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Justice
I define Justice as giving each their due
Justice, at least in its first derivation, is extremely abstract and general. For justice to
be brought to bear effectively on individual decision, specific legal precepts are
needed to guide conduct. Such precepts are the necessary means by which
just results or ends are to be achieved in practice, and they are also the
means by which persons decide how to act justly so as to avoid a dispute
that requires resolution. Most importantly, perhaps, this objection to the use of legal precepts
assumes that persons deciding how to act or judges deciding how to resolve a
dispute have access (independent of legal precepts) to a conception of justice that is specific
enough to decide the outcomes of disputes. Where this assumption is false and a conception of
justice, such as one based on natural rights, does not provide specific enough guidance, as is commonly the case,
primary function of background natural rights is, to provide a means of evaluating and reforming legal rights.
The importance of the process of racialization in the discussion of reparations becomes apparent when one refers back to the
a system ought to be
repaired when a past transgression affects contemporary relationships,
particularly when the transgression violated a previously established just social
order. The just social order, in this case, was the constitutional order adopted in the formation of the United States. The
Constitution established the normative framework for political and social
interaction among members of the new nation. The constitutional order,
though it evolved over time, set the terms and norms for legal and political interaction
for members of the nation. The constitution defined the organization of political power, including citizenship,
formulation of reparative justice. In referring back to the formulation, one can see that
Society was to be
governed by law rather than arbitrary authority. Likewise, though the constitution
allowed for social and economic hierarchy, citizens could not be deprived
of their rights without due process. Both the commitment to the rule of law and due process committed
the rights citizens were to have, and how the state was to be established and regulated.
the framers of the Constitution and the citizens to the assumption of rationality and universality in social and political discourse. At
the point of any conflict with the state or other citizens, a citizen could appeal to the Constitution, and its corresponding principles,
Constitution was contradictory. It embodied the enlightenment principles of equality, liberty, rationality and due process, but at the
same time upheld class and racial hierarchies. I take the embodiment of the enlightenment principles as the foundation of the order
At the beginning
of the constitutional order, the oppression had already started. The promise of the
enlightenment was unfulfilled.
and the contradictory upholding of hierarchies as the oppressive ramifications of the contradiction.
the
Court eliminated the subjective requirement of good faith from the
qualified immunity defense in Harlow v. Fitzgerald.35 The rationale for eliminating that
unfair to defendants as it embroiled them in potentially meritless and lengthy litigation.34 In response,
element of the defense was to protect government officials from frivolous law suits. "[Blare allegations of malice
should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching
discovery."3' 6 The newly articulated qualified immunity test provided 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."37
As
origins that were the original basis of the judicially created defense .
two approaches to the same set of facts illustrate the ability of the
qualified immunity standard to result in widely different outcomes. The court
These
in Wilson looks for a specific, factually similar case from an authoritative court as evidence that the right was clearly
established. The dissent relies on general legal principles that it believes ineluctably lead to the conclusion that the
rules of standing, it is extremely difficult to obtain injunctive relief to force a municipality to comply with its
police
officers can engage in without implicating the Fourth Amendment . Assume that Mary is
respect to how they engage people (the immunities protection of the Fourth Amendment).131 a. Nonseizures: Consider, for example, the following conduct
on a street corner on a given afternoon. Stipulate that the police have no reason to believe that she has engaged in any wrongdoing. Notwithstanding the absence of any basis of
suspicionin other words, the officer has neither probable cause nor reasonable suspicionthe officer could, consistent with Fourth Amendment law: 1. Approach Mary. 2. Question Mary
about her whereabouts. Where have you been? Where are you going? Do you live around here? 3. Ask Mary for her identification. 4. Question Mary about her immigration status or
about whether she is a member of a gang. 5. Follow Mary onto a bus, approach her in her seat, and question her as the bus departs. 6. Seek permission to search Marys person or
effects without informing Mary that she has the right to refuse consent. 7. Ask Mary whether she wouldnt mind following the officer to the police station. 8. Question Mary at the police
station, without ever telling her that she has a right to leave. 9. Follow Mary home. 10. If, upon observing the officer, Mary decides to run away, the officer would be free to chase her.132
Again, in none of the foregoing circumstances does the officer have any reason to believe that Mary has done anything wrong. The absence of evidence of wrongdoing is irrelevant to the
analysis because the Supreme Court would conclude that nothing the officer does in items one through ten implicates the Fourth Amendment. Which is to say, at no moment does the
officers conduct trigger the Fourth Amendment in the sense of becoming a search or seizure. And governmental conduct that is not a search or seizure is governmental conduct that is
police and the peopleand the greater the discretion police officers have to decide how to engage us along the lines that our hypothetical officer engaged Mary . b. Reasonable Searches
and Seizures: Another way in which Fourth Amendment law facilitates contact between African-Americans and the police is by ruling that particular searches and seizures are reasonable.
