Monday, October 10, 2016

LD Nov/Dec 2016 - Limited Qualified Immunity - Neg Position

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

Negative Position

I strongly suggest checking out part 1 of the Affirmative Position before going through this analysis since it will assume many of the points made previously are known.  I don't wish to use space repeating previously described concepts. The Neg, has the benefit of defending the status quo but because of the nature of this topic and complexities, the time constraints in a Neg speech will be challenging. Aff is obviously going to suggest unlimited qualified immunity as it is now conceived creates some kinds of harms which are substantial enough to warrant placing limits on its application.  And really this is a very significant point for the Neg. Aff is not asked to advocate for an unlimited, much improved version of immunity of police officers. Instead, the Aff must advocate limits on the qualified immunity as it exists in the status quo. So what does it mean to limit something? We talked about it in the topic Introduction for this topic. It means to establish a point beyond which one should not go.  For example, allowing a particular number of cases annually would establish a limit but it is unclear how that would work fairly.  Another way to limit is only allow certain classes of cases, say excessive force cases, or fourth amendment cases to be considered but this too would leave other classes of injury unresolved.  It is also possible to limit qualified immunity by altering the criteria required to determine if qualified immunity is applicable in such a way that fewer cases may win qualified immunity and this is most likely what we will hear argued. Presently, claimants by design are under significant burdens of proof in order to prevent a flood of frivolous actions which impede the ability of government employees to carry out their business. Of course, Aff is under no obligation to propose a plan or specific solvency.  However, Aff should at least meet a burden of showing that change is possible, and some kind of solvency mechanism will at least meet the resolution requirement of limiting qualified immunity. Otherwise, Aff is forced to defend a kind of "alternative world" case which is difficult when faced with the more practical realities of a real-world status quo in which police officers face tough, split-second decisions.

Neg Advocacy

While I am unaware of any NSDA mandated burdens for Lincoln Douglas debate, (if they exist, please enlighten me because a search of their site is unfruitful) it is reasonable to expect since the Affirmative has the first and the last speech and since this resolution proposes a change to the status quo, Aff has the burden of proof to show the resolution is true.  Neg, on the other hand should not face any burden of proof with respect to this resolution. This means it is sufficient for the Neg to take a three tracks to win.  First and foremost, the neg should oppose the basis of the Affirmative case and show how Aff fails to achieve its own value premise or the Neg position achieves the Aff value at least equally as well or better than Aff; show there are factual errors or logic errors; or show there is a solvency deficit meaning the Aff position cannot achieve its claimed goals. This goes hand-in-hand with the Aff claims of supporting its value framework.  Secondly, Neg can show that Aff advocacy creates harms that would not otherwise exist in the status quo. This is particularly important with respect to the Neg value framework.  For example, Neg can show how the Aff advocacy harms the Neg value or creates other problems which a judge would find unfavorable. Third, the Neg can claim, there are no harms in the status quo that need corrected by the Aff advocacy.

For this analysis, I intend to first examine the question of whether or not qualified immunity really needs to be limited as the Aff proposes. Then I will look at the harms which will arise if the judge votes Aff. Finally I will look at the value framework.

No Limits

The history of the right to bring litigation against public officials has its roots in Section 1983 (42 U.S. Code § 1983) Title 42 as a measure to provide relief for recently freed slaves after the Civil War. It is recognized as an important step forward in providing redress for individuals who's constitutional rights were clearly violated and believed to be useful for deterring governmental abuse and misconduct against individuals. The case of Bivens v. Six Unknown Named Agents 456 F.2d 1339 (1972), firmly established that violations of constitutional rights may give way to actions for damages, in particular with respect to Fourth Amendment violations.  Today, when plaintives sue the government for these violations, they are known as "Bivens" cases.

Noll (2008):
Various rationales have been offered for permitting individuals to recover damages for a violation of their constitutional rights. One is that “‘where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.’” A somewhat more sophisticated account suggests that a damages remedy is a necessary, if perhaps suboptimal, means of assuring that public officials comply with the Constitution. For courts confronted after the fact with a violation of an individual’s constitutional rights, a damages remedy (with its intrinsic power to deter) may be the only way of guaranteeing that the illegal conduct does not recur.[916]

However, the courts recognized there are dertrimental consequences to allowing a flood of civil lawsuits to be levied against public officials and so extended qualified immunity to public officials operating within their official capacity.

