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

October 30, 2016
Published in Newsletter

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 ALL LD RESOURCES

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

Introduction

The November-December L-D topic deals with the question of whether or not qualified immunity for police officers should be limited, which is a very important question.

In this essay, I will review the key terms of the resolution, provide essential background information, and discuss some of the common arguments you are likely to hear and want to make on both sides of the resolution.

Key Terms

All of the terms in the resolution are fairly straight forward so I’ll just discuss the concept of qualified immunity, which is also a good time to introduce some critical background information.

Qualified immunity (QI) is a defense that police officers (and other government agents) can make when they are sued for violating an individual’s constitutional rights.

Tim Miller, JD, Federal Law Enforcement Training Centers, Part IX, Qualified Immunity, https://www.fletc.gov/sites/default/files/PartIXQualifiedImmunity.pdf DOA

If sued by a plaintiff for a constitutional violation, the officer may request qualified immunity. Qualified immunity is a defense to standing civil trial. It’s raised by the officer well in advance of the actual trial on the merits. If granted, the plaintiff’s claim of excessive force against the officer is dismissed. But dismissal is qualified, however, by the officer’s use of force being objectively reasonable.

Qualified immunity has a couple of important limitations.

One, QI can only be asserted by individuals, not governments., against lawsuits. Since someone can sue both the government and an individual police officer for constitutional violations, the person can still obtain financial recovery from the government even if the police officer defendant receive immunity.

Tim Miller, JD, Federal Law Enforcement Training Centers, Part IX, Qualified Immunity, https://www.fletc.gov/sites/default/files/PartIXQualifiedImmunity.pdf DOA: 10-1-16

“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. Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. Accordingly, courts must resolve qualified immunity issues as early in a case as possible, preferably before discovery. Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.

Second, qualified immunity doesn’t protect police officers against criminal charges. If an officer engages in criminal activity against an individual he or she cannot claim QI.

Geoffrey J. Derrick Fellow, Center for Appellate Litigation, New York, NY, Summer 2013, The Boston University Public Interest Law Journal, Qualified Immunity and the First Amendment Right to Record Police, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2202381277

Qualified immunity analysis is confined to suits under § 1983 for money damages and offers a defense only to individual officer defendants, not municipalities or police departments. n203

Despite these two general limitations, QI does protect a lot of protection for individual police officers who are sued for committing a constitutional rights violations. If an officer claims QI, a judge will only allow the lawsuit to proceed if the officer violated a clearly established constitutional law and acted in an incompetent manner.

Joann Schwartz, 2014, Police Idemnification, New York University Law Review, June 2014, http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-89-3-Schwartz.pdf , Joanna Schwartz is a Professor of Law at UCLA School of Law. She teaches Civil Procedure, the Civil Rights Litigation Clinic, and a variety of courses on police accountability and public interest lawyering. In 2015, she received UCLA’s Distinguished Teaching Award. Professor Schwartz is one of the country’s leading experts on police misconduct litigation.

Civil rights doctrine2 relies heavily on the assumption that police officers pay settlements and judgments out of their own pockets. Qualified immunity protects a law enforcement officer from liability, even if he has violated the plaintiff’s constitutional rights, if he did not violate “clearly established law”—a standard that, according to the Supreme Court, protects “all but the plainly incompetent or those who knowingly violate the law.”

The police can still make reasonable mistakes and not be sued.

Tim Miller, JD, Federal Law Enforcement Training Centers, Part IX, Qualified Immunity, https://www.fletc.gov/sites/default/files/PartIXQualifiedImmunity.pdf DOA: 10-1-16

  1. Reasonable Mistakes Can be Made

An officer can have a reasonable, but mistaken belief as to what the law requires, and still receive qualified immunity. Moreover, officers can have reasonable, but mistaken beliefs as to the facts. The following cases are illustrative:2Reasonable

2. Mistakes About the Law

The case of Garner v. Memphis Police Department,3 was part of the litigation that eventually resulted in Tennessee v. Garner. The officer relied on a state statute that authorized all necessary force to stop a fleeing felon. The Supreme Court later declared the statute unconstitutional, in so much as it authorized deadly force to stop any fleeing felon, but the officer reasonably relied upon it at the time of the shooting.

3. Reasonable Mistakes About the Facts

Officer may make reasonable, but mistaken beliefs about the facts. In Hudspeth v. City of Shreveport, for example, an officer mistook a silver object in the suspect’s hand for a handgun. It turned out to be a cell phone.

Decades of legal precedent protects the expansion of qualified immunity

ACLU Of Massachusetts, 2016, February 21, Federal appeals court’s ruling put a dent in police officers “qualified immunity” defense, https://www.aclu.org/blog/speak-freely/federal-appeals-courts-ruling-put-dent-police-officers-qualified-immunity-defense

Unfortunately, the ruling stands out. Decades of federal court precedent has made it increasingly difficult for people to hold police officers and departments accountable for actions that imperil public safety and endanger human life. That’s because of the courts’ expansion of a legal doctrine called “qualified immunity,” which holds that police officers cannot be punished — either in criminal courts or in civil litigation — when they kill or injure someone, as long as the police officer didn’t intentionally violate “clearly established law.”

