Core File — Wave I
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Qualified Immunity. This provides a basic overview of QI and the burdens or proof associated with it. It is written by an attorney who trains law enforcement officers.
Qualified Immunity. This is a very basic explanation of QI by the Cornell Legal Information Institute
Officers protected by qualified immunity unless it is “beyond debate” that their actions violated the law. This brief article explains how in In Mullenix v. Luna, a recent Supreme Court case, the 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.
Additional links related to this court case are available at the bottom of the bibliography and the first link under “Supreme Court” is to a law review article that explains other Supreme Court cases that expanded the QI doctrine.
Supreme Court clarifies standard for qualified immunity — or does it? This article briefly covers the pros and cons of QI as well as explains how QI has been expanded in to cover the expansion of private contractors who are working for the government in areas such as private prisons — see Filarski v. Delia (2012). The article initiates a discussion of certain circumstances where private actors were acting as government agents were protected by QI and other instances where they were not, creating a “gray” and “murky” area of the law.
Judges are thinking more about qualified immunity. This article discusses Pratt — a district court case — where the author credits a dissent by a conservative judge in a case regarding whether or not a police officer should have received qualified immunity to the influence of the Black Lives Matter movement.
QI — Still crazy after all these years. This article discusses all of the significant cases related to qualified immunity.
We must make the police pay. This is an interview with a law professor who wrote an article about a study she did on qualified immunity. She also discussed how local jurisdictions explicitly idemnify officers against suits, making financial penalties difficulty to establish.
See Joanna C. Schwartz, What Police Learn from Lawsuits, 33 CARDOZO L. REV. 841, 863–64 (2012) (citing a Bureau of Justice statistics report in support of the conclusion that people who believe they have been mistreated by the police sue only approximately 1% of the time, and offering reasons why this might be the case).
Police use of force: Rules, remedies, and reforms. This Congressional Research Service report covers different measures that have been proposed to limit the use of deadly and otherwise aggressive force by police, particularly that targeted at minorities. The report does cover qualified immunity, but it also covers a number of other proposals.
Qualified Immunity — How it protects law enforcement officers. The article has a slight negative slant, but it is more useful as an excellent overview of QI, covering its beginnings to the particular standards that govern it.
Supreme Court’s quiet expansion of qualified immunity. This is an excellent 2016 law review article that covers how the US Supreme Court has broadened the qualified immunity doctrine in many different ways to make it easier for government officials to be protected by qualified immunity.
Court gives police officers qualified immunity. This article discussed the Messerschmidt v. Melinder case where the court ruled officers have QI unless they are “plainly incompetent.” In a previously case, Malley v. Briggs, it was found that officers in similar circumstances were not protected.
Stanton v. Sims: A new standard for qualified immunity? This article discusses some other pre-Messerschmidt Supreme Court cases related to QI:
Another limitation, found in Harlow v. Fitzgerald, is the availability of qualified immunity which protects government officials (including police officers) from liability for civil damages insofar as their conduct does not violate “clearly established federal statutory or constitutional rights of which a reasonable person would have known.” If the law is not clearly established, the actor could not have had notice his conduct was unconstitutional. It would thus be unfair to impose liability on actors who can only guess as to the constitutionality of their conduct. The idea is to insulate those who reasonably made the wrong prediction.Ashcroft v. Al-kidd stated sources of “clearly established” rights include the US Constitution and very factually similar precedent case law. To ensure officers have “fair and clear warning” of what the Constitution requires, according to States v. Lanier, he or she will only be held to the standard of “clearly established” law in his or her own jurisdiction.
It also discusses problems with extending the “plainly incompetent” standard established in Stanton:
Before Stanton, the established inquiry of qualified immunity, found in Anderson v. Creighton, was not just whether the law was “clearly established” but also the “objective legal reasonableness” of the action. A defendant will be immune from liability only if no objectively reasonable officer could have believed his conduct was lawful or constitutional at the time the violation occurred. Malley v. Briggs, only in dicta, noted that the policy behind the “objective legal reasonableness” standard gives officers “breathing room to make reasonable but mistaken judgments about open legal questions,” such that “[w]hen properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.” Stanton ignores the well-established “objectively reasonable” standard and seizes on the dicta statement ofMalley, holding, (quoting Malley): “Stanton may have been mistaken in believing his actions were justified, but he was not ‘plainly incompetent.'” This holding sets a new standard: an officer will lose his immunity only if he was “plainly incompetent” in believing his conduct did not violate clearly established law….