Putnam & Ferris (1992):
On the other hand, society cannot have a system in which law enforcement officials are unable to carry out their duties due to the fear of being subjected to groundless lawsuits. Furthermore, a system which permits the filing of dubious constitutional claims in overcrowded courts mocks the Constitution and serves as a considerable detriment in our society's quest for justice. Hoping to avoid the creation of such a system, the Supreme Court has held that law enforcement officials claiming a qualified immunity from suit are not held responsible for keeping up with every changing legal nuance; rather, qualified immunity is waived only when the defendant has violated federal statutory or constitutionally protected rights of the plaintiff of which a reasonable law enforcement official would have known.1[690-691]

Noll isolates several indirect social costs beside the obvious, chilling effect of officials being restrained from executing their duties for fear of some after-the-fact damage claim (Noll:917).

The Court has constrained the flood of litigation by placing a burden of discovery and proof of violation of the plaintiff (the accuser). However, despite the burdens imposed by the court, citizens who meet the burdens are successful in winning their cases. In fact, some scholars claim the system does exactly what is was designed to do and strikes an appropriate balance between limiting official misconduct and and deterring officials from carrying out their lawful duties.

Putnam & Ferris (1992):
[I]t appears to the authors that the qualified immunity defense operates reasonably well in excessive force cases to vindicate its underlying purposes. The defense in this context does appear to promote the Fourth Amendment's goal of requiring law enforcement officials to use reasonable methods, and does not appear, at least on the surface, to lead to overdeterrence. Indeed, the modern paradigm for the section 1983 action is set forth in Monroe v. Pape," an excessive force case;[693]

The appearance of success, however, may not be sufficient in some contexts.  Others will claim, it appears that qualified immunity imposes an enormous barrier to the success of the cases, even to the extent it is useless to attempt recovery for damages. In fact, the assumption is made that consitutional violations claims (Bivens cases) in particular are most unsuccessful.However, Reinert disagrees.

Reinert (2011):
Despite the widespread assumption that qualified immunity plays a large role in the inability of many Bivens plaintiffs to prevail against federal officials, there is little empirical support for the proposition. Some authors have relied on data from reported decisions, but data from a wider range of cases have not suggested that qualified immunity plays a substantial role in the resolution of Bivens claims.[479]

In other words, Reinert claims the success rate of Bivens cases proves that qualified immunity does not impose an insurmountable barrier. From this and the implication that other challenges to qualified immunity have sufficient success Neg may claim there is no need to impose limits on qualified immunity as Aff is claiming.

Reinert (2010):
After conducting a detailed study of case dockets over three years in five district courts, I conclude here that Bivens cases are much more successful than has been assumed by the legal community, and that in some respects they are nearly as successful as other kinds of challenges to governmental misconduct. Depending on the procedural posture, presence of counsel, and type of case, success rates for Bivens suits range from 16% to more than 40%, which is at least an order of magnitude greater than has previously been estimated. In addition, by specifically reporting how Bivens claims are resolved when they do fail, the data reported here show that the availability of qualified immunity plays a limited role in Bivens failures. This sharply contrasts with estimates of the role of qualified immunity based solely on published case studies, demonstrating the hazards of overlooking unpublished case reports and dockets. [813]

While Reinert acknowledges the Bivens claims in particular have a more modest success rate than other kinds of litigation brought aginst government officials, it does not justify calls for change without empircal study.  Changing the status quo risks potentional harms to interests of the parties involved.

Reinert (2010):
Whatever the causes of the modestly lower rates of success of Bivens litigation, these data do not support the view that a system of formal governmental liability would better serve the interests of deterrence or full compensation. Any further proposals for reform should be preceded by further empirical study, lest a hasty transition do harm to important interests currently vindicated by Bivens litigation. [851-852]

Therefore, the observations of Putnam & Ferris noted above are justified based upon the empirical research of Reinert. While there may be some struggles within the adjudication process which the courts need to continue to tweak, the fundamental mission of section 1983 and general right of citizens to seek damages for violations of their rights, strikes an appropriate balance between checking government misconduct and over-deterrence to the point where officials back away from the duties. If it isn't broke, don't fix it.

The Harms of Voting Aff

Based upon the previous analysis, that qualified immunity does not erect an insurmountable barrier to justice we can establish there is no need to place limits on the application of qualified immunity. Moreover, the Neg contends that limits will in fact create harms which are deleterious to society and to the officials charged with upholding the law. Much of the opposition to qualified immunity is rooted in the fact courts are willing to allow some errors for the overall good of society. It is essential that police who operate on the front lines of law enforcement are allowed the freedom to operate in all reasonableness given the situations they are required to face. Courts are very reluctant to over-regulate police.  It would be nearly impossible to foresee every situation and create appropriate legislative responses and then expect the police to know and abide by those restrictions on a moment-by-moment basis when confronted with life-threatening consequences. Thus the courts rely on a objective standard of evaluation.

