LADI Packet – Nov-Dec

Topicality

Limit May ReduceLimit is to reduce in scopeMerriam-Webster n/d [“Limit”] LADI: to prevent (something) from being larger, longer, more, etc. : to place a limit on the size or extent of (something)

Limit Must Be AbolishCurtail means a partial restriction – the aff is a cancelation of a program, not curtailmentSan Fellipo, 92 (John, “OREGON'S TELEPHONE INFORMATION DELIVERY SERVICE LAW: A CONSUMER PROTECTION STEP TOO FAR” 28 Willamette L. Rev. 455 1991-1992, Hein Online)

131. The author understands "limit" as used in OR. ADMIN. R. 860-21-505(8) (1991) to mean cancel, as opposed to the word "curtail" used in section (7), meaning only a partial restriction.

Aff

Sample plans-Eliminate qualified immunity in wrongful-death cases where police officers violated department policyJason Lee Steorts 12 [(Jason Lee Steorts, ) When Should Police Officers Be Able to Use Deadly Force?, Atlantic 7-1-2012] LADIBut there will be limits to what legal reforms can accomplish. In criminal law, proof beyond reasonable doubt establishes a suitably high bar for prosecutors to clear. And in civil law, the doctrine of qualified immunity shields officers from liability for violating people’s constitutional or statutory rights—and usually entitles them to summary judgment in their favor—if it can be shown that the legal standard was not clearly defined. In the murky, context-dependent area of Fourth Amendment case law, it often isn’t. This makes it very hard to impose on police officers any form of accountability between criminal guilt and full exoneration. Courts and investigative bodies sort through the consequences as well as they can, but what they cannot do is bring back the dead. Legislatures could partially address that problem by establishing that officers will not be granted qualified immunity in wrongful-death suits when their actions violate departmental training or policy. And independent bodies whose members include community representatives could be empowered to fire officers even if they have not been found criminally culpable or civilly liable.

-Remove the “clearly established” standard, which holds that police officers are entitled to qualified immunity as long as the law they broke was not clearly establishedSam Wright 15 [(Sam Wright, public interest lawyer who has spent his career exclusively in nonprofits and government) Want to Fight Police Misconduct? Reform Qualified Immunity, Above the Law 11-3-2015] LADIDespite the fact that it doesn’t appear to be supported by evidence, FBI Director James Comey gave some credence to the notion of a “Ferguson effect” in a speech last week at the University of Chicago Law School. He described “a chill wind that has blown through American law enforcement over the last year” and suggested this “chill wind” was “some part of the explanation” for a putative rise in violent crimes. The White House disagreed with Comey. And Ta-Nahesi Coates had some things to say about Comey’s remarks, too, saying they reflected an attitude of non-evidence-based policing — a sort of “creationism, crime-fighting on a hunch.” He linked this attitude to longstanding racist police practices, and he ended with these words: “A theory of government which tells citizens to invest agents of the state with the power to mete out lethal violence, but discourages them from holding those officers accountable is not democracy. It is fascism . ” Coates hits the proverbial nail squarely on its head: again it comes down to accountability. So now let’s take a look at what Campaign Zero is asking for on police accountability. This part of the Campaign Zero platform breaks down into four umbrella requests: Community Oversight — Campaign Zero proposes to increase community oversight of the police by establishing more effective structures for civilian oversight and removing barriers to reporting police misconduct. Independent Investigation and Prosecution — Campaign Zero wants to make police oversight more independent by lowering the standard of proof for federal civil rights investigations of police, using federal funds to increase investigations of killings by police officers, establishing a permanent Special Prosecutor position in each state, and requiring independent investigations of all deaths and serious injuries caused by police. Body Cameras and Filming the Police — Campaign Zero supports reforms to make it easier for civilians to obtain video evidence of encounters with police both by requiring police body cameras and by ensuring civilians can record police encounters. Fair Union and Police Contracts — Campaign Zero wants to remove special procedural protections for police officers accused of misconduct, to make police disciplinary records public, and to bar police officers who have killed or severely injured civilians from going on paid leave. I think Megan McArdle is

probably right that these proposals (and the others in Campaign Zero’s broader platform) range from “worthy of consideration” to “immediate moral imperative.” But I also think the list is missing something. As usual, I’ve not buried the lede: that something is qualified immunity reform. In order 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 don’t have one. 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?

-Supreme Court overturns the decision in Mullenix v. Luna, which expanded the scope of qualified immunity.Zosha Millman 15 [(Zosha Millman, ) Supreme Court's decision on police force misses the scope, LXBN 11-10-2015] LADIBut in her strongly worded dissenting opinion, Justice Sonia Sotomayor claimed the court’s opinion was essentially authorizing rogue conduct. As her opinion states: When Mullenix confronted his superior officer after the shooting, his first words were, “How’s that for proactive?” (Mullenix was apparently referencing an earlier counseling session in which Byrd suggested that he was not enterprising enough.) The glib comment does not impact our legal analysis; an officer’s actual intentions are irrelevant to the Fourth Amendment’s “objectively reasonable” inquiry. But the comment seems to me revealing of the culture this court’s decision supports when it calls it reasonable—or even reasonably reasonable—to use deadly force for no discernible gain and over a supervisor’s express order to “stand by.” By sanctioning a “shoot first, think later” approach to policing, the court renders the protections of the Fourth Amendment hollow. And in many ways Sotomayor is right ; though the court may

have been focusing themselves on the actions of this one state trooper, the problem—and thus the opinion—has a much wider scope. Ruling that officers are immune from lawsuits save for when it is “beyond debate” that a shooting was unjustifiable and clearly unreasonable, the Supreme Court could make it very difficult for families of those shot and killed or injured by the police to prove that there was a wrongdoing on the part of the officer. As more and more attention is being paid to the Black Lives Matter movement and the frequency of police-related deaths, there’s a long list of deaths at the hands of police that are often (against the odds) not indicted or ruled to be not an excessive use of force. Investigations into the the deaths of 12-year-olds who were unarmed and made no threats take months to resolve. Legal cases are already an uphill battle for many families who struggle to pay the legal bills and funeral

costs, but adding the burden of proof that an officer’s split-second reaction to reach for a gun was “beyond debate” seems hard to reconcile. Especially when, as Juan C. Antúnez wrote on the Florida Probate & Litigation Blog, the implicit bias that informs gut reasoning appears across the population, from general public all the way up to judges: First, understand the problem. We’re not talking about intentional bias here. What we’re talking about are the factors affecting decision making that most judges are simply not aware of. The linked-to article does a good job of identifying the typical unconscious biases we’ll encounter in a courtroom. Yes, “who” your judge is matters (i.e., race and background), but “how” his or her brain works is just as important. Our brains use a number of mental shortcuts, or “cognitive heuristics,” that help us make decisions more quickly and efficiently by operating in a matter of milliseconds, without our realizing that it is happening. Understanding how these mental shortcuts work, and what you need to do to make sure they’re working in a way that helps your judge do the best job possible, is crucial. It’s hard to argue against the danger felt during a car chase. But it’s important that the law understand the line between truth in the moment and the truth illuminated by hindsight. And placing those decisions beyond debate won’t likely inspire confidence in policing without excessive force. It’s more like throwing away our shot.

Accountability AdvantageQualified immunity is part of a jurisprudence of violence that makes killing a permissible option for policeGreene 15 [(Linda Sheryl, Evjue-Bascom Professor, University of Wisconsin Law School) “Before and After Michael Brown—Toward an End to Structural and Actual Violence” Washington University Journal of Law & Policy Volume 49 Ferguson and Beyond 2015] LADIThe fact that the officers did not follow their training was also irrelevant. Even if they do so, they still retain qualified immunity if “a reasonable officer could have believed that his conduct was justified.”203 On summary judgment, “a jury does not automatically get to second-guess these life-and-death decisions, even though a plaintiff has an expert and a plausible claim that the situation could better have been handled differently.”204 They would have voted to dismiss both legal issues as certiorari improvidently granted, on the ground that the petitioner city engaged in bait and switch tactics by asking the court to grant cert on “whether title II [of the ADA] applies to the arrest of violent and mentally ill individuals” while briefing only the question how it applied under the circumstances of this case, where the plaintiff threatened officers with a weapon.205 Police killings of mentally ill persons are not deterred by this permissive decision. This tactic deprived the court of the “opportunity to consider, and settle, a controverted question of law that has divided the Circuits.”206 The Court’s approach is understandable on one level; as it has said multiple times, it does not want the judiciary second-guessing the street judgments of police officers.207 Yet others have observed that the Court has rejected substantive objections to police officer’s decisions on due process grounds, while constructing a Fourth Amendment analysis that defers entirely to police judgment in the absence of positive statements of law. In this gap—between clearly established violations of the Fourth Amendment and new fact situations involving

dead or severely injured people—lies the broken content of a mandate that the State not take life without compelling justification. Thoughtfully, some lower courts have pushed back on postGarner permissiveness with respect to police killings of incapacitated suspects. In Brockington v. Boykins, a Fourth Circuit panel found no justification for a second series of shots fired by a police officer against a suspect who was obviously disabled by the first volley.208 The panel discussed the rules of qualified immunity209 including the rule that conduct that qualifies for qualified immunity “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”210 Boykins argued that “there needs to be a clear bright-line separating allowable actions from forbidden ones” and that conduct not specifically and previously found to violate the Fourth Amendment ought to qualify for qualified immunity.211 The Fourth Circuit responded that the fact that the exact conduct has not been found previously unconstitutional does not immunize the officer’s conduct from civil liability.212 The Court observed that Tennessee v. Garner made the point “that deadly force was not generally justified against a suspect who did not pose an immediate threat.”213 The court plainly stated that “it is just common sense that continuing to shoot someone who is already incapacitated is not justified under these circumstances.”214 The regime for the possible redress of excessive force makes the loss or preservation of life in police encounters dependent on the judgment of an individual officer in a framework in which killing is permissible unless it has been strictly forbidden by prior precedent or limited by individual local police

authority. This is sanctioned arbitrariness in the imposition of death

that has affected Black communities around the nation. Our jurisprudence of violence includes approval, even celebration, of

actual violence. It is the combination of immunity, weak criminal penalties, cultures of secrecy, and unfettered power through technology and militarization that renders the meaningful discussion of restraint on police violence impossible in the current legal framework. Our challenge is to find a meta-framework that aids our understanding and contributes to a transformation. There are several possibilities, including rethinking the regime of deference to police judgment, a moral and ethical framework for policing, and the elimination of the circumstances of economic discrimination, spatial discrimination, and hyper-criminalization in order to eliminate material and stigmatic disparities that that weaken communities and make them vulnerable to despair and crimes of survival.

Qualified immunity sanctions indiscriminate police violence – police are allowed to kill with impunityTom Carter 15 [(Tom Carter, World Socialist Website) US Supreme Court expands immunity for killer cops, International Committee of the Fourth International International Committee of the Fourth International 11-12-2015] LADIWith the death toll from police brutality continuing to mount, the US Supreme Court on Monday issued a decision expanding the authoritarian doctrine of “qualified immunity,” which shields police officers from legal accountability. When a civil rights case is summarily dismissed by a judge on the grounds of “qualified immunity,” the case is legally terminated. It never goes to trial before a jury and is never decided on its constitutional merits. In March of 2010, Texas Department of Public Safety Trooper Chadrin Mullenix climbed onto an overpass with a rifle and, disobeying a direct order from his supervisor, fired six shots at a vehicle that the police were pursuing. Mullenix was not in any danger, and his supervisor had told him to wait until other officers tried to stop the car using spike strips. Four shots struck Israel Leija, Jr., killing him and causing the car, which was going 85 miles per hour, to crash. After the shooting, Mullenix boasted to his supervisor, “How’s that for proactive?” The Luna v. Mullenix case was filed by Leija’s family members, who claimed that Mullenix used excessive force in violation of the Fourth Amendment, part of the Bill of Rights. The district court that originally heard the case, together with the Fifth Circuit Court of Appeals, denied immunity to Mullenix on the grounds that his conduct violated clearly established law. The Supreme Court intervened to uphold Mullenix’s entitlement to

immunity—a decision that will set a precedent for the summary dismissal of civil rights lawsuits against police brutality around the

country. This is the Supreme Court’s response to the ongoing wave of police mayhem and murder. The message is clear: The killings will continue. Do not question the police. If you disobey the police, you forfeit your life. So far this year, more than 1,000 people have been killed by the police in America. Almost every day, there are new videos posted online showing police shootings, intrusions into homes and cars, asphyxiations, beatings and taserings. Last week, two police officers in Louisiana opened fire on Jeremy Mardis, a six-year-old autistic boy, and his father Chris Few. The boy’s father had his hands up during the shooting and is currently hospitalized with serious injuries. His son succumbed to the police bullets while still buckled into the front seat of the car. The Supreme Court’s decision reflects the fact that in the face of rising popular anger over police killings, the entire political apparatus—including all of the branches of government—is closing ranks behind the police. This includes the establishment media, which has largely remained silent about Monday’s pro-police Supreme Court decision. The police operate with almost total impunity, confident that no matter what they do, they will have the backing of the state. Two weeks ago, a South Carolina grand jury refused to return an indictment against the officer who was caught on video killing 19-year-old Zachary Hammond. This follows the exoneration of the police who killed Michael Brown in Ferguson, Missouri, Eric Garner in New York City and Tamir Rice in Cleveland. The Obama administration’s position regarding the surge of police violence was most clearly and simply articulated by FBI director James Comey in a speech on October 23. “May God protect our cops,” Comey declared. He went on to accuse those who film the police of promoting violent crime. Meanwhile, in virtually every police brutality case that has come

before the federal courts, the Obama administration has taken the side of the police. On Monday, the Supreme Court went out of its way to cite approvingly an amicus curiae (friend of court) brief filed by the National Association of Police Organizations (NAPO), which defended Mullenix. With this citation, notwithstanding its ostensible role as a neutral arbiter and guarantor of the Constitution, the Supreme Court sent a clear signal as to which side it is on. During the imposition of de facto martial law in Ferguson last year, NAPO issued statements vociferously defending Michael Brown’s killer, labeling demonstrators as “violent outsiders,” and denouncing “the violent idiots on the street chanting ‘time to kill a cop!’”

Over-policing is structural violence – it increases crime, disrupts individuals’ lives, and destroys their communitiesJPI 12 [(Justice Policy Institute) “Rethinking The Blues: How We Police In The U.S. And At What Cost,” Justice Policy Institute, May 2012] LADIPolicymakers are in charge of deciding sentences for offenses, which are meted out by judges, but police are in charge of finding and arresting people who have committed an offense. It follows that with more arrests comes more incarceration. The number of people in prisons and jails in the U.S. increased 271 percent from 1982 to 2010, reaching nearly 2.3 million people in 2010.163 The incarceration rate has increased 178 percent from 263 per 100,000 in 1982164 to 731 per 100,000 in 2010.165

Arrests for minor offenses, including drug offenses, are particularly concerning given the negative effects of putting a person in contact with the justice system. Just as the number or arrests for drug offenses has increased, the largest area of growth in the prison population is people incarcerated for drug offenses—up 20 percent from 1990 to 2000 alone;166 28 percent of all people entering state prisons in 2008 were convicted of a drug offense.167 In 2008, about 18 percent of people in state prisons and 51 percent of people in federal prisons had drug offenses as their most serious charge.168

While arrests start a person on a criminal justice track, the penalties have become more punitive, to include mandatory sentences, which cause people to spend years—and even decades—behind bars for minor offenses, like possession of a small amount of drugs. These policies are costing us billions of dollars every year—

corrections spending reached $74 billion in 2007 – disrupting lives and communities, and creating a lifetime of barriers to education, jobs, and housing.169 Broader systemic reforms are necessary to make sentences less punitive and reverse the criminalization of a myriad of minor behavioral infractions deemed undesirable by lawmakers; however, in the

meantime, police can stop feeding this system by not pulling people who pose little risk to public safety into it unnecessarily. Jail has negative effects for people,

families, and communities After a person is arrested, they may spend time in jail, which is a detention facility for people pre-trial and for those serving short sentences,

usually run by a city or county. Conversely, prisons are run by states and are for people who have been sentenced to serve a year or more. Jails have a harmful effect on many aspects of people’s lives including their physical and mental health, employment, recovery from addiction, family life and relationships with their community. This is especially worrisome since the majority of people in jails experience symptoms of mental illness and many also struggle with substance abuse. Poor treatment

of disease170 in jails exacerbates the problem and spreads diseases through the community.171 The constant flow of people through a jail makes it much more likely that a person would contract HIV/AIDS,172 tuberculosis173 and staph infections.174 Incarceration tends to further harm people with mental illness, 175 and often it is behavior related to the person’s mental illness that puts them in jail in the first place.176 Jails are associated with high rates of untreated depression,177 which leads to high rates of suicide.178 Once a person with a mental illness is released from jail, there is often no effort to facilitate the treatment of the illness, including reinstatement of benefits lost while behind bars.179 The jail system is also ill- equipped to help people who have a drug addiction, and especially people who also have a mental health

problem.180 Beyond physical and mental well-being, jail also negatively impacts a person’s earning potential,181 educational182 and employment prospects, even 15 years after release from jail.183 It also negatively impacts families. The

California Research Bureau estimates that approximately 97,000 children have parents in jail.184 When the person going to jail is a woman, the father is often

unlikely able to maintain custody of the child, which can result in the child being displaced; 185 while the child may stay with relatives, many are sent to foster care. Having a family member in jail puts immense levels of stress on the family as a whole, which can further contribute to overall declines in both mental and physical health.186 Jails

can affect a person’s relationship with his/her community as well, especially through a person’s ability to secure housing upon release. In one Baltimore survey, 63 percent of people surveyed had owned or rented a home prior to incarceration, but only 29 percent owned or rented a home after release.187 Jails also offer few services which would help a person reenter society when released. Youth are pulled into the justice system by police in schools. A recent report from the journal Pediatrics finds that nearly one in three youth will have been arrested by the time they turn 23.188 One contributing factor to the common occurrence of youth arrests is police and arrests in schools. The presence of police in schools, including school resource officers (SROs), has contributed to the number of youth that come into contact with the juvenile justice system. Fueled by increasingly harsh approaches to student behavior such as “zero tolerance policies,” the past 20 years have seen an expansion in the presence of law enforcement in schools. According to the U.S. Department of Justice, the number of SROs increased 38 percent between 1997 and 2007,189 supported in part by approximately $400 million in federal funds since 2000.190 Some cities, like New York City, employ more officers in schools than many small cities’ entire police force.191 With this rapid increase in the presence of law enforcement, including SROs, in schools, districts from around the country have found that youth are being referred to the justice system at increased rates192 and for minor offenses like disorderly conduct.193 Researchers from the University of Maryland and the University of Massachusetts recently found that in four of the five states included in a study about referrals to the juvenile justice system, schools made up a greater proportion of all referrals to juvenile courts in 2004 than in 1995.194 At the same time, although always relatively rare, incidents of student reported theft and violence

are at the lowest rates since 1992.195 Incarceration is an expensive side- effect of arrests. Funding for police has also risen in tandem with the increase in the number of people in prison. From 1982 to 2007, the amount of money spent on policing in the U.S. increased by 445 percent, reaching $104 billion in 2007.196 At the same time, the number of people incarcerated in prisons and jails increased dramatically, reaching 2.3 million people in 2007—a 275 percent increase since 1982.197 A study by the Justice Policy Institute found that, controlling for crime rates, poverty, unemployment and other factors, counties that spend more on policing and the justice system imprison people

for drug offenses at higher rates than counties that spend less on law enforcement.198 This suggests that there is a point of diminishing public safety returns for additional police; that is, they need to arrest people for less serious crimes in order to keep busy, and justify budget requests. A decrease or redirection of funding away from policing and into social services could decrease the negative effects of arrests and incarceration and create safer communities in the long term. LAW ENFORCEMENT HAS A DISPROPORTIONATE IMPACT

ON CERTAIN COMMUNITIES There are concentrated numbers of arrests in communities of color and low-income communities. While there is a multiplicity of reasons why

this might be, for drug offenses in particular it is not because of ethnic or racial differences in use of drugs. 199 The disproportionate impact of arrest policies on people of color leaves many families and communities without loved ones and has a significant impact on the economy, stability and safety of these communities, especially when these arrests lead to incarceration. In addition, the concentrated impact of policing on lower income communities is exemplified by the criminalization of homelessness, making people who are homeless particularly vulnerable to arrest and involvement in the justice system.

