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Framework
The starting point of government deliberation has to be the individual
and how they relate to the social world around them. Rules only gain
their force if they are open to public criticism. This means we need a
procedural democracy that transcends the exact content of any moral
rule. Adorno
Adorno, Theodor. Education after Auschwitz, Critical Model
Since the possibility of changing the objectivenamely societal and political conditions is extremely limited today,

attempts to work against the repetition of Auschwitz are

necessarily restricted to the subjective dimension. By this I also
mean essentially the psychology of people who do such things. I do not believe it would help much to appeal to eternal values, at
which the very people who are prone to commit such atrocities would merely shrug their shoulders. I also do not believe that
enlightenment about the positive qualities possessed by persecuted minorities would be of much use. The roots must be sought in
the persecutors, not in the victims who are murdered under the paltriest of pretenses. What is necessary is what I once in this
respect called the turn to the subject. One must come to know the mechanisms that render people capable of such deeds, must
reveal these mechanisms to them, and strive, by awakening a general awareness of those mechanisms, to prevent people from
becoming so again. It is not the victims who are guilty, not even in the sophistic and caricatured sense in which still today many
like to construe it. Only those who unreflectingly vented their hate and aggression upon them are guilty. One must labor against
this lack of reflection, must dissuade people from striking outward without reflecting upon themselves. The only education that has
any sense at all is an education toward critical self-reflection. But since according to the findings of depth psychology, all
personalities, even those who commit atrocities in later life, are formed in early childhood, education seeking to prevent the
repetition must concentrate upon early childhood. I mentioned Freuds thesis on discontent in culture. Yet the phenomenon
extends even further than he understood it, above all, because the pressure of civilization he had observed has in the meantime
multiplied to an unbearable degree. At the same time the explosive tendencies he first drew attention to have assumed a violence
he could hardly have foreseen. The discontent in culture, however, also has its social dimension, which Freud did not overlook
though he did not explore it concretely. One can speak of the claustrophobia of humanity in the administered world, of a feeling of
being incarcerated in a thoroughly societalized, closely woven, netlike environment. The denser the weave, the more one wants to
escape it, whereas it is precisely its close weave that prevents any escape. This intensifies the fury against civilization. The revolt
against it is violent and irrational. A pattern that has been confirmed throughout the entire history of persecutions is that the fury
against the weak chooses for its target especially those who are perceived as societally weak and at the same timeeither rightly
or wronglyas happy. Sociologically, I would even venture to add that our society, while it integrates itself ever more, at the same
time incubates tendencies toward disintegration. Lying just beneath the surface of an ordered, civilized life, these te ndencies have

The pressure exerted by the prevailing

universal upon everything particular, upon the individual people and the individual
institutions, has a tendency to destroy the particular and the
individual together with their power of resistance. With the loss of their identity and
power of resistance, people also forfeit those qualities by virtue
of which they are able to pit themselves against what at some
moment might lure them again to commit atrocity. Perhaps they
are hardly able to offer resistance when the established
authorities once again give them the order, so long as it
is in the name of some ideal in which they half or not at
all believe. When I speak of education after Auschwitz, then, I mean two areas: first childrens education, especially
progressed to an extreme degree.

in early childhood; then general enlightenment that provides an intellectual, cultural, and social climate in which a recurrence
would no longer be possible, a climate, therefore, in which the motives that led to the horror would become relatively conscious.
Naturally, I cannot presume to sketch out the plan of such an education even in rough outline. Yet I would like at least to indicate
some of its nerve centers. Often, for instance, in America, the characteristic German trust in authority has been made responsible
for National Socialism and even for Auschwitz. I consider this explanation too superficial, although here, as in many other
European countries authoritarian behavior and blind authority persist much more tenaciously than one would gladly admit under
the conditions of a formal democracy. Rather, one must accept that fascism and the terror it caused are connected with the fact
that the old established authorities of the Kaiserreich decayed and were toppled, while the people psychologically were not yet
ready for self-determination. They proved to be unequal to the freedom that fell into their laps. For this reason the authoritarian
structures then adopted that destructive and, if I may put it so, insane dimension they did not have earlier, or at any rate had not
revealed. If one considers how visits of potentates who no longer have any real political function induce outbreaks of ecstasy in
entire populations, then one has good reason to suspect that the authoritarian potential even now is much stronger than one
thinks. I wish, however, to emphasize especially that the recurrence or non-recurrence of fascism in its decisive aspect is not a
question of psychology, but of society. I speak so much of the psychological only because the other, more essential aspects lie so

Very often
well-meaning people, who dont want it to happen again, invoke the concept
of bonds. According to them, the fact that people no
far out of reach of the influence of education, if not of the intervention of individuals altogether.

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longer had any bonds is responsible for what took place . In

fact, the loss of authority, one of the conditions of the sadistic-authoritarian horror, is connected with this state of affairs. To
normal common sense it is plausible to appeal to bonds that check the sadistic, destructive, and ruinous impulse with an emphatic

I consider it an illusion to think that the

appeal to bondslet alone the demand that everyone should again embrace social ties so that things will look
up for the world and for people would help in any serious way. One senses very quickly the
You must not. Nevertheless

untruth of bonds that are required only so that they produce a resulteven if it be goodwithout the bonds being experienced by
people as something substantial in themselves. It is surprising how swiftly even the most foolish and naive people react when it

The so-called bonds

comes to detecting the weaknesses of their betters.

easily become either a ready
badge of shared convictionsone enters into them to prove oneself a good citizenor they produce spiteful resentment,

amount to heteronomy, a
dependence on rules, on norms that cannot be justified by the individuals own reason. W hat
psychology calls the superego, the conscience, is
replaced in the name of bonds by external, unbinding,
and interchangeable authorities, as one could observe quite clearly in Germany after the
collapse of the Third Reich. Yet the very willingness to connive with
power and to submit outwardly to what is stronger , under
the guise of a norm, is the attitude of the tormentors that
should not arise again. It is for this reason that the
advocacy of bonds is so fatal. People who adopt them
more or less voluntarily are placed under a kind of
permanent compulsion to obey orders. The single
genuine power standing against the principle of
Auschwitz is autonomy, if I might use the Kantian expression: the power of reflection,
of self-determination, of not cooperating . I once had a very shocking experience: while on a cruise on Lake
psychologically the opposite of the purpose for which they were drummed up. They

