Solvency Ideas/Plans/Specific Standards Need a clear QI standard Kit Kimports, 2016, law professor, Penn State The Supreme Court’s Quiet Expansion of Qualified Immunity, Minnesota Law Review, DOA: 10-1-16, pp. 77-8 Given the Court’s distinction between Fourth Amendment rights and remedies, Heien may not signal a retreat from the precedents analogizing qualified immunity and the good-faith exception to the exclusionary rule. Nevertheless, the Justices’ amorphous suggestion that qualified immunity is a “forgiving” rather than “demanding” standard—and the implication that public officials who make “sloppy” errors may nevertheless sat- isfy qualified immunity’s objective reasonableness inquiry— mirror the change in the tone used to characterize the qualified immunity defense that is discussed in Part I. Justice Sotomayor, dissenting in Heien, criticized the majority’s insistence on leaving “undefined” the objective reasonableness standard it was endorsing in that case as well as the failure to “elaborat[e]” on the distinction between that Fourth Amendment standard and the qualified immunity inquiry, predicting that the difference “will prove murky in application.”69 Given the Court’s tendency to qualify its precedents and thereby covertly expand the qualified immunity defense, it would not be at all surprising to find future § 1983 decisions citing Heien in referring to qualified immunity as a “forgiving” defense and in dismissing a government actor’s misunderstanding of constitutional doctrine as merely “sloppy” rather than “plainly incompetent Additional standards that can be used to protect plaintiffs when constitutional rights are violated Aaron Belzer, JD Candidate, 2012, Denver University Law Review, The audacity of ignoring hope: How the existing qualified immunity analysis leads to unmediated rights, 686-9 Although the concept of qualified immunity accepts this result once in order to further articulation of the law, the idea is to make the law more clear so that an unremedied constitutional violation does not happen repeatedly. n267 The Kerns court is, in effect, kicking the can down the road, waiting for the next Kerns case to make a decision about the right at stake instead of taking the opportunity to articulate constitutional law now. And, unfortunately, while that can is being kicked down the road, those future plaintiffs suffering similar constitutional harms will be left without any avenue for
board, then abolished it in 1969, the “police advisory board” was brought back in 1994 as a way to save the city millions of dollars by preventing complaints from going to court. In New York City, where use of the chokehold has supposedly been banned since 1993, the civilian board received over 1,000 complaints of its use from 2009 to 2013 (New York Times, 22 July 2014). Only nine cases were raised with the NYPD brass and in only one case was there any action (loss of vacation days). More training and more rules of engagement won’t solve The Internationalist, Summer 2015, Killer Cops, White Supremacists: Racist Terror Talks Strike Black America, DOA: 10-2-16 The Justice League NYC, a project of The Gathering for Justice, Inc., one of the foundation-funded “non-governmental organizations” (NGOs) that quickly became involved in the protests over police killings, put forward a list of demands including calls for the city and state of New York to “draft legislation to clarify the rules of engagement” and to “create a comprehensive NYPD training program”—as if more training or clearer rules would have prevented the use of the deadly chokehold on Eric Garner which was already against NYPD regulations. As for its call on U.S. attorney general Eric Holder and the Obama administration to “expedite the federal investigation into the death of Eric Garner,” Holder’s “investigation” of Ferguson exonerated the cop who killed Michael Brown! Oregon proves training programs work Robert Hennelly, May 13, 2015, Slate, Poisonous Cops, Total Immunity: Why an epidemic of police abuse is actually going unpunished, Stringer’s ClaimStat webpage cites Portland, Oregon’s, police department as an example of an agency that used their settlement data to effect meaningful and timely reforms. He explained: “[W]hen the police auditor observed a pattern of claims that suggesting that officers did to understand the basis to enter a home without a warrant, the City Attorney’s office made a training video on the issue, and the problem practically disappeared.”
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. ■
Additional Bibliography Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’ Individual Liability Under Bivens, 88 GEO. L.J. 65 (1999) ( See, e.g., Michael T. Kirkpatrick & Joshua Matz, Avoiding Permanent Limbo: Qualified Immunity and the Elaboration of Constitutional Rights from Saucier to Camreta (and Beyond), 80 FORDHAM L. REV. 643, 669–76 (2011) See, e.g., John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 VA. L. REV. 207, 256 (2013) Marc L. Miller & Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52 BUFF. L. REV. 757, 760 (2004) (“[T]he most important and revealing features of litigation against the police [are] hidden in the dark: who pays, and who is held accountable for the payments?”). 16 Richard H. Fallon, Jr., Asking the Right Questions About Officer Immunity, 80 FORDHAM L. REV. 479, 496 (2011). Erwin Chemerinsky & Karen M. Blum, Fourth Amendment Stops, Arrests and Searches in the Context of Qualified Immunity, 25 Touro L. Rev. 781, 782 (2009).