In Mullenix v. Luna, the Supreme Court ruled that in order not to claim qualified immunity it would have to be established “Beyond Debate” that an officer’s action clearly violated constitutional law

Richards, Watson, and Gershon, December 7, 2015, Police officer entitled to qualified immunity unless it is “beyond debate” that conduct violated clearly established law, http://rwglaw.com/news/ealerts/ealert-71.aspx

A police officer accused of using excessive force is entitled to qualified immunity for the use of force unless it is “beyond debate” that the officer’s conduct violated clearly established law. Qualified immunity is an affirmative defense that protects police officers, and other public employees, from liability when they allegedly violate civil rights under 42 USC §1983. To defeat this important defense of qualified immunity, the United States Supreme Court has recently ruled, a plaintiff must demonstrate that the official’s action was prohibited by clearly established law. In Mullenix v. Luna, police officers in Texas attempted to execute an arrest warrant. The suspect refused to surrender and led police on a high-speed chase reaching speeds of 110 miles per hour. During the chase, the suspect told a police dispatcher that he would shoot at police officers if the officers did not abandon the pursuit. Trooper Mullenix of the Texas Department of Public Safety was one of the officers who responded. He positioned himself on an overpass. Other officers placed tire spikes on the road below. Mullenix then asked a supervisor for permission to fire at the vehicle. The supervisor replied that firing “was worth doing.” It was not clear from the evidence whether Mullenix heard the supervisor later tell him to fire only if the tire spikes did not work. Mullenix fired at the suspect’s vehicle 6 times. No shot hit the engine block of the vehicle, but 4 shots hit the suspect’s upper body and killed him. The estate of the suspect sued under 42 USC § 1983, alleging that Mullenix violated the Fourth Amendment because he used excessive force. Mullenix claimed he was entitled to qualified immunity because he did not violate “clearly established statutory or constitutional law.” The Supreme Court found Mullenix was entitled to qualified immunity from liability for the use of force. The Court noted that “when Mullenix fired, he reasonably understood [the suspect] to be a fugitive fleeing arrest, at speeds over 100 miles per hour, who was armed and possibly intoxicated, who had threatened to kill any officer he saw if the police did not abandon their pursuit…” The Court rejected the claim that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.” The Court found that uncertainty existed as to whether an officer in Mullenix’s position could use deadly force. In order to defeat qualified immunity, the plaintiff would have to prove that a reasonably competent officer would realize that their actions were illegal “beyond debate.” In this instance, however, the Supreme Court found that there was uncertainty in the law, and appellate decisions involving vehicular pursuits provided, at best, a “hazy legal background.”

The Affirmative

The Core Problem

The core Affirmative on this topic is centered around the idea that QI needs to be limited to make it easier for individuals who have had their constitutional rights violated to proceed with lawsuits against police officers. There is an assumption (implicit or otherwise) that this would make it less likely that individual polices officers would engage in unconstitutional behavior, with debaters arguing that most of this behavior is directed against minorities, particularly blacks and Hispanics.

Comprehensive statistics demonstrate that blacks and Latinos are targeted:

Bonnie, Kristian, 2014, Seven Reasons Police Brutality is Systemic, Not Anecdotal, American Conservative, http://www.theamericanconservative.com/2014/07/02/seven-reasons-police-brutality-is-systematic-not-anecdotal/ Bonnie Kristian is a writer who lives in the Twin Cities. She is a communications consultant for Young Americans for Liberty and a graduate student at Bethel Seminary

“Simply put,” says University of Florida law professor Katheryn K. Russell, “the public face of a police brutality victim is a young man who is Black or Latino.” In this case, research suggests perception matches reality. To give a particularly striking example, one Florida city’s “stop and frisk” policy has been explicitly aimed at all black men. Since 2008, this has led to 99,980 stops which did not produce an arrest in a city with a population of just 110,000. One man alone was stopped 258 times at his job in four years, and arrested for trespassing while working on 62 occasions. Failure to address this issue communicates to police that minorities are a safe target for abuse.

Blacks disproportionately killed by police

The Internationalist, Summer 2015, Killer Cops, White Supremacists: Racist Terror Talks Strike Black America, http://www.internationalist.org/killercopswstalkblackamerica1507.html DOA: 10-2-16

This tells us that 29% of those killed by police as of June 1 were black, although African Americans are only 13% of the U.S. population; that one-third of the black victims were unarmed, and two-thirds of unarmed people killed by police were members of minorities; that the average age of a person killed by police was 37, that 27% had mental health issues and 95% were men. One-third of the women were killed by police in their own home, as was Tanisha Anderson, killed by Cleveland cops only days before they shot Tamir Rice.