Constance I was reading a Baden newspaper, which carried a story about Sartres play Morts sans s epulchre, a play that depicts
the most terrifying things.3 Apparently the play made the critic uneasy. But he did not explain this discontent as being caused by
the horror of the subject matter, which is the horror of our world. Instead he twisted it so that, in comparison with a position like
that of Sartre, who engages himself with the horror, we could maintainalmost maintain, I should sayan appreciation of the
higher things: so that we could not acknowledge the senselessness of the horror. To the point: by means of noble existential cant
the critic wanted to avoid confronting the horror. Herein lies, not least of all, the danger that the horror might recur, that people
refuse to let it draw near and indeed even rebuke anyone who merely speaks of it, as though the speaker, if he does not temper
things, were the guilty one, and not the perpetrators. With the problem of authority and barbarism I cannot help thinking of an
idea that for the most part is hardly taken into account. It comes up in an observation in the book The SS State by Eugen Kogon,
which contains central insights into the whole complex and which hasnt come near to being absorbed by science and educational
theory the way it deserves to be.4 Kogon says that the tormentors of the concentration camp where he spent years were for the
most part young sons of farmers. The cultural difference between city and country, which still persists, is one of the conditions of
the horror, though certainly neither the sole nor the most important one. Any arrogance toward the rural populace is far from my
intentions. I know that one cannot help having grown up in a city or a village. I note only that probably debarbarization has been
less successful in the open country than anywhere else. Even television and the other mass media probably have not much
changed the state of those who have not completely kept up with the culture. It seems to me more correct to say this and to work
against it than to praise sentimentally some special qualities of rural life that are threatening to disappear. I will go so far as to
claim that one of the most important goals of education is the debarbarization of the countryside. This presupposes, however, a
study of the conscious and unconscious of the population there. Above all, one must also consider the impact of modern mass
media on a state of consciousness that has not yet come anywhere close to the state of bourgeois liberal culture of the nineteenth
century. In order to change this state of consciousness, the normal primary school system, which has several problems in the rural
environment, cannot suffice. I can envision a series of possibilities. One would beI am improvising herethat television programs
be planned with consideration of the nerve centers of this particular state of consciousness. Then I could imagine that something
like mobile educational groups and convoys of volunteers could be formed, who would drive into the countryside and in
discussions, courses, and supplementary instruction attempt to fill the most menacing gaps. I am not ignoring the fact that such
people would make themselves liked only with great difficulty. But then a small circle of followers would form around them, and
from there the educational program could perhaps spread further. However, there should arise no misunderstanding that the
archaic tendency toward violence is also found in urban centers, especially in the larger ones. Regressive tendencies, that is,
people with repressed sadistic traits, are produced everywhere today by the global evolution of society. Here Id like to recall the
twisted and pathological relation to the body that Horkheimer and I described in The Dialectic of Enlightenment. Everywhere where
it is mutilated, consciousness is reflected back upon the body and the sphere of the corporeal in an unfree form that tends toward
violence. One need only observe how, with a certain type of uneducated person, his languageabove all when he feels faulted or
reproachedbecomes threatening, as if the linguistic gestures bespoke a physical violence barely kept under control. Here one
must surely also study the role of sport, which has been insufficiently investigated by a critical social psychology. Sport is
ambiguous. On the one hand, it can have an anti-barbaric and anti-sadistic effect by means of fair play, a spirit of chivalry, and
consideration for the weak. On the other hand, in many of its varieties and practices it can promote aggression, brutality, and
sadism, above all in people who do not expose themselves to the exertion and discipline required by sports but instead merely
watch: that is, those who regularly shout from the sidelines. Such an ambiguity should be analyzed systematically. To the extent
that education can exert an influence, the results should be applied to the life of sport. All this is more or less connected with the
old authoritarian structure, with modes of behavior, I could almost say, of the good old authoritarian personality. But what
Auschwitz produced, the characteristic personality types of the world of Auschwitz, presumably represents something new. On the
one hand, those personality types epitomize the blind identification with the collective. On the other hand, they are fashioned in
order to manipulate masses, collectives, as Himmler, Hoss, and Eichmann did. I think

the most important

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way to confront the danger of a recurrence is to work against the

brute predominance of all collectives, to intensify the resistance to it by concentrating on the problem
of collectivization. That is not as abstract as it sounds in view of the passion with which especially young and
progressively minded people desire to integrate themselves into something or other. One could start with the suffering the
collective first inflicts upon all the individuals it accepts. One has only to think of ones own first experiences in school. One must
fight against the type of folkways [Volkssitten], initiation rites of all shapes, that inflict physical painoften unbearable painupon
a person as the price that must be paid in order to consider oneself a member, one of the collective.6 The evil of customs such as
the Rauhnachte and the Haberfeldtreiben and whatever else such long-rooted practices might be called is a direct anticipation of
National Socialist acts of violence.7 It is no coincidence that the Nazis glorified and cultivated such monstrosities in the name of
customs. Science here has one of its most relevant tasks. It could vigorously redirect the tendencies of folk-studies [Volkskunde]
that were enthusiastically appropriated by the Nazis in order to prevent the survival, at once brutal and ghostly, of these folkpleasures. This entire sphere is animated by an alleged ideal that also plays a considerable role in the traditional education: the
ideal of being hard. This ideal can also, ignominiously enough, invoke a remark of Nietzsche, although he truly meant something
else.8 I remember how the dreadful Boger during the Auschwitz trial had an outburst that culminated in a panegyric to education
instilling discipline through hardness. He thought hardness necessary to produce what he considered to be the correct type of
person.9 This educational ideal of hardness, in which many may believe without reflecting about it, is utterly wrong. The idea that
virility consists in the maximum degree of endurance long ago became a screen-image for masochism that, as psychology has
demonstrated, aligns itself all too easily with sadism. Being hard, the vaunted quality education should inculcate, means absolute
indifference toward pain as such. In this the distinction between ones own pain and that of another is not so stringently
maintained. Whoever is hard with himself earns the right to be hard with others as well and avenges himself for the pain whose
manifestations he was not allowed to show and had to repress. This mechanism must be made conscious, just as an education
must be promoted that no longer sets a premium on pain and the ability to endure pain. In other words: education must take
seriously an idea in no wise unfamiliar to philosophy: that anxiety must not be repressed. When anxiety is not repressed, when one
permits oneself to have, in fact, all the anxiety that this reality warrants, then precisely by doing that, much of the destructive

People who blindly slot

themselves into the collective already make themselves
into something like inert material, extinguish themselves
as self-determined beings. With this comes the
willingness to treat others as an amorphous mass. I called those
effect of unconscious and displaced anxiety will probably disappear.

who behave in this way the manipulative character in the Authoritarian Personality, indeed at a time when the diary of Hoss or
the recordings of Eichmann were not yet known.10 My descriptions of the manipulative character date back to the last years of the
Second World War. Sometimes social psychology and sociology are able to construct concepts that only later are empirically
verified. The manipulative characteras anyone can confirm in the sources available about those Nazi leadersis distinguished by
a rage for organization, by the inability to have any immediate human experiences at all, by a certain lack of emotion, by an
overvalued realism. At any cost he wants to conduct supposed, even if delusional, Realpolitik. He does not for one second think or
wish that the world were any different than it is, he is obsessed by the desire of doing things [Dinge zu tun], indifferent to the
content of such action. He makes a cult of action, activity, of so-called efficiency as such which reappears in the advertising image
of the active person. If my observations do not deceive me and if several sociological investigations permit generalization, then
this type has become much more prevalent today than one would think. What at that time was exemplified in only a few Nazi
monsters could be confirmed today in numerous people, for instance, in juvenile criminals, gang leaders, and the like, about whom
one reads in the newspapers every day. If I had to reduce this type of manipulative character to a formulaperhaps one should not
do it, but it could also contribute to understandingthen I would call it the type of reified consciousness. People of such a nature
have, as it were, assimilated themselves to things. And then, when possible, they assimilate others to things. This is conveyed
very precisely in the expression to finish off [fertigmachen], just as popular in the world of juvenile rowdies as in the world of
the Nazis. This expression defines people as finished or prepared things in a doubled sense. According to the insight of Max
Horkheimer, torture is a manipulated and somewhat accelerated adaptation of people to collectives.11 There is something of this
in the spirit of the age, though it has little to do with spirit. I merely cite the saying of Paul Val ery before the last war, that
inhumanity has a great future.12 It is especially difficult to fight against it because those manipulative people, who actually are
incapable of true experience, for that very reason manifest an unresponsiveness that associates them with certain mentally ill or
psychotic characters, namely schizoids.

