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Specificity AC

Justice
I define Justice as giving each their due

The Standard is consistency with US


Constitutionality
Acting in consistency with legal precepts is the only way to
avoid irresolvable disputes over the meaning of justice and
ground abstract notions in specific principles.
Barnett 98 [Barnett, R. E. (1998). The structure of liberty: Justice and the rule of law. New York: Oxford
University Press. http://www.libertarianismo.org/livros/tsofrb.pdf]
Moreover, this assumption views legal precepts as distinct from and at least sometimes opposed to the
requirements of justice. However, the analysis presented here offers a quite different picture of this relationship.

Justice, at least in its first derivation, is extremely abstract and general. For justice to
be brought to bear effectively on individual decision, specific legal precepts are
needed to guide conduct. Such precepts are the necessary means by which
just results or ends are to be achieved in practice, and they are also the
means by which persons decide how to act justly so as to avoid a dispute
that requires resolution. Most importantly, perhaps, this objection to the use of legal precepts
assumes that persons deciding how to act or judges deciding how to resolve a
dispute have access (independent of legal precepts) to a conception of justice that is specific
enough to decide the outcomes of disputes. Where this assumption is false and a conception of
justice, such as one based on natural rights, does not provide specific enough guidance, as is commonly the case,

legal precepts are the inescapable means of putting the abstract


requirements of justice into practice. Where this assumption holds true and abstract natural
rights do recommend for or against certain conduct, legal precepts generally have no difficulty mirroring the

Where the just result is very clear and a legal precept


violates it, this is an argument for changing or refining the precept at issue,
not discarding the use of precepts altogether . Indeed, as I explained in Chapter 1, the
requirements of justice.

primary function of background natural rights is, to provide a means of evaluating and reforming legal rights.

Thus, justice requires consistency with the US Constitution


because the Constitution establishes an assumption of
rationality and universality that citizens and the state are
equally held to.
Williams 11: From Oppression to Democracy: An Argument for Reparations for African Americans from a
Discourse Ethics Perspective 2011. Michigan State University. http://etd.lib.msu.edu/islandora/object/etd
%3A1110/datastream/OBJ/view

The importance of the process of racialization in the discussion of reparations becomes apparent when one refers back to the

a system ought to be
repaired when a past transgression affects contemporary relationships,
particularly when the transgression violated a previously established just social
order. The just social order, in this case, was the constitutional order adopted in the formation of the United States. The
Constitution established the normative framework for political and social
interaction among members of the new nation. The constitutional order,
though it evolved over time, set the terms and norms for legal and political interaction
for members of the nation. The constitution defined the organization of political power, including citizenship,
formulation of reparative justice. In referring back to the formulation, one can see that

Society was to be
governed by law rather than arbitrary authority. Likewise, though the constitution
allowed for social and economic hierarchy, citizens could not be deprived
of their rights without due process. Both the commitment to the rule of law and due process committed
the rights citizens were to have, and how the state was to be established and regulated.

the framers of the Constitution and the citizens to the assumption of rationality and universality in social and political discourse. At
the point of any conflict with the state or other citizens, a citizen could appeal to the Constitution, and its corresponding principles,

once the citizens adopted


rationality and universality as a background to the constitutional and
social order, they could not rationally resort to arbitrary action to deny
anyone inclusion in the moral and political community. Exclusion due to
race, and thus the treatment of African Americans, was a contradiction to the very principles
of the Constitution as ratified through a republican process. The written United States
of universality and rationality as the basis for asserting his or her rights. It follows that

Constitution was contradictory. It embodied the enlightenment principles of equality, liberty, rationality and due process, but at the
same time upheld class and racial hierarchies. I take the embodiment of the enlightenment principles as the foundation of the order

At the beginning
of the constitutional order, the oppression had already started. The promise of the
enlightenment was unfulfilled.
and the contradictory upholding of hierarchies as the oppressive ramifications of the contradiction.