People of color are arrested at much higher rates than whites across most offense categories, with Blacks having the highest rates of arrest across all racial groups for whom data is available. Blacks are arrested at nearly four times the rate of whites for violent offenses. Racial Profiling In the aftermath of September 11 and increasing suspicion of immigrants, racial profiling in law enforcement, which long was an issue with the African

American community, has grown to include Latinos and Muslims. At the same time, the black community continues to disproportionately experience contacts with police compared to whites. More contacts with police mean the potential for more arrests. One area where racial profiling is frequently seen is traffic stops. Even though blacks, Latinos and whites are stopped by police at similar rates, blacks are three times as likely to be searched as whites and about two times as likely to be searched as Latinos. Blacks were about twice as likely to be

arrested.200 An analysis of data by the ACLU points out that even though blacks and Hispanics are more likely to be searched during traffic stops, they are less likely to have contraband.201 Also under scrutiny are “stop and frisks” of pedestrians, particularly in New York City. This controversial policing strategy involves police stopping someone on the street, and frequently, without any clear evidence of wrongdoing, searching the

person. In 2011, 684,330 New Yorkers were stopped by the police; of these, 88 percent (603,268) were totally innocent.202 Although whites in New York City make up 44 percent of the population they accounted for only 9 percent of the stop and frisks compared to

blacks, who make up 26 percent of the population, but 59 percent of the stop and frisks. 203 Despite being stopped so disproportionately, blacks were less likely to be engaging in a behavior for which they could be arrested. In 2006, 21.5 blacks were stopped for each arrest of a black person as opposed to only 18.2 whites stopped for each white arrest. Cops found guns, drugs, or stolen property on whites about twice as often as they did on black suspects. 204 The policies that are included below are examples of racial profiling, as they are seemingly race-neutral policies that have a disproportionate effect on communities of color, especially black communities. Drug

Offenses Even greater disparities are seen in the rate of arrests for drug offenses. Although blacks make up 13 percent of the population, they make up 31 percent of arrests for drug offenses, while whites are 72 percent of the population, but 67 percent of arrests. Blacks were arrested for drug offenses at three times the rate of whites in 2009. The number of arrests of African Americans for drug possession increased 55 percent from 1993 to 2009; for whites, this increase was 77 percent.205 While there may be a multiplicity of reasons for

these differences, it is not because there are differences in rates of drug use. In 2010, Blacks and whites reported similar rates of illicit drug use within the previous month.206 While increased arrests of whites may more accurately reflect the rates of drug usage in the general population, there are still racial disparities in drug arrests and too many people are arrested and incarcerated for possession of (a small amount) drugs.

Precedent AdvantageQualified immunity chills legal action against police misconductChen 15 [(Alan K. Chen is the William M. Beaney Memorial Research Chair and professor of law at the University of Denver Sturm College of Law, where he teaches courses in constitutional law, federal courts, and public interest law. An experienced civil rights litigator and former ACLU staff attorney, Professor Chen continues to do pro bono work in constitutional rights cases.) “Qualified Immunity Liming Access to Justice and Impeding Development of the Law” American Bar Association Vol. 41 No. 1] LADIA final critique of qualified immunity is one that is difficult to prove empirically. Because of the many costs associated with this defense that I have identified above, plaintiffs and their attorneys may find that the game is not worth the candle. To prevail on a constitutional tort claim, which may not necessarily involve a large monetary recovery, the plaintiff must navigate the difficult path that the qualified immunity doctrine has hewn. They may be tied down for years litigating qualified immunity and defending multiple interlocutory appeals should they initially prevail on the qualified immunity claim in the trial court. Even with the incentive of attorney fee shifting under 42 U.S.C. § 1988, many plaintiffs may simply be discouraged from ever filing a constitutional tort claim because they anticipate that they will be drawn into a protracted and time consuming dispute. The suppression of potentially meritorious civil rights claims is a cost of qualified immunity that impedes access to justice in profound and troubling ways.

This ensures rights never get established – paving the way for continuing violationsTom Carter 15 [(Tom Carter, World Socialist Website) US Supreme Court expands immunity for killer cops, International Committee of the Fourth International International Committee of the Fourth International 11-12-2015] LADI “Qualified immunity” is a reactionary doctrine invented by judges in the later part of the 20th century to shield public officials from lawsuits. As a practical matter, this doctrine allows judges to toss out civil rights cases without a jury trial if, in the judge’s opinion, the official misconduct in question was not “plainly incompetent” or a “knowing violation of clearly established law.” Over recent decades, the doctrine has been stretched to Kafkaesque proportions to shield police officers from accountability. In the landmark case of Tennessee v. Garner (1985), the Supreme Court held that it violates the Constitution to shoot an “unarmed, nondangerous fleeing suspect,” and required an imminent threat of death or serious bodily injury before the police could open fire. But the Supreme Court in its decision on Monday dismissed this language as constituting a “high level of generality” that was not “particular” enough to “clearly establish” any particular constitutional rights. Since cases that are dismissed on the grounds of qualified immunity do not result in decisions on the constitutional issues, this circular pseudo-logic ensures that no rights will ever be “clearly established .” It also ensures that, instead of the democratic procedure of a jury trial, cases involving the police will be decided by judges. The Supreme Court issued Monday’s decision without full briefing or oral argument, designating it “per curiam,” i.e., in the name of the court, not any specific judges. Justice Antonin Scalia filed a concurring opinion, displaying his trademark sophistry. According to Scalia, Mullenix did not use “deadly force” within the meaning of the Supreme Court’s prior cases, since he was shooting at a car, not a person. (Four bullets struck Leija, but none of the six shots struck the engine

block at which Mullenix was supposedly aiming.) Justice Sonia Sotomayor filed the sole dissent, noting that this decision “renders the protections of the Fourth Amendment hollow,” and sanctions a “shoot first, think later” approach to policing. However, Sotomayor wrote that she would have used a “balancing” analysis instead, in which a “particular government interest” would need to be “balanced” against the use of deadly force. This “balancing” rhetoric mirrors the Obama administration’s justifications for assassination and domestic spying, according to which national security is balanced against democratic rights. The Bill of Rights itself—that old, yellow, forgotten piece of paper—does not make itself contingent on the subjective mental states of police officers, “clearly established law,” or the “balancing” of “government interests.” America confronts a massive social crisis. Decades of endless war and occupations abroad, the degradation of wages and living conditions at home, the enrichment of a tiny layer of financial criminals at the expense of the rest of the society, rampant speculation and corruption at the highest levels—these factors contribute to mounting social tensions and the danger, from the standpoint of the ruling class, of the growth of social opposition. Such opposition can already be seen, in its earliest stages, in the struggle by autoworkers against the sellout contract being imposed by the United Auto Workers union. Like the tyrant who proposes to solve the problem of hunger by imposing a hefty fine on everyone who starves, the Supreme Court’s decision Monday confirms that the entire social system has nothing to offer by way of a solution to the crisis except more of the same. The abrogation of democratic rights, torture, military commissions, drone assassinations, unlimited surveillance, the lockdown of entire cities, internment camps, beatings, murder, martial law, war—this is how the ruling class plans to deal with the social crisis. Notwithstanding the epidemic of police violence, the flow of unlimited cash and military hardware to police departments from the Department of Homeland Security and the Pentagon continues unabated. The buildup of the police as a militarized occupation force operating outside the law, pumped up and ready to kill, must be seen as a part of preparations by the ruling class for mass repression and dictatorship in response to the growth of working class opposition.

These court decisions are key – they spill over to departmental reforms against police violenceMichael Meltsner 16 [(Michael Meltsner, Matthews Distinguished Professor of Law at Northeastern and the author of The Making of a Civil Rights Lawyer, ) What it would really take to stop the killing, Boston 7-7-2016] ATOne wonders how much longer the justice system is going to maintain its reluctance to hold individual officers accountable for wrongdoing. There is no question that occasions arise where the police are justified in using force, including lethal force, to protect themselves and others. If that wasn’t clear to all before the slaughters in Dallas, it should be now. Police officers generally have great discretion in carrying out their duties. At the same time, it’s perfectly clear that the Constitution, especially the Fourth Amendment’s guarantee of the right of persons “to be secure . . . against unreasonable seizures,” prohibits law enforcement officials from using excessive force in the course of an arrest, investigatory stop, or other seizures. The line between legitimate and illegitimate use of force depends on the facts and situation. Decisions often must be made quickly. Circumstances are usually unclear. For those reasons, the ultimate solution to the unjustified taking of lives will never be based on the promulgation of abstract legal rules by government, no matter how well-intentioned. Technological advances like body cameras, which have been adopted by some Massachusetts police (though not those in Boston, yet) may help, but real progress will occur only when law enforcement personnel are rigorously trained to understand that when bodily harm and death are possible, violent reactions should be truly a last resort. On the other hand, court decisions, most prominently Supreme Court decisions, can help influence the legal responsibilities of the nation’s more than 12,000 local police departments in schooling and disciplining officers, not to mention the important role of resolving particular cases—such as those in Ferguson, Cleveland, and New York—that have caused so much stress in minority communities. “ Black lives matter” must be understood as a call for action , not as disrespect for all other lives. So far, however, the Supreme Court—and this includes those thought to be liberal as well as conservative—doesn’t seem to be listening. In a series of decisions

spanning recent decades, the Court has upheld what Justice Sonia Sotomayor described in a November 2015 dissent as approving a “shoot first, think later” style of policing. The Court has decided these cases in different ways but with the same result. Despite factual disputes, it has thwarted jury trials and recast the facts based on documents rather than witness testimony . It has ruled that, unlike ordinary citizens, police have “qualified immunity,” meaning that if a legal rule was not absolutely certain before the officer acted, he or she could not be held responsible for violating it, even if the officer acted in a patently unreasonable way. Each of these cases involves wrangling about specifics, but a study of the Court’s jurisprudence in this area makes it clear that, regardless of the facts, it is very difficult to win a case against a police officer. The sense that the rules are stacked against those alleging excessive force leads prosecutors to decline even to bring cases where there is any colorable defense. That’s of even greater consequence than questionable decisions in individual disputes, and it’s caused community outrage in those places like Ferguson, Cleveland, and New York. Until the Court sends a message that bad acts—selling cigarettes illegally, driving too fast, trying to escape—don’t justify a level of aggressive policing that too often produces lethal force, the Louisiana and Minnesota killings will be remembered as just two more disturbing events on a growing list, one that includes equally destructive revenge.

Even if unsuccessful, these lawsuits fill gaps in police departments’ reporting requirements, which results in reforms to the use of forceSchwartz 10 [(Joanna C. Schwartz. Acting Professor of Law, UCLA School of Law) "WHAT POLICE LEARN FROM LAWSUITS" 33 CARDOZO L. REV. (2010)] LADIFor these departments, lawsuits are a valuable source of information about police misconduct allegations. Departments that do not gather lawsuit data rely on civilian complaints and use-of-force reports to alert them to possible misconduct. In the litigation-attentive departments in my study, lawsuits have notified officials of misconduct allegations that did not surface through these other reporting systems. For example, the Los Angeles Sheriff’s Department’s review of lawsuit claims revealed clusters of improper vehicle pursuits, illegal searches, and warrantless home entries.17 These vehicle pursuits, searches, and home entries did not appear in officers’ use-of-force reports because the events – while potentially serious constitutional violations – did not involve the application of force as defined by department policies and so did not trigger reporting requirements.18 The civilians involved in these lawsuits could have chosen to file civilian complaints but did not; people rarely file civilian complaints and may be particularly unlikely to do so if they are planning to sue.19 Even when a civilian complaint or use-of-force report is filed, the litigation process can unearth details that did not surface during the internal investigation. When, for example, a man died of blunt force chest trauma two hours after being taken into Portland police custody, a critical question was how much force the involved deputies had used to bring him to the ground.20 The night of the man’s death, the involved officer and deputy were videotaped at the Portland jail describing their confrontation.21 The audio portion of the tape was very scratchy, but Portland’s internal affairs investigators did nothing to improve the sound.22 Only during litigation did plaintiff’s counsel enhance the audio, at which point the

involved officer’s statements were found to contradict his statement to internal affairs.2 Lawsuits filled critical gaps in police department internal reporting systems.

A2 Court ClogNon-unique – there’s already a massive backlog of cases nowPalazzolo 15 [JOE PALAZZOLO. “In Federal Courts, the Civil Cases Pile Up.” Wall Street Journal. April 6, 2015 2:09 p.m. ET] LADICivil suits such as Mr. Porter’s are piling up in some of the nation’s federal courts, leading to long delays in cases involving Social Security benefits, personal injury and civil rights, among others. More than 330,000 such cases were pending as of last October—a record—up nearly 20% since 2004, according to the Administrative Office of the United States Courts. The number of cases awaiting resolution for three years or more exceeded 30,000 for the fifth time in the past decade. The federal court for California’s Eastern District, where Mr. Porter filed his suit, has a particularly deep backlog. The number of cases filed per judge, 974 last year, is almost twice the national average. More than 14% of civil cases in that district have been pending for three years or more. The Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial in civil cases. But the Sixth Amendment gives people in criminal cases the right to a “speedy” trial. The upshot: Criminal cases often displace and delay civil disputes, creating a backlog. “Over the years I’ve received several letters from people indicating, ‘Even if I win this case now, my business has failed because of the delay. How is this justice?’ ” said Judge Lawrence J. O’Neill in Fresno, Calif., who sits in the Eastern District. “And the simple answer, which I cannot give them, is this: It is not justice. We know it.” Behind the backlog is a combination of population shifts, politics and a surge in the number of federal prisoners. California’s Eastern District has the same number of full-time judgeships, six, as it did in 1980, when its population was about half what it is now. But only Congress can create new judge positions or move them from slower-growing regions to faster-growing ones, and efforts to do so have run into political resistance. The nomination and Senate approval of federal judges, meanwhile, has become so politicized that some vacancies go unfilled for a year or more. Meantime, the federal prisoner population has ballooned by 55% since 1999, which has led to more lawsuits and petitions by prisoners seeking to undo their convictions or challenge prison conditions. The Judicial Conference of the United States, the policy-making body of the federal judiciary, asked Congress last month to create 68 new judgeships for the U.S. trial courts, including six in California’s Eastern District, which hears cases from a swath of the state that includes Sacramento, Fresno and Bakersfield. In the past, Congress has approved new judgeships but deferred at least some of the posts until the next president takes office. “For some reason we just can’t get there,” said Chief Judge Morrison C. England Jr., the leader of the Eastern District. Some of his cases are nearly a decade old, including a suit that is imperiled because a key witness recently died, he said. The Senate’s pace of judicial confirmations quickened in the second half of 2014, reducing vacancies on federal trial courts to 43, for which 13 nominees are pending. But even if the judiciary were at full strength, places like the Eastern District, which has one vacancy, would see little relief, according to court watchers. The court’s five full-time judges are assisted by three “senior” judges, who are semiretired but often handle full case loads. “If every single vacancy were filled by this afternoon, that still wouldn’t be enough to get the work done,” said Paul Gordon, senior legislative counsel for People for the American Way, a group advocating for more federal resources for the courts. Mr. Porter, of Ridgecrest, Calif., who was a police officer and later a technician at the Naval Air Weapons Station China Lake for a total of 25 years, was laid off in a force reduction in 1999. After exhausting challenges to his dismissal within the Navy, he filed his federal case in 2007, alleging age discrimination and retaliation for making complaints internally. The Navy denies the allegations. Mr. Porter, now 60, hasn’t found steady work in a decade. He said he ekes by on his savings and worries about how he will manage if his day in court doesn’t materialize soon. “Clearly, justice delayed is justice denied,” he said. U.S. Attorney Benjamin B. Wagner, whose office is defending the Navy against Mr. Porter’s suit, described his employee action as “a case in point” for the need for more judges in the district. “It is a routine employment discrimination suit of the sort that used to conclude in two to three years when our bench was adequately staffed,” Mr. Wagner said. Lawyers and plaintiffs in the Eastern District complain of judges repeatedly pushing out trial dates and taking a year or more to rule on pretrial motions due to their packed dockets. “How long people are willing to work under those circumstances is a real question mark,” Judge O’Neill said, adding that his typical workday lasts 12 to 13 hours. “In less than four years, I am retiring, and there’s no way I’m going senior. Frankly, it’s because this job is no fun anymore.”