The law can either be used to forward the claims of the powerless or to
perpetuate those of the powerful. We embrace a system of politics that
allows for the powerless to speak out. Balkin 08
Balkin, Jack M. "Critical legal theory today." (2008).
The relative autonomy of law from politics rather than its complete autonomy simultaneously poses a threat and a promise.

The threat is that law will fail to do much more than

ratify and legitimate the interests of the powerful; the
promise is that it might hold off the worst excesses of
power by giving people discursive and institutional tools
to talk back to power, to restrain its selfishness and inhumanity, and to imagine finer, better visions of
human association. The threat and the promise of law are joined together inseparably. What gives law its
power to legitimate is its ability to re-describe unjust and
unfair events, social practices and institutions in terms
of valued ideals of human association like consent,

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freedom, dignity, equality and fairness. In the hands of lawyers and politicians,
law can disguise, mystify and legitimate great injustices using the very ideas
and ideals we admire. But law can only do this because it appeals to these values and claims to try to put them into practice
through law. Recourse to law forces the powerful to talk in
terms in which the powerless can also participate and
can also make claims. From this standpoint, law is not simply an efficient tool of power that powerful
people and powerful groups can wield any way they like. They do not merely shape the world with it; rather it shapes them and
their world, because they have bought into law as a means of achieving and wielding power. Law shapes their beliefs and

Law
generates its own institutions and its own demands; it
creates its own culture, it is its own form of life; it struggles with other forms of knowledge and
power for dominance. That struggle might lead to yet another form of professional power displacing older ones. But it
might offer a space for something far more beneficial
and noble. The critical approach to lawor at any rate, my version of ithas always been doubled, has always
desires, their sense of the appropriate and the inappropriate, their conceptions of the possible and impossible.

reflected the Janus word legitimate. On the one hand, powerful people have used law to subordinate others and secure their
own interests under the guise of promoting laudable goals like freedom, equality, liberty, consent, community and human

, by choosing to speak in the language of law,

powerful people and interests can sometimes be called
to account because they try to legitimate what they are
doing in those terms. The people they take advantage of can argue that this is a misuse of law, an
illegitimate attempt at mystifying rhetoric. They can appeal to the values that
law seeks to protect to promote better, more just, and
more humane practices and forms of human association.
dignity. On the other hand

Important theoretical debates among critical scholars in the 1970s and 1980s period revolved around which conception of law
was the best one. Some critical scholars adopted a largely pejorative conception, focusing primarily on laws defects. They
argued that the rule of law was enmeshed in irreconcilable contradictions; they denounced rights talk as sterile, useless and

rights
discourse and rule of law values were among the few
resources that disempowered people had.6 Rule of law
and rights talk were potentially emancipatory
discourses. They held a limited but important potential
for liberation and for contesting the arbitrary and unjust
use of power. These feminist and critical race theorists understood the deemphasized
elements the other side of critical claims about the relative
autonomy of law. They well recognized that rule of law values and rights discourse were hardly perfect
after all, they had been used repeatedly to justify slavery and the subordination of women but that they had also
allowed people to speak out against and to restrain the
worst excesses of power. Even in a period of deep skepticism and disillusionment about what law
counterproductive.5 Others, especially feminist and critical race theory scholars, pointed out that

could do, these critical scholars retained a sense of the political importance of rule of law values and rights discourse. That is
not because they believed in a strict autonomy of law from politics, but because they understood the political values that legal

. The best version of critical theory, I

think, employs an ambivalent conception of law rather
than a pejorative conception: it recognizes laws relative
autonomy from other forms of power in social life, and it
understands the dual or Janus-faced nature of that
relative autonomy. It sees both laws limitations in the
face of power and its possibilities as a means of
channeling power and preventing its most serious
injustices.
culture and rights discourse might serve

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And, The narrative of no progress is affectively appealing but

historically imprecise major gains have been achieved and the
political implications of their ethics risks throwing out the possibility of
a less violence, less dehumanizing future around the world. Winant
15
Winant 15 (2015, Howard, Professor of Sociology at UC-Santa Barbara, The Dark Matter: Race and Racism in the 21st Century, Critical
Sociology 2015, Vol. 41(2) 313324). NS

Structural racism an odious

stinkpile of shit left over from the past and still being
augmented in the present has been accumulated by slavery
The World-Historical Shitpile of Race

unwilling to die,4 by empire, and indeed by the entire racialized modern world system. The
immense waste (Feagin et al., 2001, drawing on Bataille) of human life and labor by these
historically entrenched social structures and practices still confronts us today, in the aftermath of

antiracist accomplishments
have reduced the size of the pile; we have lessened the stink. But a
massive amount of waste still remains. So much racial waste is left over from
the post-Second World War racial break. Our

the practice of racial domination in the early days of empire and conquest, to the present

Indeed it often seems that this

enormous and odious waste pinions the social system
under an immovable burden. How often have despair and
hopelessness overcome those who bore this sorrow? How
combination of police state and liberalism!

often have slave and native, peon and maquiladora, servant and ghetto-dweller, felt just plain
sick and tired (Nappy Roots, 2003), encumbered by this deadening inertia composed of a racial
injustice that could seemingly never be budged? How often, too, have whites felt weighed down

Yet
racial politics is always unstable and contradictory. Racial
by the waste, the guilt and self-destruction built into racism and the psychological wage?

despotism can never be fully stabilized or consolidated .

Thus

at key historical moments, perhaps rare but also

inevitable , the sheer weight of racial oppression qua social

structure becomes insupportable. The built-up rage and inequity, the
irrationality and inutility, and the explosive force of dreams denied, are mobilized politically in
ways that would have seemed almost unimaginable earlier.

Racism remains

formidable, entrenched as a structuring feature of both US and global society and politics.
Indeed it often seems impossible to overcome. Yet Thats Not the Whole
Story

We are so used to losing! We cant see that the racial system is in crisis both in the US

Large-scale demographic and political shifts have

overtaken the modern world (racial) system, undermining and
rearticulating it. During and after the Second World War a
tremendous racial break occurred, a seismic shift that swept
much of the world (Winant, 2001). The US was but one national case of
this rupture, which was experienced very profoundly : racial
and globally.

transformations occurred that were unparalleled since at least the changes brought about by the
US Civil War. Omi and I (1994) and many, many others have proposed that the terrain of racial
politics was tremendously broadened and deepened after the War. The increased importance of

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not only grounded the modern civil rights

movement but shaped a whole range of new social
movements that we take for granted today as central axes of
race in larger political life

political conflict. In earlier stages of US history it had not been so evident that the personal is
political at least not since the end of Reconstruction.