Putnam & Ferris (1992):
[T]he relevant question is whether a reasonable official could have believed the actions taken by the defendants to be lawful in light of clearly established law and the information available to the defendants. Even an allegation of malice against the defendant is not sufficient to defeat qualified immunity if the defendant acted in an objectively reasonable manner.[686]

The standard of what constitutes "reasonable" is a contextual evaluation given the circumstances of the situation. It is impossible for jurists, lawyers, or judges to objectively comprehend an officer's decision calculus without confronting a similar context. Thus the court looks to those who operate on the front-lines. Beyer clarifies with respect to Bivens cases.

Beyer (2005):
To comply with the Fourth Amendment, the use of force must be objectively reasonable. But the application of that standard to the rough and tumble topography of the streets creates some uncertainty. Police officers are often required to make split second decisions in life-threatening situations involving subjects with firearms, knives, and motor vehicles they are using as weapons. In qualified immunity, the Supreme Court tipped the margin of error in favor of the police. So there are two steps in the analysis. First, did the shooting violate the Fourth Amendment right to be free from unreasonable force? Second, under the specific circumstances the defendant officers confronted and the information they possessed, could they have reasonably believed that the shooting complied with clearly established Fourth Amendment law? In laypersons' terms, could reasonable officers differ on whether the shooting was justified? [56]

Police must be allowed to make mistakes given the circumstances in recognition of the fact humans are fallible. The issue is whether or not the mistakes in law for which the officer is subject to litigation was objectively reasonable. Would other officers in the same situation always act within the full constraints of the applicable law, or would others have made the same error given the circumstances? Generally if other officers agree the actions taken were clearly unreasonable given the circumstances, qualified immunity will not apply.

Rosen (2005):
Justice Kennedy explained the "further dimension" that qualified immunity adds to the standard reasonableness calculus:
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. 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 immunity defense.
In other words, for the officer to lose the benefit of qualified immunity, not only must the conduct be unreasonable but the officer's application of the most relevant legal standard to the situation at hand must also lack a reasonable basis.[144]

So we consider the effect of affirming the resolution would have on law enforcement. The deterrent effect of litigation can create situations where offciers and innocent bystanders are physically harmed. Consider the case of Clark v Evans, 840 F.2d 876 (1988). A suicidal prisoner in a Georgia State Prison who had previously attacked a guard was attempting escape and was shot and killed.  His survivors sued claiming his constitutional rights were violated. In this situation, the prisoner represented a danger to himself, to prison officials and to society at large if his escape was successful.

Putnam & Ferris (1992):
An example of the post-Anderson approach is the framing of the question in Clark v. Evans. In Clark, the court framed the question in a prison shooting case as "could a reasonable officer under these circumstances have believed it was lawful to shoot rather than permitting [the prisoner] to proceed in reliance upon the ability [of another guard] to subdue [the prisoner] without using deadly force?"
Under this test, the defendant is concerned primarily with proving two facts: One, that the law was not clearly established at the time of the act or omission; and two, that a reasonable official would not have known that such action was violative of the plaintiff's rights. To understand the test, a defense lawyer must first understand the meaning of a key concept - the definition of "clearly established."[687]

In the Clark case, the defendant was protected by qualified immunity. The problem this kind of case presents in a world where the Affirmative succeeds in limiting qualified immunity, is the fact that officers must add one more decisions to their list of split-second evaluations as to whether to use deadly force or not. The decision about, "if I take this action and after-the-fact I can be sued should I shoot?" may result in sufficient hesitation or lack of action to the harm of the innocent, other police or the officer in question.  If an officer's failure to act at the instant required is based upon concern for litigation, it is likely to release the entirely unintended consequence of a flood of litigation seeking damages for the state failing to protect citizens.

Finally, the effects of increased personal liability for officers has proven consequences which tips the balance which qualified immunity and litigation is intended to maintain.

Rosen (2005):
Nonetheless, despite the unlikelihood of an officer facing personal liability, frivolous litigation imposes serious secondary costs on his or her conduct. First, contributions or premiums paid to a legal defense insurance plan will likely increase with the amount of litigation the officer faces. Second, the officer's career may endure a stain or stigma despite a victory on the merits of an excessive force case. Third, the department, as the officer's employer, may impose discipline, whether formal or informal, on any officer's involvement in litigation, whether successful or unsuccessful. Suspensions or unpaid leave may accompany lawsuits faced even by officers who are ultimately victorious in court. Thus, litigation indeed affects officers' conduct, in the heat of the moment, whether reasonably or not. This effect dovetails with a growing tendency toward "depolicing" that has become prevalent in several of America's urban cores. According to many officers, recent years have seen an increase in lawsuits and informal complaints brought against law enforcement, a correlate tendency in departments to steer officers away from necessarily risky conduct in do-or-die situations, and a concomitant decline in officer morale.[148]

Thus Rosen shows a cascade of harms arising from litigation which, as we have shown previously, could result in danger to society in the heat of the moment; but even more importantly, harms society as police choose to move away from those areas where their presence is needed the most. Therefore we should not limit qualified immunity.

