Saturday, October 8, 2016

LD Nov/Dec 2016 - Limited Qualified Immunity - Aff Position - part 1

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

Aff Position

This topic will be challenging for both sides of the debate due to the rather complex nature of the legal standards to be debated. Certainly it would be possible to describe the issues in simple enough terms that debaters and Lincoln Douglas debate judges could understand it, but I think it is difficult to provide sufficient background on top of having enough time to present a reasonable case which includes establishing a value framework and presenting supporting contentions to support the framework. In order to understand the framework we need to go deeper into understanding the purposes of immunity in general and qualified immunity in particular. There is an interest by the court to prevent frivolous and harassing legal actions taken against government officials. The government has a duty to fulfill its functions and not only do lawsuits and court actions cost time and money, they have a chilling effect on officials who would be reluctant to execute their duties if they believed they would be taken to court each time. The core concept of immunity is drawn from legal interpretations and precedence dating back hundreds of years and its necessity is not questioned. In the U.S. the president has absolute immunity while every other government official is afforded qualified immunity.

Capobianco & Gutman (2016):
Drawn from analogous common-law defenses available to public officials, qualified immunity protects public officials from personal liability unless their conduct violates then clearly established constitutional law. The defense rests upon two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.

Some of the needed Aff case background can be conveyed in the definitions. At its most basic we can state that qualified immunity prevents police from being sued for carrying out their official duties so long as they did not break any clearly established laws when they did their duty. However, because that description is a little vague, the courts have established what is known as a two-prong test.

Wagner (2014):
The traditional qualified immunity analysis involves a two-part objective query: (1) whether the facts alleged establish the violation of a federal statute or constitutional right; and (2) whether the right violated was a “clearly established statutory or constitutional right[] of which a reasonable person would have known.” [872]

Therefore, a plaintiff (the side bringing the lawsuit) must prove the first point before the court will even look at the second point. Did the officer violate a law or constitutional right?  Only when that is established will the second prong be examined. Was that violation one that a reasonable officer of the law would have known? Now of course one would expect an officer should know the law so that one would be a given. However, in practice, both questions can be extremely difficult for plaintiffs to answer and this is the core of the issue for the Affirmative side of this debate.

Hassel (1999):
There is then a body of literature examining the discrepancy between what the qualified immunity defense was meant to accomplish and how it actually works. The defense does not protect defendants in a meaningful way. At the same time, it makes a judgment for the plaintiff almost impossible to obtain. Therefore, the defense seems to be serving no one's interests. These well documented weaknesses suggest that qualified immunity's role is not to allow for just outcomes, but to provide some other service. What is missing from these critiques is an analysis of what function the current doctrine serves.[152]

Though we almost never see, class-action suits (suits brought on behalf of an entire class of people) Affirmative can show there are profound legal issues with qualified immunity which result in harms to individuals. Thus we see the emergence of conflict between the values of the state and values of the individual. This is the stuff of Lincoln Douglas debate which we will address soon enough.

Judicial Solvency

The case of Bivens v Six Unknown Named Agents, 403 U.S. 388 (1971) was one of the earliest cases which implied that citizens may sue for violation of their rights.  However, the court was careful to uphold the shield of immunity for the government by ensuring that the claims of wrongdoing would be directed to the individual officials or officers involved. But the court has long recognized that officials need to be allowed a certain margin of error when executing their duties.  It makes some sense when one considers police are often forced to make rapid decisions under duress. So the concept of qualified immunity was transferred from governments to individual government agents and the doctrine was firmly established in the case of Harlow v Fitzgerald, 457 U.S. 800, 817-18 (1982) and later tweaked in Anderson v Creighton, 483 U.S. 635, 638 (1987).

Kirby (2000):
Viewed in the light of its development, the Court's application of the Harlow qualified immunity standard in Creighton was not a departure from past precedent. Rather, it represented the straightforward application of a one-standard doctrine that had simply grown too unwieldy to be applied to the case before it. By refusing to subdivide the qualified immunity standard, while at the same time applying the doctrine to increasingly diverse categories of officials, the Court created a standard that causes needless and unfair dismissal of many civil rights actions. From a societal point of view, lower-level officials do not require protection from suit because of the limited number of individuals who would be likely to bring suit against them, and the limited scope of these officials' responsibilities. In addition, in the case of law enforcement officials, testifying at trial is often a normal part of their job. In short, it is unlikely that lower-level officials would be unable to perform their duties because of a deluge of civil rights suits or that their involvement in a suit would  impede the effective operation of government.[482-484]

Some legal scholars believe that applying the broad stroke of immunity to the diverse actions of individual agents of the government was inherently problematic.