From the explicit racial

despotism of the Jim Crow era to the racial democracy

(of

course still very partial and truncated) of the present

period : that is a big leap, people .

In the modern world there were

always black movements, always movements for racial justice and racial freedom. The experience
of injustice, concrete grievances, lived oppression, and resistance, both large and small, always

These movements, these

demands, were largely excluded from mainstream politics
before the rise of the civil rights movement after the War. Indeed, after the
Second World War, in a huge break that was racially framed in crucial ways, this
politicization of the social swept over the world. It
ignited (or reignited) major democratic upsurges. This included
the explicitly anti-racist movements: the modern civil rights
exists. It can be articulated or not, politicized or not.

movement, the

anti-apartheid

movement, and

the anti-colonial

movement

(India, Algeria, Vietnam, etc.).

more-or-less allied,

movements like secondwave feminism , LGBTQ

(ne

It also included parallel, and

gay liberation ) movements, and others . In short, the world-historical

upheaval of the Second World War and its aftermath were racial upheavals in significant ways: the
periphery against the center, the colored others against The Lords of Human Kind (Kiernan,
1995). These

movements produced: Demographic, economic,

political, and cultural shifts across the planet

destruction of the old European empires
and going of the Cold War

The rise of

movements , led by the black movement in the US

the start of

what could be

The

The coming

the

new social

And

this is only

a much bigger list . A Crisis of Race and Racism?

[C]risis, Gramsci famously wrote, consists precisely in the fact that the old is dying and the new
cannot be born: in this interregnum, morbid phenomena of the most varied kind come to pass
(Gramsci, 1971: 276). Using the Gramscian formula, I suggest that there is such a crisis of race

On the one hand, the old verities of established

racism and white supremacy have been officially
discredited, not only in the US but fairly comprehensively around
the world. On the other hand, racially-informed action and
social organization, racial identity and race consciousness, continue
unchecked in nearly every aspect of social life! On the one hand, the state (many states
and racism.

around the world) now claims to be colorblind, non-racialist, racially democratic; while on the
other hand, in almost every case, those same states need race to rule. Consider in the US alone:
race and electoral politics, race and social control, race and legal order Why dont our heads
explode under the pressures of such cognitive dissonance? Why doesnt manifest racial
contradiction provoke as much uncertainty and confusion in public life and political activity as it
does in everyday experience? Are we just supposed to pretend that none of this is happening?
Can anyone really sustain the view that they are operating in a nonracial, colorblind society? The

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colorblind claim is that one should not notice race. For if one sees race, one wouldnt be blind
to it, after all.5 But what happens to race-consciousness under the pressure (now rather intense in
the US, anyway) to be colorblind? Quite clearly, racial awareness does not dry up like a raisin in
the sun. Not only does it continue as a matter of course in everyday life, but in intellectual, artistic
and scientific (both social and natural) life race continues to command attention.6 Colorblind
ideologies of race today serve to impede the recognition of racial difference or racial inequality
based on claims that race is an archaic concept, that racial inclusion is already an accomplished
fact, and so on. Just so, persistent race-consciousness highlights racial differences and
particularities. Noticing race can be linked to despotic or democratic motives, framed either in
defense of coercion, privilege, and undeserved advantage, or invoked to support inclusion, human
rights, and social justice (Carbado and Harris, 2008; see also Brown et al., 2003). Obama Is he a
mere token, a shill for Wall Street? Or is he Neo, the one? If neither alternative is plausible, then
we are in the realm of everyday 21st-century US politics. This is the territory in which, as Sam
Rayburn famously said, There comes a time in the life of every politician when he [sic] must rise
above principle. Yet Barack Obama has transformed the US presidency in ways we cannot yet
fully appreciate. Obama is not simply the first nonwhite (that we know of) to occupy the office. He
is the first to have lived in the global South, the first to be a direct descendent of colonized
people, the first to have a genuine movement background. Consider: How many community
meetings, how many movement meetings did Obama attend before entering electoral politics?
But he is no more powerful than any of his predecessors; he is constrained as they were by the US
system of rule, by the US racial regime, by structural racism. In addition he is constrained by
racism as no other US president has ever been. No other president has experienced racism
directly: Moreover, while my own upbringing hardly typifies the African American experience and
although, largely through luck and circumstance, I now occupy a position that insulates me from
most of the bumps and bruises that the average black man must endure I can recite the usual
litany of petty slights that during my forty-five years have been directed my way: security guards
tailing me as I shop in department stores, white couples who toss me their car keys as I stand
outside a restaurant waiting for the valet, police cars pulling me over for no apparent reason. I
know what its like to have people tell me I cant do something because of my color, and I know
the bitter swill of swallowed back anger. I know as well that Michelle and I must be continually
vigilant against some of the debilitating story lines that our daughters may absorb from TV and
music and friends and the streets about who the world thinks they are, and what the world
imagines they should be. (Obama, 2006: 233) On the other hand: he has a kill list. All presidents
kill people, but Obama is the first systematically and publicly to take charge of these egregious
and unconstitutional uses of exceptional powers. In this he echoes Carl Schmitt, the Nazi political
theorist, whose famous dictum is Sovereign is he who decides on the exception (2004 [1922]).
The drones, the surveillance, and the numerous right turns of his administration all stand in sharp
contradiction not only to his campaign rhetoric, but to the anti-racist legacy of the civil rights
movement that arguably put him in office. Obama has not interceded for blacks against their
greatest cumulative loss of wealth in US history, the great recession of 2008. He has not
explicitly criticized the glaring racial bias in the US carceral system. He has not intervened in
conflicts over workers rights particularly in the public sector where many blacks and other
people of color are concentrated. Obama himself largely deploys colorblind racial ideology,
although he occasionally critiques it as well. Beneath this ostensibly postracial view the palpable
and quite ubiquitous system of racial distinction and inequality remains entrenched. Though
modernized and moderated, structural racism has been fortified, not undermined, by civil rights

What
should we be studying and teaching now? The list of themes I have
reform; Obama is not challenging it, at least not directly. Reframing the Discussion

highlighted here is partial of course, and perhaps impressionistic as well. If the argument I have
proposed has any validity, then the dark matter of race, which is even more
invisible now than it was in the past in its present post-civil rights, colorblind, and even
presidential forms

continues to exercise its gravitational pull on

our politics. It continues to shape what is called (and improperly deprecated as) identity
politics. The dark matter takes on new significance as a central feature of neoliberalism, which
is enacted today through the deployment of accumulation by dispossession, states of
exception, state violence, and exclusionary politics all political practices that rely on racism.