Contention 1: Qualified Immunity Reasonableness standard is


unjust
Qualified Immunity has expanded to near absolute immunity
for police officers since its creation.
Hassel 99 [Diana Hassel Living a lie: The Cost of Qualified Immunity. Missouri Law Review, Volume 4, Issue 1
Winter 1999. (Professor of Law & Associate Dean for Academic Affairs at the Roger Williams University School of
Law http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402&context=mlr)
Application of the subjective component of the defense was often dependent on the resolution of factual disputes.
The plaintiff would raise the factual issue of whether the defendant maliciously took the allegedly unconstitutional
action. Because of this dispute concerning the defendant's intent, it was difficult for a defendant to have a claim
dismissed based on qualified immunity prior to trial. This delay in the resolution of the lawsuit was perceived to be

the
Court eliminated the subjective requirement of good faith from the
qualified immunity defense in Harlow v. Fitzgerald.35 The rationale for eliminating that
unfair to defendants as it embroiled them in potentially meritless and lengthy litigation.34 In response,

element of the defense was to protect government officials from frivolous law suits. "[Blare allegations of malice
should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching
discovery."3' 6 The newly articulated qualified immunity test provided that "government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would have known."37

This objective qualified immunity defense-liability only if an official violated clearly


established constitutional rights of which a reasonable person would have knownwas said by the Court in Harlow to represent the proper balance between conflicting
interests.38 Those conflicting interests included the following: the need to provide the compensation for
violation of constitutional rights that Section 1983 requires; the need to deter unconstitutional behavior; the need to
vindicate constitutional rights; the need to protect innocent defendants from frivolous claims; and the need to
encourage vigorous enforcement of the law.39 The qualified immunity defense, as articulated in Harlow, based on a
balancing of interests, has remained essentially intact to the present .

In cases following Harlow, the


qualified immunity defense increasingly came to provide not only
immunity from liability, but also protection from the necessity of standing
trial.40 In order to ensure that defendants were not enmeshed in litigation if they were entitled to qualified
immunity, Mitchell v. Forsyth established the immediate appealability of a pretrial denial of qualified immunity

Thus, qualified immunity came to resemble absolute immunity in the


scope of protection it provided defendants .42 While not providing the complete defense
that absolute immunity does, the goal was to as quickly as possible remove from the
government official the necessity of participation in the lawsuit. The
defense was broad enough to "provide[] ample protection to all but the
plainly incompetent or those who knowingly violate the law."43 And its
procedural protections were meant to avoid even the necessity of participation in lengthy litigation by most
defendants.

Qualified Immunity is no longer a balance; it is now shifted in


favor of government officials.
Hassel 99 [Diana Hassel Living a lie: The Cost of Qualified Immunity. Missouri Law Review, Volume 4, Issue 1
Winter 1999. (Professor of Law & Associate Dean for Academic Affairs at the Roger Williams University School of
Law http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402&context=mlr)

As

qualified immunity defense evolved, it became clear that


a completely new species of defense, quite unfettered from the tort

the contours of the objective

qualified immunity was

origins that were the original basis of the judicially created defense .

In Wyatt v. Cole, the Court


explained that the qualified immunity defense was quite distinct from the
original "good faith and probable cause" defense first articulated in Pierson.44
The qualified immunity defense [it] was now a "wholly objective standard" that
provided an "immunity from suit rather than a mere defense to liability ., 4 '
This type of defense is based "on principles not at all embodied in the common law."4' 6 The origins and
justification for the qualified immunity defense, i.e., that Congress in 1871 must have meant to incorporate existing
common law defenses into Section 1983, had been replaced by a new policy-based rationale for the defense.47 The
defense is meant to "strike a balance between compensating those who have been injured by official conduct and
protecting government's ability to perform its traditional functions. 48

Qualified Immunity is very inconsistence in its ruling, this


opens it up to injustices
Hassel 99 [Diana Hassel Living a lie: The Cost of Qualified Immunity. Missouri Law Review, Volume 4, Issue 1
Winter 1999. (Professor of Law & Associate Dean for Academic Affairs at the Roger Williams University School of
Law http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402&context=mlr)

two approaches to the same set of facts illustrate the ability of the
qualified immunity standard to result in widely different outcomes. The court
These

in Wilson looks for a specific, factually similar case from an authoritative court as evidence that the right was clearly
established. The dissent relies on general legal principles that it believes ineluctably lead to the conclusion that the

Both approaches can be encompassed


under the big tent of the clearly established standard, giving the decision
maker considerable range in fashioning an outcome. Depending on the decision
makers view of appropriate policy concerning, for example, the autonomy that should be
accorded the police or the role of the media in law enforcement, what is "clearly" established may
not be that clear.
conduct at issue violates a constitutional right.