De Stefan (2017):
Although many of the weaknesses of qualified immunity can, for the most part, be considered unintended consequences, one significant flaw was the Court’s deliberate decision to utilize a one-size-fits-all standard. In early qualified immunity decisions, the Court acknowledged the possibility that the doctrine might apply differently depending on the type of official involved in a particular situation. But, as it so commonly does, the Court apparently altered its approach. For nearly four decades, the Court has applied the qualified immunity doctrine as a standard applicable to all officials who do not enjoy absolute immunity. Indeed, the Court has been explicit about its unwillingness “to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials’ duties.” In so doing, the Court has overextended the doctrine. It is essentially providing too much protection for lowerlevel officers because all officials not entitled to absolute immunity now enjoy immunity that the Court “ha[d] developed for a quite different group of high public office holders.” [19]

Thus, because the legislative and judicial systems have not addressed the problem of individual immunity for lower-level officials, such as police officers, the Court extended the previous doctrine. As a result of this attempt to solve the problem of possible unwarranted harassment of individual public officials the claim is made, the Court inadvertently closed the door for claimants to successfully receive compensation for harms against them by government officials like the police.

Constitutional Ambiguity

The first test for claimants to overcome in their quest for redress from misconduct by police is the requirement there must have been a violation of federal law or a constitutional right. But sometimes the clarity of law and constitutional rights is not always a certainty when the court is unable to frame the complaint within the context of established law and prior precedence. 

Wagner (2014):
Several key challenges arise in evaluating the constitutional guarantees associated with sexual orientation. Courts have traditionally been reluctant to address sexual orientation as a status akin to race, religion, or gender. Instead courts sometimes framed constitutional issues raised by sexual minorities in terms of homosexual acts and conduct. As Pamela Karlan explained:
The situation of gay people provokes an “analogical crisis” because in some ways it involves regulation of particular acts in which gay people engage, and so seems most amenable to analysis under the liberty prong of the Due Process Clause, while in other ways it involves regulation of a group of people who are defined not so much by what they do in the privacy of their bedrooms, but by who they are in the public sphere.
Furthermore, it is challenging to evaluate what rights exist in the rapidly changing landscape of legislation relating to sexual minorities, state and federal court decisions on specific issues like marriage and adoption, and social discourse on gay rights.[881-882]

Wagner describes in great detail, three similar cases in which government officials were accused of denying homosexual employees due process rights in cases of claimed discrimination. Even after several prior cases which presumably established clear precedence granting violations of due process rights for gay employees, each court arrived at different conclusions as the legitimacy of the plaintiff's claims. 

Wagner (2014):
Therefore, when three cases on facts that easily sufficed for allegations of equal protection violations came before three courts in three different circuits in the same year and resulted in three different outcomes, it is clear that there is a problem with the qualified immunity doctrine. Under the Roberts Court, the qualified immunity doctrine has become more generous to defendants with an increasing requirement for circuit unanimity and an emerging approach to rational-basis review that protects decisionmakers’ discretion. The problems arising in qualified immunity doctrine are particularly apparent when evaluating constitutional rights related to sexual orientation, because the key Supreme Court cases did not rely wholly on the established methodologies for equal protection and due process analysis.[902-903]

While the laws regarding due process rights for alternative sexual orientations may be evolving even more troubling is the continuously evolving standards of the courts which tend to favor qualified immunity.

The Standard of Reason

Directly relative to police actions, and particularly actions directed toward minorities we can look at an example which illustrates the degree to which the standards required by the second prong fail to provide redress for claimants. Professor Michael Avery describes the case of Latonya Davis, a disabled African-American women, pulled over by police, surrounded by cruisers and too frightened to get out of her car.

Avery (2016):
She slid her window open slightly and told Lakewood, Colo., Officer Todd Clifford and Sgt. Todd Fahlsing she would step out if they promised not to hurt her. They made no such promise. Instead, Mr. Fahlsing smashed the driver's window with his baton, sending glass into her eye. The officers reached in, grabbed her by her hair and arms and pulled her through the shattered window, tearing the soft tissue in her shoulder. They threw her to the glass-covered pavement and pinned her to the ground. Her crime? The misdemeanor offense of driving under suspension for failure to provide proof of insurance. When she sued, District Judge William J. Martinez dismissed her case, concluding the officers were entitled to "qualified immunity."