Did Stanton lower the floor on qualified immunity standards? Because one could act unreasonably, but still be competent, plaintiffs will have greater difficulty in overcoming the qualified immunity bar to liability. As notedby Law Professor Howard Wasserman (author of the leading treatise on §1983 litigation, Understanding Civil Rights) in “The Rhetoric of Qualified Immunity”, a “‘plainly incompetent’ standard seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as ‘plainly incompetent.’ If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because … no court wants to sign onto calling police officers names or questioning their integrity and ability.”
But Stanton might also harm defendants and undermine the policy goal of quick disposition of unmeritorious claims. While the pre-Stanton standard was “objectively reasonable,” the “incompetent” standard underStanton is subjective, which involves factual questions. This precludes quick disposition via summary judgment or 12(b)(6) motion, since litigants will be unable to prove until much later in the factual development of the case whether the defendant is entitled to qualified immunity. This brings added expense, less predictability, and greater disruption to officials and government – the same concerns the Harlow “objectively reasonable” standard was created to extinguish; per Malley: it was “specifically designed to avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.”
Negative — Limiting Qualified Immunity Won’t Solve
Police Idemnification. This article argues that police will be idemnified from payments even if they lose a civil suit. So, even if QI is eliminated, all suits go forward, and police lose the suits, they will still hardly ever pay. This largely eliminates the deterrent benefit of limiting QI. What is interesting is that the author concludes, “Qualified immunity should be eliminated or restricted to comport with this evidence unless and until an alternative, empirically grounded justification can be offered for the defense,” because it has no impact on way or another on police behavior.
This rationale could create a “tricky” affirmative case, where a team claims that QI has no impact on police misconduct but that it is confusing and leads to poor litigation —
Evidence of widespread indemnification also has implications for the litigation of civil rights damages actions. Anecdotal evidence suggests that government attorneys may use the possibility that officers will not be indemnified to their advantage during settlement negotiations, trial, and post-trial proceedings. Civil rights litigation practice— like civil rights doctrine—should not rely on flawed assumptions about the likelihood of indemnification. Accordingly, plaintiffs should be allowed to counter the strategic use of possible indemnification denials with evidence of widespread indemnification. For example, assuming punitive damages doctrine does not change,310 evidence of indemnification practices should play a larger role in trial and post-trial decisions in ways that would prevent government attorneys from misleading judges and jurors about who will satisfy punitive damages awards.311 Current law prevents plaintiffs’ attorneys from unilaterally introducing evidence of governments’ indemnification practices.312 Yet courts have also concluded that if a defendant seeks to introduce information about his financial resources—as though to suggest that he will be responsible for the judgment—the door is opened to discovery and possible admission at trial of evidence about indemnification practices.313 As Judge Posner explained in a Seventh Circuit decision: “The defendant should not be allowed to plead poverty if his employer or an insurance company is going to pick up the tab.”314 At each stage of litigation, courts have allowed evidence of indemnification to counter evidence suggesting that an officer will personally satisfy a punitive damages judgment. In one civil rights action brought against a New York City police officer, the City objected to the plaintiff’s request for discovery about the City’s prior decisions to indemnify punitive damages judgments.
Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV. 453, 473 (2004) (“Individual officials, however, almost never reap the financial consequences of § 1983 suits that are brought against them because the government handles their legal defense and indemnifies them for any damages assessed against them.”);
Richard Emery & Ilann Margalit Maazel, Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution, 28 FORDHAM URB. L.J. 587, 590 (2000) (“[P]olice officers almost never pay anything out of their own pockets to settle civil lawsuits. Nor do they pay for judgments rendered after jury verdicts for plaintiffs.”)