Individuals who have had their rights violated cant recover


damages because of qualified immunity
Bagenstos 16 [Samuel R. Bagenstos, Michigan Law Review Volume 114 | Issue 6, Who Is Responsible for
the Stealth Assault on Civil Rights? University of Michigan Law School]
The consequences of the doctrinal developments I have discussed in this Part are extremely significant. After
incidents of excessive use of force by police in Ferguson, New York City, and Baltimore led to widespread protests
and civil unrest, one might be tempted to ask why civil-rights litigation had not been effective in incentivizing police
departments to comply with their constitutional obligations. These procedural and remedial restrictions provide

Because of the Supreme Courts rules of qualified immunity,


the victim of an unconstitutional use of force
will often be unable to recover damages from the officer who applied the
force or the governmental entity that employed that officer. Because of the Courts
much of the answer.

sovereign immunity, and municipal liability,

rules of standing, it is extremely difficult to obtain injunctive relief to force a municipality to comply with its

individualseven those whose rights have been violated


are thus generally not in a position to use litigation as a tool to induce
constitutional policing.63 And the Department of Justice, which can file its own civil
cases against police departments, lacks the resources to investigatemuch less sueall of
the departments in which a pattern or practice of police misconduct
exists. Police departments therefore have very little practical legal
constitutional obligations in the future. Private

incentive to set up structures to ensure respect for constitutional rights .


The stealth assault on civil rights does not get the headlines, but it has headline-generating consequences.

Qualified immunity is a direct violation of the fourth


amendment [Good card for deontological frameworks]
Carbado 16 [DEVON W. CARBADO, Blue-on-Black Violence: A Provisional Model of Some of the Causes
The Georgetown Law Journal http://georgetownlawjournal.org/files/2016/08/carbado-blue-on-black.pdf]

By prohibiting the government from engaging in unreasonable searches


and seizures, the Fourth Amendment is supposed to impose constraints on
the police. However, the Supreme Court has interpreted the Amendment in
ways that empower, rather than constrain, the police . More precisely, the Courts interpretation of the
Fourth Amendment allows police officers to force engagement with African-Americans with little or no basis. To put the point more provocatively , the Supreme
Court has interpreted the Fourth Amendment to protect police officers, not
black people.130 Indeed, we might think of the Fourth Amendment as a Privileges and Immunities Clause for police officersit confers tremendous power and
discretion to police officers with respect to when they can engage people (the privilege protection of the Fourth Amendment) and protects them from criminal and civil sanction with

police
officers can engage in without implicating the Fourth Amendment . Assume that Mary is
respect to how they engage people (the immunities protection of the Fourth Amendment).131 a. Nonseizures: Consider, for example, the following conduct

on a street corner on a given afternoon. Stipulate that the police have no reason to believe that she has engaged in any wrongdoing. Notwithstanding the absence of any basis of
suspicionin other words, the officer has neither probable cause nor reasonable suspicionthe officer could, consistent with Fourth Amendment law: 1. Approach Mary. 2. Question Mary
about her whereabouts. Where have you been? Where are you going? Do you live around here? 3. Ask Mary for her identification. 4. Question Mary about her immigration status or
about whether she is a member of a gang. 5. Follow Mary onto a bus, approach her in her seat, and question her as the bus departs. 6. Seek permission to search Marys person or
effects without informing Mary that she has the right to refuse consent. 7. Ask Mary whether she wouldnt mind following the officer to the police station. 8. Question Mary at the police
station, without ever telling her that she has a right to leave. 9. Follow Mary home. 10. If, upon observing the officer, Mary decides to run away, the officer would be free to chase her.132
Again, in none of the foregoing circumstances does the officer have any reason to believe that Mary has done anything wrong. The absence of evidence of wrongdoing is irrelevant to the
analysis because the Supreme Court would conclude that nothing the officer does in items one through ten implicates the Fourth Amendment. Which is to say, at no moment does the
officers conduct trigger the Fourth Amendment in the sense of becoming a search or seizure. And governmental conduct that is not a search or seizure is governmental conduct that is