Massive police racism for which there is no accountability

Ta-Nehisi Coates, author, July 2015, Between the World and Me, Kindle edition, page number at end of card

I write you in your fifteenth year. I am writing you because this was the year you saw Eric Garner choked to death for selling cigarettes; because you know now that Renisha McBride was shot for seeking help, that John Crawford was shot down for browsing in a department store. And you have seen men in uniform drive by and murder Tamir Rice, a twelve-year-old child whom they were oath-bound to protect. And you have seen men in the same uniforms pummel Marlene Pinnock, someone’s grandmother, on the side of a road. And you know now, if you did not before, that the police departments of your country have been endowed with the authority to destroy your body. It does not matter if the destruction   is the result of an unfortunate overreaction. It does not matter if it originates in a misunderstanding. It does not matter if the destruction springs from a foolish policy. Sell cigarettes without the proper authority and your body can be destroyed. Resent the people trying to entrap your body and it can be destroyed. Turn into a dark stairwell and your body can be destroyed. The destroyers will rarely be held accountable. Mostly they will receive pensions. And destruction is merely the superlative form of a dominion whose prerogatives include friskings, detainings, beatings, and humiliations. All of this is common to black people. And all of this is old for black people. No one is held responsible. Coates, Ta-Nehisi (2015-07-14). Between the World and Me (p. 9). Random House Publishing Group. Kindle Edition.

The Solution(s)

Affirmative debaters can only argue for limiting qualified immunity as a solvency mechanism, but there are different standards they could argue for —

Plan — Qualified immunity needs to be replaced with strict liability

Bernick, 2015, Evan Bernick is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm, To Hold Police Accountable, Don’t Give them Immunity, https://fee.org/articles/to-hold-police-accountable-dont-give-them-immunity/ DOA: 10-1-16

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 officer’s 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. What needs to happen? Simply put, qualified immunity has to go. It should be replaced with a rule of strict liability for bona fide constitutional violations. There are a variety of possible rules. First, police officers could be held personally liable for any rights violations. They’d need to carry personal malpractice insurance, just like lawyers, doctors, and other professionals. Insurance companies are qualified and motivated judges of risk, and they would provide another reasonable level of scrutiny on police conduct, policies, and training. Second, police departments could be held liable for any rights violations by officers and punitive damages could be assessed against individual officers for particularly outrageous conduct. Third, police departments could be required to insure officers up to a certain amount — officers would have to purchase insurance to cover any costs in excess of that amount. As ambitious as these reforms might seem, never underestimate the power of widespread public outrage. In the case of Kelo, the Court’s cavalier treatment of property rights led to a number of laws protecting citizens from eminent domain abuse in states across the country. Here, too, the public can force legislators to respond. The question of how to ensure that officers exercise the authority delegated to them with the proper vigor, while also keeping them within the limits of that authority, should be left in the first instance to elected officials — subject to constitutional limits and the requirements of valid federal laws (like Section 1983). Qualified immunity enables officers to flout those limits and those laws. We must replace the judicially-invented impunity that police officers currently enjoy with a realistic avenue for the vindication of constitutional rights

Plan – don’t allow qualified immunity when officers violate departmental policy

Jason Lee Storts, August 27, 2015, The Atlantic, When Should Cops be able to use deadly force? http://www.theatlantic.com/politics/archive/2015/08/use-of-deadly-force-police/402181/

Legislatures could partially address that problem by establishing that officers will not be granted qualified immunity in wrongful-death suits when their actions violate departmental training or policy. And independent bodies whose members include community representatives could be empowered to fire officers even if they have not been found criminally culpable or civilly liable.

Other Advantages

As will be explained in the Negative section of this essay, there are a number of significant solvency problems related to the likelihood of limiting QI to restrain police behavior.

There are, however, other advantages that do not depend on the effectiveness of QI limits deterring police offers from engage in non-constitutional behavior.

Juries. Remember from our discussion above that QI prevents the case from even going to a jury, saving the police offer the cost of litigation.   This, however, removes juries from the decision-making, and juries are arguably an important part of democracy.

Philip Sheng, J.D. with Distinction, Brigham Young University, J. Reuben Clark Law School, 2012, The BYU Journal of Public Law, An “Objectively Reasonable” Criticism of the Doctrine of Qualified Immunity in Excessive Force Cases Brought Under 42 U.S.C. § 1983 http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1459&context=jpl, p. 99-103