Martin A. Schwartz, Should Juries Be Informed That Municipality Will Indemnify Officer’s § 1983 Liability for Constitutional Wrongdoing?, 86 IOWA L. REV. 1209, 1217 (2001) (“States and municipalities often indemnify officers found personally liable for compensatory damages under § 1983.”).
Carol A. Archbold & Edward R. Maguire, Studying Civil Suits Against the Police: A Serendipitous Finding of Sample Selection Bias, 5 POLICE Q. 222, 226 (2002) (describing studies of the levels of “litigaphobia” experienced by police officers and chiefs, finding that fear of lawsuits won’t change behavior).
Studies have found that “the prospect of civil liability has a deterrent effect in the abstract survey environment but that it does not have a major impact on field practices.”281 — VICTOR E. KAPPELER, CRITICAL ISSUES IN POLICE CIVIL LIABILITY 7 (4th ed. 2006) (citing several studies); see also Arthur H. Garrison, Law Enforcement Civil Liability Under Federal Law and Attitudes on Civil Liability: A Survey of University, Municipal and State Police Officers, 18 POLICE STUD. INT’L REV. POLICE DEV. 19, 26 (1995) (finding that 62% of a sample of fifty officers from state, municipal, and university law enforcement agencies in Pennsylvania believed that civil suits deter police officers, but 87% of state police officers surveyed, 95% of municipal police officers surveyed, and 100% of university police officers surveyed did not consider the threat of a lawsuit among their “top ten thoughts” when stopping a vehicle or engaging in a personal interaction); Daniel E. Hall et al., Suing Cops and Corrections Officers: Officer Attitudes and Experiences About Civil Liability, 26 POLICING: INT’L J. POLICE STRATEGIES & MGMT. 529, 545 (2003) (surveying sheriff’s deputies, corrections officers, and municipal police officers in a southern state and concluding that “most public safety officers are not impacted on a day-to-day basis by the threat of civil liability”); Tom “Tad” Hughes, Police Officers and Civil Liability: “The Ties that Bind”?, 24 POLICING: INT’L J. POLICE STRATEGIES & MGMT. 240, 253 (2001) (reporting that a survey of Cincinnati police officers revealed that most officers “think civil liability impedes effective law enforcement” but that most do not “consider liability concerns when stopping a citizen”)
Negative – Counterplans
Qualified immunity and constitutional norm generation This article argues for the expanded use of civilian review boards to compensate for qualified immunity: This Note is founded on a simple premise: The vindication of constitutional rights is a critical aspect of police regulation. By recognizing a federal cause of action against officers who violate the constitutional rights of civilians, and conferring a defeasible form of immunity on officer-defendants, the Supreme Court has indicated that individual constitutional rights deserve protection in the courts of the United States. Despite the Court’s repeated affirmation of the importance of constitutional articulation, however, the process of elaborating constitutional rights through decisional law faces a grave challenge in the form of Pearson discretion. This Note seeks to use one of the existing tools of police regulation—civilian external investigatory oversight—to surmount this challenge, recognizing that the necessary legal foundations are already in place and the vital work on the ground is already in progress across the nation. One word of caution: Although the proposal advocated by this Note represents one response to the modern qualified immunity dilemma, and one uniquely responsive to the Court’s Fourth Amendment demands, it addresses only one fragment of the law of the police. Police regulation, no less than constitutional articulation, requires a creative, multifaceted approach—one sensitive to the strengths and weaknesses of both existing and prospective regulatory tools.
Negative — Policing Disadvantage
Qualified immunity decision is huge for cops. This brief article explains why QI is important to helping police do their jobs but that the courts will not find police have it when they have abused their power.
Negative — Harms Answers
Appeals court ruling put a dent in qualified immunity. Although this article concludes that QI is bad, I put it with the Negative because the article discusses how a district court has limited QI in an accidental shooting case (harm answer) but also because there is evidence that QI is supported by decades of court precedent (Court disadvantage links).