The Neg Framework

We begin with the most obvious framework to counter the Aff; justice.  We define justice as giving each his due and we can select as the most obvious criteria, "upholding the social contract". The rationale for choosing justice is the fact that this particular resolution, while it invokes a clash of government against individual values focuses on police who are also individuals who value justice. I believe the criterion is relevant since there is a direct correlation between the duty of government to uphold the social contract and individual values. As I did in the Aff framework, we can also apply the value of human dignity or even better, perhaps, is the value of autonomy in that immunity permits a degree of objective discretion as to how to act that the Affirmative side may restrict.

For the most part, though, it is clear that immunity is a mechanism for protecting majority interests as opposed to individual interests. Therefore the value of democracy upheld by the "acceptance of compromise" or "supporting the common good" is another interesting framework. Democracy is the idea that every individual has an equal voice but the conflict of ideas is managed by compromise. The conflict of interests between government and its citizens and the conflict between the interests of those sworn to uphold the law and those who suffer from the inadvertent misapplication of power is mitigated by compromise or a commitment to the "common good".

Gutmann & Thompson (2013):
Democratic politics should serve the common good, which we understand as the goal of “maintaining conditions and achieving objectives” that benefit all members of society. The individual components of the common good–such as a robust economy or universal health care–are not necessarily shared by everyone. But the goal is to secure these goods for all, and to maintain a democratic process that is valued by all. 

Finally I want to touch upon the direct duty of the government to uphold the social contract. Much of this obligation is rooted in the need for "security" (a universal value) and is maintained by a system of laws designed to protect rights. Immunity places a human quality on the blind indifference of the "rule of law".

Spader (1985):
Although advocates of immunity no longer give credence to the maxim that the king can do no wrong, they have not been willing to replace rule of man totally by rule of law in the area of immunity. Some immunity is necessary to protect discretion ("rule of man"). No government can exist without some discretion, and the extravagant version of the rule of law (epitomized by the phrase, "We are a government of laws and not of men") has been rejected. The ideal of the supremacy of the rule of law has not, can not, nor should be realized. "Every government has always been a government of laws and of men . . . [n]o government has ever come close to being a government of laws and not of men. Every system of administration has always had a large measure of discretionary power."[71]

For additional links to this topic and other LD topics, click the Lincoln Douglas tab at the top of this page.


Beyer WC (2005), Police shootings under the  Fourth Amendment, Richmond Journal of Law and public Interest, Winter/Spring 2005; accessed 10/6/2016 at:

Gutmann, A, and Thompson DF. "Valuing Compromise for the Common Good." Daedalus 142.2 (Spring 2013): 185-198, accessed 10/6/2016 at:

Noll, DL (2008), Qualified Immunity in Limbo: Rights, procedure, and the social costs of damages litigation against public officials, New York University Law Review, vol 83, June 2008, accessed 10/5/2016 at:

Putnam CT, Ferris CT, (1992), Defending a maligned defense: The policy basis of the qualified immunity defense in actions under 42 U.S.C. § 1983, Bridgeport Law Review, Quinnipiac College, Vol 12, No 3, Spring 1992 accessed 10/4/2016 at:

Reinert AA, (2010), Measuring the success of Bivens litigation and its consequences for the individual liability model, Stanford Law Review, Volume 62, Issue 3. Accessed 10/3/2016 at:

Reinert AA, (2011), Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011). accessed 10/3/2016 at:

Rosen MM (20015, A Qualified Defense: In Support of the Doctrine of Qualified Immunity in Excessive Force Cases, With Some Suggestions for its Improvement, 35 Golden Gate U. L. Rev. (2005), accessed 10/5/2016 at:

Spader DJ, (1985), Immunity v. Liability and the Clash of Fundamental Values: Ancient Mysteries Crying out for Understanding, 61 Chi.-Kent.L. Rev. 61 (1985). accessed 10/6/2016 at:


  1. In LD, both aff and neg have equal burdens of proof as shown in the guide to judging LD on the website.

    1. I appreciate you letting me know that but I cannot find that resource on the NSDA website. I do know there has been a fair amount of academic discussion about the Neg burden and I was not sure if it was ever settled.


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