Sunday, October 9, 2016

LD Nov/Dec 2016 - Limited Qualified Immunity - Aff Position - part 2

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

Aff Values

Having spent a lot of time looking at the concept of qualified immunity, we can begin to isolate some useful framework ideas. We need to defend or promote a value through the application of a value criterion. Three years ago I published a series of articles on Values in Lincoln-Douglas in which I grouped suggested values according to contexts such values for governments, societies or individuals and that can provide a starting place for you as you develop the Aff position value framework.

In part one of this topic I was sure to point out the obvious clash of values between the government and its citizens. Governments have duties to fulfill and so they operate under various political philosophies in order to fulfill them.  People on the other hand are trying to realize the best possible lives for themselves and their families as well as protect their rights. We can see the duties of the social contract on one side and a sort of hierarchy of needs on the other side.  Novices, should take time to read up on the social contract.  Look at the views of Thomas Hobbes toward the so-called "state of nature" and contrast that with the views of John Locke. Read about Locke's and Jean-Jacques Rousseau's concept of the social contract. Read up on human needs and Maslow's hierarchy of needs. Not that I am necessarily suggesting we need to be debating these things.  They will be useful throughout your Lincoln Douglas Debate careers.

The Value of Justice

For me, this seems to be the most intuitive value for the Affirmative debater on this topic. Justice can be defined in many ways. The common LD definition, "giving each their due", is based upon Aristotelian philosophy and works quite well.  It serves to convey the idea of recompense for a wrong, of getting what is earned. The argument for justice in this resolution is simple.  The harms induced by police misconduct deserve redress but the current system of qualified immunity erects barriers (namely the two-prong test) to compensation, therefore claimants are not able to receive what they are due. There are several criteria which can promote justice.  For example the quotation taken from Kirby's note in the Cornell Law Review advocates a more equitable trade-off between the needs of the state and the citizens.

Kirby (2000):
This trade-off rationale implies that the protection that the qualified immunity doctrine supplies should be closely tailored to the needs of different levels of public officials. It should give no more protection than is necessary for the official to effectively fulfill his duties because each additional measure of protection divests victims of a greater range of remedies for violations of their constitutional rights. Providing more protection than is necessary to prevent officials from being unduly inhibited in the performance of their duties results in an unjustifiable sacrifice of individual constitutional rights.

So how doe we derive a value criterion from this?  As I said, by "establishing an equitable trade-off between the needs of the individual and the state", or as Kirby says, "limiting the protection of officials according to their level of responsibility" or "reducing standards which sacrifice constitutional rights". I think it is important to note these positions do not advocate eliminating qualified immunity. The Affirmative does not want to prevent the state from effectively carrying out its duty but we do want to send a message that immunity is not license to violate rights and recompense is a justified deterrence to abuse.

Human Dignity

Another important and easily defensible value is human dignity. The Duhaime Law Dictionary defines human dignity as "An individual or group's sense of self-respect and self-worth, physical and psychological integrity and empowerment." 

The Constitution of the U.S. in the view of the Court was at one time, a key instrument in the protection of human dignity.

Smith (2003):
Justice William J. Brennan, Jr. was fond of describing the Constitution as “a charter of human rights and human dignity.” It was, in his view, “a bold commitment by a people to the ideal of dignity protected through law.”

But according to some scholars, that purpose has shifted away from protection of human dignity.  The Courts are now using qualified immunity to confer the value of dignity to states.

Smith (2003):
Dignity is once again in vogue at the Court, but it is probably fair to say that Justice Brennan would not approve. The Court’s recent focus has been not on human dignity, but on the dignity of the states. In a series of recent decisions expanding the states’ immunity from suits by individuals seeking monetary relief, the Court has explained that the “preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.”

The affirmative in light of the above source can assert the value criterion of "restoring the protection of human rights" or "properly recognizing dignity as a quality to be attached to human agency".

The Values in the Clash

What I have presented above are just a few ideas to get you started. But I encourage you to think much more deeply about the criterion which uphold values.  Think about the hierarchy of needs, and requirement for safety.  Think about the social contract.  One of the key premises if the social contract is that humans give up some of their rights in exchange for the protection of their remaining rights by the state. This takes on a profound meaning in this quotation from Kirby.

Kirby (2000):
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.

Protection of rights is a key objective of the social contract but what is our recourse when our rights are threatened by the very state which is supposed to protect them?  This is the conflict of the duties of the state and the needs of the individual.

I hope I given you enough to get started.

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


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

Smith PJ (20013), States as Nations: Dignity in Cross-Doctrinal Perspective, 89 Va. L. Rev. 1 (2003), accessed 10/5/2016 at:

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