Paul H. (Professor of Law, Northwestern University School of Law) and John M. Darley (Dorman T. Warren Professor of Psychology, Princeton
University). “The Utility of Desert.” Northwestern University Law Review, Vol. 91, No. 2. 1997.

law’s power in nurturing

Our central point is this: The criminal and communicating societal norms is directly proportional to
and its power to have people defer to it in unanalyzed cases criminal

law’s moral credibility. If conviction criminalization or is to have the norm-nurturing process, it will be
(or decriminalization or refusal to convict) an effect in

because the law has a reputation for

criminal criminalizing and punishing only that which deserves moral condemnation and for ,

not punishing that, which does not.

decriminalizing and If, instead, the criminal law’s reputation is one simply of a collection of rules, which do not necessarily reflect the community’s perceptions of moral blameworthiness, then there would be little reason
to expect the criminal law to be relevant to the societal debate over what is and is not condemnable and little reason to defer to it as a moral authority. What then are the requirements for a criminal law system to gain this credibility? How can this credibility be lost? Enhancing the criminal law’s moral credibility
requires, more than anything, that the criminal law make clear to the public that its overriding concern is doing justice. Th erefore, the most important reforms for establishing the criminal law’s moral credibility may be those that concern the rules by which criminal liability and punishment are distributed. The

Thus, for
criminal law must earn a reputation for (1) punishing those who deserve it under rules perceived as just, (2) protecting from punishment those who do not deserve it, and (3) where punishment is deserved, imposing the amount of punishment deserved, no more, no less.

example, the criminal law ought to maintain a viable insanity defense that excuses those who are perceived as not responsible for their offense, ought to avoid the use of strict liability (imposing liability in the absence of a culpable state of mind), and ought to limit the use of

adopt rules that distribute liability and punishment according to [what one deserves]
non-exculpatory defenses. In other words, it ought to desert, even if a non-desert
distribution appears in the short-run to offer the possibility of reducing crime. The point is that every deviation from a desert distribution can incrementally undercut the criminal law’s moral credibility, which in turn can undercut its ability to help in the creation and internalization of norms and its power to gain
compliance by its moral authority.

In other words, before we can talk about what the law ought to be, we must make sure people are willing
to follow it. And, the only time people are willing to follow it is if it treats individuals fairly.
Second, an unfair application of the law is logically incoherent as the purpose of the law is to promote
fairness in a society. For example, we have laws against murder because being able to take the life of
another person is inherently unfair. We also have laws against excessive speeding because causing an
accident would be unfair to the people you hurt. Thus, the very purpose of what it means to be a law
demands we ensure that laws are enforced fairly.
 Gilmour Academy SW Fairness 1AC November-December 2016
Sebastian Williams Qualified Immunity

My first contention is that qualified immunity prevents the proper protection of constitutional rights.
Because qualified immunity is invoked at the beginning of a lawsuit, judges never make a ruling on
whether a certain individuals rights were violated. This creates a vicious cycle where the question of when
we are due certain rights becomes vague and ambiguous. Lawyer Allen Black explains this problem
when he writes:
Black ’91, H. Allen Black (Allen Black is a partner in Winston & Strawn's Washington, D.C. office with strong experience handling the full range of maritime
matters), “Balance, Band-Aid, or Tourniquet: The Illusion Oo Qualified Immunity for Federal Officials,” 32 Wm. & Mary L. Rev. 733 (1991),
http://scholarship.law.wm.edu/wmlr/vol32/iss3/5 //SW

qualified immunity
The does not give consideration to the societal and citizen interests implicated in a
doctrine also full constitutional tort

lawsuit. Cases dismissed under the qualified

The plaintiff bringing a suit alleging a constitutional tort has two interests at stake: compensation for the constitutional injury and establishment or vindication of a constitutional right.

immunity doctrine fail to determine whether officials in fact violated plaintiffs' rights. the constitutional As a result,

boundaries of official action remain unclear and undeveloped. A number of court decisions upholding grants of qualified immunity explicitly declined to determine the fundamental question of whether the acts
complained of were in fact lawful.214 The unspoken assertion in such cases was that the courts themselves did not know what the law was in the situation at bar and would not go to the trouble of determining the law because a motion for summary judgment did not require such a determination. The qualified immunity

doctrine in effect represents a policy decision that, for cases falling within gray areas, the need for vigorous action by public officials outweighs a plaintiff's desire for compensation. 215 The doctrine does not take into account the
societal interest in clarifying and protecting constitutional rights. In the criminal justice context, by contrast, clarifying and protecting constitutional rights is paramount; courts refuse to admit evidence
obtained in violation of the Constitution, even when such a refusal requires courts to set free dangerous criminals. 216 In creating the exclusionary rule, the Supreme Court concluded, The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the