Qualified immunity substantially slows down cases and increases trial costsChen 97 [Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 101 (1997)] LADIThe principal pragmatic consequence of the doctrine's factually dependent analysis is an increased likelihood that constitutional tort cases in which qualified immunity is asserted will involve a complex factual analysis. As this Article has explained in greater detail above, factual disputes under the law of qualified immunity are not unlikely, given the open-ended reasonableness standard by which assertions of the defense are to be evaluated.5 3 Accordingly, the possibility that the immunity claim can be resolved at an early stage of the litigation becomes more remote. Even assuming that the defendant can escape trial, substantial attention will have to be paid to the pretrial litigation process, including discovery. Plaintiffs, defendants, and trial courts are likely to expend substantial resources simply litigating the qualified immunity defense-an elaborate sideshow, independent of the merits, that in many cases will do little to advance or accelerate resolution of the legal claims. More significant is the high probability that the trial court will conclude that the factual issues underlying qualified immunity claims raise genuine issues of material fact. If that is true, then qualified immunity cases ought not to be easily resolvable on summary judgment, and many cases should go to trial. Given that the acknowledged goal of qualified immunity is to minimize the social costs of constitutional tort litigation, it would be at best ironic if qualified immunity not only failed to advance this objective, but also generated independent social costs. Yet this appears to be the case. The heavily factual nature of qualified immunity creates a phenomenon that can be called "secondary burdens"--the social costs specifically generated by the litigation of the qualified immunity defense. Under the present system, even if the defendant prevails on a qualified immunity claim at some point prior to trial, the factual component of the immunity inquiry may mean that she already has been subjected to much of the litigation burden attendant to a case that was tried on the merits (other than the trial itself). As the Court has acknowledged, at least some discovery, and perhaps fairly extensive discovery, may be necessary to flesh out the precise nature of the defendant's conduct.59' This will generate substantial litigation burdens on defendants, whether they are vindicated prior to trial or not. This process similarly taxes plaintiffs and the court system. Moreover, if the defendant prevails on the immunity defense, it is surely possible that she might have prevailed at a trial on the merits. This may be true for two reasons. First, if the factual scenario is such that it is not clear whether the defendant violated the plaintiff's clearly established constitutional rights, it is one in which a jury might conclude that no substantive violation of the Constitution has occurred. After all, the cases in which qualified immunity is likely to be meaningful are already the close ones. Second, qualified immu- nity could, even if not resolvable prior to a trial, be asserted as a substantive defense to liability. 595 Therefore, it is not clear that the liability outcome fostered by immunity would necessarily be different from the outcome at trial in many cases. This has two implications. First, concerns about fairness and overdeterrence might still be accommodated at trial even if the defendant and society bear some social costs prior to the ultimate vindication on liability. Second, it is not even clear that the qualified immunity defense saves substantial social costs. Assuming that the defendant might prevail in many cases,

whether on immunity grounds or on the merits, the costs eliminated by resolving the case prior to trial must be compared to the costs of trying the case. A comparison of a system with and without immunity reveals that the immunity phase of the pretrial litigation, however costily, is a substitute for the costs of the trial. In other words, the pretrial litigation costs caused by the invoking of the immunity defense may cancel out the trial costs saved by that defense. Although trials are certainly costly, the costs of litigating immunity claims may also be quite significant. One scholar has noted anecdotal evidence that federal district court judges perceive that defendants use the qualified immunity interlocutory appeal process to protract litigation "that would otherwise be tried or settled relatively quickly., 596 In opposing multiple interlocutory appeals in the Behrens case, the plaintiff pointed out that the litigation of the first interlocutory appeal on qualified immunity delayed the case for four years.597 While this, too, is anecdotal, it demonstrates the possibility that immunity litigation may be costly for all involved. If the comparative costs of pursuing qualified immunity claims (and bearing the associated costs of pretrial litigation) and going to trial were borne only by official defendants, then assessing these costs might be considerably less important. Rational defendants in such cases could decide whether the benefits of asserting qualified immunity at the pretrial stages would be outweighed by the additional costs it imposes. As with the other costs of constitutional tort litigation, however, these costs are not realized solely by defendants. Plaintiffs, courts, and society are also saddled with additional costs that might not otherwise exist in a world without qualified immunity. What is more, the previous discussion assumes that courts can adequately resolve qualified immunity claims on summary judgment. But the factual nature of qualified immunity also may generate irresolvable genuine fact issues.59 Indeed, the Court's recent attention to the details of interlocutory appeals of qualified immunity claims suggests that trial courts may be denying a substantial percentage of qualified immunity claims." Thus, a comprehensive analysis of the practical effects of the factual component of qualified immunity must also examine cases at the other end of the spectrum. If the defendant loses her qualified immunity claim, and the plaintiff ultimately prevails on the merits at trial, the entire immunity portion of the litigation will have significantly driven up the litigation costs, the plaintiff's attorneys' fees (for which the defendant may well be liable) ,m and the resources that the trial court has devoted to the case. Furthermore, in cases where the defendant pursues multiple interlocutory appeals on her immunity claim prior to the plaintiff's victory, the costs may be even more substantial. Thus, the Court may be exacerbating the social costs of immunity litigation by widening the availability of such appeals.r60 If this is all that qualified immunity accomplishes, the principal policy rationale for its existence under the modern cases-the minimization of the social costs of constitutional tort litigation-may itself have been undermined. In other words, the elimination of qualified immunity might actually lower the overall social costs of constitutional tort litigation. This is not to say that qualified immunity does not also substantially limit some of the social costs of constitutional tort litigation. Even in a case in which the defendant does not prevail on a qualified immunity claim until years of discovery and summary judgment procedures have passed, she still has saved herself and the court the considerable expense of a trial as well as the additional psychological burden associated with the risk of liability whenever one goes to trial. The point is simply that a meaningful assessment of the costs saved by qualified immunity must be measured against the costs imposed by qualified immunity. If qualified immunity litigation generates significant secondary burdens, those burdens should be evaluated relative to the putative savings promoted by the pretrial vetting of constitutional tort claims. It would be useful, for example, to know the overall costs of constitutional tort litigation presently, and compare those to costs under a system that requires defendants to defend cases on the merits.

Trade and interdependence don’t prevent war Zachary Keck 13, Associate Editor of The Diplomat, monthly columnist for The National Interest, 7/12/13, “Why China and the US (Probably) Won’t Go to War,” http://thediplomat.com/2013/07/why-china-and-the-us-probably-wont-go-to-war/Xinhua was the latest to weigh in on this question ahead of the Strategic and Economic Dialogue this week, in an article titled, “China, U.S. Can Avoid ‘Thucydides Trap.’” Like many others, Xinhua’s argument that a U.S.-China war can be avoided is based largely on their strong economic relationship. This logic is deeply flawed both historically and logically. Strong economic partners have gone to war in the past, most notably in WWI, when Britain and Germany fought on opposite sides despite being each other’s largest trading partners. More generally, the notion of a “capitalist peace” is problematic at best. Close trading ties can raise the cost of war for each side, but any great power conflict is so costly already that the addition of a temporarily loss of trade with one’s leading partner is a small consideration at best. And while trade can create powerful stakeholders in each society who oppose war, just as often trading ties can be an important source of friction. Indeed, the fact that Japan relied on the U.S. and British colonies for its oil supplies was actually the reason it opted for war against them. Even today, China’s allegedly unfair trade policies have created resentment among large political constituencies in the United States.

A2 Chilling EffectDe-policing is a myth – lacks evidence and a causal mechanismDaniel Denvir 14 [(Daniel Denvir, ) The Ferguson effect debunked: The theory not only lacks evidence, it makes no sense, Salon 8-13-2014] ATIn Chicago, 69 people were reported shot, six fatally, over the long weekend. In Baltimore, bullets fired from a passing car hit five people at a cookout on Monday. One of the victims, a 20-year-old man hit in the arm, was later arrested after allegedly returning to the scene with a loaded .38 in his waistband. In many American cities with large, segregated populations of poor black people, murders have been on the rise. So too has been the use of urban carnage, often to conservative political ends, by those hawking the so-called “Ferguson effect,” which posits that protests over police shootings cause officers to pull back from enforcement and thus drive more gunfire. “Ultimately, denial of the Ferguson effect is driven by a refusal to acknowledge the connection between proactive policing and public safety,” the Manhattan Institute scholar who began popularizing the idea last May, recently wrote in The Wall Street Journal. “Until the urban family is reconstituted, law-abiding residents of high-crime neighborhoods will need the police to maintain public order in the midst of profound social breakdown.” The argument, as has been repeatedly pointed out, lacks evidence and is nakedly geared to delegitimize criticism of police misconduct. It is also entirely implausible. Among the many critiques of the Ferguson effect, the most devastating but least

mentioned one is very basic: it has no causal mechanism. If police are standing down on the margins — and I’ll get to whether that’s happening in a moment — there is no explanation as to how that information would be conveyed to criminals so as to cause them to quickly make decisions to fire their guns with more frequency. The relationship between crime, policing and imprisonment is vexed, and this is nowhere more true than with shootings: much gun violence is driven by interpersonal and inter-group conflicts, and so there is little reason to think that traditional aggressive policing methods, from stop and frisk to small-time quality of life enforcement, does much to prevent it. So then, how exactly is the Ferguson effect supposed to work? “That’s a pretty good place to start because none of the people claiming there is a Ferguson effect have any idea either,” says David Kennedy, director of John Jay College of Criminal Justice’s National Network for Safe Communities and a leading expert on gun violence. “Most of the people behind that have essentially said, ‘Violence is up. People are mad at the police. Therefore people being mad at the police is driving violence up ’—and then left people to challenge them about why that might make sense. But there isn’t much of a story, and there’s certainly next to nothing in terms of real facts or analysis that says ‘this is what’s going on in the streets, and these are the ways its leading to increased violence.’ It’s really not an analysis. It’s more a position.” The factual basis of that position relies on two things being true. First, anti-police protests and Black Lives Matter must be causing police to not do their jobs. Second, that pullback must lead to more shootings. To begin with, evidence of any pullback is decidedly mixed. In Baltimore, there is evidence of decreased drug enforcement and the beginning of a sharp spike in shootings around the time of the riots that followed Freddie Gray’s death, according to crime analyst Jeff Asher. But there are likely other factors stemming from a riot that could drive more shootings beyond enforcement— such as young men already involved in gun violence encountering one another more frequently in the street. Researchers at Johns Hopkins found “fundamentally unclear” and inconclusive evidence of a Ferguson effect in Baltimore: after Ferguson protests, arrests in the city fell and crime initially fluctuated within expected bounds; after Freddie Gray died, arrests declined, including quite precipitously in the case of serious crimes like murder, and murder began to skyrocket. Notably, according to the Baltimore Sun, gun seizures started rising last June—just after the Grey protests and riots and amidst a deluge of murders. Shootings have since declined.

“There are a number of really important facts that push in the other direction,” says Kennedy. The seizures are “the one kind of day-to-day policing that one might expect would have the most direct impact on homicide and gun violence. And while violence is thankfully trending back down in Baltimore, it’s not coming back down at a level commensurate with those gun seizures—that’s for sure.” It’s quite possible that the murder spike and the riots were related—but not at all in the way that Ferguson effect promoters, who contend that pulling back from discretionary enforcement activities like pedestrian stops drives violence, would like to think. In Chicago, analysts Rob Arthur and Jeff Asher found that murders spiked while arrests fell—including for shootings and murder—after shocking video of an officer killing teenager Laquan McDonald was made public in late November. But it’s also true, according to a recent story in The Trace, that gun seizures in the city have held steady this year even as street stops have fallen. What’s clear is that the data doesn’t tell a clear story. Often, quantitative data doesn’t. Numbers are key but don’t make up for the dearth of qualitative data. Understanding why a particular person shoots another is often knowable. Much gun violence involves a relatively small number of people in any given city, and there are discrete stories behind individual shootings and neighborhood patterns of violence. Reporting or ethnographic research can reveal these stories. It doesn’t have to be a guessing game. There is too much interpretation of the smoke and not enough investigation of the fire. “There’s just very little field work done in this area,” emails Kennedy, who prizes such work. “It’s nearly all done with official administrative data.” ** The Ferguson effect idea really took off last May after the Manhattan Institute’s Heather Mac Donald warned Wall Street Journal readers that a “two-decades-long crime decline may be over,” and that “the most plausible explanation of the current surge in lawlessness is the intense agitation against American police departments over the past nine months.” More recently, FBI Director Jim Comey helped pushed the theory back into the limelight, telling reporters in May, that a “viral video effect…could well be at the heart” of the violent crime spike. “There’s a perception that police are less likely to do the marginal additional policing that suppresses crime — the getting out of your car at 2 in the morning and saying to a group of guys, ‘Hey, what are you doing here?’” Comey said. Notably, the head of the National Fraternal Order of Police disagreed with this account and took offense to it. It’s very true, however, that, murders have been surging in some cities. Overall, there are still far fewer murders than during the bloody 1980s. But there was a 17% nationwide increase in murder in 2015, according to according to a Guardian report on still-unreleased findings from a study by University of Missouri St. Louis criminologist Richard Rosenfeld. That murder spike was driven by 10 cities, where killings increased by a third on average. Rosenfeld was initially amongst the Ferguson effect’s most-cited skeptics but now calls it his “leading hypothesis.” Mac Donald and multiple media outlets have taken note. Last week, I emailed Rosenfeld to ask how the Ferguson effect, based on what I have laid out above, could possibly be true. “There is no research I am aware of that suggests de-policing could have such a powerful effect on firearm violence — except maybe if the police all went on strike and stayed home,” emails Rosenfeld. “There are two versions of the Ferguson effect. One emphasizes the role of de-policing in the homicide rise. The other, which I favor, suggests that longstanding grievances with the police in minority communities are activated by controversial and heavily publicized incidents of police use of force, resulting in more killings as community members settle grievances or respond to crimes without recourse to the police.”

Case turns the DA – loss of police legitimacy increases violence – that better explains their dataDaniel Denvir 14 [(Daniel Denvir, ) The Ferguson effect debunked: The theory not only lacks evidence, it makes no sense, Salon 8-13-2014] ATIn other words, Rosenfeld says that he doesn’t subscribe to Mac Donald’s Ferguson effect. Instead, Rosenfeld believes that something very different might be going on: when police lack legitimacy people don’t trust law enforcement, which leads people to govern their communities via vigilantism and preventative violence. Kennedy says this account is far more plausible. But it leads to an entirely different set of conclusions. “It’s not depolicing as such,” says Kennedy. “It is a steady and very serious rise in perception that the police are

illegitimate. There is very strong science on this that says in the neighborhoods…where violence is always concentrated…as public perception of the legitimacy and standing of the police goes down, homicide and serious violence goes up.” The Ferguson effect, it seems, isn’t the right name for this other theory. And even this explanation runs into one very large counterexample: New York City, the nation’s largest city. Stop and frisk, one of the most broad-based enforcement programs in U.S. history, has in recent years declined dramatically thanks to legal action and widespread protest. In the meantime, murders have continued their long-running decline as well. The first quarter of 2016 saw the fewest shootings and murders in the city’s recorded history. As recently as 2011, stop and frisk was so widespread that the NYPD stopped young black men more times than there were young black men in New York, according to the NYCLU. “The predictions, including from many of the folks now touting the so-called Ferguson effect,” says Kennedy, were that “if police drew back…the streets would be running red with blood.” They aren’t. But the fact that the sky hasn’t fallen didn’t stop critics like the New York Post from howling last June, amidst what turned out to be a temporary uptick in shootings, “Hizzoner’s stop-and-frisk ban intentionally ties cops’ hands, leaving city streets potentially awash in guns. And blood.”