  1. Introduction In Graham v. Connor, the United States Supreme Court announced for the first time that “all claims that law enforcement officers have used excessive force … in the course of an arrest, investigatory stop, or other “seizure’ of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness’ standard.” n1 In other words, “the question is whether the officers’ actions [were] “objectively reasonable’ in light of the facts and circumstances confronting them.”  Application of the “objectively reasonable” standard in the context of excessive force cases ought to be rather straightforward; after all, the standard is fundamental to the American legal system. For example, in tort law, juries are routinely asked to place themselves in the shoes of medical doctors, lawyers, and other professionals in an effort to determine what conduct is objectively reasonable under a given set of facts.  Likewise, in criminal law, where a defendant raises self-defense in response to a charge of murder or battery, juries must determine whether the force used was objectively reasonable in response to the perceived threat.  The inquiry is often fact intensive, and like all questions of fact, should be entrusted to the jury.  As this paper seeks to explain however, in excessive force cases brought under 42 U.S.C. § 1983, n6 the role of juries has been essentially usurped by the doctrine of qualified immunity, such that judges are deciding what is reasonable and enabling law enforcement officers to escape liability through ambiguities in the law. The Supreme Court’s attempt at harmonizing the doctrine of qualified immunity with its holding in Graham has only caused greater confusion, and the only solution appears to be eliminating qualified immunity from excessive force cases altogether. II. The Doctrine of Qualified Immunity The doctrine of qualified immunity protects government officials from civil damages under 42 U.S.C. § 1983. Its primary purpose is to allow for the dismissal of a lawsuit at the summary judgment stage, such that government officials in the course of performing their discretionary functions are not burdened by the costs of litigation or distracted from their governmental duties. n7 The leading case is Harlow v. Fitzgerald, where the Supreme Court formulated the rule that “government officials [are entitled to qualified immunity] insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” n8 What a “reasonable person would have known” is clearly a question of fact; however, the Supreme Court has turned the entire qualified immunity analysis into a question of law – decided by judges. n9 The Court did this by not focusing on the “reasonable person” aspect of the rule announced in Harlow, but rather, on the “clearly established … rights” aspect. n10 The Court instructed judges to determine whether there was a clearly established law, n11 at the time the alleged civil rights violation took place, that forbade the official’s conduct. n12 If no such law existed, the official would be presumed to have acted reasonably since the conduct at issue had not been “previously identified as [being] unlawful.”  On the other hand, if there was a clearly established law, the official would not be entitled to qualified immunity because “a reasonably competent public official should know the law governing his conduct.”  III. Excessive Flaws Harlow essentially allowed judges to determine the “objective reasonableness of an official’s conduct” solely “by reference to clearly established law.” n15 According to the Court, approaching qualified immunity in this manner would allow for many lawsuits to be dismissed on summary judgment, thus avoiding the need for trial. n16 Ironically however, Harlow was not decided on summary judgment – the qualified immunity issue was remanded back to the trial court. n17 The Court reasoned, “The trial court … is better situated to make any such further findings as may be necessary.” n18 This exposed a flaw in Harlow: If the primary purpose of qualified immunity is to allow for the dismissal of a lawsuit at the summary judgment stage, a single dispute concerning a material issue of fact will preclude summary judgment. n For example, imagine a situation where a suspect is shot multiple times by a law enforcement officer during the course of an arrest. In a subsequent civil rights lawsuit, the suspect claims that he submitted to the arrest and did nothing to provoke the officer’s attack. The officer however, claims that he feared for his life because the suspect reached for something in his pocket despite being told to put his hands up. In a situation such as this, where a government official is entitled to qualified immunity under one set of facts, but not the other, summary judgment would be precluded until the disputed facts are resolved by a jury. n20 Once a jury is summoned however, the purposes of qualified immunity announced in Harlow – to prevent government officials from being burdened by the costs of litigation or distracted from their governmental duties – are largely diminished, if not lost entirely. At this point, the officer would likely need to go through witness testimony and evidence production, which can be costly and time consuming. Moreover, particularly in excessive force cases, another potential problem arises. If a jury is summoned to resolve disputed facts for the purpose of qualified immunity, the jury will also be asked, in the interest of judicial economy, to resolve facts that go towards the merits of the excessive force claim. n21 That is, whether under Graham, the officer’s use of force was objectively reasonable. This places the jury in an exceptional position. On one hand, the jury is resolving facts for the judge to determine whether the force used was objectively reasonable – by reference to clearly established law – under Harlow, and on the other hand, the jury is resolving facts for itself to determine whether the force used was objectively reasonable under Graham and the Fourth Amendment. The result can be problematic. Recall the example used above where a suspect is shot multiple times during the course of an arrest. Imagine that after the facts are resolved by a jury, the judge determines that there is no clearly established law prohibiting the officer’s conduct, and therefore, the officer is presumed to have acted reasonably and is entitled to qualified immunity. Imagine also however, that although there was no clearly established law, the jury found that the officer’s use of force was completely unreasonable under Graham. In a situation such as this, should the officer be allowed to escape liability because there was no clearly established law, when a jury found that the amount of force used was objectively unreasonable? In other words, “can there be a reasonable use of unreasonable force?” n22 Apparently so. In fact, the example used above where a suspect is shot multiple times during the course of an arrest is taken from an actual case – Anderson v. Russell. n23 In Anderson, the suspect was walking around a shopping mall with headphones on and a portable Walkman radio tucked in his back pocket. n24 Another mall patron mistakenly believed the Walkman radio to be a handgun and notified a nearby law enforcement officer. n25 The officer observed the suspect and determined that the hard object in his back pocket (the Walkman radio) resembled the shape of a handgun. n26 Thus, the officer followed the suspect outside, drew his firearm, and instructed the suspect to get on his knees and put his hands up. n27 The suspect complied with the order, but then reached to turn off his Walkman radio whereupon the officer began firing. n28 The suspect suffered permanent injuries to his arm and leg and brought a civil rights lawsuit in the District of Maryland. n29 The facts were heavily disputed, which caused the district court to summon a jury. n30 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. n31 On the officer’s claim for qualified immunity however, the judge held that the officer’s use of force complied with his training, n32 and there was no clearly established law prohibiting the officer’s conduct. n33 Therefore, the officer was granted qualified immunity and judgment as a matter of law, notwithstanding the jury’s verdict. n34 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.” n35 As one commentator/judge explains, “Juries are in the best position to discern the truth, having heard testimony first-hand along with all the eye-twitches, sweaty brows, pregnant pauses and other non-verbal cues that accompany it.” n36 Cases like Anderson seem to ignore this importance – but courts do not have a choice. It used to be that many circuit courts refused to follow Harlow in excessive force cases to avoid a result like Anderson. n37 For instance, in a landmark case called Saucier v. Katz, the Ninth Circuit denied a police officer’s claim for qualified immunity based on the premise that the rules announced in Harlow and Graham both sought to determine the reasonableness of an officer’s conduct. n38 If material facts were in dispute, the question of reasonableness should go to the jury. n39 The Ninth Circuit reasoned that “an officer cannot have an objectively reasonable belief that the force used was necessary (entitling the officer to qualified immunity) when no reasonable officer could have believed that the force used was necessary (establishing a Fourth Amendment violation).” n40 As convincing as this sounds, the Supreme Court reversed 9-0. n41

