October 25, 2016
On a legal topic like Nov/Dec 2016, it is really important for debaters to hold a basic understanding of the technical questions posed by legal scholars. It’s not like you have to get your law degree before you’re ready to debate qualified immunity, but the topic literature relies on a certain vernacular, as well as a body of case law, so it's helpful for debaters to have a good foundation of knowledge.
My junior year of high school, I debated the attorney-client privilege topic for Nov/Dec 2013. Admittedly, my debating on that topic was worse than on previous topics, as I never delved much into the topic’s legal nuances. I don’t even remember what my affirmative was, but most neg debates that topic I read generic kritiks or the politics DA. I regret not having looked deeply enough into law reviews and court precedent to make the coolest possible arguments I could.
So you don’t make the same mistake I did, this article will get you on track to have a more refined understanding of the topic lit. For the sake of time, I’ll only be discussing a topically-relevant Supreme Court case, Pearson v. Callahan (2009).
The Court’s unanimous decision in Pearson was that police officers in Utah deserved qualified immunity after conducting a warrantless search of Afton Callahan’s home. The home was targeted because an undercover informant discovered illegal drugs inside. The justices reasoned that it was not “clearly established at the time of the search” (1) that the officers violated Callahan’s Fourth Amendment right against unreasonable searches and seizures. The officers could have reasonably believed that their conduct was consistent with the “consent-once-removed” doctrine, recognized by some courts, that warrantless searches are acceptable if consent has been given to an undercover police officer. (1)
This all started when the Utah Court of Appeals overturned Callahan’s conviction. Callahan sought to bring a damages suit against the officers for violating his Fourth Amendment rights. Under the U.S. legal code, this is also called a “Section 1983 action”, or a “civil action for deprivation of rights.” (2)
The Utah District Court ruled that the officers were entitled to qualified immunity. This was appealed by Callahan to the Tenth Circuit appellate court. The Tenth Circuit ruled that the officers were not entitled to qualified immunity because, to quote the decision, “the law was clearly established that law enforcement may not enter a residence without a warrant...” (3) This decision was appealed by the officers to the Supreme Court, and the Supreme Court ruled in favor of the officers.
This Supreme Court ruling had an impact not only on Callahan’s lawsuit but also on the very meaning of qualified immunity. The Court partly shifted from its opinion in Saucier v. Katz (2001), when the Court ruled that resolving officers’ claims to qualified immunity required a “two-step sequence.” (1) Before, judges had to determine whether the officer actually violated someone’s constitutional rights, as well as whether the law was clearly established. Now, following Pearson, judges must only decide whether the law was clearly established, and it’s up to their discretion whether they resolve the more foundational questions of constitutional law.
A more basic take-away is this: in the eyes of the law, if the officer probably violated someone’s rights, and law prohibiting that action was clearly established, the officer is not entitled to qualified immunity. If the officer probably violated someone’s rights, but the legal ramifications of their conduct were reasonably unclear at the time, the officer can legitimately claim qualified immunity.
As I’m not a law student, I could never do justice to all the complexities of Pearson and Saucier. As a college debater and LD coach, I can teach you how to apply this legal literature into your strategies. Here are some Tomasi Tips™:
--The “overturn Pearson” CP seems pretty strong. Your argument would be that, rather than limit qualified immunity, we should return to the two-step sequence from Saucier. Expecting courts to resolve constitutional issues every time a qualified immunity case comes up might address some of the aff’s impacts, with a net benefit of developing constitutional precedent. This is an internal net benefit which the aff can’t solve because there’s no way of permuting the counterplan.
--For 1AR cards to answer this counterplan, I recommend you cut cards from the Court’s opinion in Pearson. They explain in detail why the Saucier approach shouldn’t be mandatory; for example, one potential harm is that “it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case’s outcome.” (1)
--Supreme Court opinions are an excellent source of cards. As very few decisions are unanimous, you’ll always have cards for both sides. The majority and minority opinions refute each other, so you’ll have ample evidence for your blocks. These cards are useful not just for constitution cases, but for a lot of cases you might read.
--When you’re aff, you can use facts from the Pearson case to elucidate how qualified immunity lets police officers off the hook for blatantly unconstitutional activities. You can read evidence from the 10th Circuit decision and criticize the vagueness rationale for qualified immunity (“the law was unclear, so the officer’s off the hook”). You could also use Pearson as an example of how courts play games with the law to legitimate unaccountable actions. This might demonstrate how the legal system is an oppressive institution which acts as if our constitutional rights don’t exist.
--When you’re neg, you can use facts from the Pearson case to argue that sometimes the law is a lot less clear than people realize. This bolsters any crime DA about how qualified immunity is essential to effective police work. If police officers have to worry about getting sued, they’ll be less likely to act in tough, unconventional situations. If you’re reading the counterplan described above, though, you want to be careful about reading cards from the Pearson opinion.
No matter how you approach this topic, I hope that you take this excellent opportunity to learn more about constitutional law!