AT Court Clog Non-unique – tons of cases brought against officers every year Hassel 09 Diana Hassel, Professor, Roger Williams University School of Law. B.A., 1979, Mount Holyoke College; J.D., 1985, Rutgers University School of Law at Newark. “Excessive Reasonableness.” 43 Ind. L. Rev. 117 [Premier] In the thousands of excessive force cases that have followed Graham, courts have analyzed the question of what is objectively reasonable. Most recently, in Scott v. Harris, the Court emphasized that in determining whether the Fourth Amendment was violated there is no avoiding the necessity of "slosh[ing] our way through the factbound morass of 'reasonableness.'" The cases analyzing the excessive force standard have arisen in a variety of factual scenarios, including: termination of high speed chases, shootings, use of restraints, beatings, and use of police dogs. Actions based on excessive force are some of the most common civil rights claims and consume a large portion of federal courts' § 1983 docket. Article: Excessive Reasonableness, 43 Ind. L. Rev. 117 *
Generic Solvency Advocate Congress should roll back qualified immunity to increase accountability and change police behavior Wright 15 Sam Wright, public interest lawyer, “Want to Fight Police Misconduct? Reform Qualified Immunity” 11-3-15, [Premier] Instead, police officers have recourse to the broad protections of the judicially established doctrine of qualified immunity. Under this doctrine, state actors are protected from suit even if they’ve 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 there’s not already a case where a court has held that an officer’s identical or near-identical conduct rose to the level of a constitutional violation, there’s a good chance that even an obviously malfeasant officer will avoid liability — will avoid accountability. 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, shouldn’t 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 conduct’s illegality has already been clearly established in the courts?
Legal Certainty Key Only legal uniformity can guarantee a right to record; uncertainty over “clearly established” rights creates a chilling effect Slaughter 15 Matthew Slaughter (Law clerk to the Honorable Karen L. Hayes of the United States District Court for the Western District of Louisiana). “First Amendment Right to Record Police: When Clearly Established is Not Clear Enough.” John Marshall Law Review. Volume 49, Issue 1, Article 4. Fall 2015. http://repository.jmls.edu/cgi/viewcontent.cgi?article=2437&context=lawreview [Premier] All courts have held there is a right to record police activity in public, and that a reasonable restriction on this right exists. First Amendment jurisprudence supports the recognized right to film police activity as articulated by the circuits. Some commenting circuits have held the right is clearly established, while others have declined to extend their holdings so far. Practically, citizens are restrained from freely exercising their right to film police activity in public even in circuits that have found the right clearly established. Because reasonable restrictions have not yet been clearly articulated, citizens have the recourse to film the police and merely hope that their unique situation is afforded First Amendment protections. Such uncertainty will inevitably lead to a chilling effect on the protected activity and encourage police officers to continue to limit the right to film police in public. The police could also potentially be liable for civil rights violations and a citizen may have to deal with the unflattering prospect of being detained or even arrested for this activity. A national standard could alleviate the confusion and issues for both citizens and police alike. The standard should affirmatively memorialize such a right, as well as articulate objective reasonable restrictions to prevent a chilling of a citizen’s exercise of valid First Amendment conduct.
Intentionality The court intentionally decided that the protections of officers matter more than rights of the people, Reinhardt 15 Stephen R. Reinhardt, (Circuit Judge, United States Court of Appeals for the Ninth Circuit.) The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219 (2015). Available at: http://repository.law.umich.edu/mlr/vol113/iss7/3 [Premier] As in the habeas context, the doctrinal evolution of qualified immunity¶ was not inevitable; it was the product of a conscious choice to exempt constitutional¶ violations from civil liability because of a concern over other¶ lesser values. Here, the Court was purportedly concerned that officers not¶ face litigation and, ultimately, harsh financial consequences for mistakes¶ made in the line of duty. As a practical matter, this justification is based on a¶ false premise—that officers would pay for the liability they incur in civil¶ rights suits. As explained above, indemnification agreements generally shield¶ officers from any monetary harm. To the extent, however, that qualified immunity¶ serves a justifiable purpose of protecting officers from undergoing¶ litigation for innocent, reasonable mistakes, even in the absence of any risk¶ of financial liability, that purpose does not justify the Court’s extreme construction¶ of the qualified immunity doctrine—a construction that has once¶ again exalted a lesser concern over the protection of constitutional rights.
