Last Edited: 11/08/2016

AFFIRMATIVE
I affirm the resolution
RESOLVED: The United States ought to limit qualified immunity for
police officers.
My value is: Retributive Justice
Defined as the appropriate just actions taken in response
to a crime
Stanford encyclopedia of philosophy, 14

(Retributive Justice Published Jun 18th 2014.

http://plato.standford.edu/entries/justice-retributive/)

The concept of retributive justice

is best
understood as that form of justice committed to the following three principles: (1) that those who
commit certain kinds of wrongful acts, paradigmatically serious crimes, morally
deserve to suffer a proportionate punishment; (2) that it is intrinsically
morally goodgood without reference to any other goods that might arise
if some legitimate punisher gives them the punishment they
deserve; and (3) that it is morally impermissible intentionally to punish
the innocent or to inflict disproportionately large punishments on
wrongdoers. The idea of retributive justice has played a dominant role in theorizing about punishment over the
has been used in a variety of ways, but it

past few decades, but many features of itespecially the notions of desert and proportionality, the normative
status of suffering, and the ultimate justification for retributionremain contested and problematic.

Also, punishment from the law is the foundation of

judicial and legal authority. Lack of punishment would
therefore be detrimental to the institution of laws.
Allen 1980

(R. E. Department of Philosophy and Classics, Northwestern University, Socrates and Legal

Obligation, pg 85)
The key lies in the nature of judicial authority.

To escape is to deny, not by word but by deed, not by

uttering negative statements, but by positive breach, the authority of the verdict and sentence. That
sentence was rendered according to law and, as legal, owes its authority precisely to that source. To
deny the authority of a given sentence so rendered is to deny authority to any sentence
rendered; but this is to deny authority to law itself, since it is to deny authority
to its application. Since the application of law is essential to the
existence of law, to act in breach of a given application is by so much
destructive of all law. Since law without application is not law, and a city

without law is not a city, the Laws of Athens claim that Socrates, if he escapes, will attempt so far as in him lies to
destroy the City and its laws. Aristotle remarks, presumably with the Crito in mind, Judicial decisions are useless if
they take no effect; and if society cannot exist without them, neither can it exist without the execution of them.
This account of judicial authority rests, then, on a universalization argument, found nowhere else in ancient
philosophy. It explains why, if this judgment as judicially rendered is not authoritative, then no judgment as
judicially rendered is authoritative. This principle, it is claimed, is fundamental to the existence of a legal system.

The escaping of law in any circumstance would imply

denial of its authority. In the context of the United States,
escaping would equate to denial of authority for local
republics, the federal government, and ultimately the
Constitution.
My criterion is: Due Process
Due process is the theory that every individual ought to
have fair treatment through a consistent legal system. Not
only does due process provide justice for victims of a crime,
but also holds criminals liable for their actions.
Blacks Law Dictonary, 14

(Black's Law Dictionary. "Due Process of Law". Page 500.

http://foundationfortruthinlaw.org/Files/Black's-Law-Dictionary-Due-Process-Definition.pdf)

Due process of law in each particular case means such an exercise of the powers of the government
as the settled maxims of law permit and sanction, and under such safeguards for the
protection of individual rights as those maxims prescribe for the class of cases to which the
one in question belongs. A course of legal proceedings according to those rules and principles which have been established in our
systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal

if that involves
merely a determination of the personal liability of the defendant, he must be brought
within its jurisdiction by service of process within the state, or his voluntary appearance.
Pennoyer v. Neff 95 U.S. 733, 24 L.Ed. 565. Due process of law implies the right of the person affected thereby
to be present before the tribunal which pronounces judgment upon the question of life, liberty, or
property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by
proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be
conclusively presumed against him, this is not due process of law. An orderly proceeding wherein a person is served with
competent by its constitution- that is. by the law of its creation-to pass upon the subject-matter of the suit; and,

notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and
determine the case.

In the context of the United States, this fair evaluation is

conducted through trial. Denial or escape of trial would denial
of judicial efforts in pursuit of justice. Ultimately, the goal of
due process is just punishment as a form of accountability.

 To clarify the round, I offer the following definitions and

observations:
Definition: Qualified immunity is the removal of legal
responsibility from civil lawsuits for police officers.
Schott, 12

(Federal Bureau of Investigator "Qualified Immunity How It Protects Law Enforcement Officers."
Sept. 2012 https://leb.fbi.gov/2012/september/qualified-immunity-how-it-protects-law-enforcement-officers)

law enforcement officers recognize the inherent risks of their

occupation, they should be comforted by the description given by the Supreme Court as to the effect of the
qualified immunity doctrine on one of those inherent risksthat of being sued civilly. InHarlow v.
Fitzgerald,the Court explained that government officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.4The plaintiff inHarlow,A. Ernest Fitzgerald,
While

sued, among others, President Richard M. Nixon and one of his aides, Bryce Harlow, alleging that he was dismissed
from his employment with the Air Force in violation of his First Amendment and other statutory rights. The
defendants sought immunity from the lawsuit. While ruling on the issue of immunity, the Supreme Court
distinguished the president from his aide. First, the Court noted that its decisions

consistently
have held that government officials are entitled tosome formof
immunity from suits for damages. As recognized at common law,
public officers require this protection to shield them from undue
interference with their duties and from potentially disabling threats
of liability.5
*Prefer this definition because it is consistently supported by court
interpretations and decisions throughout the United State judicial
system. It should be assumed then that this definition of qualified
immunity is what was intended by the text of the resolution.