Historically, the court has been reluctant to evaluate the actions of police, claiming there is a lot of uncertainty in these kinds of cases and police need some benefit of the doubt.  This is continued support for what was mentioned previously as the idea a "certain margin of error" is required.

Avery (2016):
The legal doctrine of qualified immunity, invented by judges and unknown to the general public, provides that to win a civil rights case it is not enough to prove that a police officer violated someone's rights. One has to prove that every reasonable officer would have known the specific misconduct in question was a constitutional violation. Some earlier court has to have said so in similar circumstances. Because no cop had been depraved enough to pull a disabled woman through the shattered glass of her driver's window before, Judge Martinez ruled that Officers Clifford and Fahlsing were off the hook.

This illustrates a very arbitrary standard.  If officers were never trained it is improper to pull a disabled women through a car window or unless all the officers agree an action is improper, then a decision can be drawn that if some officers do not know or believe an action is wrong, qualified immunity may be applied.  So, it seems, not even the most egregious violations of established rights can pass scrutiny.

De Stefan (2017):
Of course, the most outwardly evident and alarming problem with qualified immunity jurisprudence has been its cumulative erosion of law enforcement accountability. Perhaps Erwin Chemerinsky summarized it best when he noted that “[i]n recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations.” Many of the aforementioned procedural and substantive problems with the qualified immunity doctrine have contributed to what might be considered a deleterious byproduct. But recent Court decisions have also demonstrated a willingness to extend immunity in even the most egregious circumstances.[20]

Amazingly, even when a jury initially rules that an officer's action are unreasonable, there is no guarantee of redress under the reasonability standard applied by qualified immunity. Sheng discusses the case of Anderson v Russell, 247 F3d 125 (4th Cir. 2001), in which an officer mistook a Walkman radio for a gun. When the man attempted to turn off the radio, the officer began firing, severely wounding the suspect. The suspect sued claiming the officer used excessive force.

Sheng (2012):
On the excessive force claim, the jury unanimously found that the officer's use of force was unreasonable under the Fourth Amendment and rendered a verdict in favor of the suspect. On the officer's claim for qualified immunity however, the judge held that the officer's use of force complied with his training, and there was no clearly established law prohibiting the officer's conduct. Therefore, the officer was granted qualified immunity and judgment as a matter of law, notwithstanding the jury's verdict.

Sheng (2012):
Allowing a judge's presumption of reasonableness-based solely on the presence or absence of clearly established law-to trump a jury's finding of unreasonableness runs counter to the "bedrock principle" that "questions of fact are best determined by a jury." As one commentator/judge explains, "[J]uries are in the best position to discern the truth, having heard testimony first-hand along with all the eyetwitches, sweaty brows, pregnant pauses and other non-verbal cues that accompany it.

The Illusion of Justice

The law allowing claimants to seek redress for violation of civil or constitutional rights is based upon section 1983 of the Klu Klux Klan Act adopted in 1871. However, it was not until the 1961 case of Monroe v Pape that the full intent of section 1983 was clarified by the Supreme Court to be applied to local governments and their agents. Unfortunately, the full intent of section 1983 may still be buried behind burdens of proof which favor the government. 

Hassel (1999)
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.[155]

In other words, while there appears to be a favorable method for individuals to seek compensation of the violations of their rights due to misconduct by police officers, the two prong test ensures there are enormous obstacles in place which almost guarantee the compensation claim will fail.

The Harms

The failure of qualified immunity generates a compendium of harms. For example, De Stefan believes a good step to truly fixing the problem begins with recognizing the one-size-fits-all doctrine of immunity is flawed.

De Stefan (2017):
The Court could also accept that its attempts at a general standard for all classes of officials that are not otherwise entitled to absolute immunity has been problematic and hugely unsuccessful. [27]

It is important to realize failure to satisfy the two-prong test results in no further action by the courts. There are no further investigations to determine the legitimacy of the claims of rights violations.

Hassel (1999)
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.[156]

Despite the obvious difficulties in applying qualified immunity, there was never any intent by the Court to nullify the claims of those seeking compensation. The Court was faced with balancing competing values.

