Qualified Immunity

Thanks, Hayd, for the debate! On to my case...I. FrameworkDifferent responsibilities yield different moral calculations. A lawyer's moral duty to his client, requires him to uphold the client's confidentiality even if that client were to confess to a crime. If that client confessed to someone who did not have this duty of confidentiality to him, however, it would not be wrong of this third party to report the confession to the police. A parent, in virtue of their special relationship to their child, has moral responsibilities to their child that they do not have for other children. It seems wrong for a parent who had the time to skip their child's graduation or to fail to help their child with homework. It would not be wrong, however, for a parent to abstain from attending the graduation of a random child or to not help that random child with homework. In a similar vein to these cases, governments have special duties of care to their own citizens, both because citizens contribute to their societies in unique ways (they pay taxes, they vote, they serve on juries, etc), which entail reciprocal obligations from the state to pay citizens back for these contributions, but also because of the more ephemeral sociocultural and moral connections that people share with their countries. It is important also to note that, in each of these three cases, failing to recognize the validity of these special obligations is highly problematic. Without attorney client privilege, the right to due process would be infringed; if parents had equal moral obligations to all children, virtually all parents living today would be behaving immoral, which is clearly preposterous; and, if government's had equal obligations to all people, (a) they could never devote sufficient resources to their own citizens and (b) would not be repaying citizens for the services they contributed to and contracted for. Therefore, the standard for this debate is simple: countries ought to do what is in the best interests of their citizens. If limiting Qualified Immunity (QI) is in the best interest of the citizens, then you ought to vote Pro.II. The PlanA. Plan Text 1. Equalizing the burdens between the police officer and the victim in QI proceedings 2. Courts erring on the side of the victims when the cases are roughly in equipoise 3. Forcing discovery to take place. Discovery is "the formal process of exchanging information between the parties about the witnesses and evidence they'll present at trial. Discovery enables the parties to know before the trial begins what evidence may be presented." [1] 4. Forcing courts to rule on the constitutionality of the police officers' actions and on the existence or nonexistence of the right(s) at issue B. TopicalityCurrently, the burden to prove that a right was clearly establish lies with the victim in QI cases, not on the police officers. [2] Also, courts are not required to make rulings on the constitutionality of a police officer's conduct and discovery is preempted by rulings in favor of the police officers [3, & see definition]. By changing these elements of QI, I limit the scope of the right to QI for police officers, making it more difficult for them to claim QI protections and curtailing some of their privileges under the status quo. Thus, the plan is clearly topical insofar as it limits QI for police officers in a number of relevant ways.III. ArgumentsA. Catch-22 "Because of the way the doctrine is structured, courts can decide an official is entitled to qualified immunity by concluding that he or she has not violated a 'clearly established' right without ever answering the question of whether his or her conduct did, in fact, violate the Constitution. This means that courts can dismiss constitutional rights claims without precisely clarifying the scope of the law." [3] "Plaintiffs cannot overcome qualified immunity unless the right they assert is clearly established. Yet if courts always avoid the underlying constitutional issues in qualified immunity cases, they will have fewer opportunities to establish clearly new constitutional rights." [4] The catch-22 is clear: if a right isn’t established, courts won’t rule on it, which prevents it from being established.Catch-22s create black holes within a system, where the rules require one to do X but simultaneously prevent one from doing X. In this quandry therefore, one can input information but receive none back, because things simply loop back on one another. Catch-22s impinge on the government's ability to effectively administer justice and protect the public by undermining the operability, credibility, and fairness of the judicial system. My plan solves for the catch-22 by forcing courts to make rulings on the constitutionality of officers' conduct and on the presence of a given right, breaking the loop.B. Transparency1. LawsuitsPolice officers often do not properly file complaints. Lawsuits are therefore necessary to expose misconduct. "The Christopher Commission that investigated the LAPD found that 'complaints of officer misconduct made by the public were often noted in daily activity logs rather than recorded in the official Personnel Complaint Form that triggers a formal complaint investigation...' DOJ investigations have revealed the same tactics used in other departments: officers improperly classify misconduct claims so that they will not be investigated by internal affairs." [5] Consider the quite reason findings of the DOJ regarding the Chicago police department. These findings detail how police misconduct was almost never investigated further, speaking to a culture of virtual nonchalance towards blatant acts of abuse. [6, 7] When lawsuits have a chance of making it to trial and perhaps result in financial pain for officers, police departments, or municipalities, lawsuits become an esp. potent tool in motivating watchdogs and officials to investigate claims of misconduct. But, when police feel that they are able to hide behind the shroud of QI, the utility of lawsuits as a means of prompting investigations diminishes, insofar as they have no teeth to them. By changing how the legal burden of proof functions and by presuming in favor of victims in close cases, my plan makes it more likely that police will face trial for credible accusations of misconduct, thereby adding "teeth" to the possibility of litigation.2. Discovery"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...Qualified immunity can cut this search for truth short." [8] By ensuring that discovery takes place, my plan makes it easier for lawsuits to uncover the facts behind each case.C. Abuse1. Near-Absolute Defense"In practice, qualified immunity provides a near-absolute defense...The Ninth Circuit has held that throwing a flash-bang grenade 'blindly' into a house, injuring a toddler, isn't outrageous enough. Just last year...the Supreme Court decided that firing 15 bullets at a motorist is a reasonable method to end the driver's flight from the police." [8] The absolutely egregious activity that QI has been used to protect clearly suggests that QI protections may be too strong. Shifting the burden of proof in QI hearings would make it harder for police to hide behind with impunity behind the QI doctrine.2. EncouragementBy allowing police officers to feel as if they have significant added protection against litigation, QI may actually reduce police officers' inhibitions against committing acts of abuse. Consider, if an officer wants to engage in a certain abusive act, and believes--whether wrongly or rightly--that QI will protect him from suit, that officer is more apt to feel able to engage in that misconduct than if they were uncertain whether QI would protect them. "[QI] that protects police officers in Illinois and elsewhere has caused some...to believe that they can act with...total immunity. They might consequently choose to shoot first and think second, acting with a level of force that is clearly out of proportion to the threat." [10] Moreover, "police brutality may also lead to police corruption. The Mollen Commission, for example, found that '[o]nce the line was crossed without consequences, it was easier [for officers] to abuse their authority in other ways, including corruption.'" [9]Keeping the QI barrier as high as it is right now for victims to climb maintains the appearance that police are immune from litigation. Only by reducing QI's protections can we begin to erode that appearance and thus strengthen the psychological obstacles which prevent police from acting inappropriately.D. LegitimacyIn order to preserve the legitimacy of not only the policy, but also the court system, it is imperative that citizens believe that misconduct in these institutions will not go uninvestigated or unpunished. "Policing the police is essential to building public trust in government and legitimating the rules of our society. Otherwise, communities, especially those of color, become fearful of the police and understandably fail to cooperate in stopping crime." [9] By making it easier for lawsuits to go to trial and for bad cops to be held accountable, my plan will contribute to greater community trust in the aforesaid organizations.IV. Sources1 - https://tinyurl.com...2 - https://tinyurl.com...3 - https://tinyurl.com...4 - https://tinyurl.com...5 - https://tinyurl.com...6 - https://tinyurl.com...7 - https://tinyurl.com...8 - https://tinyurl.com...9 - https://tinyurl.com...10 - https://tinyurl.com...Thus, I affirm. Thanks to the readers and to Hayd.