Nothing can destroy a

sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.217 As the Court noted when it extended the exclusionary rule to the states in Mapp v. Ohio,2 8 "

government more quickly than its failure to observe its own laws In the context of a civil suit , or worse, its disregard of the charter of its own existence. 219 ,

The law is not clearly established, so qualified immunity protects the official's actions. The
however, the qualified immunity doctrine sets up a Catch-22 situation.

law remains unclear because the case is resolved through the immunity defense and the courts never determine the
law. The immunity doctrine thus freezes constitutional law in the civil context, leaving its clarification almost
exclusively to the criminal context. 220 The resulting chilling effect on constitutional law is clearly contrary to the wisdom Thomas Jefferson expressed when he wrote that "[n]o society can make a perpetual constitution, or even a perpetual law. The earth

The qualified immunity doctrine thus poses an added danger in that it may greatly restrict the
belongs always to the living generation."221

protection of constitutional rights. 2 Anderson v. Creighton provides a vivid example of how the doctrine freezes constitutional law and exposes citizens to greater police latitude. Because the Court resolved Anderson by summary judgment without reaching
the principal issue of whether exigent circumstances justified the search of the Creighton residence, the Court did not clearly establish the constitutional law with regard to exigent circumstances in similar situations. The qualified immunity standard thus denied not only satisfaction of the Creightons' rights, but also
clear guidance to well-meaning law enforcement officers who may find themselves in the same situation as Anderson. Dissenting in Anderson, Justice Stevens wrote, "I see no reason why the family's interest in the security of its own home should be accorded a les ser weight than the Government's interest in carrying
out an invasion that was unlawful."

This point can be explained by a simple historical analogy: the development of speed limits occurred
because when accidents were taken to court, judges saw driving really fast as a common cause for crashes
and thus ruled in a way that led to the development of speed limits. However, if the judges weren’t able to
ever actually rule on the substance of the case, as with what happens with qualified immunity, they would
have never been able to get speed limits developed. Similarly, if judges stop making decisions in civil court
cases as they do with qualified immunity, then the law becomes ambiguous and individuals can be treated
unfairly by both other individuals and by the government. Thus, because qualified immunity prevents the
clear development of constitutional law, it therefore prevents individuals from getting their due.
My second contention is that qualified immunity prevents police accountability. Because qualified
immunity allows police officers to get acquitted by the nature of their job, they are more likely to take
risky and illegal actions because they know there won’t be substantial punishment. Law author Lindsey
De Stefan explains this idea:
De Stefan ’16, De Stefan, Lindsey (ASSOCIATE EDITOR at Seton Hall Law Review), "“No Man Is Above the Law and No Man Is Below It:” How Qualified
Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct" (2016). Law School Student Scholarship. Paper 850.
http://scholarship.shu.edu/student_scholarship/850 //SW

the most
Of course, evident problem with qualified immunity
outwardly has been its cumulative erosion of law
and alarming jurisprudence

enforcement accountability. the court has made it very difficult to hold

Perhaps Erwin Chemerinsky summarized it best when he noted that “[i]n recent years, , and often impossible,

police officers and the governments that employ them accountable for civil rights violations. ”107 Many of the aforementioned procedural and substantive

For example, in
problems with the qualified immunity doctrine have contributed to what might be considered a deleterious byproduct. But recen t Court decisions have also demonstrated a willingness to extend immunity in even the most egregious circumstances.108