Kirby (2000):
Thus, the Court viewed the qualified immunity doctrine from its inception as a pragmatic compromise, necessary to accommodate the conflicting goals of protecting individual rights and facilitating the "effective operation of government." In creating the doctrine of qualified immunity, the Court consciously decided to sacrifice some measure of constitutional protection to facilitate the effective operation of government. Some sacrifice of individual rights for the sake of effective government is the inevitable price of living in a society organized and run by fallible human beings.[470]

In Heien v North Carolina, the Court allowed evidence seized during a traffic stop based on a burned-out tail light (which was not illegal at the time). The court decided the officer had made a mistake about the legality of the law, but that was not grounds for excluding the seized evidence.  Justice Sotomeyer, in her lone dissent acknowledges the impacts.

Little (2014):
With only slightly veiled references to current controversies involving police confrontations on the street, Justice Sotomayor contended that the Court’s less definite ruling would lead to “further eroding [of] the Fourth Amendment’s protection of civil liberties … where that protection has already been worn down.” Police stops based on reasonable suspicion are “invasive, frightening, and humiliating,” and Justice Sotomayor submitted that today’s ruling “significantly expands this authority.” There are “human consequences … including those for communities and for their relationships with the police.” 


And so, for some measure of solvency we defer to De Stefan.

De Stefan (2017):
Altering the qualified immunity doctrine is an excellent way to begin the path to restoring trust by establishing a much-needed sense of accountability. Civil remedies are a good jumping off point because, as repeated failures to indict officers—even in the face of video footage—have demonstrated, accountability via the criminal law is a far-off possibility, if it is possible at all. Prosecutors are generally disinclined to bring charges against law enforcement officers, and grand juries are equally as hesitant to indict them. Independent investigations, as suggested by the Task Force, are an excellent idea, but establishing a feasible system nationwide would take time. On the other hand, Supreme Court amendment of the stringent immunity afforded to police officers could take effect relatively quickly [25-26]

De Stefan (2017):
By beginning to mend the qualified immunity doctrine in these ways, the Court will allow more civil suits for the vindication of constitutional rights to succeed. This will help to reduce the public mentality—strengthened by recent events—that cops get away with everything, in every regard. Civil suits avoid subjecting law enforcement to any criminal liability that, because of recent events, many laypersons believe is warranted. While this may be true in select circumstances, reality demonstrates that criminal charges are highly unlikely to stick against a police officer. But allowing more civil suits to go forward will serve as an important reminder to both civilians and law enforcement that the police are not above the law, and that they are held accountable for their wrongdoings. In turn, this accountability will begin to heal the relationship between law enforcement and communities by serving as the first step on what will surely be a long path to rebuilding the trust that is so crucial.[28]

After all of this, experienced debaters should already be seeing framework ideas.  However, because of the length of this article, I have decided to present possible frameworks in part 2.

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


Capobianco C, Gutman, JS (2016), 8.2 Suits Against Public Officials in Their Individual Capacity, Federal Practice Manual for Legal Aid Attorneys, Shriver center, accessed 10/4/2016 at:

CATO (2016), National Police Misconduct Reporting Project, CATO Institute, accessed at:

De Stefan L, (2017), "“No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create
Accountability and Curb Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper 850, accessed 10/4/2016 at:
[Note: I cannot explain the citation date. De Stefan is a JD candidate and it may be the year her application will be accepted.]

Hassel D, (1999), Living a Lie: The Cost of Qualified Immunity, 64 Mo. L. Rev. (1999), accessed 10/4/2016 at:

Kirby JD (2000), y, Qualified Immunity for Civil Rights Violations: Refining the Standard , 85 Cornell L. Rev. 461 (2000), accessed 10/4/2016 at:

Little R (2014), Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment, SCOTUSblog (Dec. 15, 2014, 7:17 PM), accessed 1-/4/2016 at:

Sheng P (2012), An "Objectively Reasonable" Criticism of the Doctrine of Qualified Immunity in Excessive Force Cases Brought Under 42 U.S.C. § 1983, 26 BYU J. Pub. L. 99 (2012), accessed 10/4/2016 at:

Wagner, RB (2014),Are Gay Rights Clearly Established?: The Problems with the Qualified Immunity Doctrine, 63 DePaul L. Rev. 869 (2014), accessed 10/4/2016 at:

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