Eleventh circuit finds police not entitled to qualified immunity. This is another article that explains an instance in which a court (the eleventh circuit, in this case) found that QI didn’t protect a shooting by a police officer.
Negative — Capitalism K
Killer cops, white supremacists. This article argues police brutality can’t be solved until capitalism is overthrown.
Negative — Reform Counterplans
For Community Review Boards. This article provides a basic outline for civilian review board.
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
The shooting of Michael Brown by a Ferguson, Missouri police officer in the summer 2014 served as a flashpoint for this debate,4 but it is just one in a spate of recent law enforcementrelated deaths. 5 These deaths, and others, have prompted a call for legal accountability against the officers involved in these killings, but also, more broadly, for systemic police reform on both the federal and state level. President Obama responded by establishing the Task Force on 21st Century Policing in December 2014 to develop best policing practices and recommendations.6 The task force’s final report issued in May 2015 offered a set of policy recommendations focused on training, investigations, prosecutions, data collection, and information sharing. Similarly, the
House Judiciary Committee held a hearing on policing strategies on May 19, 2015, and various measures have been introduced in the 114th Congress to address both use of force tactics and data collection by state and local police departments. The public, too, has been thoroughly engaged on this issue. “Black Lives Matter,” a movement that sprung up in response to the Treyvon Martin shooting and other police-related deaths, has recently released an initiative called “Campaign Zero,” which contains a set of policy proposals to limit police use of excessive force, including a call for a national standard governing the use of deadly force and better reporting requirements on instances of excessive force by law enforcement officers
FINAL REPORT, THE PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING (2015), available at http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.
Policing Strategies for the 21st Century, Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2015), available at http://judiciary.house.gov/index.cfm/hearings?ID=9F5ABE57-E0F0-468E-9B79-F9DFDC448E11.
Campaign Zero, Limit Use of Force (last visited Sept. 28, 2015), http://www.joincampaignzero.org/force
Affirmative — General
Want to reform police misconduct? Reform qualified immunity. This article argues that limiting qualified immunity is essential to stopping police misconduct. It also discusses other reform proposals such as body cameras and argues that those measures are inadequate — that perhaps they should be adopted by that QI also needs to be adopted.
To hold police accountable, don’t give them immunity. In addition to providing very useful background information, this article argues qualified immunity should be replaced with strict liability.
Excessive reasonableness. This article argues for limiting QI:
This Article examines a crucial flaw in the qualified immunity doctrine and explains how it results in overprotection of defendants from liability. When qualified immunity is applied in a Fourth Amendment excessive force case, the defendant, typically a police officer, is protected from liability by two layers of reasonableness. First, qualified immunity absolves an individual government agent from liability under 42 U.S.C. § 1983, notwithstanding his violation of a constitutional right, if his actions were “objectively reasonable.” Second, the agent is likewise absolved from liability under the Fourth Amendment itself if the amount of force used was “objectively reasonable.” When these two doctrines converge, an almost impenetrable barrier to liability results. Although the Supreme Court has repeatedly tried to resolve conflicts inherent in the qualified immunity doctrine, most recently in Pearson v. Callahan, the excessive reasonableness in the qualified immunity regime, and the excessive force that is its practical consequence, remain.
Qualified immunity and the police state. This article argues that QI has made it impossible to sue police, creating a police state.
Living a lie: The cost of qualified immunity: I conclude that the qualified immunity doctrine’s usefulness is outweighed by the cost paid in the coherent development of civil rights law. Decisions concerning the direction of civil rights liability are being made but are not being acknowledged as such. Rather than continue this charade, the development of civil rights law would be better served by a more open judicial or legislative discussion of the policy choices that must be made.
This article is older (1999), but the general arguments against QI made in in the article are still relevant.
Seven reasons police brutality is systemic. This article outlines the widespread nature of police brutality and argues it can be cured by measures like body cameras, coupled with measures to limit immunity.