[the] Fourth Amendment law facilitates contact


between the police and African Americans is by creating a relatively high bar for
when police conduct constitutes a seizure. The higher the bar, the narrower the Fourth Amendment boundary between the
beyond the reach of the Fourth Amendment. In short, one way in which

police and the peopleand the greater the discretion police officers have to decide how to engage us along the lines that our hypothetical officer engaged Mary . b. Reasonable Searches
and Seizures: Another way in which Fourth Amendment law facilitates contact between African-Americans and the police is by ruling that particular searches and seizures are reasonable.
To appreciate the scope of this problem, assume that Officer A and Officer B are driving their car through downtown Washington, D.C., and that they observe Mary commit a traffic
infraction. Consider the following reasonable actions the officers could take: 1. The officers could base their decision to stop Mary on race. The Supreme Court would conclude that such
a stop is a reasonable seizure under the Fourth Amendment. That the officers have probable cause to believe that Mary committed a traffic infraction renders the race-based nature of
their decision irrelevant for purposes of the Fourth Amendment. 2. The officers could stop Mary to investigate a drug crime, not to enforce the traffic infraction, even though they have no
reason to believe that Mary has engaged in drug-related criminal conduct. The Supreme Court has expressly held that pretextual stops of the foregoing sort are constitutionally
reasonable. 3. In the context of executing the traffic stop, the officers could question Mary about matters completely unrelated to the traffic infraction. It would be permissible, for
example, for the officers to ask: Do you have any drugs in the car? Are you an illegal immigrant? Moreover, the officers are free to ask Mary general questions about her
whereabouts. 4. The officers would be permitted to ask Mary for permission to search her car, without informing her of her right to refuse consent, and they can run her name through
state and federal databases without any additional justification. 5. If the officers develop reasonable suspicion that Mary is armed and dangerous, they could frisk Mary and the car. If
Mary is driving in a high crime area (read: predominantly black or Latina/o neighborhood), that would be one factor on which the officers could rely to satisfy the reasonable suspicion
standard. 6. The officers could ask Mary to exit the car. 7. The officers could ask passengers to exit the car. Significantly, the officers authority to ask Mary or other passengers to exit
the car would be based solely on Mary having committed a traffic infraction. The officers would not need any additional justification for these additional intrusions. 8. The officers could
arrest Mary. Even if state law does not authorize an officer to arrest a person for a traffic infraction, an officers decision to do so would not violate the Fourth Amendment. Put another
way, the offi- cers arrest of Mary would be reasonable even if that arrest were inconsistent with state law. What this means, concretely, is that Mary could be arrested and hauled to jail
for not wearing her seatbelt or for failing to use a turn signal. 9. If Mary is arrested, the officers could search her incident to that arrest, impound her car, and conduct a full inventory
search of her car. 2016] BLUE-ON-BLACK VIOLENCE 1507 10. If, subsequent to arresting Mary, the officers decide to place her in the general jailhouse population, the officers may subject
Mary to a strip search prior to doing so.133 The bottom line here is that, like the Supreme Courts decisions about when the Fourth Amendment is triggered by way of a search or seizure,

, the
Supreme Courts interpretation of the Fourth Amendment has rendered
Fourth Amendment law an open border across which a range of law
enforcement officials can travel to intrude on black bodies and spaces.
the Courts conclusions about when searches or seizures are reasonable facilitates frequent police surveillance of and contact with African-Americans. Stated another way

Contention 2: QI violates Rights


Qualified immunity is too general
Jeffries 4, John C., Jr. "DUNWODY DISTINGUISHED LECTURE IN LAW WHAT'S WRONG WITH
QUALIFIED IMMUNITY?" Heinonline.com. Florida Law Review, Sept. 2010. Web. 4 July 2016.

The level of generality is crucially important. A of examples will


show just how radically the altitude of analysis can affect results. At one extreme is Callahanv.
MillardCounty,2 7 a Tenth Circuit decision reviewed by the Supreme Court
under the name of Pearsonv. Callahan2.8 At issue was the validity of "consent once
removed" to justify the warrantless search of a home. The question arises when an
undercover agent posing as a drug user is invited into a dealer's home to make a purchase. Entry is lawful because
of consent. Once inside, the agent sees illegal drugs, which furnishes probable cause for arrest. The trouble is that
the undercover agent cannot safely make the arrest alone, so he completes the purchase, then calls on officers
waiting outside to enter the dealer's home and arrest him. The consent given to the undercover agent is deemed
transferred to the waiting officers, hence "consent once removed." When

a panel of the Tenth


Circuit considered this theory, there was no local precedent on point.