Yet the legacy of centuries of resistance to these

depredations , the undeniable achievements of anti-racist
and ant-imperialist struggles , the extension of
democracy

often tortuous and always incomplete

to peoples of color,

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also exerts a significant political force . Race-based

freedom dreams (Kelley again) sustain the hope of
democracy, inclusion, equality, and justice in the US and
elsewhere

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Harms
SCOTUS ruled in Saucier V Katz that a duplicative double
reasonableness standard must be applied in 4th amendment cases.
This has disrupted the balance of immunity jurisprudence tilting the
playing field overwhelmingly in favor of police gutting section 1983
and civil rights protections broadly. Brown, JD, 03
(Peter A., - Qualified Immunity Illogically Applies to Excessive Force
Claims Suffolk University Law Review 2003 36 Suffolk U. L. Rev. 607 )
In Saucier v. Katz, the Supreme Court considered whether the duplicative objective reasonableness
analysis is necessary to protect law enforcement in civil rights cases alleging excessive force. n32 The
Court upheld the application of qualified immunity in excessive force complaints, thereby
providing an additional layer of protection to law enforcement. n33 Declaring
qualified immunity protects reasonable mistakes of both fact and law, the Court concluded that the mere
application of Graham's factor test would not sufficiently address the goals underlying qualified immunity.
n34 Surprisingly, the Court never addressed whether a Fourth Amendment violation actually occurred in
this case. n35 Due to its procedural posture, the Court presumed a constitutional deprivation and
continued to clarify the proper analysis for qualified immunity. n36 Concerned over the Ninth Circuit's
approach, which enables section 1983 cases to get to trial whenever there is a material dispute of fact, the
Court emphatically reinforced the policies behind the doctrine and reversed the denial of summary
judgment. n37 In Saucier,

the Court blatantly sacrificed policy for sound

legal reasoning
n38 [*613]

while attempting to protect law enforcement officials from frivolous lawsuits.

The Court created an incoherent qualified immunity

analysis , which undoubtedly will contribute to ongoing

confusion. n39 Specifically, the Court's decision may chill future
claims, significantly hindering the ability of individuals to
vindicate constitutional violations . n40 Most importantly, Saucier
neglected Graham's extensive protection of law enforcement.
n41 Graham contained sufficient protections to law
enforcement , and as such, the Court in Saucier did not confront any
legitimate concerns that officers would be liable for conduct that they
did not know violated the law. n42 Additionally, the Court's mistake of fact versus
mistake of law distinction is inapposite, because Graham
provides for a fact-specific analysis pertaining to the deprivation element. n43
The Court focused heavily on the effect that the Ninth Circuit's approach would have
had on otherwise dismissed claims. n44 This insubstantial concern
lacks merit because lower courts consistently dismiss
excessive force cases based on the Fourth Amendment, never reaching
qualified immunity. n45 Saucier ignored precedent by sacrificing ,
rather than balancing, the competing policy interests and

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covertly altering section 1983 litigation in excessive force

cases . n46 [*614] In Saucier v. Katz, the Court considered the role of qualified immunity in excessive
force cases. The Court foreclosed its prior attempts to strike a fair
balance between competing interests by favoring a judicially
created defense over civil rights remedies. Rejecting the strength of its own
decision in Graham, the Saucier Court created an illogical and undue hurdle
for civil rights plaintiffs attempting to vindicate constitutional
violations.
The 4th amendment already provides broad protection for police
conduct-Saucier goes too far in protecting police at the expense of civil
rights through duplicative legal sleight of hand. Shapiro et al, 01
(Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004
(212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663
Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional
Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924
Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41
Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and
Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522
(U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M.
KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )

qualified immunity defense is not applicable to claims of excessive

force under the Fourth Amendment. The standard for determining whether
excessive force has been used in a particular case is identical to the standard for
determining whether an officer is entitled to qualified immunity from liability for a Fourth
Amendment violation. To prove a Fourth Amendment violation, the
plaintiff must demonstrate that the officer acted in an objectively
unreasonable manner and, in determining reasonableness, the fact-finder must make
The

allowance for the fact that police officers are often forced to make split-second judgments -- in
circumstances that are tense, uncertain and rapidly evolving. Graham v. Connor, 490 U.S. 386, 397

the Fourth Amendment itself

provides the officer with a wide zone of protection . The officer can use
(1989). As the courts have consistently recognized,

a range of force in response to perceived danger and need not use the least force necessary under the

Once it is determined that the force that was used was

objectively unreasonable, a defense of qualified immunity is logically
circumstances. *6

inconsistent with the Fourth Amendment determination because it is

measured by the same objective reasonableness standard. A police officer cannot have an
objectively reasonable belief that the force used was necessary (thus
entitling him to qualified immunity) when it has already been determined that
an objectively reasonable officer could not have believed that
the force used was necessary (thus establishing a Fourth Amendment violation). Any
such findings would be irreconcilable. At the very least, the two inquiries merge into a single analytic

Qualified immunity is available in probable cause determinations because of

the difficult legal issues that may be presented in any
particular decision to arrest or search. No such difficult legal
question.

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issues are presented in the excessive force context : the sole question
for the officer is whether force is necessary to effect an arrest or other police action, or to defend oneself

Given the broad protection the officer has under

Graham, no officer who acts unreasonably for Fourth
Amendment purposes could be said to act reasonably in terms
of qualified immunity. The existence of such broad protection in the
Fourth Amendment itself, moreover, eliminates any fear that officers
or others from harm.

will be unreasonably chilled from acting in the absence of a separate

qualified immunity defense. Petitioner's suggested standard for determining
qualified immunity in the context of an excessive force claim demonstrates the
duplicative nature of such an enterprise. According to petitioner, where a
court has determined that the force used was objectively unreasonable, it would still have to ask whether
this fact would be obvious to the officer. But in reaching the conclusion that the force was unreasonable
in the first place under the Graham standard, the court will have considered this fact and already decided
that it would *7 have been apparent to an objectively reasonable officer that the force was excessive.

Double reasonableness warp the rule of law in favor of police

defendants. Williams 09
Hassel, Law @ Roger Williams, 09

(Diana, JD Rutgers, Excessive Reasonableness The Trustees of Indiana

University Indiana Law Review 2009 Indiana Law Review 43 Ind. L. Rev.
117)
Operating on two different fronts, the Court, by the late 1980s, had created two almost
identical objective reasonableness tests: One governed
excessive force under the Fourth Amendment and the other governed qualified
immunity. Difficulty arose, however, when these two standards were
called into play at the [*125] same time in considering the liability of a defendant in
a civil rights action. When these two standards are both operating, a court must first determine whether a
defendant's actions are objectively reasonable. Then, assuming that the actions were not objectively
reasonable, the court must determine whether it was nonetheless objectively reasonable for the defendant
to have believed his actions were objectively reasonable. The

application of this

nonsensical series of questions leads to skewed results . Most

problematically the two doctrines lead to two levels of protection for
a defendant. Additionally, courts must jump through convoluted
analytical hoops that result in unclear and needlessly
complicated decisions. The problem of having two reasonableness standards
could come into play in any Fourth Amendment claim, but the difficulty is most acute in an action
concerning excessive force. Although other Fourth Amendment questions, such as the
legality of searches or the legality of arrests, are also ultimately based on reasonableness, the standards
governing such actions are much more concrete and specific than those governing excessive force. n49
The excessive force standard, as articulated by Graham is just a generalized reasonableness test-thus, the
closest parallel to the qualified immunity doctrine. Following the convergence of the qualified immunity

the courts of appeals attempted to

apply the odd doctrinal regime. Although some courts attempted to comply
doctrine and the excessive force standards,

with the message from the Court in Anderson v. Creighton, n50 that the Fourth Amendment inquiry was