Prefer controlled studies – aggressive policing doesn’t cause crimeNovak and Holsinger 97 [Kenneth J. Novak, Department of Sociology/Administration of Justice, University of Missouri, Kansas City; Missouri Jennifer L. Hartman, College of Criminal Justice, Northeastern University, Boston, Massachusetts; Alexander M. Holsinger, Department of Sociology/Administration of Justice, University of Missouri, Kansas City, Missouri and Michael G. Turner, College of Criminal Justice, Northeastern University, Boston, Massachusetts) “The effects of aggressive policing of disorder on serious crime” A previous version of this paper was presented at the 1997 meetings of the Academy of Criminal Justice Sciences in Louisville, Kentucky] LADIThis paper examined whether reductions in serious crime were realized from one particular aggressive police intervention in a large midwestern city. For four weeks, agents from a state regulatory agency aggressively enforced disorder crimes such as open containers of alcohol in public and in vehicles, consumption of alcohol by minors, and drug abuse. At the same time, the local police department placed three to four officers in marked cars sitting stationary on residential street corners to curb joyriding and loud music in the early morning hours. We do not address the types of crime which were the intended focus of the project. Instead, we analyzed rates of less police suppressible crime (robbery and aggravated burglary). Results suggest there was no difference in the incidence of these crimes before or after the project in the target area, control area, or either of the catchment areas for the 52 weeks before and after the intervention period. An interrupted time series analysis revealed no significant findings, suggesting the treatment had no effect on serious crime in the target area. There are several possible conclusions which could be drawn from this research. One possible conclusion could be that this project had no benefits as measured above. In light of the research presented earlier, there can be several explanations for this phenomenon. First, there was no media coverage of the project. Sherman (1990) suggests media coverage is an essential ingredient of crackdowns such as the current one, and is necessary to increase citizens' perceptions of the risk of apprehension. Second, the intervention was quite short in duration. It lasted only four weeks, whereas crackdowns in Georgetown lasted 20 weeks (Sherman et al., 1986), the directed patrol project in Pontiac lasted 33 weeks (Cordner, 1981), and the Minneapolis Hot-Spot experiment was conducted for almost one year (Sherman and Weisburd, 1995). It should be noted, however, that Weiss and McGarrell (1996) found reductions in some serious crimes in only a six-week period. Nevertheless, it appears such projects benefit from long-term durations within the specific areas, which may be necessary to make the police presence more visible. A third possible explanation for the results is that the dosage level was not high enough. Though there were increases in the number of arrests (140) and officers (six regulatory officers and three to four uniformed officers), the aforementioned studies without question had higher levels of dosage in terms of arrests and police presence. Additionally, some suggest that the act of sitting stationary in one spot for a prolonged period of time quickly reaches the point of diminishing returns. Koper (1995), in his analysis of the Minneapolis Hot- Spot experiment, concluded that officers located in a single area had a maximum deterrent effect at about 14 - 15 minutes. As time in a specific area continued to increase, the benefit of police presence decreased[10]. In essence, police presence becomes too predictable. Therefore, instead of being present at one location for four hours, the officers would have made better use of their time by rotating to other residential intersections within the target area. Effects of aggressive policing Finally, regulatory agents did not patrol the target area in marked police cars. Thus the perception of police presence may have been diminished even though their uniforms clearly indicated that they were law enforcement 187 officers. All of the previous studies assessing aggressive policing efforts utilized uniformed officers patrolling on foot or in police cars. This fact alone may indicate that the efficacy of using officers in this fashion may not bring about the increased perception of apprehension that was desired. This study questions other empirical research which argues that increased police presence in specified high crime

areas can bring about limited unanticipated benefits. Policy makers must be cognizant of all the important ingredients necessary to realize these results. Media publicity, duration, rotation of officers in the area from place to place, visibility of officers, and of course budgetary constraints, should be well planned and calculated beforehand.

Neg

Case – SolvencyPolice won’t be successfully prosecutedTully 16 [(Author Attorney Joseph Tully) Police Brutality: Fed by Prosecutors, DAs, Judges, Tully & Weiss 9-12-2016] LADIOn December 3, 2014, a Richmond County grand jury decided not to indict New York City police officer Daniel Pantaleo for using a prohibited chokehold to restrain 43-year-old father of six, Eric Garner, resulting in his death. Despite complete video footage that clearly demonstrated the unwarranted police attack on Garner, the Staten Island district attorney (DA) did not even obtain an indictment for assault. The tragic case of Eric Garner illustrates a tragedy on an even larger scale. Not only are corrupt cops responsible for their unlawful actions, but our criminal justice system and prosecutorial procedures also share in the blame. Even with the enforcement of body worn police cameras and clear video evidence of wrongdoing, cops continue to literally get away with murder each year. What most people don’t realize is that prosecutors and judges are responsible for fostering an environment which creates out of control cops. Courts Rule 85% Officer Involved Killings Justified in 2015 The inherent conflict of interest in police misconduct investigations and prosecution is staggering. Police officers and prosecutors work closely together as a team, a team required to police themselves and enforce their own punishments when things go wrong. DAs cannot be reelected without the support of law enforcement officials and unions, yet are expected to prosecute the very police officers they work with day after day. A Guardian analysis showed that prosecutors cleared 217 police officer killings from liability in 2015. Eighty-five percent of police officer involved killings were ruled justified last year. Prosecutors review every arrest, decide whether to prosecute that arrest and notify the arresting officer when the arrest is deemed valid. At the same time, police officers work side by side with the prosecutor, processing and supplying evidence, interrogating witnesses and providing testimony. Policies requiring independent, outside prosecutors be appointed to investigate and prosecute cases of police involved shootings would seem

obvious, but are practically nonexistent. Prosecutors Ignore Police Misconduct When Deciding to Indict or Prosecute Prosecutors get to know police misconduct complaints inside and out. They know who the repeat offenders and problem officers are, yet there is zero incentive for prosecutors to report misconduct discovery. There are no concrete policies and procedures in place for prosecutors to consider prior misconduct complaints when deciding to indict or prosecute. Howie Lake II and Blane Salamoni, the two officers involved in the shooting death of Alton Sterling, each had two prior use of force complaints under their belts. Officer Jason Van Dyke had ten prior excessive force complaints involving firearms and verbal abuse before shooting and killing Laquan McDonald in October 2014. Yet no one talks about the prosecutors who had reviewed these prior cases and refused to take any action meant to correct the officer’s behavior. No one talks about the judges who heard motion after motion with the same officer being involved in an illegal search or other misconduct and who refused to take any action meant to correct the officer’s behavior. Officer Retaliation Hinders Reporting of Police Misconduct The potential for retaliation in response to discrediting an officer’s integrity is huge. It’s safer to bury the evidence, hope it gets brought up by defense counsel and avoid the political wrath. This legitimate fear of retaliation deters fellow officers and investigators from reporting suspected police misconduct. Baltimore detective Joseph Crystal knows this all too well. Crystal found a dead rat on his windshield after contacting prosecutors and filing charges against his sergeant and another officer involving the beating of a drug suspect. When an arrest is no good, denial of prosecution deters the

arresting cop from making the same mistake in the future. He strikes out. He knows he must follow the rules to get ahead. But denial of prosecution based on police misconduct rarely happens. Instead, prosecutors choose to ignore red flags and blow opportunities to get bad cops off the streets, giving officers the go-ahead to lie, use excessive force, withhold evidence and carry out false arrests. When defense attorneys try to raise these issues in court in front of a judge, most likely they are laughed at, demeaned, ignored or screamed at and unceremoniously denied in their claims. DA’s Lack Support In Establishing Law Enforcement Reform Policies and procedures that require prosecutors inform an officer’s supervisor of a denial based on police misconduct could be extremely effective. DAs need to enforce an explicit duty for prosecutors to voice concerns around knowledge of police misconduct to defense attorneys. Clear and effective anti-retaliation protections must be in place for those who report police misconduct. The DA’s role is to enforce policy and promote proper function of our criminal justice system, yet you won’t find many DA’s able to stand their ground, implement police department reform and remain impartial in the prosecution of cases involving police officers. Most government officials refuse to support DA’s in law enforcement policy reform. When San Francisco DA George Gascón requested funding for a Blue-Ribbon Panel to be established to investigate police misconduct in the shooting of 26-year-old Mario Woods, Police Chief Greg Suhr refused to cooperate in the investigation and Mayor Ed Lee declined funding. “In the six months since forming the Panel, the San Francisco Police Department and POA have engaged in a dizzying array of stonewalling tactics,” Gascon said in a letter to Mayor Lee. “The Chief of Police has demanded that the Panel work through the POA and not make direct contact with any SFPD officers. This is not the type of transparency and collaboration we could expect from a department and a chief eager to improve.” Federal Judges Continue to Support Qualified Immunity For Police Misconduct Federal judges are equally responsible for the widespread police brutality in their reluctance to hold corrupt cops liable for their actions. When Lakewood, Colorado sergeant Todd Fahlsing pulled over Latonya Davis for a suspected suspended license, the disabled woman took her time getting out of the car. Fahlsing proceeded to break her driver side window, pull her through the window by her hair and pin her to pavement. When Ms. Davis filed a lawsuit against Fahlsing, District Judge William J. Martinez dismissed her case, reasoning that the officer had “qualified immunity,” meaning couldn’t be sued for his actions. Though the 10th Circuit Court of Appeals reversed Judge Martinez's decision and Ms. Davis will get the opportunity to make her case in court, Judge Martinez’ decision and others like it continue to give officers permission to use excessive force. The inaction of DA’s, prosecutors and judges is equivalent to telling police officers that it is okay to bypass the rules. On the rare occasion the system holds a cop accountable, it is to set an example to the public rather than to punish the wrongdoing. We must begin to view the prosecution of corrupt cops as we do the prosecution of any criminal– not to set a recurring public example, but to get the potential danger off the streets and protect our citizens.

Qualified immunity incentivizes police to seek guidance from lawyers before acting – restrains misconductDawson 16 [(Edward c. Assistant Professor of Law, Southern Illinois University School of Law) "QUALIFIED IMMUNITY FOR OFFICERS’ REASONABLE RELIANCE ON LAWYERS’ ADVICE" Northwestern University Law Review Vol. 110, No. 3] LADIIncorporating lawyers’ advice into qualified immunity analysis is also consistent with the balance of policy considerations driving the doctrine. The overall purpose of § 1983 is to remedy and deter abuses of power that violate constitutional rights.275 Within that framework, qualified immunity doctrine balances “the need to hold public officials accountable when they exercise power irresponsibly [against] the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”276 Considering lawyers’ advice in qualified immunity analysis serves all of these goals. If lawyers’ advice may support the qualified immunity defense, this will incentivize officers to seek advice before acting in uncertain situations.277 Police officials are actually aware of the cases allowing reliance on lawyers’ advice to support the immunity defense, and have advised officers to seek advice to take advantage of this rule.278 If officers more frequently seek advice, this should actually reduce the instances of abusive violations of rights because

generally officers may be more likely than lawyers to make legal mistakes.

The law cannot restrain police officers – ambiguity surrounding what constitutes “excessive” force leads to circumventionAlpert and Smith 94 [(Geoffrey P. Alpert and William C. Smith, Professors at University of South Carolina) “How Reasonable Is the Reasonable Man: Police and Excessive Force.” Journal of Criminal Law and Criminology Volume 85 Issue 2 Fall] LADIThe Commission Report discussed the need for scrutiny of the police and the need for reform.3 Unfortunately, no one attempted to define excessive force or explain situations that went beyond the necessary force needed to achieve the police mission. This lack of definition has created an unfortunate situation for both the police and the public. One possible consequence of this deficiency is the lack of national and state-wide statistics on police use of force or excessive force. The shortage of comprehensive statistical information on police use of force has been explained by police officials:4 [A]gencies did not require reports of their use [of force] from their officers. The categories of force for which such reporting as most likely to be mandated were those with the most potential for death or serious bodily harm, such as shootings.... A majority of the agencies within each type reported that they reviewed all use of force reports. The remaining departments either reviewed selected reports or reported that they did not review these reports at all.

Best evidence shows no evidence of racial bias in police shootings. Police presence saves thousands of black lives. MacDonald 8/22 [(Heather, Thomas W. Smith Fellow @ The Manhattan Institute for Policy Research) Internally cites James (Lois, Researcher in Behavioral Science, Cognitive Science, and Experimental Psychology @ Washington State University) and Fryer (Roland, Professor of Economics @ Harvard University) “ARE THE POLICE RACIST?” Prager University, 08/22/2016] LADIA recent “deadly force” study by Washington State University researcher

Lois James found that police officers were less likely to shoot unarmed black suspects than unarmed white or Hispanic ones in simulated threat scenarios. Harvard

economics professor Roland Fryer analyzed more than 1,000 officer-involved shootings across the country. He concluded that there is zero evidence of racial bias in police shootings. In Houston, he found that blacks were 24 percent less likely than whites to be shot by officers even though the suspects were armed or violent. Does the truth matter? An analysis of the Washington Post’s Police Shooting Database and of Federal Crime Statistics reveals that fully 12 percent of all whites and Hispanics who die of homicide are killed by cops. By contrast, only four percent of black homicide victims are killed by cops. But isn’t it a sign of bias that blacks make up 26 percent of police-shooting victims, but only 13 percent of the national population? It is not, and common sense suggests why. Police shootings occur more frequently where officers confront armed or violently resisting suspects. Those suspects are disproportionately black. According to the most recent study by the Department of Justice, although blacks were only about 15 percent of the population in the 75 largest counties in the US, they were charged with 62 percent of all robberies, 57 percent of murders and 45 percent of assaults. In New York City, blacks commit over three-quarters of all shootings, though they are only 23 percent of the city’s population. Whites, by contrast, commit under two percent of all shootings in the city, though they are 34 percent of

the population. New York’s crime disparities are repeated in virtually every racially diverse city in America. The real problem facing inner-city black communities today is not the police but criminals. In 2014, over 6,000 blacks were murdered, more than all white and Hispanic homicide victims combined. Who is killing them? Not the police, and not white civilians, but other blacks. In fact, a police officer is eighteen and a half times more likely to be killed by a black male than an unarmed black male is to be killed by a police officer. If the police ended all use of lethal force tomorrow, it would have a negligible impact on the black death-by-homicide rate. In Chicago, through just the first six-and-a-half months of 2016, over 2,300 people were shot. That’s a shooting an hour during some weekends. The vast majority of the victims were black. During this same period, the Chicago police shot 12 people, all armed and dangerous. That’s one half of one percent of all shootings. Does the truth matter? If it does, here’s a truth worth pondering: There is no government agency more dedicated to the proposition that black lives matter than the police. The proactive policing revolution that began in the mid-1990s has dramatically brought down the inner-city murder rate and saved tens of thousands of black lives. Unfortunately, that crime decline is now in jeopardy. As I write in my book,

The War on Cops, police officers are backing off of proactive policing in black neighborhoods thanks to the false narrative that police officers are infected with homicidal bias. As a result, violent crime is going up, in cities with large black populations, homicides in 2015 rose anywhere from 54 percent in Washington DC to 90 percent in Cleveland. Overall, in the nation’s 56 largest cities, homicides in 2015 rose 17 percent, a nearly unprecedented one-year spike. Many law-abiding residents of high-crime areas beg the police to maintain order — precisely the type of policing that the ACLU, progressive politicians, and the Obama Justice Department denounce as racist. This is tragic because when the police refrain from proactive policing, black lives are lost. Lost because of a myth. The best research and data reach this conclusion: there is no evidence that police are killing blacks just because they are black.

Civil suits won’t deter – funds come from the city’s budget, not the officer’sChase Madar 14 [(Chase Madar, ) Why It’s Impossible to Indict a Cop, Nation 11-25-2014] LADI Civil suits for monetary damages require a lower standard of proof than criminal cases, but these suits are not a slam-dunk for victims of cop violence, either. The same jurisprudence that grants wide leeway to law enforcement still holds. Last March, one victim’s family lost a federal civil suit for wrongful death and civil rights violations brought against police officer Nicholas Bennallack for fatally shooting a fleeing and unarmed drug suspect. The jury believed the cop’s claim that he opened fire out of fear for his life. What about all the times when excessive force suits get settled out of court? It turns out that massive payouts don’t deter police misconduct for one straightforward reason: neither individual officers nor police departments are responsible for coughing up the cash. The union covers the officer’s lawyer, and research from Joanna Schwartz of UCLA Law School found that governments, not individual officers, paid out 99.98 percent of the damages. Settlements and damages aren’t paid by the police department, whose budget will waltz by untouched, but typically out of the general municipal budget. Kuby maintains that civil remedies will always fall short

and thinks only criminal prosecution has a prayer of changing police behavior. “Prosecution works well with people who are not fundamentally criminal and have enough stake in the system to respond! Any response below that is an insult.” But he admits that the political will to make the criminal justice system restrain and regulate its own members and enforcers is consistently lacking—and has been as long as he’s been practicing law.

CP – Disarm the PoliceCounterplan text: The United States Federal Government should disarm police on patrol.

Solves police shootings and improves officer safety Smithsimon 15 [(Gregory, Associate Professor of Sociology @ Brooklyn College) “Disarm the Police,” Metropolitics, 09/29/2015] LADIEfforts to reform police behavior fall short by design however if they don’t fundamentally change the power dynamic between police and people who are most intensively policed. “Community policing tends to turn all neighborhood problems into police problems,” Vitale (2015) notes in an Al Jazeera open editorial. Law enforcement’s tools of arrest and physical force are limited ways to deal with community problems. Unarmed public-safety officers would be better able to do the work that most of them join the force to do in the first place, instead of being put into contentious situations with community residents that end badly and make no one safer. The British practice what researchers call “policing by consent” (Tilley 2008). Could today’s cops do their jobs like all other civil servants do, on the basis of respect for their position, not their sidearm? Most cops could do their jobs better freed from the weapon that is a barrier between themselves and the people they are to protect. Over a dozen countries have unarmed police—not just Britain, the best-known example, but Iceland (where a third of residents own guns, but the police patrol unarmed), Ireland (neighbor to a decades-long bombing campaign), and Norway, even after a terrorist attack against a summer camp. (Noack 2015) The disparities in civilian deaths are absurd : police here killed about 1,000 people10 last year,11 while the police in Great Britain fired their guns three times all year—and killed no one.12 What’s more surprising is what we forget when people say that the police need guns because they do a dangerous job: it’s more dangerous because of their guns. Surveys of police who are unarmed find that their concerns include not only danger to civilians, but the psychological harm done to police who fire weapons, and a belief that arming police makes officers’ jobs more dangerous (Squires and Kennison 2010). Thirty police were killed in the US in 2014, while a police officer was last killed in Great Britain in 2012. Even accounting for the UK’s smaller size, a dozen cops would have died on the job in that time if they faced the rates of American police “protected” by their weapons.

Limiting firearm availability is key to solving police shootings of the mentally illSmithsimon 15 [(Gregory, Associate Professor of Sociology @ Brooklyn College) “Disarm the Police,” Metropolitics, 09/29/2015] LADIDisarming police would also change interactions with mentally ill people. A Portland Press Herald investigation 3 found half of police- shooting victims had mental health problems. In 2014, at least 14 mentally ill people4 were shot by police, often after parents or other caretakers called seeking help, not lethal force. When police arrived, the victims failed to immediately follow police commands. In several notorious cases in Texas,5 Florida,6 and North Carolina,7 they were shot by police within seconds of police arriving at their home. In a case in Houston, police shot a mentally disturbed man who was a double amputee in a

wheelchair, after he waved a “shiny object” that turned out to be a pen. As Nevada journalist and editor D. Brian Burghart concluded after a two- year effort to catalog all police shootings8 nationwide, “You know who dies in the most population- dense areas? Black men. You know who dies in the least population-dense areas? Mentally ill men” (Burghart 2014). Indeed, officers in Norway, where police are unarmed, revealed to researchers that a significant concern with arming police was that more mentally ill people would be killed (Hendy 2014). As recent efforts to rethink police training 9 acknowledge (Apuzzo 2015), fatal shootings could be dramatically reduced by limiting the ready ability of police to use deadly force. The most logical limitation at hand is obvious and simple enough: disarm the police.