There
were, however, decisions from other circuits upholding such searcheS29 and no authority directly to the contrary.

The Tenth Circuit ruled the search illegal,

apparently because the undercover agent was a


civilian informant rather than a police officer.30 The Tenth Circuit also ruled that the defendants lacked qualified
immunity and thus had to pay damages to the drug dealer, despite the judicial.

Lawyers do not take cases with possible QI


Reinert, Alexander A., (2011)

Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477,


http://ir.stthomas.edu/cgi/viewcontent.cgi?article=1261&context=ustlj

concerns about the


qualified immunity defense play a substantial role at the screening stage.91
For some, qualified immunity was the primary factor when evaluating a case
for representation. Most of these respondents focused on the hostility to Bivens and other civil rights
Nearly every respondent, regardless of the breadth of her experience, confirmed that

actions within their own circuits when explaining why qualified immunity was so significant a case-evaluation tool.
For instance, one advocate operating in the Fourth Circuit explained that that courts approach forced him to take

a lawyer working
in Illinois stated that because of the Seventh Circuits case law, he will not take a case if
there is even the slightest chance that dismissal will be based on qualified
immunity.93 For those respondents who felt that qualified immunity was less significant, the explanation often
addressed other case-selection criteria. For instance, multiple respondents indicated that they
only accepted the most egregious cases for representation, which made it
unlikely that qualified immunity would play a role.94 While acceptance of egregious cases
qualified immunity concerns into account at the outset of client screening.92 Similarly,

was not designed to avoid qualified immunity concerns, it had this incidental effect because it is unlikely that a
defendant who committed an egregious violation would also be protected by qualified immunity. For a few other
respondents, qualified immunity did not play a role either because of self-professed hubris95 or a unique mission.
Respondents who worked at nonprofit organizations or who had other law reform goals, for instance, expressed
concern about qualified immunity but stated that it was not dispositive because of their organizations mission.96

Qualified Immunity Lacks Judicial Oversight


Evan Bernick 16 Evan is the Assistant Director of the Center for Judicial
Engagement at the Institute for Justice, a libertarian public interest law firm. "Why

Do Police Get Immunity? | Foundation for Economic Education." 2016. 10 Jul. 2016
<http://fee.org/articles/to-hold-police-accountable-dont-give-them-immunity/ >
Qualified immunity shields police misconduct not only from liability but also from
meaningful judicial scrutiny. Private lawsuits are an essential tool in uncovering
the truth about police misconduct. The discovery process can yield information
that makes broader policy changes within police departments possible. At trial,
judicial engagement an impartial, evidence-based determination of the
constitutionality of the officers actions can take place. Qualified immunity can
cut this search for truth short. If qualified immunity is raised as a defense before trial and the judge
denies it, that decision is immediately appealable. If it is granted, discovery stops, and there is no trial on the
merits.

The real problem of Qualified Immunity is that it hides the real


problems which are the violation of civil rights.
Hassel 99 [Diana Hassel Living a lie: The Cost of Qualified Immunity. Missouri Law Review, Volume 4, Issue 1
Winter 1999. (Professor of Law & Associate Dean for Academic Affairs at the Roger Williams University School of
Law http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402&context=mlr)

qualified immunity blocks a


clear view of the real limitations that exist in civil rights law . Civil rights law is, in effect, being
The problem with qualified immunity is not so much that the outcomes are sometimes unfair but the fact that

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

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
ways, however,

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 "[s]ociety's adoption of the ambivalent
rhetoric of equal opportunity law ha[s] 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

. 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. 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 [this] 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 [from] reform.
difficult to discern and consider which rights are or should be protected and which we are content not to protect with monetary compensation

The sources for precedents of qualified immunity are


inconsistent.
Jeffries, John C., Jr. "DUNWODY DISTINGUISHED LECTURE IN LAW WHAT'S WRONG WITH QUALIFIED
IMMUNITY?" Heinonline.com. Florida Law Review, Sept. 2010. Web. 4 July 2016.
The Supreme Court's effort to have more immunity determinations resolved on summary judgment or a motion to

Ease
of administration has proved more elusive. In fact, determining whether an
officer violated "clearly established" law has proved to be a mare's nest of
complexity and confusion. The circuits vary widely in approach, which is
not surprising given the conflicting signals from the Supreme Court. The
instability has been so persistent and so pronounced that one expert describes qualified
immunity as existing "in a perpetual state of crisis." 2
dismiss-in other words, to create immunity from trial as well as from liability'o-hasbeen largely successful."