To appreciate the scope of this problem, assume that Officer A and Officer B are driving their car through downtown Washington, D.C., and that they observe Mary commit a traffic
infraction. Consider the following reasonable actions the officers could take: 1. The officers could base their decision to stop Mary on race. The Supreme Court would conclude that such
a stop is a reasonable seizure under the Fourth Amendment. That the officers have probable cause to believe that Mary committed a traffic infraction renders the race-based nature of
their decision irrelevant for purposes of the Fourth Amendment. 2. The officers could stop Mary to investigate a drug crime, not to enforce the traffic infraction, even though they have no
reason to believe that Mary has engaged in drug-related criminal conduct. The Supreme Court has expressly held that pretextual stops of the foregoing sort are constitutionally
reasonable. 3. In the context of executing the traffic stop, the officers could question Mary about matters completely unrelated to the traffic infraction. It would be permissible, for
example, for the officers to ask: Do you have any drugs in the car? Are you an illegal immigrant? Moreover, the officers are free to ask Mary general questions about her
whereabouts. 4. The officers would be permitted to ask Mary for permission to search her car, without informing her of her right to refuse consent, and they can run her name through
state and federal databases without any additional justification. 5. If the officers develop reasonable suspicion that Mary is armed and dangerous, they could frisk Mary and the car. If
Mary is driving in a high crime area (read: predominantly black or Latina/o neighborhood), that would be one factor on which the officers could rely to satisfy the reasonable suspicion
standard. 6. The officers could ask Mary to exit the car. 7. The officers could ask passengers to exit the car. Significantly, the officers authority to ask Mary or other passengers to exit
the car would be based solely on Mary having committed a traffic infraction. The officers would not need any additional justification for these additional intrusions. 8. The officers could
arrest Mary. Even if state law does not authorize an officer to arrest a person for a traffic infraction, an officers decision to do so would not violate the Fourth Amendment. Put another
way, the offi- cers arrest of Mary would be reasonable even if that arrest were inconsistent with state law. What this means, concretely, is that Mary could be arrested and hauled to jail
for not wearing her seatbelt or for failing to use a turn signal. 9. If Mary is arrested, the officers could search her incident to that arrest, impound her car, and conduct a full inventory
search of her car. 2016] BLUE-ON-BLACK VIOLENCE 1507 10. If, subsequent to arresting Mary, the officers decide to place her in the general jailhouse population, the officers may subject
Mary to a strip search prior to doing so.133 The bottom line here is that, like the Supreme Courts decisions about when the Fourth Amendment is triggered by way of a search or seizure,
, the
Supreme Courts interpretation of the Fourth Amendment has rendered
Fourth Amendment law an open border across which a range of law
enforcement officials can travel to intrude on black bodies and spaces.
the Courts conclusions about when searches or seizures are reasonable facilitates frequent police surveillance of and contact with African-Americans. Stated another way
There
were, however, decisions from other circuits upholding such searcheS29 and no authority directly to the contrary.
actions within their own circuits when explaining why qualified immunity was so significant a case-evaluation tool.
For instance, one advocate operating in the Fourth Circuit explained that that courts approach forced him to take
a lawyer working
in Illinois stated that because of the Seventh Circuits case law, he will not take a case if
there is even the slightest chance that dismissal will be based on qualified
immunity.93 For those respondents who felt that qualified immunity was less significant, the explanation often
addressed other case-selection criteria. For instance, multiple respondents indicated that they
only accepted the most egregious cases for representation, which made it
unlikely that qualified immunity would play a role.94 While acceptance of egregious cases
qualified immunity concerns into account at the outset of client screening.92 Similarly,
was not designed to avoid qualified immunity concerns, it had this incidental effect because it is unlikely that a
defendant who committed an egregious violation would also be protected by qualified immunity. For a few other
respondents, qualified immunity did not play a role either because of self-professed hubris95 or a unique mission.