Additional evidence on the value of juries can be found here –

Icon of Jury Nullification -- Part I -- October 2, 2015 Jury Nullification -- Part I -- October 2, 2015 -- Subscribers Only (615.0 KiB)

after his testimony before the Board was unlawful.” n68 However, the Seventh Circuit has determined that retaliating against public employees after testimony in court or at other hearings constitutes unlawful retaliation. n69

The Second Circuit has relied upon Pearson to bypass the first prong of the Saucier test and, in doing so, determined that eight Connecticut state officials did not violate clearly established law when they removed the former executive director and general counsel of the State Ethics Commission for criticizing their conduct during his disciplinary hearing. n70 In Plofsky v. Giuliano, n71 the Second Circuit bluntly stated, “Here, we exercise our discretion to move immediately to the second step of the qualified immunity analysis.” n72 Because of the short-circuited qualified-immunity analysis, the Second Circuit’s decision fails to provide future public employee litigants with a sense of where their free-speech rights begin and end in employment retaliation cases.

  1. Inmates

Perhaps because inmate litigation comprises such a sizeable portion of the dockets for federal district courts, n73 the Pearson shortcut has been embraced in these courts. Even though the Prison Litigation Reform Act n74 has made it tougher for inmates to pursue litigation, they still file a large number of lawsuits. n75 One California federal magistrate judge acknowledged this reality and stated, “And nothing we’re able to do will ever stem the tide of prisoner lawsuits.” n76

One way for courts to deal with the sheer mass of prisoner lawsuits is to handle as many cases in an expedited fashion. Enter Pearson v. Callahan and qualified immunity, as sometimes courts in inmate cases follow the traditional two-step Saucier procedure. n77 But the Ninth Circuit recently used Pearson and its grant of discretion to courts to give prison officials qualified immunity, even though they instituted an eighteen-month ban on visits from minors. n78 A federal district court also cited Pearson in finding that prison officials were entitled to qualified immunity when they denied a Muslim inmate prayer oils. n79 Another federal district court held that officials were entitled to qualified immunity over a Nation of Islam inmate’s allegations that his constitutional and statutory rights were violated by the denial of his request for a Halal meal. n80 A federal district court in Massachusetts declined to resolve the question of which constitutional standard from the United States Supreme Court should apply in a challenge by an inmate alleging he had a First Amendment right to send e-mail to family [*135] members. n81 Rather than resolving the question, the court conveniently relied on Pearson and found no clearly established right. n82

Another federal district court cited Pearson favorably in denying an inmate’s right to receive any erotic magazine subscriptions. n83 The court purported to rely on the “clearly established” prong in awarding prison officials qualified immunity, though the court seemingly did not need to do so as it had already determined there was no underlying valid First Amendment claim. n84 In another recent decision, a federal district court in Texas dismissed a prison inmate’s First Amendment retaliation claim by granting officials qualified immunity. n85 Here, the court noted the two prongs to the test for qualified immunity and maintained that, under Pearson, the court had “discretion “in deciding which of the two prongs of the qualified immunity analysis should be addressed first'” n86 The court, however, ultimately decided the case based on the “clearly established” prong. n87