Disarming the police leads to a paradigm shift in how we view poor communities of color – leads to progress in civil rights, enhanced rule of law, and democracy Smithsimon 15 [(Gregory, Associate Professor of Sociology @ Brooklyn College) “Disarm the Police,” Metropolitics, 09/29/2015] LADISome opponents to disarmament argue that it works in more social-democratic countries because a strong social safety net means there is little poverty and hence less crime. Exactly: a heavily armed police force allows a society to impoverish a segment of its citizens and still keep them in place. A society without an armed police force must move towards addressing poverty, discrimination, and social inequality peacefully, not reinforce it violently. The conservative response that disarmament might work in homogeneous, social-democratic countries but that our racially divided, high-poverty state depends on armed policing unintentionally supports Michelle Alexander’s (2010) claim that armed police are the front lines of the repressive new Jim Crow, and leaves no legitimate reason for such a heavily armed force in our neighborhoods. If we don’t need guns, what are they for? On the front line of law and order’s replacement for Jim Crow, armed police patrol African-American neighborhoods as a reminder of the deadly consequences of stepping out of line. Guns are there to discipline Black men into following a racist social order. The protests on the streets of Baltimore, New York, Ferguson, Oakland, and beyond have been demands that we treat everyone as a citizen, not a suspect. Disarming the police is not only a step towards safer communities and safer environments for police, it’s an important goal for progress in civil rights, the rule of law, and the creation of a fully prosperous, truly democratic society.

K – LegalismThe aff’s use of civil suits focuses on punishing individual perpretators of violence – this obscures the endemic violence of police forcesFeldman 15 [(Leonard Feldman, Hunter College, CUNY) “Police Violence and the Legal Temporalities of Immunity”] LADIOn the same day the Department of Justice declined to prosecute Ferguson Missouri Officer Darren Wilson for civil rights violations in the shooting death of Michael Brown, it issued a scathing report as part of a “Pattern and Practice” investigation of the entire police force. Concerning the former—the decision not to prosecute—while this paper has focused on the legal grey hole of civil litigation for civil rights violations, it is possible to detect similar forms of legal immunity in the high thresholds for prosecution established by 18 U.S.C. § 242. The legal reasoning overlaps 25 with that in civil litigation because in the criminal cases the courts use the same standard of “objective reasonableness” developed in the civil cases (Graham, Garner, and Scott) to establish that a rights violation occurred. While there is no qualified immunity defense (according to the Supreme Court in Pearson) there is a higher willfulness standard (and “specific intent” requirement) for proving a violation that similarly works to shield police.55 (Campaign Zero, discussed below, recommends eliminating the willfulness standard for Federal Civil Rights prosecutions of police officers.56) Perhaps the Court felt less compelled to erect barriers to criminal prosecutions (as opposed to civil litigation) since it assumed that federal prosecutors’ discretion would accomplish the very same objective. Concerning the latter—the Department of Justice’s report on the entire police force of Ferguson , as well as the complicity of judges and city

officials—it offers the promise of constraining police use of force by using the threat of litigation to address broader and deeper policies and practices. As Coates argues, “ the focus on the deeds of alleged individual perpetrators, on perceived bad actors, obscures the broad systemic corruption which is really at the root. ”57 Similarly, Madar writes,

“far more useful are the DOJ Civil Rights Division’s root-and-branch interventions into violently dysfunctional police forces, triggered by ‘patterns and practices’ of systematic rights violations rather than any one particular incident.”58 Moving beyond both law and sovereignty narrowly construed, enables attention to what Harmon describes as the “problem of regulation” and the role of “other institutions and sources of law in regulating the police.”59 As Harmon shows, police use of force is embedded in a dense but also permissive regulatory environment running the gamut from administrative rules to employment and collective 26 bargaining law to state level licensing regulations. Consent decrees, Memoranda of Understanding and Collaborative Agreements all emerge out of or in the shadow of Department of Justice “pattern or practice” investigations, aiming to change policies and practices at the department level. Furthermore, even tools such as quantitative benchmarking can be deployed in the service of structural reform: A DOJ study cited by Rushin of the Washington D.C. police force contrasted what they discovered to be 15% rate of excessive force incidents as compared to a benchmark “‘well-managed and supervised police department’ [that] should only expect about 1 or 2 percent of all incidents to involve excessive use of force.”60 And in Cincinnati, Shatmeier describes successful police department reform in the wake of a Department of Justice “pattern or practice” investigation through consent agreements that relied on “experimentalist regulation.”61

The aff assumes the police violence can be addressed by bringing it under the control of law – in fact, the law is the apparatus legitimating police violence. Civil suits only identify “operational errors” committed by the police, fail to convict police, and excuse and reinforce the violence of the policing apparatus itself.Simon Behrman 11 [(Simon Behrman, ) Police killings and the law – International Socialism, 1-4-2011] LADIEver since the late 1970s some on the left have declared that Britain is either in or on the cusp of a police state.5 Yet even after the miners’ strike, various pieces of draconian anti-terrorist legislation and other attacks on civil liberties, the British state remains very much a capitalist democracy. Nevertheless, during this period the use of firearms has become ever more widespread in the police force. It was little noticed, for example, that during the 1990s police forces up and down the country began regularly deploying Armed Response Vehicles (ARV), equipped with a huge stock of firepower.6 The impetus for this began when the IRA bombing campaign came to the mainland. Indeed, the weaponry introduced including live firearms, plastic bullets and CS gas were all road-tested first in Northern Ireland. The point is that just as these developments in police practice have outlived the Irish “emergency”, so too a state of emergency appears to be becoming a more permanent feature of policing policy which has in turn led to a justification for retaining and expanding the right of the police to use lethal force. Examples where “unprecedented” circumstances have been claimed as justification for the use of police-state tactics are mass detentions of anti-capitalist protesters and the threat of suicide bombers. It is very likely that as social instability caused by the economic crisis develops this too will be claimed as justification for the continued use of “emergency” powers. Of course, Marx and Engels argued that capitalist democracy was a major advance over feudalism and offered to the working class a far better terrain on which to fight than other, more authoritarian, forms of capitalist rule. Yet throughout his writings, from “On the Jewish Question” in 1843 right through to the Critique of the Gotha Programme over 30 years later, Marx highlighted two crucial aspects of capitalist democracy. First, democracy and equality in the political sphere mask the massive inequalities that exist in the economic domain where capital operates a dictatorship over labour. Second, as Lenin put it, capitalist democracy provided “the best possible political shell of capitalism”.7 Because the working class poses such a potentially powerful threat to the dictatorship of capital, relying on rule by consent rather than by violence is always the preferred tactic of bourgeois rule. But, and this is the key point, the monopoly on the use of violence that the dictatorship of capital exercises through its state means that killings by the police, along with other forms of state terror, can be accommodated without violating the norms of capitalist democracy. This is achieved via the rule of law, specifically the legal form that, as the Soviet jurist Evgeny Pashukanis argued, shares the same structure as the commodity form. My argument here is that certain police-state tactics such as extra-judicial killings have become possible without the loss of legitimacy and rule by consent conferred by governing under the rule of law. Instead law itself has become a perfect vehicle for such tactics. In short, police violence must be understood not as a departure from capitalist democracy but as a function of it. From policing by terror to policing by consent In spite of the shocking nature of recent killings by the police, it is important to recognise that throughout their history the police have frequently used extreme violence against suspects, bystanders, demonstrators and workers on strike. The violence deployed by the modern police is in fact far less than that of their predecessors of the 18th and early 19th centuries. Douglas Hay has described how the British ruling class of that period imposed their authority through state terror.8 From 1688 until 1820 the death penalty was extended from about 50 offences to over 200, most involving crimes against property.9 Executions were bloody public spectacles intended to instil fear into the lower classes. An additional element of this strategy involved armed members of the local gentry, the yeomanry

and special constables. If those ad hoc forces failed to keep order they were reinforced by the deployment of the military around the country. This became increasingly necessary with the intensification of riots in the countryside as the effects of the birth of modern capitalism began to bite. Following in the wake of this brute force, judges would be sent into the affected areas to dispense summary justice. The causes of the riots and the need for the ruling class to impose terror on the populace were rooted in a massive transformation of economic relations during the 18th century. This represented a concerted shift from the remnants of feudalism towards capitalism. Brutal methods were necessary for the ruling class during a period that saw a massive theft from the poor in a process described by Marx as the “primitive accumulation of capital”.10 The new bourgeoisie seized common lands through successive Enclosure Acts, thus impoverishing and starving the local peasantry who relied on these to support and feed themselves. Enclosure had two effects—forcing the rural poor to resort to poaching and scavenging on the estates of the rich, and pushing increased numbers of them from the land into the cities to seek work. The uprooting of communities in the countryside and the chaos of expanding cities with a lack of housing and work for the new arrivals led to social instability fed by anger and desperation from those who had been dispossessed. This period of transition saw the ruling class deploy a combination of forms of rule inherited from the feudal period, and new forms that better suited a capitalist society. An inheritance from feudalism was the use of terror tempered by mercy. The huge increase in crimes punishable by the death penalty was in fact accompanied by a comparative reduction in its actual use. More often those sentenced to death were encouraged to seek clemency from either the king or the property owner against whom they had committed the offence. Assuming they demonstrated a suitable amount of humility, they would be shown mercy and their sentence commuted. Note that in this arrangement law and socio-economic relations appear in one and the same guise. The same person who held a higher social position to you could also at their discretion prosecute you. Following conviction they could accept or reduce the punishment. Sometimes the property owner would negotiate with the convict terms for doing work on their land in exchange for dropping the prosecution. In effect, this was not the rule of law but instead naked class power adorned with some of the rituals of law. In like manner, the application of physical force was not governed by law, but rather by expediency. Once a riot broke out the armed forces of the state were permitted to use whatever force was necessary to restore the king’s peace. This worked up to a point when dealing with the rural poor. For the landed gentry, the debilitating injuries and killing of the local peasants did not disturb their lives or livelihoods on their increasingly large estates. Moreover, the only weapon the peasantry could deploy against the force of the state was their own ability to organise and fight. But face to face against a much better armed and organised military force, they were invariably beaten. With the growth of the working class in the cities the balance of class forces changed. The urban working class living closer together in built up areas were better able to organise and defend themselves. At the 1819 “Peterloo” massacre in Manchester, for example, the crowd numbered possibly up to 150,000, larger than any riot or uprising since the English Revolution almost two centuries earlier. In addition, many of the protesters had been carrying out practice drills for weeks in advance. With just 1,000 troops and 400 constables, the authorities would only be able to break up the protest through the use of extreme violence, and so it was. Men, women and children were stampeded by horses, sabred and whipped relentlessly through the streets of Manchester. The attack that began shortly before 2pm lasted well into the evening, at the end of which at least 11 were dead and about 500 injured. Peterloo exposed the limits of the strategy of terror deployed against the working class. Such concentrated violence caused a major scandal that shocked even sections of the middle classes and the establishment. Moreover, the violence failed to subdue the emerging movement for political and civil rights. Instead it led to a growing number of demonstrations, riots and strikes culminating in the great Chartist movement for manhood suffrage. The Chartists were responsible for, among other things, organising in 1842 the first general strike in history. This new form of resistance was not as easy to deal with as a riot. After all one cannot literally beat a mass of workers back to work. Also, if too many are incapacitated by police and military violence, the capitalists will suffer in the immediate term through fewer workers being able to work. Indeed, the level of violence was far less than in previous uprisings such as Peterloo and at Merthyr in previous decades. The sentences handed out to Chartists were minimal compared with earlier reckonings by the ruling class. No one was sentenced to death and most convictions for rioting or other crimes were punished with terms of imprisonment of a few months up to a few years, although the leading agitators were treated more harshly, many of them sentenced to transportation or much longer jail terms. The fear of the power of the working class also led the government to concede a number of reforms such as the repeal of the Corn Laws in 1846, which led initially to lower food prices, and the Factory Act 1847 limiting working hours. This was in contrast to the pattern during the 18th century where the ruling class was able to steal wealth from the poor at an ever increasing rate. It was also during this period that the military began to be replaced by the police as the primary tool for enforcing public order. The Metropolitan Police Act of 1829 established the force in the capital. In response to the first Chartist agitation, the 1839 County Police Act was enacted allowing the formation of regional police forces. The fear of disorder from demobilised soldiers returning from the Crimean War led to the 1856 County and Borough Act which established police forces across the whole of the country. This period during the mid-19th century represents British capitalism maturing from the more brutalist primitive accumulation of capital into a settled capitalist democracy. Central to this process was the development of the rule of law as the primary method of

enforcing order. Legally regulated state violence was replacing naked class terror. The police force was founded on the principle of “citizens in uniform”. In other words, they were bound by the same laws as anyone else. They were also made structurally independent from the control of either politicians or individual members of the ruling class. Thus they were also bound by law in a manner unlike that of the yeomanry or other military forces, whose authority came directly from the Crown and the socio-economic power exercised in localities by the landed gentry and aristocracy. The establishment of the police was part and parcel of a move away from a form of class rule which saw little separation between economic and juridical power. Within decades the state assumed a monopoly on the application of criminal law and, with the police, a monopoly over the use of violence. This accruing of power by the state at first alarmed sections of the ruling class, which is why many of them initially opposed the setting up of a police force. But it quickly became clear that the use of physical force by the capitalist state would not be deployed against property rights, but against labour and the poor. In his classic work on the birth of the prison, Michel Foucault shows convincingly how the move from the application of the power of the king to the power of law provided a more efficient and less risky form of social control. The messy system in force during the later feudal period could lead to: the fear of the uproar, shouting and cheering that the people usually indulge in, the fear that there would be disorder, violence, and outbursts against the parties, or even against the judges… Before the justice of the sovereign, all voices must be still.11 The final word uttered by an apparently neutral and rational law was far more effective in silencing the oppressed. The police became legitimised as “embodiments of impersonal, rational authority”, as opposed to the naked class power of the yeomanry.12 What Foucault glosses over is the fact that this change was a direct result of a set of new economic relationships. The feudal order rested on an ideology of a class born to rule; thus their authority and their right to dispense “justice” was unquestionable. The bourgeoisie, on the other hand, rule on the basis of a series of contractual relations. Economic exploitation is rooted in the payment of wages for labour power. This has the effect of normalising exploitative relations such as in the expression: “A fair day’s pay for a fair day’s work.” Equally, the rule of law is predicated on notions of fairness, reasonableness and equivalence. Phrases such a “paying the price” for committing a crime, or “let the punishment fit the crime” illuminate this aspect of law. This is quite distinct from feudalism when punishment was a demonstration of the “majesty” and power of the monarch, the nobility or the church. The contractual nature specific to capitalist exploitation finds its equivalent in legal relations. Phil Cohen identifies the police as the first branch of the British state to develop an ideological as well as a purely repressive function…to protect the institutions of private property, and to enforce statutory norms of public order primarily designed to ensure the free circulation of commodities, including the commodity of labour power.13 At first the urban working class had to be disciplined into accepting these norms. Violence between police and local working class communities, defending what they considered as their own territory, was a common feature right up to World War One. But over time there was a “gradual ideological penetration of ‘The Law’ into the basic conditions of working class life”.14 Cohen explains this as a result of social changes in the composition of the working class. While there may be some truth in that, referring to the police as “The Law” also illustrates something else. Unlike their predecessors, the police were not just deployed to put down riots and other major disturbances, but also assigned to manage everyday order in the community. Criminologists sometimes describe this as a dual role involving “parking tickets and class repression”.15 As a result the law and “The Law” gradually came to be seen as indispensable to a well-ordered society, irrespective of class, politics or economics. In short, an ideology of “police fetishism” developed.16 I would argue that this is a direct result of two other fetishes closely linked together—that of law and commodities. Pashukanis In his 1924 book, Law and Marxism, Pashukanis developed what has become known as the “commodity form” theory of law. In it he sought to explain the legal form as one inherently tied to the commodity form. He begins his analysis using the same methodology as Marx does in Capital: “In as much as the wealth of capitalist society appears as ‘an immense collection of commodities’, so this society itself appears as an endless chain of legal relations”.17 What these two sets of relationships—commodity exchange and legal relations—have in common is the notion of the autonomous egoistic individual. When commodity owners go to market to engage in trade, they must each recognise in the others their exclusive right of ownership over their commodities; otherwise they cannot expect their own rights to be so recognised. Thus the basic principle of commodity exchange, the freedom of every seller freely to dispose of their property, gives rise to the

