Sunday, October 2, 2016

LD Nov/Dec 2016 - Limited Qualified Immunity - Introduction

Resolved: The United States ought to limit qualified immunity for police officers.


For our team, this will be the first topic of our regular Lincoln-Douglas debate season. During the last month, I have been working with our novices.  Now it is time for the varsity members to step-up and begin doing what they do.  On face, this topic seems interesting and it certainly seems current in light of recent news alleging unjustified police shootings of unarmed individuals. As we shall see when I discuss the definitions, qualified immunity is a particular form of immunity which protects police officers from certain kinds of legal actions against them. So, the initial positions this resolution seems to invoke are centered around the duty of the state to enforce law and the implementation of laws to protect citizens from government abuse. It seems there has always been this kind of conflict inherent in the social contract in which people pass laws to grant the government power to take necessary steps to protect rights, but pass other laws which curb the powers of the government to protect rights. On one side we have police with discretionary power to deny people of their life, liberty or property and we see that as necessary in many situations for the good of society.  On the other side, we have the possibility that discretionary power is sometimes inappropriate and beyond what reasonable people would deem proper given the circumstances. Okay, fine. We have seen that and sometimes the police are way out of line and end up being fully prosecuted by the criminal justice system. The problem is, if individuals not only question police decisions, but take legal actions against them because of those decisions, what kind of chilling effect will it have upon law enforcement's ability carry out its duty to protect the rights of citizens? Would police be reluctant to do what is necessary for fear of being prosecuted or sued because the decisions they made in the heat of a confrontation are seconded-guessed and evaluated after-the-fact as unjustifiable. It seems as if this resolution is suggesting that in the status quo, qualified immunity is perhaps contributing to the kinds of alleged abuses we are witnessing of late or qualified immunity is creating other harms which we can only discover through more research on the topic.


The United States
This needs no definitions. Debaters all around the world know the United States means that nation between Canada and Mexico, which is comprised of fifty states and several territories. We know from the specifics of this terminology we will be discussing a topic which is particular to the U.S. so there is no need to defend how other nations deal with immunity for government employees though it is appropriate to cite examples outside of the United States as models to emulate or not. What is not so clear, is who exactly is the actor? The United States is comprised of a the United State Federal Government (USFG) and it is comprised of many state and local governments which maintain police departments under local laws. So the United States could mean the USFG or it could mean the individual states. We cannot be sure at this point if the distinction will play a role in this debate.

This word commonly appears in Lincoln Douglas debate topics. While on one level we can interpret ought to mean should, but in philosophy, ought is often seen as a "normative" term. Other normative terms include obligation or duty so under such an interpretation it carries more weight than a mere suggestion.  Some would say ought imposes a "moral" duty but it really depends on context and what is being evaluated. Many places on this site, I have discussed the word "ought" and if you are interested I urge you to use the "search" box on this site to access past discussions about this term.

to limit
Merriam Webster defines this as a point beyond which one cannot or (dare we say) ought not go. It defines a maximum and so it does not necessary imply that point is zero, although it could be.  In this context we have no clue as to what the "limit" is in terms of some measurable quantity.  It does not say we ought to eliminate qualified immunity so it seems reasonable to assume the limit is somewhere between no immunity and the current quantity of immunity granted in the status quo. On one hand, it may not be a measurable quantity at all. It seems much more likely, our research will determine that the term "limit" applies to how justification for qualified immunity is assessed. In other words, applying more stringent qualifications to what permits application of qualified immunity would have the effect of "limiting" the use of qualified immunity as a defense of police actions.

qualified immunity
While we could separate these terms and define qualified and then immunity, it makes no sense to do so since qualified immunity is a legal term.  For this, we turn to the Wex law dictionary.

Wex (undated)
“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan (07-751). Specifically, it protects government officials from lawsuits alleging that they violated plaintiffs’ rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

Thus, as long as the officers' actions are legal at that time they are carried out, they can not be sued unless they violated some explicit, overriding law such as a constitutionally guaranteed civil right. Bear in mind, this does not always apply in the application of deadly force. One famous case Supreme Court case, Wood v Moss, a group of anti-George W. Bush protesters were forced to relocate while another group of pro-Bush activists were allowed to remain at a location Bush decided to make an unscheduled stop for dinner at a local Inn.