Observation: Qualified immunity is based on

reasonableness. Therefore, as the affirmative, limiting
qualified immunity would imply limiting the reasonableness
standard.
Schott '12

(Federal Bureau of Investigator "Qualified Immunity How It Protects Law Enforcement Officers."
Sept. 2012 https://leb.fbi.gov/2012/september/qualified-immunity-how-it-protects-law-enforcement-officers)

The new test, as stated earlier, is that government officials performing

discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable
person would have known.9By applying the reasonable person
standard, the Supreme Court established, for the first time, a purely
objective standard to determine whether granting a government official qualified immunity was
appropriate. WhileHarlowdid not involve a law enforcement officers actions, the decision is significant because law
enforcement officers are government officials who perform discretionary functions and may be protected by

to protect all but the

plainly incompetent or those who knowingly violate the law. Stated
differently (but just as comforting to law enforcement officers), officers are not liable for
damages as long as their actions reasonably could have been
thought consistent with the rights they are alleged to have
violated.11As protective as the language in these post-Harlowcases would suggest qualified
qualified immunity. This shield of immunity is an objective test designed

10

immunity is, qualified immunity is not appropriate if a law enforcement officer violates a

clearly established constitutional right.

Contention 1: Qualified immunity allows

police officers to be violent and violate law
without accountability.
Subpoint A: Qualified immunity permits violation of rights
not clearly established, but rights nonetheless.
Senkel, 99

( Tara. Attorney in New York. Civilians Often Need Protection From the Police: Let's Handcuff Police
Brutality 15 N.Y.L. Sch. J. Hum. Rts. 385 (1998-1999). http://heinonline.org/HOL/Page?
public=false&handle=hein.journals/nylshr15&page=385&collection=journals#)

The Court went on to state that by defining the limits of the qualified immunity doctrine in
objective terms, it was not authorizing lawless conduct.228 Rather, the objective reasonableness of an official's
acts protects the public interest by discouraging unlawful conduct and compensating victims . 229

If an
official could be expected to know that an act would violate
statutory or constitutional rights, the officer should not perform the
act, and if a person was injured by the act, that person should have
a cause of action. 230 However, if the official's duties require action
be taken in which clearly established rights are not involved, "the
public interest may be better served by action taken 'with
independence and without fear of consequences.'

Also, cases of excessive force have been denied trial by

jury through the grant of qualified immunity.

Sheng 12,

(Philip. Professor at BYU. 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 Available at:
http://digitalcommons.law.byu.edu/jpl/vol26/iss1/5)

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." 1 In other words, "the question is whether the officers' actions
[were] 'objectively reasonable' in light of the facts and circumstances confronting thcm." 2 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 arc 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. 3 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.4 The inquiry is often fact intensive, and like all questions of fact, should be entrusted to the jury. 5 As this
paper seeks to explain however,

in excessive force cases brought under 42 U.S.C.

1983,6 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.
In the status quo, the reasonableness basis for qualified
immunity prevents the violation of rights to be reviewed by a
trial. The lack of due process for these crimes puts police
officers above the law and jeopardizes the authority of law
overall.
Subpoint B: The clearly established doctrine of
qualified immunity allows police officers to bypass the jury.

Wright, 15

(Journalist and PHD in Law. "Want to Fight Police Misconduct? Reform Qualified Immunity."
http://abovethelaw.com/2015/11/want-to-fight-police-misconduct-reform-qualified-immunity/)
In order to truly hold police accountable for bad acts, civilians must be able to bring, and win, civil
rights suits themselves not rely on the Department of Justice, or special prosecutors, or civilian
review boards to hold officers accountable. And in order to both bring and win civil rights suits, civilians need

Right now, they dont have one. Instead, police officers have
recourse to the broad protections of the judicially established doctrine of qualified
a level playing field in court.

immunity. Under this doctrine, state actors are protected from suit even if
theyve violated the law by, say, using excessive force, or performing an unwarranted body cavity
search as long as their violation was not one of clearly established
law of which a reasonable officer would be aware. In other words, if
theres not already a case where a court has held that an officers
identical or near-identical conduct rose to the level of a
constitutional violation, theres a good chance that even an
obviously malfeasant officer will avoid liability will avoidaccountability. To
bring about true accountability and change police behavior, this needs to
change. And change should begin with an act of Congress rolling back qualified immunity.
Removing the clearly established element of qualified immunity would
be a good start after all, shouldnt it be enough to deviate from a basic standard of care, to engage in conduct
that a reasonable officer would know is illegal, without having to show that that conducts illegality has already
been clearly established in the courts?

In the status quo, civil cases brought against police

officers only go to trial of it is relevant to an established
decision in the past. In this sense, charges against police
officers bypass the jury, thus denying due process of law.