Respondents who worked at nonprofit organizations or who had other law reform goals, for instance, expressed
concern about qualified immunity but stated that it was not dispositive because of their organizations mission.96
Do Police Get Immunity? | Foundation for Economic Education." 2016. 10 Jul. 2016
<http://fee.org/articles/to-hold-police-accountable-dont-give-them-immunity/ >
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. At trial,
judicial engagement an impartial, evidence-based determination of the
constitutionality of the officers actions can take place. Qualified immunity can
cut this search for truth short. If qualified immunity is raised as a defense before trial and the judge
denies it, that decision is immediately appealable. If it is granted, discovery stops, and there is no trial on the
merits.
designed in the dark. Distinctions are being made about the types of cases that will receive compensation and the types that will not. These distinctions are not articulated as such;
qualified immunity is why, in spite of many expressions of dissatisfaction with the system, there had been little effective rallying for change. The reason the discontent of the participants
in this system has not led to a significant change is that the terms of the debate are defined by the immunity system rather than by the fundamental question of the extent of rights and
liabilities in civil rights actions. The civil rights remedial scheme organized around qualified immunity thus has an inherently self-preserving or stabilizing quality. It allows for tinkering at
the margins, but fundamental recasting of the terms of the debate is unlikely. My assertion that qualified immunity has a camouflaging effect on civil rights law is supported by a large
body of scholarship that explores legal regimes that define reality in a way that limits the ability of the participants in the system to change it.'27 These scholars argue that when a legal
system is accepted as being the only available way to organize an activity and thus seems inevitable,
acceptance of the status quo. 28 The insights gained by scholars working in this area are helpful to apply to the qualified immunity standard in
order to explore its hold on the civil rights imagination. This analysis maps out the way a doctrine such as qualified immunity can develop into an obstacle to the very aims it professes to
accomplish. Particularly apposite to an analysis of civil rights law is the work that has been done on the change-inhibiting impact of the development of antidiscrimination law.129 In
commenting on the effect of the adoption of equal rights rhetoric on the struggle to end racial inequality, Kimberle Crenshaw has concluded that "[s]ociety's adoption of the ambivalent
rhetoric of equal opportunity law ha[s] made it that much more difficult for Black people to name their reality. While equal employment opportunity law has been adopted, the material
reality of most Black people has not improved."'30 In fact, improvement may be hindered by the existence of the equal opportunity law since it may undermine the political consensus
necessary for change.' 3 ' Another commentator has suggested that "the language of rights undermines efforts to change things by absorbing real demands, experiences, and concerns
into a vacuous and indeterminate discourse. The discourse abstracts real experience and clouds the ability of those who invoke rights rhetoric to think concretely about real
confrontations and real circumstances.' 32 The existence of antidiscrimination law can thus create the appearance of improvements in racial equality while at the same time not
encouraging fundamental change. 33 The focus on the intent of the actor in equal protection claims rather than the impact on the person experiencing the discrimination has also been
criticized as an inhibitor to the elimination of racial inequality. 3 By paying exclusive attention to the blameworthiness of the defendant, an examination of the impact of the challenged
practice on those complaining about it is lost. Fairness to the defendant, rather than eliminating discriminatory effect, is the central concern. These commentators suggest that the
economic and social reality of race inequality is obscured by the existence of antidiscrimination law and by the success of a small exceptional group. As Derrick Bell has stated,
"Discrimination claims when they are dramatic enough and do not threaten majority concerns, are given a sympathetic hearing, but there is a pervasive sense that definite limits have
been set on the weight that minority claims receive when balanced against majority interests."'35 While it is unclear what the alternative to antidiscrimination law is, these critiques
strongly argue that antidiscrimination law does not do what it suggests it will do and may, in fact, make a better system more difficult to imagine and thus to create. This current critique
of antidiscrmination law can be used to understand how the qualified immunity standard affects the system of compensation for constitutional wrongs. One major similarity is the way in
which the existence of Section 1983 siphons off pressure to create some other system of redress. The open-ended language of the Section 1983 statute seems to promise a powerful
remedy against governmental abuse. As we have seen, qualified immunity severely limits that remedy, but on a case-by-case basis. There is no general prohibition against certain types
of civil rights claims, only the seemingly individualized application of the qualified immunity defense. The fact that some types of claims are destined to fail because of the type of claim
they are, not because of the particularized behavior of the defendant, is hidden. Adding to the illusion of a generally available remedy is the spectacular success of a few high profile
cases. A few large recoveries in cases that present particularly compelling facts obscure the reality of the fruitlessness of most claims. 36 On the other side of the lawsuit, qualified
immunity promises much more to the defendant than it delivers. The defense is supposed to protect government actors not only from liability but also from entanglement with litigation.