Specificity is necessary for qualified immunity.


Mandary , Evan J., Harvard Journal of Law and Public Policy. Spring94 Vol. 17 Issue
2

Justice Scalia noted that the operation of the "clearly


established" standard depends substantially upon the level of generality of
which the relevant legal rule is to be identified.[104] The scope of protection
afforded by qualified immunity depends upon whether a plaintiff is
required merely to allege the violation of a quite general, though perhaps
well-established, rule such as the right to due process of law, or a more specific principle, such as the
In Anderson v. Creighton,

right to a disciplinary hearing prior to termination of welfare benefits. If the former approach is chosen, then
qualified immunity offers virtually no protection from liability.[105]

the Court determined that some level of specificity was required


to overcome qualified immunity:
Consequently,

It should not be surprising, therefore,that our cases establish that the fight the official is alleged to have violated

The contours of the right must


be sufficiently clear that a reasonable official would understand that what
he is doing violates that right. This is not to say that an official action is protected by qualified
must have been 'clearly established' in a more particularized sense:

immunity unless the very action in question has previously been held unlawful, . . but it is to say that in light of
preexisting law the unlawfulness must be apparent.[106]

If there are not consistent precedents that align with qualified


immunity, then the courts are not able to carry out the proper
means to make consistent decisions about cases. Therefore, by
limiting qualified immunity by the methods below, we are able
to make precedents more stable and improve the means by
which the justice systems announce court decisions. This
makes it more just.

Contention 3: Bad Justice System


Qualified Immunity contributors to an imbalance justice system
Worthy 16 [Sabrina S. Worthy, Failure to Prosecute Police Misconduct Breeds a Systematic Tolerance of
Police Law School Student Scholarship Seton Hall Law 2016 http://scholarship.shu.edu/cgi/viewcontent.cgi?
article=1847&context=student_scholarship] H.G.

the purposes of the justice system and creation of laws is to establish


order. When an individual commits a crime that person is subject to
disciplinary course of action whether it be in the form of a fine, sanction, or imprisonment. The
system acts as a way to keep order, peace and deter. If we do not hold
police officers in the same light it creates an imbalance in the system and
skews it to being biased, prejudicial and unjust. If officers that use excessive force
are subject to disciplinary action, not only will the use of excessive force will be used less
frequently, it will uphold the integrity of our judicial system. Officers are not
deterred from using excessive force because the lack of consequence. For instance, as
One of

mentioned previously some officers can have over sixty complaints of excessive force and go without repercussion

We are breeding police misconduct by failing to


investigate. There needs to be reform and oversight. I propose the need for police departments
or investigation. This is a huge issue.

to be subjected to oversight monitoring to thoroughly review officers misconduct complaints. In addition, I propose
that the United States Justice Department become involve with the police departments handling of investigations.
It should be require that police departments conduct a thorough investigation for repeated occurrences of excessive
force. This can act as deterrence.

People will be less inclined to participate in the justice system


if they feel as though it alienates
Autry 12 [Hannah Autry, National Lawyers Guild Connick v Thompson: The Costs of Valuing Immunity Over
Innocence, Volume 69 Number 1, Spring 2012 https://www.nlg.org/sites/default/files/1341933556NLGRev691finaldigital.pdf ] H.G.
Perhaps the largest cost, which cannot be described in numbers, is the doubt that cases like Thompsons place in

Thompsons case completely undermines basic notions of


justice and fairness and reaffirms the publics fear that in many cases
defendants are in fact guilty until proven innocent. Retired Louisiana Supreme
Court Justice Pascal F. Calogero hit the nail on the head when he wrote: Our justice system makes
two promises to its citizens: a fundamentally fair trial and an accurate
result. As Justice Cochran of Texas highest criminal court observed, If either of those two
promises are not met, the criminal justice system itself falls into disrepute
and may eventually be disregarded.127 Without confidence in the criminal
justice system, citizens are less likely to report crime, cooperate as
witnesses, and participate as jurors.128 Our justice system and its actors
must promote policies and practices that favor the criminally-accused and
innocent rather than rogue prosecutors so that everyone will participate
fully and faithfully.
the criminal justice system.