As another example, a federal district court in Oregon granted qualified immunity to prison officials who censored an inmate’s outgoing letters for containing racial and ethnic slurs. n88 The court reasoned that there was no clearly established right for an inmate to send letters with such hateful language. n89

Unfortunately, many people in society do not care about prisoner rights. They reason that people that violate legal norms and harm others do not deserve the various protections the Constitution provides. n90 The sheer amount of inmate litigation, however, and the fact that there appear to be so many deprivations of First Amendment rights within the prison context, should compel the courts to more clearly articulate the parameters of constitutional freedoms. n91

QI Standards established in Pearson allows the Courts to avoid First Amendment questions

 David L. Hudson, Jr. serves as a First Amendment Scholar for the First Amendment Center (http://www.firstamendmentcenter.org). He also teaches First Amendment classes at Vanderbilt Law School and the Nashville School of Law, First Amendment Law Review. Pearson v. Callahan and Qualified Immunity: Impact on First Amendment Law, http://heinonline.org/HOL/LandingPage?handle=hein.journals/falr10&div=7&id=&page, p. 136-7

  1. The Pearson Problem

The First Amendment rights of students, public employees, and prisoners are just some areas noticeably impacted by Pearson and represent only a narrow part of First Amendment jurisprudence. The Pearson decision gives judges the discretion to avoid tough constitutional questions and decide cases based on the “clearly established” prong in other situations as well. n92 One law professor has referred to the decision as an example of “procedural judicial activism.” n93 As such, Pearson certainly gives judges more power to avoid deeper constitutional analysis and dismiss cases in a more expedited fashion; a reality especially problematic in the First Amendment arena.

Specifically, a serious problem could emerge if lower court judges regularly cite Pearson to avoid the Saucier two-prong approach. n94 Courts could simply avoid deciding important constitutional questions and the law could stagnate, as courts fail to explain when certain governmental conduct violates First Amendment and other constitutional rights. As United States District Judge Lynn Adelman and Jon Dietrich explained: While allowing courts to decide the “easy’ question and avoid the hard one might make sense from a judicial economy standpoint, it would impede the development of constitutional law. If courts regularly decided the question of immunity before determining whether the defendant had violated a constitutional right, they would establish few such rights.

Other commentators agree, writing that “there is good reason to believe that courts will generally elect to decide qualified-immunity cases solely on the basis of the “clearly established’ prong wherever possible.” This caveat applies with great force in the First Amendment context where there are so many difficult, complex and unsettled areas of law. These include:

. When does speech cross the line from protected speech into an unprotected true threat?

. When does profane speech directed at another person constitute “fighting words”?

. When can school officials punish students for off-campus speech by reasoning that such  speech might cause a substantial disruption?

. When can school officials punish students for pro-gay and anti-gay themes?

. When does a student’s insulting speech to a teacher constitute a threat or “fighting words”?

. Whether funeral protest statutes limiting the time and distance at which protests can take place are constitutional?

. Whether speech is classified as political speech or commercial speech?

Conclusion

The potential remains that federal judges will decide at least some First Amendment cases on qualified immunity grounds by deciding simply whether the right was clearly established and not address the merits of whether certain government conduct violates the First Amendment in the first place. As Professor Michael Wells stated, “First Amendment values and constitutional values in general would be better served by an approach that obliges courts to decide constitutional questions.” n105 Many courts could avoid deciding important questions of constitutional law and simply hold, “The right was not clearly established.” This could hinder the development of First Amendment law and deprive litigants of proper redress. n106 Hopefully, federal judges will take heed of Justice Alito’s recognition that the Saucier approach “is often beneficial” n107 and “promotes the development of constitutional precedent.”

Concluding Affirmative Thoughts

There is a lot of good evidence about the problem of police brutality and there is a lot of evidence about how the courts, including the Supreme Court, has interpreted the doctrine of QI in an expansive manner to protect the police. This led to the idea to argue that limits on QI would provide more deterrence, via financial penalties, for constitutional violations by police. As we shall see in the next section, the argument that limiting QI will correct police behavior will be difficult to win, but there are other advantages Affirmative debaters may want to develop

The Negative

Solvency Attacks

Depending on what advantage(s) they claim, Affirmative debaters will likely have difficulty defending their solvency. Assuming they claim a race/police brutality advantage, they will confront two solvency problems.

First, as noted above. QI is only relevant in civil trials against individual police officers.   If the police have committed a criminal act, trials still proceed. And, if a person who is the victim of police brutality/racism, sues the government, then those trials still proceed.

Second, an even bigger problem (as if the first wasn’t big enough), is that in most cases police are indemnified against liability lawsuits by the governments they work for.