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separate from the qualified immunity question even in an excessive force case, others

found such

an application impossible . n51 For example, in Roy v. City of Lewiston, n52 the First
Circuit Court of Appeals grappled with the qualified [*126] immunity defense in a case alleging excessive
force in the course of an arrest. n53 Determining that the substantive liability issue and the qualified
immunity issue were the same, the court expressed doubt that, in an excessive force case, the issue of the
Fourth Amendment violation could have a different outcome from the qualified immunity question. n54 In
another attempt to work with the qualified immunity doctrine, the Second Circuit Court of Appeals in
Finnegan v. Fountain, n55 separated the two different prongs of qualified immunity. n56 The aspect of the
qualified immunity defense that precludes liability when the conduct of the defendant does not violate
clearly established rights was available in an excessive force claim. n57 But the second prong of the
qualified immunity defense, which asks whether the defendant's belief that his actions were lawful was
objectively reasonable, would already have been answered in a determination that the actions violated the

In the end, the Tenth, Ninth, Seventh, Sixth, and

D.C. Circuit Courts of Appeals abandoned the attempt to follow
Anderson's guidance and held that the two questions-use of excessive force and qualified
Fourth Amendment. n58

immunity-merged into one inquiry. n59

1983 is the lynchpin of rights protections. Pittman 12

(Nathan R., UNINTENTIONAL LEVELS OF FORCE IN 1983 EXCESSIVE FORCE CLAIMS William & Mary Law
Review William & Mary Law Review May, 2012 William & Mary Law Review 53 Wm. & Mary L. Rev. 2107)

evolution of 1983 has transformed the statute that was

once almost a dead letter into the preeminent vehicle for the
The

vindication of constitutional rights . Section 1983 has become more than just a
tort statute, and the normative values that underlie it speak to
society's promise to protect constitutional rights and uphold
the rule of law . To facilitate this end, the Supreme Court has expunged subjective intent from
the excessive force analysis, instead relying on objective reasonableness to assess a plaintiff's claims. The

vindication of the right to be free from excessive force,

however, is constrained by vagueness in the excessive force doctrine
and the development of the qualified immunity standard, which stretches
toward absolute immunity.

This concern is heightened in unintentional level of force

cases, because the misuse of the reasonable mistake standard, even in egregious cases in which qualified

By relying
on reasonable mistake analysis, courts abdicate their role
immunity has been denied, invites the same errors that qualified immunity can create.

under 1983 to protect constitutional rights .

Successful civil rights challenges to police misconduct are crucial to
challenging cultural militarism. Carter 14
Tom Carter WSWS Legal Correspondent, a lawyer (https://www.wsws.org/en/articles/2014/02/24/cart-f24.html). US Supreme Court Expands
Immunity for Killer Cops. Center for Research on Globalization. November 12, 2015. http://www.globalresearch.ca/us-supreme-court-expandsimmunity-for-killer-cops/5488366 JJN

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, Hows that for proactive?
The Luna v. Mullenix case was filed by Leijas 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

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of Appeals, denied immunity to Mullenix on the grounds that his conduct violated clearly established law. The Supreme Court
intervened to uphold the Mullenixs entitlement to immunitya decision that will set a precedent for the summary dismissal of

This is the Supreme Courts

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
civil rights lawsuits against police brutality around the country.

six-year-old autistic boy, and his father Chris Few. The boys father had his hands up during the shooting and is currently

The
Supreme Courts decision reflects the fact that in the face
of rising popular anger over police killings, the entire
political apparatusincluding all of the branches of
governmentis closing ranks behind the police. This
includes the establishment media, which has largely
remained silent about Mondays 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
hospitalized with serious injuries. His son succumbed to the police bullets while still buckled into the front seat of the car.

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
administrations position regarding the surge of police violence was most clearly and simply articulated by FBI director James
Comey in aspeech 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 anamicus
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 Browns killer, labeling demonstrators as violent outsiders, and denouncing the violent idiots on
the street chanting time to kill a cop! 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 judges 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 ofTennessee 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 Mondays 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 Courts 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 administrations justifications for assassination and domestic spying, according to which national security is balanced

The Bill of Rights itselfthat old, yellow,

forgotten piece of paperdoes 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.
against democratic rights.

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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 levelsthese 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 Courts 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, warthis 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.
Independent of civil rights protections an incoherent, government
biased QI system undercuts law enforcement and the rule of law
broadly. Pittman 12
(Nathan R., UNINTENTIONAL LEVELS OF FORCE IN 1983 EXCESSIVE FORCE CLAIMS William & Mary Law
Review William & Mary Law Review May, 2012 William & Mary Law Review 53 Wm. & Mary L. Rev. 2107)

Qualified immunity has distorted

other

values in the legal system and

provided perverse incentives to law enforcement officers. First, as Evan

Mandery argues, qualified immunity "departs from the commonly accepted
maxim that all citizens are to be held strictly liable for
knowledge of the law." n138 That is, law enforcement officers can escape
liability by being ignorant of the law. Of course, one might respond to Mandery's criticism
by pointing to Harlow's requirement that ignorance is excused only when a reasonable person would not

because qualified immunity holds

officers to a low standard for their knowledge of the law, n140
have known. n139 Mandery's stronger criticism is that

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they have no incentive to learn it and thus provide enforcement more consistent
with the Constitution. n141 Mandery argues that this creates particular problems in the
context of excessive force cases, in which victims of police misconduct
are often powerless to mitigate that conduct

because the level of care that

victims take to comply with the law is often irrelevant. n142 In response, Mandery suggests that strict
liability might be applied to 1983 cases, a beneficial move that would remove uncertainty about which
rights the statute will vindicate and would fully expunge subjective criteria from [*2128] liability. n143 The
public policy justifications of qualified immunity n144 would, of course, require that strict liability be
packaged with a mandatory indemnification scheme or a respondeat superior theory of liability for
municipalities, n145 and Mandery admits that such packaging has been explicitly rejected by the Court.
n146 Another criticism leveled at

qualified immunity is that, in general, it widens the gap

between rights and their remedies . This is the argument taken up by John Jeffries,
who argues that "[d]octrines that curtail individual redress thus not only
deny full remediation to some victims; they also call into
question the adequacy of the overall structure of
constitutional enforcement." n147 Jeffries explains that this gap is
particularly wide in 1983 claims. n148 This is not to say that Jeffries disregards the
policy arguments for qualified immunity; his argument is that although society must tolerate some gaps, it
should not come to believe that such gaps are anything more than a necessary evil whose social value
should be carefully evaluated. n149 The chief benefit that Jeffries identifies in such a gap is that it
"facilitates constitutional change by reducing the costs of innovation." n150 Jeffries is concerned that, if
government had to bear the true cost of constitutional violations, then courts would be reluctant to
develop new rights. n151 Jeffries is careful to point out that his framework views the proper role of
qualified immunity as shielding government actors from liability, not as an endorsement of current law.