Capricious standards governing police use of deadly force. This long article generally discusses the problem of holding police accountable when the use of deadly force is questionable. There are two paragraphs of advocacy for limiting qualified immunity when officers violate department policy (instead of just if they violate clearly defined constitutional rights, which is the status quo)
Poisonous cops, total immunity. This article has a great title, but it is of mediocre utility. It simply highlights the number of times governments have paid to cover lawsuits against police and it explains that police rarely pay. It does not, however, claim that limits on QI would either increase the amount of money that police pay or that increasing payments would deter police.
Aaron Belzer (2012) Denver University Law Review, The audacity of ignoring hope: How the existing qualified immunity analysis leads to unmediated rights. This article, though perhaps too legally detailed for the purpose of debates, offers some particular standards that can be utilized to protect a plaintiff’s right to sue when it is obvious a constitutional violation has occurred but the two prongs of the QI test can’t be met.
Affirmative — Limiting Qualified Immunity Deters Police
Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1675 n.389 (2003) (“For correctional officers, probably the most significant consequence of being sued is the need to give explanations to would-be creditors.” (citation omitted));
H. Allen Black, Note, Balance, Band-Aid, or Tourniquet: The Illusion of Qualified Immunity for Federal Officials, 32 WM. & MARY L. REV. 733, 752 (1991) (arguing that being named a defendant may “hamper defendants’ efforts to obtain loans” and “keep defendants from disposing of certain real property”).
Affirmative — Jury Trials
An “Objectively Reasonable” Criticism of the Doctrine of Qualified Immunity in Excessive Force Cases Brought Under 42 U.S.C. § 1983. This law review article contends that QI is problematic because it allows a judge to determine if the police acted improperly based on established law rather than allowing juries to make the determination. It argues that strong juries are an essential component of American democracy.
The reform proposal is for juries to evaluate the facts and then for judges to make a determination of the reasonableness of the claim:
In light of the confusion after Saucier, Hope, and Brosseau, the Court should consider reformulating the doctrine of qualified immunity, at least in the context of excessive force cases. The Ninth Circuit’s approach in Saucier was persuasive – recognizing that Harlow and Graham are substantially the same inquiry and denying qualified immunity in favor of the jury deciding the question of reasonableness. Apparently however, the Supreme Court felt that this approach did not provide law enforcement officers with sufficient protection for reasonable mistakes. One explanation could be that the Court is wary of juries having to apply a constitutional standard on a consistent basis. If that is the case, the following approach could be a reasonable alternative to qualified immunity in excessive force cases. A better approach might be to eliminate qualified immunity altogether in excessive force cases; but rather than create a whole new test, the Court should remove the question of reasonableness from the jury and allow judges to decide whether the use of force was objectively reasonable. Under this approach, jury interaction would remain much the same, except that after all the facts are resolved, the judge would decide the ultimate constitutional question of reasonableness based on the jury’s findings. While this would be a departure from settled practice, it appears to have an adequate basis in the law. For instance, trial court judges already decide the question of reasonableness on motions for summary judgment whenever facts are undisputed or viewed in the light most favorable to the plaintiff. n83 Moreover, appellate judges routinely decide the question of reasonableness every time an excessive force case goes on appeal. n84 Judges are well-equipped, yet it seems odd that the constitutional question of reasonableness only goes to the judge when facts are not in dispute, but at all other times, is entrusted to the jury. It would perhaps make better sense to have the jury resolve the facts, and have the judge decide the question of reasonableness based on those facts. There are several benefits to this approach. First, it would eliminate the need for line drawing between Hope and Brosseau, and courts would not have to worry about clearly established law. Second, the Court could retreat from its “irreducibly murky” distinction between Graham and Harlow. If applied judiciously, Graham alone provides law enforcement officers with adequate protection for reasonable mistakes. Third, even though they would be denied qualified immunity, law enforcement officers would benefit by having judges decide the constitutional question of reasonableness. Judges are in a better position to decide constitutional questions, having been trained in the law and having developed expertise through experience. This approach would also eliminate potential jury bias. While jury bias can cut both ways, n86 consider the case of Jared Massey, a YouTube sensation and public hero after being Tasered by a Utah Highway Patrol officer in 2007. Despite an internal investigation clearing the officer, the state settled for $ 40,000 rather than risk a jury awarding more. Fourth, the approach would serve the same purposes as qualified immunity by allowing claims to be decided early on summary judgment. If no material issues of fact remain in an excessive force case, instead of looking to see whether there is a clearly established law, the judge would simply decide the case. This would not be an unprecedented expansion of judicial power; as mentioned above, our legal system already allows judges to do this in a variety of circumstances. Lastly, the approach would keep judges honest by holding them to the Fourth Amendment standard. Granted there is still flexibility for judges to decide cases based on their own personal ideologies, but the amount of discretion is far less than what the current doctrine of qualified immunity allows.