Joann Schwartz, 2014, Police Idemnification, New York University Law Review, June 2014, http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-89-3-Schwartz.pdf

I found that indemnification of officers is virtually certain and universal. During the six-year period across the 81 jurisdictions, there were over 9,200 civil rights cases in which plaintiffs received payments. The total awarded was over $730 million, but there were just 37 to 39 cases in which officers contributed something. When they contributed, it was a rather small amount. The median payment was just over $2,000 by officers per case. And those could be cases where there were five- or six-figure settlements for the plaintiffs in most cases. So the officers really contributed, when they contributed—which was very infrequent—they contributed a rather small amount. No officer paid more than $25,000 in any case. The next-highest amount was $16,500, and the next amount was $12,000. And most of the amounts in most cases were far smaller. So, as you said, it was sort of what I imagined, but more. Those findings amazed me, but what I found particularly amazing was jurisdictions indemnified officers for punitive damages. Punitive damages are awarded in cases in which officers are found by a jury to have engaged in reckless conduct, intentional misconduct; and punitive damages are intended not compensate victims, but to punish wrongdoers. I found 20 cases in that six-year period, in those 81 jurisdictions, in which a jury had awarded punitive damages against one or more defendants, and the jurors awarded over $9.3 million in punitive damages in those 20 cases. In many instances those awards were reduced by the courts, often based on argument by defense counsel that the punitive damages awarded would be a financial hardship for the individual officer–but not one officer paid a nickel toward any of those punitive damages. They were either indemnified, paid by the cities and counties that employed them, or the cities and counties entered into some post-trial settlement that waived the punitive damages judgment, and essentially the city paid the entirety of the settlement—which was a settlement in the shadow of the punitive damages judgment. The other thing that I suppose really shocked me, there has been an assumption, even with people who believe that officers are usually indemnified, there’s usually some sort of caveat, that of course officers wouldn’t be indemnified if they were fired, if they were criminally prosecuted, if they were criminally convicted. What I found during my study was that in multiple instances in which officers were terminated, when they were indicted, when they were criminally prosecuted, even when they went to prison, they did not suffer these financial consequences of the suits. They were nonetheless indemnified. There are cases in which officers planted evidence. There is one case out of Atlanta where officers planted evidence in the home of a 92-year-old woman who was killed by Atlanta police officers. Officers went to prison for between five and 10 years for their conduct, but they were indemnified in the civil case. Another example out of Albuquerque: A police officer raped a woman who had called the department seeking assistance in a domestic dispute, and he was later criminally indicted for assaulting multiple women, and was sentenced to 15 years in prison. When the jury awarded $873,000 in punitive damages against this officer, for the sexual assault, the city of Albuquerque assumed those costs, indemnified the officer for those punitive damages

This is completely separate from QI.

Richard Thompson, legislative attorney, Congressional Research Service, October 30, 2015, Police Use of Force: Rules, Remedies, and Reforms, https://www.fas.org/sgp/crs/misc/R44256.pdf

Note that even if an officer is held liable under Section 1983 in his personal capacity, he may be indemnified by state or local government.177 The right to indemnification is not governed by federal law, but is a matter of state or local law

Third, if it becomes more difficult for officers to claim QI, juries will be more likely to side with the police and even more jurisdictions will indemnify law enforcement officers.

Joann Schwartz, 2014, Police Idemnification, New York University Law Review, June 2014, http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-89-3-Schwartz.pdf , Joanna Schwartz is a Professor of Law at UCLA School of Law. She teaches Civil Procedure, the Civil Rights Litigation Clinic, and a variety of courses on police accountability and public interest lawyering. In 2015, she received UCLA’s Distinguished Teaching Award. Professor Schwartz is one of the country’s leading experts on police misconduct litigation. Her studies examine the frequency with which police departments gather and analyze information from lawsuits, and the ways in which litigation-attentive departments use lawsuit data to reduce the likelihood of future harms. She has also examined the financial effects of police misconduct litigation, including the frequency with which police officers contribute to settlements and judgments in police misconduct cases, and the extent to which police department budgets are affected by litigation costs. Professor Schwartz has also looked more broadly at how lawsuits influence decision-making in hospitals, airlines, and other organizational settings. Professor Schwartz additionally studies the dynamics of modern civil litigation. Recent scholarship examines the degree to which litigation costs and delays necessitate current civil procedure rules, and compares rhetoric with available evidence about the costs and burdens of class action litigation. She is co-author, with Stephen Yeazell, of a leading casebook, Civil Procedure (9th Edition)..

Any prescriptions should also be made with the understanding that modifications to one area of the law will likely have secondary effects.256 If, for example, it became more difficult for a defendant to win a motion to dismiss on qualified immunity grounds,257 courts might create more stringent liability rules to reduce the number of successful claims; Congress might impose damages caps to reduce payouts; cities might settle fewer claims in an effort to discourage weak suits or indemnify fewer officers to reduce costs.

Additional solvency problems (as if these are not enough) are identified in the release.

Kritiks

There are a number of kritiks that are not only strong on their individual merits but are also dovetail well with the solvency arguments just discussed.

The Racist Law

There is a substantial body of literature that argues that using the law is “inherently racist.”