qualified
screen that "obscures the

n152 Diana Hassel is one of the most strident critics of qualified immunity. She argues that

immunity is essentially a smoke

[*2129]

choices that are being made on the fundamental and divisive

issues of what constitutional wrongs should be compensated."
n153 In practice, the veil of qualified immunity allows judges to exercise
their policy preferences on a case-by-case basis. n154 This system,
Hassel argues, leads toward a qualified immunity doctrine that is both highly
uncertain n155 and inappropriately focused on government
interests

n156

rather than the violation of constitutional rights. n157

Hassel's critique suggests that qualified immunity returns civil rights analysis to the sort of methodology
that Justice Frankfurter advocated in Rochin. n158 Judges, using their own sound discretion, determine
what "shocks the conscience" to the point that judicial intervention is warranted. n159 A return to this
jurisprudence vests judges with the power to decide which rights will be vindicated. n160 Although judges
may already exercise this power, Hassel's argument is that

this method hides the

policy choices behind which rights will be enforced,

contributing to an impoverished doctrine. n161

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Solvency
Plan Text: The Supreme Court ought to limit qualified immunity in
excessive force cases
The plan strikes a goldilocks middle ground by eliminating massive pro
police bias in existing immunity jurisprudence. Stoelting 89
Stoelting, JD and co-chair of the International Criminal Law Committee, 89
(David P, QUALIFIED IMMUNITY FOR LAW ENFORCEMENT OFFICIALS IN SECTION 1983 EXCESSIVE FORCE CASES 1989
University of Cincinnati Law Review. University of Cincinnati 1989 58 U. Cin. L. Rev. 243)

Although the Court in Anderson purported to be following

Harlow, it in effect heightened the burden for plaintiffs to overcome
a summary judgment motion on the basis of qualified immunity. Plaintiffs alleging
excessive force are expected to show that no reasonable officer
could have believed the actions were reasonable, taking into account the
particular facts as perceived by the defendant at the time. n132 As a result, the Court
comes close to reintroducing subjective elements into the
immunity question by calling for consideration of the officer's perceptions. n133 This is
tantamount to requiring plaintiffs to show an intent on the part of the
officer to unconstitutionally use excessive force, which could effectively transform
qualified immunity for police officers into the absolute immunity enjoyed by
judges and legislators. The Court in Anderson characterized Harlow as a
"guarantee of immunity." n134 However, Anderson itself comes
closer to extending to police officers an impenetrable degree of
immunity. The opinion is [*262] full of concern with the law
enforcement official who must defend his actions in court, n135 but it is silent as to
vindicating the rights of the section 1983 plaintiff. Of course, some
section 1983 actions are groundless and should be resolved
before trial. n136 In these cases, though, a motion for summary
judgment because of insufficient evidence or a Rule 12(b)(6)
motion to dismiss is the proper tool. When a plaintiff's section 1983
excessive force claim is dismissed before trial because of qualified immunity, the
message to the plaintiff is that there is no remedy and that the original intent
behind section 1983 has been abrogated. n137 IV. CONCLUSION When police
officers use excessive force, a constitutional right is violated.
The framers of section 1983 intended for there to be a private right of
action against state officials for such constitutional violations. Qualified immunity for
police officers short-circuits a plaintiff's ability to have constitutional
rights vindicated in the courts. The wide discretion granted to
police officers in Anderson, combined with the Court's
admonitions to dispose of section 1983 cases at the summary
judgment stage, means that qualified immunity could become an

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insurmountable obstacle for section 1983 plaintiffs. Thus, the

Supreme Court should abolish qualified immunity for police
officers in excessive force cases and thereby reaffirm section
1983 as a guarantor of constitutional rights.
The aff is key to meaningful challenges to police conduct and
legitimacy of the rule of law. Williams 09
Hassel, Law @ Roger Williams, 09

(Diana, JD Rutgers, Excessive Reasonableness The Trustees of Indiana

University Indiana Law Review 2009 Indiana Law Review 43 Ind. L. Rev.
117)
Over the past thirty years, courts and litigants have attempted to forge a workable regime for applying
qualified immunity in excessive force cases. These attempts have been largely unsuccessful and have led
to an increasingly complicated and unsatisfactory set of steps that a district court must execute when
these cases arise.

Because of its complexity and incoherence, the

current system seems to work for no one-not police

defendants, not judges, and most particularly not victims of
police abuse . It has become apparent that periodic fixes by the
Supreme

Court will not solve the problem-a more profound

rethinking of the doctrine is required. In excessive force cases

the qualified immunity defense should be modified to eliminate the
reasonableness inquiry, allowing the Fourth Amendment to do
the work of assessing reasonableness . This change would go a
long way toward simplifying

the defense. Other changes in the

doctrine may well also be necessary to create a more usable and rational system. If the current
approach is left intact without any profound alternations, the promise of
1983 as a meaningful remedy to police abuse will be
and reforming

unfulfilled, and judges will be left to dance through a complex

set of steps without any music to give it meaning.

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Underview
Apply a strict filter to all negative arguments- if they arent
A. About the use of excessive force
B. Based on legal reasoning other than Anderson V. Creighton
Then their evidence comes from inaccurate and incoherent legal
scholarship and should be ignored. Shapiro et al 01
Shapiro, JD, et al, 01
(Steven R. Shapiro American Civil Liberties Union Foundation 125 Broad Street New York, New York 10004
(212) 549-2500 Alan L. Schlosser American Civil Liberties Union Foundation of Northern California 1663
Mission Street San Francisco, California 94103 (415) 621-2488 William Goodman Center for Constitutional
Rights 666 Broadway New York, New York 10012 (212) 614-6464 David Rudovsky (Counsel of Record) 924
Cherry Street Philadelphia, Pennsylvania 19107 (215) 925-4400 Michael Avery Suffolk Law School 41
Temple Street Boston, Massachusetts 02114 (617) 573-8551 Ruth E. Harlow Lambda Legal Defense and
Education Fund 120 Wall Street, Suite 1500 New York, New York 10005 (212) 809-8585 2001 WL 173522
(U.S.) (Appellate Brief) United States Supreme Court Amicus Brief. Donald SAUCIER, Petitioner, v. Elliot M.
KATZ and In Defense of Animals, Respondents. No. 99-1977. October Term, 2000. February 16, 2001. ON
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT )

In the rare situation where the standard for qualified immunity and the
constitutional claim are identical, qualified immunity cannot be a
separate defense to a claim of a constitutional violation. In the excessive force
context, once it *10 is determined that an objectively reasonable
officer would not have used the force in question, it makes no sense -indeed it is conceptually incoherent -- to assert that the very same
objectively reasonable officer could have believed that the
force was reasonable. In other words, a police officer cannot have an objectively reasonable
belief that his conduct was lawful when the unlawfulness of that conduct rests on a determination that an

A
significant number of lower federal courts have held that the
Fourth Amendment and the qualified immunity doctrine pose
precisely the same legal issue and that any differing
determinations would be legally irreconcilable . See, e.g., McNair v.
objectively reasonable officer would not have acted in the same way in the same circumstances.