Plumhoff v. Rickard, the Court held that three officers did not use excessive force and entitled to qualified were

immunity when they had collectively fired fifteen shots at a fleeing car , causing the deaths of the driver and passenger.109 The incident ensued after one of the officers stopped the vehicle for
having only one working headlight and, rather than exit the vehicle as the officer instructed, the driver instead sped away, prompting the officer and several others to give chase.110 Overturning both the district court and the court of appeals, the Supreme Court held that the use of deadly force was permissible because

the driver “posed a grave public safety risk” and that firing fifteen times was not unreasonable because “the officers need not stop shooting until the threat is over.”111 Somewhat similarly, in Brosseau v. Haugen, the Court
 Gilmour Academy SW Fairness 1AC November-December 2016
Sebastian Williams Qualified Immunity

held that an officer was entitled to immunity when she shot an unarmed man in the back through the window of his
Jeep—which was not moving—as a means of preventing his escape. The Court explained that the officer’s actions 112

“fell in the ‘hazy border between excessive and acceptable force,’” but that previous Court decisions “by no means
‘clearly establish’ that Brosseau’s conduct violated the Fourth Amendment.”

Simply put, because the doctrine of qualified immunity relies on vague legal wording, there are many
cases in which individuals have been treated unfairly by the law yet haven’t been able to get recourse.
Limiting qualified immunity prevents this because not only will it promote police accountability, but it
also ensures individuals can receive reparations when they have had their rights violated, which is a key
tenet in any fair legal system.
My third and final contention is that qualified immunity prevents the judicial system from functioning
properly. Due to its inherent nature and its use of vague legal tests, qualified immunity cases often slow
down and confuse the courts. Author Lindsey De Stefan furthers:
De Stefan ’16, De Stefan, Lindsey (ASSOCIATE EDITOR at Seton Hall Law Review), "“No Man Is Above the Law and No Man Is Below It:” How Qualified
Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct" (2016). Law School Student Scholarship. Paper 850.
http://scholarship.shu.edu/student_scholarship/850 //SW

A recent study
survey of circuit court cases decided since Pearson v. Callahan in 2009 demonstrates the frequency with which lower courts are disposing of cases based on a lack of a clearly established law.80 The , which analyzed 844 published and unpublished Courts of Appeal opinions

found that qualified immunity was granted in

decided between 2009 and 2012, encompassing 1,460 total claims, approximately 72 percent of the 1,055 of the claims, or

time. In 8151 percent of the claims

534 (or nearly the court concluded that the right asserted was not clearly
) in which the court granted immunity,

established. the concept of a “clearly” established

82 So in more than half of the claims in which immunity was granted, the basis for the court’s holding was the absence of clearly established law. But perhaps somewhat ironically,

right is in and of itself less than clear a great deal of confusion exists over what rights fall within this vague
, and

classification. approximately 50 percent of the time, a court’s decision to grant immunity to an official is based
In essence,

on a muddled and uncertain legal precept. In order to qualify as clearly established, “a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." 84 There are few unambiguous
bright-line rules in modern constitutional jurisprudence, and most doctrines are instead articulated as relatively vague standards or balancing tests.85 In addition, because there are considerable distinctions in terms of the structure, aim, and available alternative remedies of various constitutional rights, the general-

When
purpose nature of qualified immunity is problematic.86 Defining a clearly established law is straightforward when the right is laid out in a stable and fairly specific doctrine, but when the rule changes, the new law only becomes clearly established when a clarifying court decision is handed down.87

such constitutional rights are violated, qualified immunity allows officials to avoid liability because of a failure to
anticipate developments in the law. And although the Court held in 2002 that there need not be a case on point in order to find clearly established law,89 it has nevertheless continued to grant qualified immunity in the absence of similar precedent.90

year after year, despite attempts to clarify the

Unsurprisingly, lower courts struggle with the question of whether a right is clearly established, and the circuits have developed markedly varying approaches to the inquiry.91 Finally,

doctrine, it seems that the Supreme Court has only further added to the confusion of lower courts. Indeed, almost without fail, Supreme Court cases
since Pearson have apparently further expanded the qualified immunity doctrine by upholding its application in all manner of diverse situations—seemingly in every set of circumstances with which it has been presented. 92

In other words, qualified immunity prevents the judicial system from performing its job because of vague
and large it is. This is problematic because the courts cannot properly give each person their due if the law
in which they are basing their decisions off is vague. This point can be explained through a simple but
effective analogy: if a kindergartener teacher tells their students that they can’t play with a certain toy, but
never tells them what toy it is they can’t play with, then it would be unfair for the teacher to yell at the kids
if they ended up playing with a toy. Similarly, because qualified immunity is too vague to be consistently
applied, it prevents courts from truly being fair.