Fairness Juries avoid unfairness arising from factual ambiguity Ignall 94 David J. Ignall (Associate, Wiley, Rein & Fielding, Washington, D.C. J.D., The College of William and Mary, 1991; B.A., Cornell University, 1987). “Making Sense of Qualified Immunity: Summary Judgment and Issues for the Trier of Fact.” California Western Law Review: Vol. 30: No. 2, Article 2. (1994). http://scholarlycommons.law.cwsl.edu/cwlr/vol30/iss2/2 [Premier] If the court denies summary judgment to the defendant because the plaintiff has produced sufficient evidence to create an issue of fact on qualified immunity, the defendant has effectively lost much of the protection of qualified immunity. Nonetheless, the standard for summary judgment precludes the court from preventing the case from going to trial because the court may not resolve genuine issues of material fact on a motion for summary judgment." The defendant should nonetheless be allowed at trial to raise the defense of qualified immunity. Some courts apparently disagree with this proposition. 4 If the defendant cannot raise the defense of qualified immunity at trial, he risks having judgment entered against him on the merits even if the evidence at trial fails to show that the defendant violated a clearly established right of which a reasonable person would have known, but merely creates a question for the jury concerning liability. To avoid this potential unfairness, the court must determine whether the evidence adduced at trial, when viewed in the light most favorable to the plaintiff, would entitle the plaintiff to judgment as a matter of law as the law existed at the time of the alleged violation; if not, the judge should enter judgment based on qualified immunity. The problem arises if the evidence of whether defendant's conduct was egregious enough to violate a clearly established constitutional right remains disputed at the end of the trial. 1 There are a number of possibilities in this situation: the judge could resolve the factual disputes that concern qualified immunity, the jury could resolve-with special interrogatories-the factual issues about both qualified immunity and the merits, the jury could resolve the merits without any consideration of qualified immunity, or the jury could be instructed only on qualified immunity.
Alternatives Fail Alternatives to QI wouldn’t solve. The state would create new legal checks to avoid being a lightning rod for lawsuits King 16 Andrew King (Assistant Prosecuting Attorney). “Keep Qualified Immunity… For Now.” Mimesis Law. 1 July 2016. http://mimesislaw.com/fault-lines/keep-qualified-immunity-for-now/11010 [Premier] Finally, that brings us back to qualified immunity. If you get rid of qualified immunity, then you’ll simply have to create another screening mechanism. Governments are usually well-insured, often typically risk adverse, and can perpetually refill the treasury through taxes—so long as taxpayers stay put, anyhow. This makes them tempting defendants, as impecunious defendants usually are not sued. On top of that, a defendant who prevails in a civil rights action usually gets attorney’s fees awarded. Mostly, but for qualified immunity, it’s a bonanza for plaintiff’s lawyers.
CP – Insurance Don’t increase liability for officers; instead give victims a remedy in the form of comprehensive insurance for officer misconduct Kirby 90, Kirby, John D. (Kirby graduated cum laude from Cornell Law School and is currently an attorney in San Diego.) "Qualified Immunity for Civil Rights Violations: Refining the Standard." Cornell Law Review 75.2 (1989-1990): 461-495. [Premier] The requirement' 90 that state and federal governments provide¶ insurance or indemnification for certain categories of officials would¶ add a significant extra cost to the system. However, if the rationale¶ for protecting public officials from civil rights damages is that it is¶ the necessary price of effective government, 19' it would be more¶ equitable to spread this cost throughout society by requiring state¶ and federal governments to insure or indemnify their officials.¶ Someone must pay the "price" of efficient government. Currently,¶ that price is borne by the individual plaintiff, who is often left without¶ a remedy in the face of a qualified immunity defense. Widespread¶ and comprehensive insurance or indemnification programs¶ would shift this burden to society as a whole. Lower-level government¶ officials would be protected against personal liability (perhaps¶ with an exception for "malicious intent"); victims would retain a¶ remedy for violations; and the cost of providing insurance would be¶ borne more equitably by taxes collected from the society at large. 192