The promise is often not kept because the qualified immunity defense presents a combination of fact and law questions that cannot be quickly disposed of prior to trial. However, the
theoretical protection offered by the defense and the low incidence of actual judgments against government actors lulls government employees into acquiescence to the system. The
emphasis that qualified immunity places on the reasonableness of the defendant's actions rather than on whether a constitutional right was violated is another way in which qualified
immunity distorts civil rights law. Qualified immunity makes the essential issue of a civil rights claim the question of whether it would be too much of an inhibitor of government action to
require a particular defendant to pay damages to the plaintiff. The focus is not, at least initially, on whether the plaintiffs constitutional rights were violated. This emphasis also makes it
. Qualified
immunity's harm is that it makes it difficult to see the policy choices made
by courts in civil rights actions. Cloaking these policy choices in the
qualified immunity doctrine avoids the possibility of an open debate
concerning which civil rights should be protected and how. Given its obvious flaws, the
continuation of qualified immunity as the key legal issue in civil rights cases can only be explained by the hidden purpose it serves; it avoids
the divisive and perhaps unresolvable conflicts among participants in civil
rights litigation. Qualified immunity accomplishes this conflict-avoiding function by giving judges wide
latitude in making determinations about its application and by couching
the outcomes of civil rights litigation in terms that make the substantive
results difficult to perceive. These qualities account for the faithful adherence to a doctrine that is regarded as so unsatisfactory to so many. The
problem with this conflict avoidance mechanism is that it [this] allows unarticulated decisions to be made
about the extent of liability for civil rights violations. Civil rights litigation does have limitations to it; every
case is not given an opportunity to succeed. These determinations are being made; they are just not described as such. Using qualified immunity as a shield
from the truth may buy us peace, but it keeps from us the tools required for [from] reform.
difficult to discern and consider which rights are or should be protected and which we are content not to protect with monetary compensation
Ease
of administration has proved more elusive. In fact, determining whether an
officer violated "clearly established" law has proved to be a mare's nest of
complexity and confusion. The circuits vary widely in approach, which is
not surprising given the conflicting signals from the Supreme Court. The
instability has been so persistent and so pronounced that one expert describes qualified
immunity as existing "in a perpetual state of crisis." 2
dismiss-in other words, to create immunity from trial as well as from liability'o-hasbeen largely successful."
right to a disciplinary hearing prior to termination of welfare benefits. If the former approach is chosen, then
qualified immunity offers virtually no protection from liability.[105]
It should not be surprising, therefore,that our cases establish that the fight the official is alleged to have violated
immunity unless the very action in question has previously been held unlawful, . . but it is to say that in light of
preexisting law the unlawfulness must be apparent.[106]
mentioned previously some officers can have over sixty complaints of excessive force and go without repercussion
to be subjected to oversight monitoring to thoroughly review officers misconduct complaints. In addition, I propose
that the United States Justice Department become involve with the police departments handling of investigations.
It should be require that police departments conduct a thorough investigation for repeated occurrences of excessive
force. This can act as deterrence.
Contention 4: Solvency
Oversight for qualified Immunity solves
Worthy 16 [Sabrina S. Worthy, Failure to Prosecute Police Misconduct
require that police departments conduct a thorough investigation for repeated occurrences of excessive force. This
can act as deterrence In addition, the police departments should make these investigative reports available to the
Justice Department. Further, there should be a separate, non-police entity, to conduct the investigation. Therefore,
to eliminate any biases. In addition, the Department of Justice can enact a nationwide disciplinary action guideline
for police departments to follow when an officer engages in misconduct. For instance, for an officers first offense of
misconduct, depending on the severity of the conduct, the guideline can implement more training. For repeated
offenses, the guideline can have disciplinary action ranging from fine, sanction, suspension, demotion, or
termination. I believe
that generate a competitive environment in the provision of public services tend to reduce the extraction of rents,
therefore reducing corruption.
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 a level playing
field in court. Right now, they dont have one. Instead, police officers have recourse to the broad
In order
protections of the judicially established doctrine of qualified 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 avoid accountability. To bring about true accountability and change
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 ?
Thats
just a start. There are plenty of other reforms that could open up civil rights lawsuits
and help ensure police accountability for bad conduct. Two posts (one, two) at
Balkinization by City University of New York professor Lynda Dodd provide a good overview. Campaign Zero should
consider adding civil rights litigation reform to its platform, our policymakers should consider making civil rights
litigation more robust, and,
it happen.