SCOTUS (2014):
The protesters sued the agents for damages, alleging that the agents engaged in viewpoint discrimination in violation of the First Amendment when they moved the protesters away from the Inn but allowed the supporters to remain in their original location. The District Court denied the agents’ motion to dismiss the suit for failure to state a claim and on qualified immunity grounds, but on interlocutory appeal, the Ninth Circuit reversed. The court held that the protesters had failed to state a First Amendment claim...[ellipses mine; page 1]

In this particular case, lawyers for the protesters based their claim on court decisions that were made after the events of that day, which SCOTUS disallowed. Additionally, Justice Ruth Ginsberg, clarified there was no law requiring the Secret Service keep supporters and protesters equi-distance from the President. Moreover, she cited an overriding principle.

SCOTUS (2014):
We held that qualified immunity shielded the agents from claims that the arrest violated the plaintiff ’s rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. “[N]owhere,” we stated, is “accommodation for reasonable error . . . raised.” Id., at 229. This Court has recognized the overwhelming importance of safeguarding the President in other contexts as well. [ellipses in original text; 12-13]

What this illustrates is despite the fact the news these days is filled with high-profile uses of deadly force, by officers, this topic has implications in other, kinds of rights violations as well.

for police officers
Black's Law Dictionary defines a police officer as "a person who is an officer of the law enforcement team employed by the county, town, municipality or state". In addition, we can add certain federal employees such as the secret service and agents of the FBI, IRS, ATF, Immigration Service, U.S. Marshals, etc. Generally, these agents, whether local or federal, enforce the law by conducting criminal investigations, and making arrests.

The Status Quo

Debaters should have little problem finding examples of cases in which limited immunity was applied to prevent legal action against police officers and likewise cases in which officers were successfully sued. In today's judicial environment, qualified immunity is well-established, but has not always been objective.

Schott (2012):
...qualified or “good faith” immunity included both an objective and a subjective aspect. The subjective aspect involved determining whether the government actor in question took his “action with the malicious intention to cause a deprivation of constitutional rights or other injury.” This subjective determination typically would require discovery and testimony to establish whether malicious intention was present. Having to go through the costly process of discovery and trial, however, conflicted with the goal of qualified immunity to allow for the “dismissal of insubstantial lawsuits without trial.”
Recognizing this dilemma, the Court altered the test to determine whether qualified immunity was appropriate. The new test, as stated earlier, is that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” By applying the reasonable person standard, the Supreme Court established, for the first time, a purely objective standard to determine whether granting a government official qualified immunity was appropriate.

The so-called reasonable person standard is used in many applications by the court as an objective measure. I suppose, we may fairly ask ourselves, what is a "reasonable person"?  It is apparent that a certain measure of "common sense" is applied under the reasonable person standard and I don't really want to evaluate it too deeply in this particular part of my topic analysis. In many cases I would surmise that application of the reasonable person standard need not be invoked in cases where police strictly adhere to policies and procedures which are designed to protect citizen rights. In the Wood v Moss case we see another application where the court justified defendant actions upheld by a greater overriding necessity for the good of the country.

Let's see what we can do with the topic in the Aff and Neg positions.

For the more on this topic or other Lincoln Douglas topics, click the Lincoln Douglas tab at the top of this page.


SCOTUS (2014), Wood et al, v. Moss et al, Supreme Court of the United States, (Slip Opinion), October Term 2013. Accessed 10/1/2016 at:

Schott, RG, (2012), Qualified Immunity, How It Protects Law Enforcement Officers, FBI Law Enforement Bulletin, Sep 2012. Accessed 10/1/2016 at:

Wex (undated), Qualified immunity, Wex Legal Disvctionary, Legal Information Institute, accessed 10/1/2016 at:


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