concept of universal and equal rights, which is an ideological misrepresentation of capitalist relations as a whole, but one that accurately reflects the actual material conditions in which subjects under capitalism find themselves. The claim of one commodity owner on all others to recognise his own rights as such creates a subjective, and thus seemingly natural, desire to recognise those same rights in others. From this starting point Pashukanis is able to make the following analogy with law: “The [legal] subject as representative and addressee of every possible claim, the succession of subjects linked together by claims on each other, is the fundamental legal fabric which corresponds to the economic fabric”.18 Thus just as we have the market in which every buyer and seller comes metaphorically brandishing their commodities to exchange, so the law is a regulated market of legal subjects haggling over their respective bundles of rights. The rule of capital is thus also necessarily the rule of law. In “On the Jewish Question” Marx argued that the bourgeoisie emancipated the state from economics and religion by placing it (the state) above society, and thus giving it the appearance of being independent and above the classes.19 As Pashukanis expresses it: By appearing as a guarantor, authority becomes social and public, an authority representing the impersonal interest of the system… Thus there arises, besides direct unmediated class rule, indirect reflected rule in the shape of official state power as a distinct authority, detached from society.20 This provides a theoretical underpinning for the transition from naked class rule to rule by law that I discussed earlier. Commodities and legal relations did, of course, exist in many pre-capitalist societies. But in the same way that a society where free alienation of property raises the commodity to its highest and most generalised level, where exploitation becomes mediated via the legal contract, ie where the exploited worker “figures as a legal subject disposing of his labour power as a commodity”, so also legal relations reach their highest form under conditions of generalised commodity exchange: “The legal form attains universal significance, legal ideology becomes the ideology par excellence, and defending the class interest of the exploiters appears with ever increasing success as the defence of the abstract principle of legal subjectivity”.21 The crucial import of Pashukanis’s analysis is that he is able to reveal how the specific form of social regulation under capitalism, that is rights-based law, is able successfully to transform the subjective needs of the ruling class into an objective set of relationships for society as a whole, by means of which the coercive role of law is then in turn subjectivised (internalised) by the rest of us. The dispersal of responsibilities At first blush it may seem counter-intuitive to apply a theory of law that identifies the logic of equivalence and autonomous egoistic individualism to the application of lethal force by the state against unarmed individuals. However, if we take at look at how the police are able to justify their actions in law, the relevance of Pashukanis will become apparent. There was no disputing the fact that de Menezes was neither armed when he was shot, nor was he a terrorist. How could this wilful and unnecessary taking of life not result in any legal sanction? Crucially, the failure to bring any individual or group of police officers to justice over the de Menezes killing was a result of the dispersal of responsibilities created by law.22 This process rests upon the principle of the autonomous egoistic individual who functions as the commodity owner and legal subject par excellence. In much the same way that the market economy appears as an impersonal and naturalistic process involving an endless chain of buyers and sellers, so law functions in a similar way as each individual stands in relation to all others owing certain duties and possessing certain rights. One of the aspects of the operation which was highlighted in the inquest into de Menezes’s death was the police’s bronze, silver, gold structure used for firearms, and other emergency operations. This structure was developed by the Metropolitan Police in order to develop clear command, following the, from their point of view, catastrophic failure of organisation during the Broadwater Farm riots in 1985.23 One aspect of this system highlighted in the de Menezes inquest was that it removed many crucial strategic and tactical decisions from the officers on the ground and placed them instead in the hands of commanding officers situated miles away in a room in New Scotland Yard. This led to several crucial mistakes in the operation that meant that police officers on the ground missed several opportunities safely to stop de Menezes before he entered the Tube. But it also reinforced the dispersal of responsibilities in such a way that none of the commanding officers , nor any of the officers on the ground could be held criminally liable for the decisions made. This is one reason why the Metropolitan Police as a corporate entity could be successfully prosecuted under health and safety

legislation, but that no individual officer was answerable in law for the mistakes made and the decisions taken. A similar conclusion was reached in the Police Ombudsman’s report into the 2003 killing of Neil McConville, a teenage joy-rider in Northern Ireland.24 According to the Ombudsman, the failure to appoint a Bronze Commander in charge on the ground was a critical factor leading to the death of McConville. Thus the officers who carried out the operation were exonerated from blame. On the other hand the senior officers who held the positions of Silver and Gold Commander respectively were merely reprimanded for bad management. Because they were not on the ground and did not fire any shots they were not culpable either. Several senior police officers testified during the de Menezes inquest that one of the concerns the Metropolitan Police had when developing the Kratos policy was that the armed police officer on the ground would be very hesitant in executing a suspect without warning without legal safeguards to protect themselves. During Kratos training members of the specialist firearms unit SO19, who would be assigned to carry out the executions, expressed fears that they would be held both morally and legally responsible, particularly should anything go wrong. It was for this reason that the role of the Designated Senior Officer (DSO) was created within the Kratos policy. The idea was that in a situation where police officers found themselves confronted by a suspected suicide bomber, the DSO, situated in New Scotland Yard, would be responsible for giving the order to shoot. This would take the pressure off the police officers who would actually have to carry out such an extreme and violent act. But surely this then places full legal responsibility on the DSO? Not so, according to the evidence presented to the de Menezes inquest. For the DSO, Commander Cressida Dick, did not give any such order; indeed, her last order to the SO19 officers before they descended into the Tube was ambiguous. The SO19 officers ended up using deliberately lethal force, due to what they claimed was a reasonable judgement based on de Menezes’s behaviour, and coupled with the reports they had received from surveillance officers, senior officers and the DSO during their briefings that morning and throughout the tracking of de Menezes. The responsibility for the killing was thus dispersed amongst the dozens of police officers involved in the operation. Not only does this dispersal of responsibilities create almost insurmountable problems in holding the police accountable, but it also reinforces the logic of capitalism in which bad things result from the market—unemployment, starvation, recessions etc—not because any individual capitalists are responsible but because that is just the way the system involving countless autonomous egoistic individuals operates. The Metropolitan Police declared eight months after the killing of de Menezes that Kratos remained “fit for purpose”; the Stockwell shooting had merely been a result of some operational errors . 25 Equally, in the case of McConville, the Ombudsman’s recommendations stressed the importance of clear policies, training and command for operations involving potentially lethal force.26 The report reserved its concluding comment for criticising commanding officers for a lack of effective management.27 In both these cases the issue under consideration was not posed as one of an agent of the state walking up to a member of the public and, without warning, shooting them in the head, or one of a police officer using a semi-automatic rifle to deal with an alleged juvenile delinquent. Rather the issue was considered to be a lack of efficient organisation. It was to this logic of managing barbaric acts through law that Hannah Arendt was referring in her description of the “banality of evil”.28 The “reasonableness” of police killings Ever since the Police and Criminal Evidence Act 1984 (PACE) the police have been recognised in law as possessing certain special powers, which the rest of us do not have, such as the right to stop and search and detain individuals. However, in terms of the use of force, in the eye of the law they remain neither more nor less than “citizens in uniform”. In other words legally they are to be held to account for taking another person’s life in much the same way as you or me. The law offers us two main defences for killing someone. The first is the common law of self-defence. The second is contained in Section 3 of the

Criminal Law Act 1967, which states that “a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”. This obviously refers mainly to the police, but it also applies to any one of us confronted by someone committing a criminal act, eg a burglar in our home. The key term common to both this statutory provision and the defence of self-defence is “reasonableness”. In order to uphold a defence to a charge of murder or manslaughter, one needs to prove two things—that the force used was both necessary and proportionate. If someone attempts to grab my wallet, it will be necessary for me to use physical force to stop them. If someone merely threatens to steal my wallet tomorrow, it would not be necessary for me physically to attack or restrain them. Assuming that I am actually being mugged, the question then arises as to the level of force I can legitimately apply. If in this scenario I push the thief to the ground then that would probably be considered a proportionate degree of force. If I took out a knife and stabbed them in the chest, then that would almost certainly be considered disproportionate. However, if the thief produces a gun when robbing me, the use of a knife might be considered proportionate and legitimate. A key principle evident in the law here is that of balance and rational calculation. I may only do to you something that can be measured as equivalent to the danger posed by you. In each and every case where the police shoot a suspect dead, they always claim that they feared deadly and imminent danger from the victim. So the police officers who shot de Menezes “honestly believed” that he was an armed suicide bomber, and therefore shooting him in the head was a reasonable and proportionate response. In law, the fact that they were subsequently shown to be mistaken does not vitiate their claim as to what their subjective fear was at the time they shot him. It was on the same basis that the case against members of the Royal Ulster Constabulary (RUC) charged with one of the shoot to kill incidents in 1982 was dismissed. The judge in that case, Lord Justice Gibson, argued that the police had reacted reasonably given the potential danger they faced from known members of the IRA. Indeed, notoriously, he went a step too far by commending the defendants for bringing the murdered IRA suspects to the “final court of justice”. Although, in an unprecedented move, he subsequently had to retract his remarks from the bench, the logic expressed fits perfectly the way in which the devaluation of the lives of suspects allows the police to justify the use of extreme violence against them. The jurisprudence has tended to judge what is reasonable from the subjective standpoint of the police officer who has applied lethal force.29 This then places a disproportionate emphasis on the testimony of the police officer concerned. Again Lord Justice Gibson makes the point crystal clear: The question whether there was the necessary criminal intention is not to be judged…by the standard of what one thinks one would have done or should have done had one been in that situation. The question is: has the Crown proved beyond any reasonable doubt what was the actual state of mind, belief and understanding of the accused [police officers] in the heat and anxiety of the moment, faced, as they understood it, with but a fleeting second to decide and to act…30 This justification was repeated in almost exactly the same terms more than two decades later to justify the murder of de Menezes morally and legally. When placed in the context of the potential threat from terrorists the criteria of what might be considered reasonable are widened considerably. Instead of the law acting as a restraint upon the police officer, the yardstick by which to measure the legitimate extent of lethal force applied by the police has instead been judged on the basis of the extent of the potential violence committed by the terrorist. The hyperbole that surrounds the “war on terror”, a war whose end cannot be envisaged in a world racked by imperialism, is largely responsible for investing in the concept of a reasonable use of force, a pre-emptive dimension based on quasi-apocalyptic expectations of what terrorists are capable of carrying out. An academic writing on the experience in Northern Ireland points out how the concept of proportionality became so fluid that it facilitated the use of lethal force by law enforcement agents for almost any crime even if it was only a vague notion of a terrorist crime… This has had the profound subsidiary effect that security forces were enabled to engage with supposed terrorists in situations that would enable them the full protec-tion of the law due to the elasticity and elusiveness of the concept of “reasonableness”. 31 It has sometimes been argued that the problem is simply one of English law being out of step with the jurisprudence of the European Court of Human Rights (ECtHR), which applies a more rigorous or objective test in judging the “honest belief” of the police officer.32 However, in a case from 2001 concerning yet another lethal shooting of an unarmed suspect by the police the same court held that “it is not for the court to substitute its own opinion of the situation for that of a police officer who was required to react in the heat of the moment”.33 As Clair de Than points out, this judgment has the effect of placing even greater emphasis on the

subjective testimony of the police officer: “It does not have to be a reasonable mistake, merely an honest one”.34 The vague concepts of reasonableness and proportionality, which are integral to law, are given detail and weight by reference to the perceived enormity of the crime that may take place, in order to justify an extra-judicial policy of shoot to kill. In this way the context of what is considered reasonable is shifted towards more brutal policing methods. This paradigm shift, of which Kratos is a part, is born of an increased use of exceptional measures. This leads many to claim that what is needed is a return to a firmer rule of law in order to resist the tendency to resort to states of emergency to fight the “war on terror”. But this is a category mistake, for states of emergency are not departures from law, but are rooted within it. In a footnote, Pashukanis says that when it comes to times of heightened revolutionary struggle, we can observe how the official machinery of the bourgeois state apparatus retires into the background as compared with the volunteer corps of the fascists and others. This further substantiates the fact that, when the balance of society is upset, it seeks salvation not in the creation of a power standing above society, but in the maximal harnessing of all forces of the classes in conflict.35 This passage is problematic as it suggests that the ruling class can simply and consciously put aside the law for its own preservation. If this were so, then it would seem to negate his central point about law’s roots in the objective relations of capital, relations in which they themselves dominate. Mark Cowling identifies the problem as that of “the idea of equivalence and the idea of class terror [coming into] conflict with one another”.36 Pashukanis is right that at the most acute phases of class struggle, such as existed in Russia in 1917 or Italy a few years later, the ruling class does act in the way he describes. But in order to understand the ever closer and more permanent relationship between law and the state of exception, we must look beyond Pashukanis. What has become increasingly evident over the last century has been the fact that in most cases the ruling class is able to manage its way through crises not by abandoning law, but rather by extending its reach. The “state of exception” Giorgio Agamben argues that the “state of exception”, which has with increasing frequency been used to justify extreme departures from the liberal norms of the rule of law, is in fact a function of law itself.37 Here Agamben is drawing on the work of two critics of capitalist democracy; from the right Carl Schmitt who argued that the state of exception is the necessary foundation of sovereign power38 and from the left Walter Benjamin who posited that “’the state of emergency’ in which we live is not the exception but the rule”.39 Indeed, as long ago as 1851 Marx identified the apparent anomaly of states of exception being written into law in his critique of the liberal-democratic French Constitution of November 1848.40 There are many problems in Agamben’s work, particularly his ahistorical attempt to explain the state of exception as a feature of all human civilisations stretching back to antiquity and beyond. Indeed, in this he departs from all his key influences—Schmitt, Benjamin, Arendt, Foucault—by ignoring the specificity of how power is exercised in modernity. Nonetheless, his work offers some very useful insights by developing the relationship between law and the state of exception that is merely hinted at in Benjamin’s “Theses on the Philosophy of History”. In doing this Agamben provides a necessary corrective to the idealised celebration of the rule of law that exists amongst the liberal left and indeed among a significant portion of the Marxist left.41 It has become a feature of modern capitalist democracies to call in aid tactics which violate the norms of the rule of law, yet which are justified on the basis of defending the rule of law against existential threats, real or imagined. After almost a decade of the “war on terror” examples are familiar and numerous—Guantanamo Bay, extraordinary rendition, water-boarding, control orders, etc. This argument has, of course, also been used by the police when they claim that they are facing “unprecedented circumstances” which necessitate the deployment of more brutal tactics. The danger in this approach was recognised more than 30 years ago by the ECtHR, when the court ruled that there were limits to the use of national security in justifying extreme methods, even, or perhaps especially, legal ones: The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against terrorism, adopt whatever measures they deem appropriate.42 And, in words that brought a cheer from every civil libertarian, Lord Hoffman famously declared in a case which struck down New Labour’s policy of detention without trial of terrorist suspects that “the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these”.43 However, the decision of the House of Lords in that case was not that it was illegal for the government to detain without trial per se, but that the policy was discriminatory, as it did not apply to British citizens, thus breaching the principle of equivalence. The government responded with control orders, which to date stand in law. In mainstream discussions of the problem of the state of exception, it is presented as a contradiction which exposes the gap between the self-identity of liberal democratic societies and the abuses committed by certain governments or state agencies. For Agamben, on the other hand, the state of

exception is in fact a latent yet integral function of sovereignty , embodied as much in capitalist democracy as in fascist and other authoritarian political systems. Agamben argues that the claim by the state of the need to protect itself, and wider society, against perceived threats requires it to regularly impose sanctions which fall outside the rule of law. The contradiction thus emerges in that the rule of law can only be protected by regularly going outside the rule of law. Agamben gives as an example the Nazi state, which throughout its existence did not abolish the liberal Weimar constitution, but merely suspended it at regular intervals.44 Thus, legally, the “lawlessness” of the Nazis was in fact rooted in the liberal constitutional Weimar Republic. And in a perverse piece of legal formality, just prior to being sent to the death camps German Jews were stripped of their citizenship, precisely so that they would not be covered by the normal legal rights of other citizens.45 In a like manner, although at a far lower level of barbarism, in Britian shoot to kill has evolved from an unofficial and ad hoc tactic into a policy of extra-judicial killing in the form of the

Kratos policy. The ability of the police to act beyond the bounds of the rule of law has, paradoxically, become written into law. This creates a space around the suspected suicide bomber, where the norms of criminal law and police practice are suspended. Yet its status as an official policy, implemented without violating the norms of governmental procedure, grounds this extra-legal policy within the framework of the law. One police officer has attempted to justify Kratos on the basis that it authorises not shoot to kill but the right to take action which, “in order to save life, may have to take life”.46 Echoes here of the infamous comment made by a senior US Army officer during the Vietnam War: “It became necessary to destroy the town in order to save it.” This barbaric contradiction in terms recurs throughout the arguments used to justify draconian anti-terrorist measures. The rule of law must be suspended in order to preserve the rule of law. The situations in which the police adopt lethal force are often described as “unprecedented”, with suspects as “dangerous”, “desperate”, “won’t be taken alive”, etc. In striking the balance between the reasonable use of force and the perceived danger posed by the suspect, the mean point gets moved to an extremity. A senior member of the security forces explained how the language of necessity was used to justify lethal force in Northern Ireland: “Was it a decision to kill those people? I don’t think it would have been phrased like that. Somebody would have said, ‘How far do we go to remove this group of terrorists?’ and the answer would have been, ‘As far as necessary’.”47 Similar arguments were used by the Nazis and other totalitarian regimes in the cause of maintaining stability and the security of the state. Indeed, it was this logic that led Schmitt from a critical defender of the Weimar Republic into a supporter and theorist for the Nazis. In the conflict between human rights and security, the latter must always trump the former, for without security there cannot be a social framework strong enough to support human rights. This is but a concrete expression of Agamben’s point that It is as if the judicial order contained an essential fracture between the position of the norm and its application, which, in extreme situations, can be filled only by means of the state of exception, that is, by creating a zone in which application is suspended, but the law, as such, remains in force.48 Agamben allows us to grasp the interrelationship between law and the state of exception, and thus fill the gap left in Pashukanis’s formulation. In attempting to answer the question as to why the evolution of an official shoot to kill policy has met with relatively little outcry compared to the scandal that followed the killings by the RUC in the early 1980s, Agamben’s work illuminates the essential role of law in grounding and thus normalising exceptional and brutal police tactics. The retreat of the organised working class and the concomitant decay in politics have left a gap that has been occupied by law. Benjamin’s injunction that we confront “states of emergency” with a real state of emergency is a call to reject the confines of the rule of law when faced with state violence . The failure to do so leads one into accepting the legal form on which the legitimacy of state violence rests. This is precisely the mistake made by EP Thompson and his followers who argue that the rule of law is a “universal good” which supposedly transcends capitalism.49 A crucial aspect missing from Agamben’s analysis is an understanding of what grounds law and the state of exception, as well as what makes these concepts evolve over time. Instead he points to a highly obscure figure in early Roman law, homo sacer (sacred man), as a recurring figure in Western societies.50 The homo sacer refers to someone who “may be killed, but not sacrificed.” In