Coffey, 234 F.3d 352 (7th Cir. 2000); Frazell v. Flanagan, 102 F.3d 877, 886-87 (7th Cir. 1966) (once a jury
has determined under the Fourth Amendment that the officer's conduct was objectively unreasonable, that
conclusion necessarily resolves for immunity purposes whether a reasonable officer could have believed
that his conduct was lawful); Scott v. District of Columbia, 101 F.3d 748 (D.C.Cir. 1996), cert. denied, 520
U.S. 1231 (1997); Alexander v. County of Los Angeles, 64 F.3d 1315 (9th Cir. 1995); Roy v. City of Lewiston,
42 F.3d 691 (1st Cir. 1994); Street v. Parham, 929 F.2d 537 (10th Cir. 1991); Ramirez v. City of Reno, 925
F.Supp. 681, 687-89 (D.Nev. 1996)(intrinsic analytical incompatibility of an excessive force claim with a
qualified immunity claim given the objective reasonableness test; the two lines of inquiry converge);

Petitioner, in arguing for a qualified

immunity defense in excessive force cases, relies almost exclusively on
Anderson v. Creighton, 483 U.S. 635. In our view, arguments based on
Landy v. Irizarry, 884 F.Supp. 788 (S.D.N.Y. 1995). 4 *11

Anderson are significantly misplaced . There, this Court ruled

that the qualified immunity doctrine is applicable in cases alleging Fourth
Amendment violations for warrantless searches or arrests without probable cause or
exigent circumstances. The Court reasoned that where an officer is found to have
violated the Fourth Amendment by making an arrest or conducting a search without the requisite cause or

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is entitled to the defense of qualified immunity if an

objectively reasonable officer could have believed that probable
cause existed. Anderson is premised on the understanding that
the reasonableness element of probable cause is different
from the objectively reasonable standard of qualified immunity.
suspicion, the officer

That is because the probable cause determination will often require the drawing of *12 fine legal lines. 5
Recognizing that reality, this Court held in Anderson that given the difficulty of determining whether
particular searches or seizures comport with the Fourth Amendment [l]aw enforcement officers whose
judgments in making these difficult determinations are objectively legally reasonable [are entitled to
qualified immunity]. Id. at 644 (emphasis added). Thus, in the probable cause context, a police officer

probable cause
determination for a search or seizure always requires an officer to decide
whether the known facts would warrant a reasonable officer to
believe that a crime has been committed or that a search would disclose
might mistakenly violate a citizen's rights without acting unreasonably. The

contraband or material of evidentiary value, Gerstein v. Pugh, 420 U.S. 103 (1975), and must be made
pursuant to evolving legal doctrine under the Fourth Amendment. Consider, for example, this Court's
jurisprudence concerning investigatory stops or arrests of persons based on information provided by
anonymous informants. In Alabama v. White, 496 U.S. 325 (1990), the Court determined that information
from an anonymous source would justify an investigatory stop if critical predictive details were
corroborated by the police. In Florida v. J.L., 529 U.S. 266 (2000), the Court declined to extend White to
situations where the anonymous source provided information regarding a man with a gun at a certain
location, and police investigation led to an observation of a person fitting the general description at that
location. In the wake of J.L. (and this Court's opinion in Illinois v. Wardlow, 528 U.S. 119 (2000)), there will
no *13 doubt be close cases, depending upon the information received, the observations of the officers
and other relevant factors. See, e.g., United States v. Valentine, 232 F.3d 350 (3d Cir. 2000) (stop based on
anonymous informant who personally provided information to police). And in some of these cases, an
officer will make a stop on information that a court will later declare to be insufficient to satisfy the Fourth
Amendment; yet, given the lack of a particularized legal standard, the officer may still have acted in an
objectively reasonable manner.

No such legal difficulties face the officer

who must determine how much force to use in a particular incident,

whether in self-defense or in effectuating an arrest. This Court ruled in Graham that
police officers act consistently with the Fourth Amendment
when their conduct is objectively reasonable -- a nontechnical
and deferential constitutional doctrine that reflects well
established and commonly held judgments on the limits of
police force . 6 This standard provides a margin of error,
precludes Monday morning quarterbacking by a court ,
permits the officer a wide range of reasonable responses , and
does not require the officer to make finely tuned legal
determinations . Thus, once it has been determined that an
officer has acted in an excessive fashion, it is not possible to
claim that an objectively reasonable officer could have
thought these actions to be proper . In many tense, uncertain
and rapidly evolving situations, reasonable force may comprise a
range of options or responses that the officer might employ. Different officers in the identical
situation, each behaving reasonably, might elect to use a baton, a chemical agent, a take-down hold, or
*14 a different technique; and each might use greater or lesser force, within a reasonable range, in

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7Recognition that reasonable force may

include a range of responses is consistent with this Court's observation
in Graham that [t]he test of reasonableness under the Fourth Amendment is not capable of precise
employing the chosen technique.

definition or mechanical application. 490 U.S. at 396. Understanding that the Fourth Amendment
recognizes a range of forcible responses as reasonable also implements this Court's injunction in Graham
that there be allowance for the fact that police officers are often forced to make split-second judgments.
Id. at 396-97. How wide the allowance or range may be requires careful attention to the facts and
circumstances of each particular case. Id. at 396. In some cases, the facts and circumstances may be
simple enough that the range of permissible options available to the officer will be quite narrow. In some
circumstances no use of force is reasonable if none *15 is required. See Cox v. Treadway, 75 F.3d 230, 234
(6th Cir.), cert. denied, 519 U.S. 821 (1996); Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983). In others, the
difficulties confronting officers making split-second, life and death decisions may raise sufficient problems

The critical
point is that this zone of protection in use of force cases is provided as
part of the Fourth Amendment reasonableness standard itself.
And where, as here, the standard for determining qualified immunity is the same
as that for deciding the constitutional question itself, the defense is superfluous. This
is not a matter of semantics or linguistic similarity; rather, it is a case of
doctrinal identity. In determining whether an officer's use of force was within a range of
that the range of responses that should be deemed reasonable may be quite broad.

reasonable options, the jury is also (and necessarily) answering the question whether a reasonable officer
could have believed his use of force to be lawful. Anderson v. Creighton, 483 U.S. at 638. Once this
question is answered, there is no other inquiry that must be resolved in order to impose liability. 8 The

existence of such broad protection in the Fourth Amendment

itself, moreover, eliminates any fear that officers will be
unreasonably chilled
immunity defense.

from acting

in the absence of

a separate qualified

Err aff- consensus of experts agree

Pittman, JD candidate, 12

(Nathan R., UNINTENTIONAL LEVELS OF FORCE IN 1983 EXCESSIVE

FORCE CLAIMS William & Mary Law Review William & Mary Law Review
May, 2012 William & Mary Law Review 53 Wm. & Mary L. Rev. 2107)
The qualified immunity doctrine has drawn substantial scholarly criticism .
Though some scholars have defended some aspects of the immunity,
it has been broadly criticized, particularly with regard to those
claims that rest on the Fourth Amendment and its reasonableness standard.
AND AFF gets RVIs
1. AFF flex neg has the ability to collapse to either layer so aff needs
the same ability for the 2AR this outweighs. A. 2NR collapse time
skew becomes 6-1 since I cover multiple layers, which makes it
impossible to win B. 1AR is too short to read theory compared to the
neg so AFF needs each layer to be reciprocal rather than adding more
unreciprocal avenues

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2. Only neg can read T because only AFF has a T burden so since aff
cant reciprocally respond they need the RVI to compensate for negs
unique avenue to the ballot.