Contention 4: Solvency
Oversight for qualified Immunity solves
Worthy 16 [Sabrina S. Worthy, Failure to Prosecute Police Misconduct

Breeds a Systematic Tolerance of


Police Law School Student Scholarship Seton Hall Law 2016 http://scholarship.shu.edu/cgi/viewcontent.cgi?
article=1847&context=student_scholarship] H.G.
One of the purposes of the justice system and creation of laws is to establish order. When an individual commits a
crime that person is subject to disciplinary course of action whether it be in the form of a fine, sanction, or
imprisonment. The system acts as a way to keep order, peace and deter. If we do not hold police officers in the
same light it creates an imbalance in the system and skews it to being biased, prejudicial and unjust. If officers that
use excessive force are subject to disciplinary action, not only will the use of excessive force will be used less

Officers are not deterred from


using excessive force because the lack of consequence. For instance, as mentioned
previously some officers can have over sixty complaints of excessive force and
go without repercussion or investigation. This is a huge issue. We are breeding
police misconduct by failing to investigate. There needs to be reform and
oversight. I propose the need for police departments to be subjected to
oversight monitoring to thoroughly review officers misconduct
complaints. In addition, I propose that the United States Justice Department become
involve with the police departments handling of investigations. It should be
frequently, it will uphold the integrity of our judicial system.

require that police departments conduct a thorough investigation for repeated occurrences of excessive force. This
can act as deterrence In addition, the police departments should make these investigative reports available to the
Justice Department. Further, there should be a separate, non-police entity, to conduct the investigation. Therefore,
to eliminate any biases. In addition, the Department of Justice can enact a nationwide disciplinary action guideline
for police departments to follow when an officer engages in misconduct. For instance, for an officers first offense of
misconduct, depending on the severity of the conduct, the guideline can implement more training. For repeated
offenses, the guideline can have disciplinary action ranging from fine, sanction, suspension, demotion, or
termination. I believe

if officers are properly trained and subject to investigation


with potential consequences it would create a system of accountability.
And hopefully deter police misconduct.

Limiting qualified immunity would require more review on


individual police department as a result
INCREASING ACCOUNTABILITY DECREASES CORRUPTION
Lederman, Daniel; Loayza, Norman V.; Soares, Rodrigo R. March 2015 Accountability and Corruption:
Political Institutions Matter. World Bank Economics and Politics Volume 17.
http://web.worldbank.org/archive/website00894A/WEB/PDF/ACCOUNTA.PDF

political institutions affect corruption through two


channels: political accountability and the structure of provision of public goods.
Political mechanisms that increase political accountability, either by encouraging
punishment of corrupt individuals or by reducing the informational problem related
to government activities, tend to reduce the incidence of corruption. Likewise, institutions
Our theoretical benchmark assumes that

that generate a competitive environment in the provision of public services tend to reduce the extraction of rents,
therefore reducing corruption.

Limiting Qualified Immunity is uniquely key to solving for


police brutality
Wright 15 [SAM WRIGHT, Want to Fight Police Misconduct? Reform Qualified Immunity, Nov 3, 2015,
Above the Law, Sam Wright is a public interest lawyer who has spent his career exclusively in nonprofits and
government]

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 dont have one. Instead, police officers have recourse to the broad
In order

protections of the judicially established doctrine of qualified immunity. Under this doctrine, state actors are
protected from suit even if theyve 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 theres not already a case where a court has held that an officers identical or
near-identical conduct rose to the level of a constitutional violation, theres a good chance that even an obviously
malfeasant officer will avoid liability will avoid accountability. To bring about true accountability and change

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, shouldnt it be enough
police behavior, this needs to change. And

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 conducts illegality has already been clearly established in the courts ?

Thats
just a start. There are plenty of other reforms that could open up civil rights lawsuits
and help ensure police accountability for bad conduct. Two posts (one, two) at
Balkinization by City University of New York professor Lynda Dodd provide a good overview. Campaign Zero should
consider adding civil rights litigation reform to its platform, our policymakers should consider making civil rights
litigation more robust, and,

it happen.

if we want to see justice done, we should push to make