other words, this person has no value—their life may be taken away without legal sanction. Thus, Agamben argues, the homo sacer is representative of those targeted by the law under a state of exception as being beyond the protection of the law. But Agamben is not able to explain why certain groups or individuals are capable of becoming homo sacer and others not. Indeed, he goes so far at one point as to suggest that today we may all be homines sacri.51 He appears to argue (Agamben is obscure at the best of times) that anyone who poses a threat to the state, or whom the state merely perceives as a threat is liable to become the homo sacer. If this is so it raises the question of why the working class as a whole or even significant sections of it have not been subjected to this process. The reason why this is so is because the always present, if hidden, power of the working class cannot be legislated or terrorised away. Working class organisation can be smashed, but the latent power of the working class is impossible to eliminate. To place any powerful group in society within the category of the homo sacer would fundamentally destabilise the rule of capital. Thus Nazi terror on the streets was necessary politically to break the power of the organised left and the trade unions before those sections of the working class could be made the homo sacer. Nonetheless, even under fascism capital cannot escape the logic of the legal form that, as Pashukanis convincingly argues, is the necessary guarantor of commodity exchange. Thus the fetish of legal formalities that pervaded Nazi rule is not the anomaly it at first appears. The racist content of Nazi law was, of course, qualitatively different than that which exists under capitalist democracy, and all the gains achieved by the working class such as collective bargaining rights were abolished. Yet the basic legal form remained because the economic base of capitalism remained. Not only did the Nazis keep to the legal niceties of the constitutional state, but the working class continued to sell their labour power on the basis of a contractual exchange with employers. For this reason when the demand for labour exceeded supply during the late 1930s, particularly in the construction industry, wages went up in some cases by 30 percent.52 So while the homo sacer is flawed as an analysis of the generalised form of capitalist rule, as a metaphor it does provide a very useful way of understanding how the police, in the example under discussion here, are able to kill without being legally culpable. Indeed, it would seem to reinforce Pashukanis’s theory by identifying the extent to which legal rights are co-determinate with the measuring of value. Subjects who are from the point of view of the state expendable or individually dangerous can be made into homines sacri, at the mercy of the state’s monopoly of violence. This can certainly apply to, for example, refugees, terrorist suspects or other “subversives”. The process by which such lives are devalued, and the way in which the law colludes in this is discussed next. Suspect Communities Contrary to the claims made by the Metropolitan Police following the killing of de Menezes that terrorist attacks on the Tube were unprecedented, the very first bombing of the London Underground took place more than a century earlier in 1883. At first the Irish were blamed, although later it transpired that the bomb had been the work of anarchists. As a result, the police and the press began targeting the Jewish community, which was identified as a hotbed of anarchist refugees from Eastern Europe. The barrister Richard Harvey has drawn the obvious analogy with Harry Stanley, Diarmuid O’Neill, Neil McConville and Jean Charles de Menezes. What all had in common was membership, or perceived membership, of communities which had been viewed as and thus targeted as suspect. Once it was Jewish communities who were perceived as a breeding ground for anarchist violence, followed by the Irish community harbouring Republican terrorists; today it is Muslim communities supposedly encompassing Al Qaida sympathisers that fulfil the role of a suspect community.53 In this demonisation of minority communities lie the origins of the elite police squads tasked with the use of lethal force. The Special Irish Branch was set up to fight the Irish Republican Fenian movement in the 1880s. This has since changed its name to the less offensive sounding, though no less offensive in deed, Special Branch. It was officers from SO19 of the Special Branch that carried out the killings of O’Neill, Stanley and de Menezes. Paddy Hillyard coined the term “suspect community” to describe a sub-group of the population that is singled out for state attention as being “problematic”. Specifically in terms of policing, individuals may be targeted, not necessarily as a result of suspected wrong doing, but simply because of their presumed membership of that sub-group. Race, ethnicity, religion, class, gender, language, accent, dress, political ideology or any combination of these factors may serve to delineate the sub-group.54 Muslims, as a suspect community, are often portrayed as anti-Enlightenment and thus anti human rights, threatening a “civilised” way of life.55 But, as the authors of a recent study at London Metropolitan University argue, it is also symptomatic of a discourse of “anti-rationality” of the suspect community as fanatical and immune to reason or argument.56 In the case of Neil McConville, shot dead in April 2003 by the Police Service of Northern Ireland (PSNI), the justification for his death was created after the event, by suggestions fed by the PSNI that he was variously linked to paramilitaries or drug gangs. In the days following the killing of McConville headlines in the press included allegations of involvement in these criminal activities, all of which were completely untrue. The same thing happened with Harry Stanley, when a list of his previous, spent criminal convictions was read out to the inquest into his death despite their complete irrelevance to the circumstances surrounding the shooting. Again, with de Menezes, the police circulated smears in the media about alleged drug use and his immigration status. Of course none of these allegations were intended to justify the police’s actions per se; their aim was to associate the victims with certain groups who would be considered of lesser value—criminals, drug dealers/users, illegal immigrants—thus

devaluing their claim to a legal right not to be murdered by the state. As Hillyard points out: Once dehumanised, people can be viewed with ethical indifference and moral questions are of no concern to [the police ] carrying out their tasks. [The police] are only doing their job. As violence has become increasingly concentrated under state control, moral responsibility is replaced by a technical responsibility.57 De Menezes was neither Muslim nor from the Middle East. What set off the chain of events which led to his death was the misidentification of him by the police surveillance team as a “North African male”. Likewise, Harry Stanley was shot dead by armed police to whom it had been reported that he had an Irish accent when in fact he was Scottish. What these two examples show is the way in which the suspect community is defined by appearances, by superficial attributes.58 This reverses the normal modus operandi of policing whereby evidence or hard intelligence is the prerequisite for the use of force. Moreover, the fact that in both these cases the victim was misidentified simply points up the extent to which perceived membership of the suspect community is sufficient to give rise to an “honest belief” by police that lethal use of force is necessary and proportionate. Had Stanley not had an “Irish” accent or de Menezes a darkish skin, both would probably still be alive today. And as we saw above, “honest belief” forms the basis for the legal defence of police officers who kill unarmed or innocent suspects. In this insidious manner racist and cultural stereotypes become legal justifications for the taking of life by state agents. Hillyard has pointed out how the Prevention of Terrorism Act 1974 (PTA) effectively introduced a “dual system of criminal justice”, one system operating under the PTA and the other under ordinary criminal law. As a result a dichotomy developed between terrorist suspects and “ordinary decent criminals”.59 Today we face a similar separation between those subjected to recent anti-terrorist legislation as distinct from regular criminal law.60 This distinction functions within both law and a broader social context, with one reinforcing the other. The threat from terrorists is exaggerated by politicians and media alike. This in turn creates a greater sense of fear of violence about the suspect community in general, and that small minority seeking to use violence in particular. This dynamic then provides a platform for the introduction of ever more draconian laws, and brutal police methods. The argument from the police and others is that the threat from Al Qaida is wholly Muslim just as the threat from the IRA was mostly Irish, and thus it is reasonable to target those communities. Yet we must not forget that this “dual system” is not one of completely distinct and hermetically sealed areas of law. The foundational principles of the rule of law do not permit such a thing. Norms, legal tests and police practice are constantly migrating between the two. Think, for example, of how anti-terror legislation has been used to detain protesters or to stop and search individuals suspected of petty crimes. The state of exception and its associated policing strategies become the norm. Hillyard’s detailed study on how violence targeted the Irish community comes to this conclusion: It is commonplace to counter-pose the rule of law to the abuse of power or acts of violence. Law, from this perspective, is seen as the antithesis of violence… [But] this dichotomy [is] false… Law is … an integral part of the repression and organisation of state violence . 61 Conclusion In hindsight, the period lasting from the later half of the 19th century through to the 1960s saw the proliferation of various mechanisms that in a thousand strands bound the working class ideologically to capitalism. In Gramscian terms, hegemony was manifested in aspects of civil society such as education, culture, community identity, civic projects, etc. The police were successfully woven into this apparatus as a necessary, if not necessarily benign, method of preserving social cohesion. But, as Reiner puts it, “when neoliberalism unravelled this complex of subtle, hidden controls, the thin blue line turned out to be a Maginot line”.62 Thus, on the one hand, the role of the police in maintaining order within capitalist democracy has not altered fundamentally in the last 150 years or so. Yet, on the other hand, the retreat of the organised working class in the face of neoliberalism has revealed the violence that exists at the heart of policing and the rule of law. The problem has been that throughout this period the ideology of the rule of law has become ever stronger, and indeed has been taken up by sections of the left as the solution to the problem of police violence. My aim here has been to demonstrate, using Pashukanis’s commodity-form theory of law, Agamben’s work on the state of exception and Hillyard’s description of suspect communities, how the law as such (not merely particular laws or legal systems) is complicit in legitimising police violence,

even at the extreme end involving the deliberate killing of innocent people.

Vote negative as to subvert the law – we ought to study the law not to use it, but to free humanity from itDe Boever, 2006 (Arne De Boever, Professor of American Studies at the School of Critical Studies at the California Institute of the Arts, Overhearing Bartleby: Agamben, Melville, and Inoperative Power, Parrhesia Number 1, 2006, 142-162)According to Agamben, we should aim to study the law in order to deactivate it. He refers to this study as a kind of play: “One day,” he writes

teleiopoetically, “humanity will play with law just as children play with disused objects, not in order to restore them to their canonical use but free them from it for good.”42 As will be clear, there is no contradiction in the passage I just quoted between messianism and secularism. The perspective is decidedly postsecular: instead, the puppet of historical materialism has the dwarf of theology within; but once the puppet starts moving, and we begin to play the game of chess (which is, after all, a game of sovereignty) this materialist-theological activity is overcome into the messianic or postsecular thought of inoperativity. It is interesting to note that in The Time that Remains, Agamben cites a poem as a “concrete example” of messianic time.43 The poem, a sestina by Arnaut Daniel, is presented by Agamben as “an organism or a temporal machine that, from the very start, strains toward its end.”44 Thus, “[a] kind of eschatology occurs within the poem itself.” But this is not what Agamben is after. He notes that “for the more or less brief time that the poem lasts, it has a specific and unmistakable temporality”45 that is different from the time of the eschaton. This other time is produced, Agamben argues, by the peculiar formal characteristics of the poem: What is peculiar to the sestina is that the status of the repeated end words changes, in the sense that the homophony of the final syllables that you typically get in rhymed poems, is replaced by the reappearance of the six end words in the six stanzas, in a complex but equally regulated order. At the end, the tornada recapitulates the end words by dispersing them within its three lines [translation slightly modified].46 This will ultimately lead into a grand hypothesis formulated at the end of the fourth chapter: that rhyme is “the messianic heritage that Paul leaves to modern poetry.”47 Whether we agree with this or not, it is important to point out that Agamben’s example of messianic time, which also contains his solution to the problematic link between sovereignty and bare life that he criticizes in Homo Sacer, is a poem. This illustrates the larger argument that I have been making in these pages, namely that Agamben’s thought is crucially a literary-political thought. It is a literary thought that, in

its political force, cannot be articulated within the limits of political science. Thus, it oscillates between the literary and the political and demands to be studied comparatively, across the disciplines. Such a comparative study would not realize the destruction of disciplines, but rather their deactivation and inactivity, their inoperativity. As I have argued above, the task of thinking inoperativity is a task that concerns us all. In contemporary situation that is dominated by the conflictual binary oppositions of a Schmittian concept of the political, we have all taken position in between beings-withrights and beings-without-rights, Jews and non-Jews, Muslims and non-Muslims, terrorists and non-terrorists, Benjamin scholars and non-Benjamin scholars, Agamben scholars and non-Agamben scholars – we have all become non-non-Agamben scholars. In a world in which we are all non-non-terrorists (how else to describe myself when my phone-calls may be tape-recorded even though I am not a terrorist?), the thought of inoperativity can present itself as a powerful alternative to power’s abuse of the state of exception. But is this thought of

inoperativity also more than a thought? What would a practice of inoperativity look like? Who would

be its agents? There is Bartleby, of course, who resists any easy appropriation into the either/or of legal divisions. There is Toshevski, whose Free Territory-project unworks the state of Macedonia by creating zones in which free creative performance activists are invited to think the law as freedom. There is Agamben, also, who in a January 2004 article entitled “No to Bio-Political Tattooing”48 announced (much to my dismay!) that he had cancelled the course he was scheduled to teach at New York University later that same year because of a new law that required whoever wants to go to the United States with a visa to be fingerprinted and photographed when they enter the country. In February 2006, a letter was published in the New York Review of Books, 49 in which a group of scholars of constitutional law and former government officials (Ronald Dworkin, Kathleen M. Sullivan, and others) expressed their concern about how the Bush administration’s National Security Agency’s domestic spying program violated existing law. Finally, I want to bring to your attention an extremely interesting case, dating from 1990, which shows that inoperativity can also be practiced by the sovereign him/herself. When King Baudouin of Belgium was faced with giving his assent to a bill that would liberalize Belgium’s abortion laws, he explained that he was unwilling to give official endorsement to what he found personally objectionable. (Baudouin was deeply religious; he and his wife Queen Fabiola did not have children.) Instead, he chose to abdicate his throne on the day he was expected to sign the bill. A state of exception was declared; the law was passed. The following day, Baudouin went back to work. These “extraordinary” (as Kalyvas would have it)50 acts of subversion, whether they are committed before, within, or next to the law, show how the thought of inoperativity can also be a political practice.

DA – Court ClogJudicial resources are overstretched but qualified immunity doctrine allows quick dismissal of frivolous suits – the plan would clog the courtsPutnam and Ferris 92 [(Charles Putnam, Senior Assistant Attorney General, Office of the New Hampshire Attorney General, J.D. 1985, University of Connecticut. Charles Ferris, J.D. 1992, Franklin Pierce Law Center, Concord, New Hampshire.)“DEFENDING A MALIGNED DEFENSE: THE POLICY BASES OF THE QUALIFIED IMMUNITY DEFENSE IN ACTIONS UNDER 42 U.S.C. § 1983” BRIDGEPORT LAW REVIEW QUINNIPIAC COLLEGE Volume 12 Number 3 Spring 1992] LADIA second policy consideration present in section 1983 litigation and furthered by the qualified immunity defense is the limiting of overdeterrence. Increasingly, courts are sensitive to the possibility that state and local government officials, because they are so often targets of section 1983 actions, are being improperly deterred in the performance of their duties.1 " The Supreme Court's absolute and qualified immunity decisions demonstrate its desire to reduce not only the incidence of official liability but the financially burdensome costs of defense, as well.14 National resources are obviously scarce, yet increasing numbers of section 1983 actions are being filed in overburdened federal courts. Reducing the load of these cases on the court system is a third essential policy consideration. Some courts have questioned whether the abundance of section 1983 cases in federal courts is an efficient use of judicial resources in light of the perception that many such actions are of questionable merit."6 The Supreme Court has thus encouraged the use of summary judgment where courts are faced with such cases. For instance, in Butz v. Economou, 7 the Court held: Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity.... In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.18 The courts' use of summary judgment and other procedural devices is thus an important safety measure for both the courts and defendants facing suit. Finally, because it creates a monetary damages action for constitutional violations, section 1983 may encourage plaintiffs' attorneys to push a number of constitutional provisions to their outer limits. The presence of further incentives, such as the availability of attorney's fees, creates an additional inducement to plaintiffs' lawyers who may read the Constitution too expansively. Such incentives tend to propagate constitutionally trivializing actions . The avoidance of these constitutionally unworthy cases is the fourth major objective of the qualified immunity defense in section 1983 litigation.'9 The Court voiced this concern in Baker v. McCollan.20 In Baker, the Court held that "[s]ection 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law."'" To protect against such trivialization, the United States Supreme Court has established that merely negligent conduct does not implicate the Due Process Clause and is therefore not actionable under section 1983.2

Court clog kills US tech innovationKirk 6, Executive Director of the American Intellectual Property Law Association, 3-24-6 (Michael, American Intellectual Property Law Association) I am writing to you on behalf of the American Intellectual Property Law Association (AIPLA) regarding the pending immigration reform legislation that would transfer jurisdiction over immigration appeals to the U.S. Court of Appeals for the Federal Circuit. We believe that such broadening of the Federal Circuit’s jurisdiction would seriously hinder the court’s ability to render high quality, timely decisions on patent appeals from district courts, and patent and trademark appeals from the U.S. Patent and Trademark Office. This runs directly counter to the present efforts of Congress to otherwise reform and improve this nation’s patent system. We take no position on other specific elements of the legislation or on the underlying need for immigration reform. Our concern focuses solely on the proposed shift in appellate jurisdiction, which we believe will do more harm than good. AIPLA is a national bar association whose approximately 16,000 members are primarily lawyers in private and corporate practice, in government service, and in the academic community. AIPLA represents a wide and diverse spectrum of individuals, companies, and institutions involved directly or indirectly in the practice of patent, trademark, copyright, and unfair competition law, as well as other fields of law affecting intellectual property. Our members represent both owners and users of intellectual property, and have a keen interest in an efficient federal judicial system. The Court of Appeals for the Federal Circuit was established in 1982 after more than a decade of deliberate study and Congressional consideration. The Hruska Commission (chaired by Senator Roman Hruska) conducted a study lasting nearly three years before recommending to Congress the establishment of a national appeals court to consider patent cases. It took two Administrations, several Congresses, and a number of hearings in both the House and Senate before legislation establishing the Federal Circuit was finally enacted. Over the past 26 years the Court, through its thoughtful and deliberate opinions, has made great progress in providing stability and consistency in the patent law. Removing immigration appeals from the general jurisdiction of the twelve regional Courts of Appeals and centralizing it in the Federal Circuit is an enormous change. Leaving aside the impact, both pro and con, on the affected litigants, the Federal Circuit is simply not equipped to undertake the more than 12,000 requests for review of deportation orders that twelve courts now share each year. The Federal Circuit currently has no expertise or experience in the field of immigration law. While the legislation envisions adding three judges to the twelve currently on the Court, we have serious concerns whether this increase will be adequate. Judge Posner has calculated that, even with the three additional judges proposed in the legislation, each of the fifteen Federal Circuit judges would be responsible for about 820 immigration cases per year, on the average—an incredibly large number that we believe will have a significant adverse impact on the remainder of the court’s docket. It seems inevitable that the proposed legislation

will have a dramatic, negative impact on Federal Circuit decisions in patent cases and appeals from the USPTO. Such an increased caseload will necessarily delay decisions in these appeals, which in turn will cause uncertainty over patent and trademark rights and interfere with business investments in technological innovation. Beyond mere delay, the Federal Circuit's ability to issue consistent, predictable opinions in patent cases will be complicated by an increase in the number of judges. If conflicts in panel opinions increase, the inefficient and often contentious en banc process will have to be used more often, further adding to the overall burden on the court. Business can effectively deal with decisions, positive or negative, but it cannot deal with protracted uncertainty caused by inconsistent opinions or long delays in judicial review. Demand for reform of the patent system has been the topic of considerable public debate of late. Congress held extensive hearings on this subject last year, and more are scheduled in coming weeks. The House is currently considering legislation that would dramatically change the patent statute, and we understand that patent reform legislation may soon be introduced in the Senate as well. It would be unfortunate for Congress to inadvertently compound the challenges facing the patent system by weakening the ability of the Federal Circuit to give timely and consistent consideration to patent cases.