Affirmative — Gay Rights
Are gay rights clearly established? The problems with the qualified immunity doctrine. This law review article contends that since gay rights have not been clearly established by many courts in particular instances that qualified immunity limits the ability of gays to recover for constitutional violations by government employees.
Keeping the closets in our classrooms: How the qualified immunity test is failing LGBT students. This article makes a similar claim to the one above– since rights for LGBT students are not clearly established, current QI standards make it difficult for them to gain redress for rights violations.
Affirmative — Constitutional Avoidance
In Pearson v. Callahan (see below), the Supreme Court ruled that in order to establish if QI should apply that the courts only have to determine if knowledge of a particular constitutional rule is likely to be well-known, not if an actual constitutional violation occurred. This take has been criticized as “constitutional avoidance.”
Jack M. Beerman, Qualified Immunity and Constitutional Avoidance, Working Paper (2010).
Goutam U. Jois, Pearson, Iqbal, and Procedural Judicial Activism, 37 Fla. St. U. L. Rev. 901, 901 (2010).
Lynn Adelman & Jon Dietrich, Saying What the Law Is: How Certain Legal Doctrines Impede the Development of Constitutional Law and What Courts Can Do About It, 2007 Fed. Cts. L. Rev. 87, 96 (2007). (gated, but access available through Hein Online for NSDA members)
Affirmative debaters may want to argue for limiting QI by having the courts also review the actual constitutional question and claim that constitutional avoidance is bad as an advantage.
Qualified Immunity and the First Amendment Right to Record Police. This law review article contends that qualified immunity means that it is difficult for those who record police to seek financial relief when police harass them and inapropriately apply the law against them. It is potentially a strong affirmative article/advantage area, but the problem can also be solved (as is made clear in the article) by having the courts clarify that there is a First Amendment right to record police.
Pearson v. Callahan and Qualified Immunity: Impact on First Amendment Law. This article details the many ways that QI is used to protect government actors from suits when First Amendment rights have been violated. It also addresses the question of constitutional avoidance discussed above in the context of the first amendment. gated, but access available through Hein Online for NSDA members)
An Unqualified Applicant: The Inequitable Application of Qualified Immunity to Bail Bondsmen in Light of Filarsky v. Delia and Gregg v. Ham. This article explains that individuals who are paid entirely from private sources (private prison guards, bail bondsman) are not entitled to qualified immunity. I’m not yet sure how to work thins into your debates, but I thought I’d include the reference here in case it becomes relevant.
Mullenix v. Luna (2015) In this recent Supreme Court case, the 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. Links to Luna Supreme Court briefs and district court decisions. One district court decision.
Messerschmidt v. Melinder (2012) case where the court ruled officers have QI unless they are clearly incompetent
Brusseau v. Haugenn. Another case where the Supreme Court found in favor of a broad interpretation of qualified immunity.
Pearson v. Callahan (1992) In Pearson v. Callahan, the U.S. Supreme Court altered the contours of the qualified immunity defense with the intention of changing when and how federal courts make constitutional law. Qualified immunity is the primary defense to constitutional torts against government officials. Before Pearson, courts were required to determine if an official had violated a constitutional right even when that official was already protected by qualified immunity. After Pearson, courts now have the discretion to avoid such constitutional determinations when an official has qualified immunity (Rolfs, 2011).
Colin Rolfs, Note, Qualified Immunity After Pearson v. Callahan, 59 UCLA L. REV. 468, 478-79 (2011).