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Afropessimism and Black Nihilism

These kritiks argue that society is inherently racist and that the position of Blacks will not improve unless civil society is overthrown.

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Capitalism

Independent of the above kritik, there are also strong links to the Capitalism K

Tens of thousands of young people, black, white, Latino and others, and many older people as well, participated in the mass mobilizations last summer and fall. Over and over they chanted “black lives matter,” “hands up, don’t shoot” and “I can’t breathe” – slogans that reflect a sense of anguish and impotence. Many were radicalized by the experience, as they could see that Obama’s America is anything but “post-racial,” and the pretense of democracy is a cruel hoax. For that experience of activism not to turn into an exercise in frustration, like the endless antiwar marches that occur every time U.S. imperialism invades another country, it’s vital to draw the lessons of those protests – what they showed about the potential for struggle, but also what they did not, and could not, accomplish, and why not. It requires an understanding of the system of official and semi-official racist violence and murder that has characterized American capitalism ever since it solidified on the bedrock of slavery, and continues today.

Can’t solve until capitalism is overthrown

The Internationalist, Summer 2015, Killer Cops, White Supremacists: Racist Terror Talks Strike Black America, http://www.internationalist.org/killercopswstalkblackamerica1507.html DOA: 10-2-16

No amount of protest will convince the ruling class to muzzle their uniformed guard dogs, whom it requires to keep the poor and working people down. What’s needed is militant class struggle on a revolutionary program. The Internationalist Group has called for an end to all drug laws. We call forlabor/black/immigrant mobilization against police terror. We have acted to carry this out, with the unprecedented port shutdown to “Stop Police Terror” by Local 10 of the International Longshore and Warehouse Union in Oakland this past May Day, and the “Labor Against Police Murder” contingent the same day, organized by Class Struggle Workers – Portland. Bringing to bear workers’ power to stop the wheels of commerce could stay the rulers’ hand for a time. At the height of struggle one can also mobilize to get the police and military occupation forces out, as the IG called for in Ferguson last August and again in Baltimore this spring.”10 But such actions can only have a temporary effect. Ultimately, there is no solution to racist police brutality under capitalist rule: it is inherent in the system. Racist vigilantes, from George Zimmerman to Dylann Roof, act as auxiliaries. Whether in the form of slave catchers, KKK nightriders and racist sheriffs under Jim Crow, or mass incarceration combined with paramilitary police forces today, supplemented by massacres, American capitalism has always devised a way to keep its black, Latino and now increasingly immigrant wage slaves in thrall. The killer cops aren’t running amok, in contradiction to their assigned task, they’re doing their job to enforce racist “law and order” which is essential to American capitalism and has been ever since African slaves were brought here in chains. The fact that year after year, from one end of the country to the other, virtually no police are indicted – much less convicted – for killing over 1,000 civilians a year is no accident. As we wrote in The Internationalist No. 1 (January-February 1997): “Trigger-happy cops with Glocks pop anyone they consider ‘suspects’ or ‘perps,’ not to mention bystanders, subway riders, drivers who are parking, drivers who are stopped at stop lights, passengers in cars, pedestrians on the street, patrons in restaurants, young men playing football, young men outside bars, young men inside bars – particularly if the victims are black, Hispanic or Asian – as well as roaming around housing projects in off-duty vigilante squads, and not infrequently bumping off their own wives and girlfriends. They think they can get away with murder, and history – recent and past – shows they are right. Why? Because they are the enforcers of the monopoly of violence in the hands of the capitalist state, the apparatus set up to guarantee the profits and the rule of the bourgeoisie…. “To get rid of racist cop terror, you have to sweep away the system that spawns it. That system is capitalism, and what’s needed is a socialist revolution to make the working class and its allies the rulers of society.” While various pseudo-socialists are always seeking to build a new “movement,” adapting their politics to whatever is the flavor of the day, such amorphous “coalitions” always end up reducing their program to the lowest common denominator. This may at times bring many people into the street, but it cannot point the way forward to actually win. The struggle for socialist revolution requires a leadership, a multi-racial workers party with a clear revolutionary program, a party that champions the cause of all the oppressed and can overcome the rulers’ attempts to set one ethnic group against another, employed workers against the unemployed, etc. In short, we need, as we wrote in 1997, to “forge a revolutionary leadership, with a core of cadres tested in the class struggle, like the Bolshevik Party of Lenin and Trotsky which led the October 1917 Russian Revolution. ■

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Disadvantages

There is also potential for Court disadvantages. As discussed in the essay, deference to the police for QI has been established in US law, based on the Court’s reading of what is required by its interpretation of the Constitution.

If the legislature(s) were to limit QI this would not overturn these decisions. Rather, it would simply provide clarification.

If, however, the Court were to overturn its existing precedent, this could threaten the legitimacy of the Court. Since QI for police is probably politically popular (there is a widespread concern for school violence), this could result in Congress stripping the Court of some of its power, threatening judicial independence.

Anyhow, there are a number of disadvantages related to court action in this area and we have files here.

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