Innovation solves great power warTaylor 4 – Professor of Political Science, Massachusetts Institute of Technology (Mark, “The Politics of Technological Change: International Relations versus Domestic Institutions,” Massachusetts Institute of Technology, 4/1/2004, http://www.scribd.com/doc/46554792/Taylor)I. Introduction Technological innovation is of central importance to the study of international relations (IR), affecting almost every aspect of the sub-field. First and foremost, a nation’s technological capability has a significant effect on its economic growth, industrial might, and military prowess; therefore relative national technological capabilities necessarily influence the balance of power between states, and hence have a role in calculations of war and alliance formation. Second, technology and innovative capacity also determine a nation’s trade profile, affecting which products it will import and export, as well as where multinational corporations will base their production facilities. Third, insofar as innovation-driven economic growth both attracts investment and produces surplus capital, a nation’s technological ability will also affect international financial flows and who has power over them. Thus, in broad theoretical terms, technological change is important to the study of IR because of its overall implications for both the relative and absolute power of states. And if theory alone does not convince, then history also tells us that nations on the technological ascent generally experience a corresponding and dramatic change in their global stature and influence, such as Britain during the first industrial revolution, the United States and Germany during the second industrial revolution, and Japan during the twentieth century. Conversely, great powers which fail to maintain their place at the technological frontier generally drift and fade from influence on international scene. This is not to suggest that technological innovation alone determines international politics, but rather that shifts in both relative and absolute technological capability have a major impact on international relations, and therefore need to be better understood by IR scholars. Indeed, the importance of technological innovation to international relations is seldom disputed by IR theorists. Technology is rarely the sole or overriding causal variable in any given IR theory, but a broad overview of the major theoretical debates reveals the ubiquity of technological causality. For example, from Waltz to Posen, almost all Realists have a place for technology in their explanations of international politics. At the very least, they describe it as an essential part of the distribution of material capabilities across nations, or an indirect source of military doctrine. And for some, like Gilpin quoted above, technology is the very cornerstone of great power domination, and its transfer the main vehicle by which war and change occur in world politics. Jervis tells us that the balance of offensive and defensive military technology affects the incentives for war. Walt agrees, arguing that

technological change can alter a state’s aggregate power, and thereby affect both alliance formation and the international balance of threats. Liberals are less directly concerned with technological change, but they must admit that

by raising or lowering the costs of using force, technological progress affects the rational attractiveness of international cooperation and regimes. Technology also lowers information & transactions costs and thus increases the applicability of international institutions, a cornerstone of Liberal IR theory. And in fostering flows of trade, finance, and information, technological change can lead to Keohane’s interdependence or Thomas Friedman et al’s globalization. Meanwhile, over at the “third debate”, Constructivists cover the causal spectrum on the issue, from Katzenstein’s “cultural norms” which shape security concerns and thereby affect technological innovation; to Wendt’s “stripped down technological determinism” in which technology inevitably drives nations to form a world state. However most Constructivists seem to favor Wendt, arguing that new technology changes people’s identities within society, and sometimes even creates new cross-national constituencies,

thereby affecting international politics. Of course, Marxists tend to see technology as determining all social relations and the entire course of history, though they describe mankind’s major fault lines as running between economic classes rather than nation-states. Finally, Buzan & Little remind us that without advances in the technologies of transportation, communication, production, and war, international systems would not exist in the first place.

DA – chilling effectQualified immunity prevents frivolous lawsuits that deter police action, threatening public safetyRosen 05 [(Michael, attorney in San Diego at Fish & Richardson PC, an intellectual property law fIrm. In 2003-2004 he served as a law clerk to The Honorable Marilyn L. Huff, Chief Judge of the U.S. District Court for the Southern District of California.) “A Qualified Defense: In Support of the Doctrine of Qualified Immunity in Excessive Force Cases, With Some Suggestions for its Improvement” Golden Gate University Law Review Volume 35 | Issue 2 Article 2, 2005] LADIIt is hard to deny that the more time police officers spend at trial defending their conduct, the less time they spend patrolling the streets, the more money their departments expend in their defense, and the more frequently the officers will second-guess certain behaviors in the heat of the moment. These drawbacks may well be justified for the sake of society's prevention of tortious and unreasonable conduct on the part of law enforcement agents. Nevertheless, police agencies, Supreme Court justices, and some scholars highlight the important role that qualified immunity can play in reducing unnecessary costs and in improving deterrence of crime. In its amicus brief in support of the Saucier petitioner, NAPO addressed several concerns related to costs and deterrence.47 It began by asserting that officers currently face too many lawsuits related to their conduct, litigation that generally is resolved in their favor and therefore wastes taxpayer time and money. It pointed to an "ever increasing number of lawsuits against law enforcement officers" and the threat that increase poses to the general public interest.49 The increased threat of lawsuits, according to this argument, deters effective police performance, thereby diminishing public safety:o NAPO referred to Justice Scalia's assertion in Anderson v. Creighton5l that permitting frivolous lawsuits against law enforcement to go to trial "entaiHs] substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties."·2 Several scholars echo NAPO's concerns. Richard Fallon and Daniel Meltzer describe the fears of the Supreme Court in Harlow v. Fitzgerald,53 explaining that such litigation works its evils by deterring officers through the threat of personal liability. Barbara Armacost notes that such liability begets poor law enforcement, which in turn harms the very people the officers are sworn to protect. 54 The chief of the Federal Bureau of Investigation Academy's Legal Instruction Unit echoes these sentiments. 55 Thus, at least in theory, the proliferation of lawsuits appears to involve serious risks to agents as well as the public. Of course, this entire edifice hangs on the assumption that law enforcement agents regularly face personal liability for their conduct when acting under color of law. Fallon and Meltzer challenge this premise. 57 They contend that in most situations, the police department and/or the officers' union make use of a legal defense fund while the officer need not expend a penny of his or her own.58 Thus, Fallon and Meltzer contend that the entire policy argument rests on a false assumption. Nonetheless, despite the unlikelihood of an officer facing personal liability, frivolous litigation imposes serious secondary costs on his or her conduct. First, contributions or premiums paid to a legal defense insurance plan will likely increase with the amount of litigation the officer faces. Second, the officer's career may endure a stain or stigma despite a victory on the merits of an excessive force case. Third, the department, as the officer's employer, may impose discipline, whether formal or informal, on any officer's involvement in litigation, whether

successful or unsuccessful. Suspensions or unpaid leave may accompany lawsuits faced even by officers who are ultimately victorious in court. Thus, litigation indeed affects officers' conduct, in the heat of the moment, whether reasonably or not.59 This effect dovetails with a growing tendency toward "depolicing" that has become prevalent in several of America's urban cores.60 According to many officers, recent years have seen an increase in lawsuits and informal complaints brought against law enforcement, a correlate tendency in departments to steer officers away from necessarily risky conduct in do-ordie situations, and a concomitant decline in officer morale. 61 In 1981 in the State of California,"2 residents placed 8,686 complaints against peace officers, of which 1,552 or 18% were ultimately sustained.63 In 2000, Californians recorded 23,395 complaints, of which 2,395 or 10% were sustained. 64 This ballooning of claims - in particular unsuccessful ones - is as troubling as it is dramatic. The Oakland, California, Citizens Police Review Board ("CPRB") embodies this deterrent effect.66 This board provides an independent forum in which aggrieved citizens can register their complaints about police conduct. 67 At the same time, Detective Jesse H. Grant, who has had personal experience appearing before the CPRB, notes that complaints, more than 80% of which were not sustained in 2002, impose a serious deterrent effect on police conduct. 68 Officers now more than ever think twice and act conservatively - although not necessarily safely - when engaged in violent altercations with or apprehensions of dangerous suspects. 69 Ironically, the presence of entities like the CPRB undermines the justification for excessive force lawsuits to begin with: by providing an avenue for voicing grievances over police conduct, such boards obviate some of the need for civil actions. Moreover, they reflect the deterrent effect that wide-open public access to disciplinary bodies can breed. Thus, there exist significant reasons for the courts to grant some kind of immunity to law enforcement officials in order to ensure the contin- ued quality of their work. By increasing the threat of litigation, frivolous lawsuits can serve to deter officers' reasonable conduct, thus imperiling public safety and upending the delicate balance society seeks between forcefully fighting crime and respectfully treating all citizens.

Police disengagement causes massive spikes in crime that kill far more people than the police themselvesHeather Mac Donald 16 [(Heather Mac Donald, Thomas W. Smith fellow at the Manhattan Institute and a contributing editor to City Journal, ) The Ferguson effect, Washington Post 7-20-2016] LADIThe most controversial aspect of my new book, “The War on Cops,” is my claim that violent crime is up in many American cities because officers are backing off of proactive policing. I have dubbed this double phenomenon of de-policing and the resulting crime increase the “Ferguson effect,” picking up on a phrase first used by St. Louis’s police chief. Violence began increasing in the second half of 2014, after two decades of decline. The Major Cities Chiefs Association convened an emergency session in August 2015 to discuss the double-digit surge in violent felonies besetting its member police departments. The violence continued into fall 2015, prompting Attorney General Loretta Lynch to summon more than 100 police chiefs, mayors and federal prosecutors in another emergency meeting to strategize over the rising homicide rates. Arrests, summonses and pedestrian stops were dropping in many cities, where data on such police activity were available. Arrests in St. Louis City

and County, for example, fell by a third after the shooting of Michael Brown. Misdemeanor drug arrests fell by two-thirds in Baltimore through November 2015.

Chicago Mayor Rahm Emanuel told Lynch that his officers were going “fetal”: “They have pulled back from the ability to interdict,” he said. “They don’t want to be a news story themselves, they don’t want their career ended early, and it’s having an impact.” 2015 closed with a 17 percent increase in homicides in the 56 largest cities, a nearly unprecedented one-year spike. Twelve cities with large black populations saw murders rise anywhere from 54 percent in the case of the District to 90 percent in Cleveland. Baltimore’s per capita murder rate was the highest in its history in 2015. Robberies also surged in the 81 largest cities in the 12 months after the shooting of Michael Brown in Ferguson, Mo. In the first quarter of 2016, homicides were up 9 percent and non-fatal shootings up 21 percent in 63 large cities, according to a Major Cities Chiefs Association survey. Chicago is a prime example of the Ferguson effect. Stops were down nearly 90 percent in the first part of this year compared with last year. Shootings citywide through July 17 were up 50 percent compared with the same period in 2015; shootings were up 87 percent compared with the same period in 2014. In Austin, on the West Side, shootings are up 220 percent compared with 2014. Through July 19, 2,234 people have been shot in the city, averaging one an hour during some weekends. Yesterday, a 6-year-old girl was seriously wounded in her abdomen while sitting on her porch, when a violent shoot-out between three cars broke out; she is one of at least 21 children younger than 13 shot so far this year, including a 3-year-old boy shot on Father’s Day who is now paralyzed for life. (One would have assumed, pursuant to the Black Lives Matter narrative, that racist cops were responsible for a significant portion of those shootings, given that their victims have been overwhelmingly black. In fact, Chicago cops shot 11 people, all armed and dangerous, through July 19, comprising 0.5 percent of all shootings.) This crime increase, I argue, is due to officers’ reluctance to engage in precisely the proactive policing that has come under relentless attack as racist. For the past two years, activists, academics, the press and many politicians have charged that pedestrian stops and low-level public order enforcement (also known as “broken windows” policing) are little more than biased oppression of minority citizens. That political message is accompanied by increasing tension on the street, inflamed by the persistent allegation that racist officers are the biggest threat facing young black males today. A garden-variety Black Lives Matter march that I attended last November on Fifth Avenue in New York featured “F–––the Police,” “Murderer Cops” and “Racism Is the Disease, Revolution Is the Cure” T-shirts as well as “Stop Police Terror” signs. Officers working in urban areas are now routinely surrounded by angry crowds when they question a suspect or make an arrest. “In my 19 years in law enforcement, I haven’t seen this kind of hatred towards the police,” a Chicago cop who works on the South Side told me in May. “People want to fight you. ‘F––– the police. We don’t have to listen,’ they say.” A police officer in Los Angeles’s Newton Division reports: “Our officers are getting surrounded, cursed and jeered at every time they put handcuffs on someone.” Officers continue to rush to crime scenes after someone has already been victimized, sometimes getting shot at in the process. But in that large area of discretionary policing that aims to prevent crime before it occurs — getting out of a squad car at 1 a.m., for example, to question someone who appears to have a gun or may be casing a target — many officers are deciding to drive on by rather than risk a volatile, potentially career-ending confrontation that they are under no obligation to instigate. “Every cop today is thinking: ‘If this stop goes bad, I’m in the mix,’ ” says Lou Turco, president of the Lieutenants Benevolent Association in New York City. An officer in South Central Los Angeles described the views of his fellow cops: “Guys and gals in coffee shops are saying to each other: ‘If you get out of your car, you’re crazy, unless there’s a radio call.’ ” That officers would lessen their discretionary engagement under this barrage of criticism and hatred is both understandable and inevitable. Policing is political. If a powerful segment of society sends the message that proactive policing is bigoted, the cops will eventually do less of it. This is not unprofessional conduct; it is how the calibration of police legitimacy is supposed to work. Cops, moreover, are human. In a speech last October at the University of Chicago law school, FBI Director James Comey said that officers in one big city precinct had recounted being surrounded and taunted from the moment they made a pedestrian stop. “’We feel like we’re under siege, and we don’t feel much like getting out of our cars,’ ” they told him. Under such conditions, it is not surprising that proactive policing is down. Remember, such policing is discretionary. Cops don’t have to do it. And they have been told not to do it by activists and the media, who accuse them of racism for making stops in high-crime areas. The only surprise is that many of those same activists are now

accusing the cops of not “doing their job,” as a result of which “people are dying,” in the words of Black Lives Matter activist Shaun King. This is the same King who launched a petition in 2014 demanding that Attorney General Eric Holder “meet with local black and brown youth across the country” who were being oppressed by “broken windows” policing and pedestrian stops. The connection between de-policing and crime increases has been documented before. A 2005 study of de-policing after the anti-cop riots in Cincinnati in 2001 by University of Washington economist Lan Shi, for example, found a significant increase in felony crime caused by the drop-off in officer engagement. Acknowledging the connection between de-policing and crime is unacceptable, however, to those who reject the idea that data-driven, proactive policing can lower crime. To be sure, no one has conducted randomly controlled experiments to confirm that the current crime spike in urban areas is the result of officers reverting to a reactive style of policing. But no other explanation fits the timing of the post-Ferguson crime increase. As Comey said last October, de-policing “is the one explanation that does explain the calendar and the map and that makes the most sense to me.” University of Missouri, St. Louis, criminologist Richard Rosenfeld reached the same conclusion in a study of the post-Ferguson crime increase for the Justice Department: “The only explanation that gets the timing right is a version of the Ferguson effect,” he told the Guardian in May. The crime increase is real, driven by officer disengagement, and is resulting in more black lives being lost.

Turns the case – increase in crime swamp prison reform effortsJason Willick 15 [(Jason Willick, ) Violent Crime Wave Could Swamp Prison Reform, American Interest 9-2-2015] LADIWe aren’t criminologists at Via Meadia, so we won’t wade into the fierce debate about whether or not the “Ferguson effect” is real. In any case, focusing tightly on the relationship between crime and the protests over the deaths of Michael Brown, Eric Garner, and Freddie Gray strikes us as too narrow an approach. Even as these protests gained a lot traction this past year, the public had already begun to turn against many of the harsher elements of the U.S. criminal justice system, from stop-and-frisk to draconian prison sentences. Many state and local governments—including some of the ones mentioned in the Times story—have been scaling back certain tough-on-crime policies for the last several years. Theories about the sources of the 2015 crime boomlet abound, but we wouldn’t be surprised if changes in criminal justice policy have played a role, at least in some cities. It may well be the case that the nationwide crime crackdown that began in the 1970s—as destructive as it was for many communities—really did help keep a lid on the crime rate. And it may well be that the steps taken toward reform in states like California—as salutary as they may be, overall, as a matter of policy—have caused urban crime to rise somewhat. For the purposes of public opinion, however, it may not matter whether the statistics in the Times article can be traced to the ‘Ferguson effect,’ changing prison policies, the availability of guns, or simple random variation. As we’ve written before, this is America’s prison reform moment. Politicians on both sides are united around the moral and fiscal imperative of curbing mass incarceration—and in particular, enacting more charitable policies toward drug and other nonviolent offenders. However, we only got here because the country has enjoyed historically low—and steadily falling—crime rates for the past decade. If the latest crime boomlet turns into a boom, the criminal justice reform consensus could evaporate in a heartbeat—no matter what the source of the boom may be. Posted: Sep 2, 2015 9:11 AM