Disciplining the Judicial Imagination: The Rhetoric of Fourth Amendment Qualified Immunity Jurisprudence

Chanski, Sarah

doi:https://doi.org/10.21985/n2-t4r8-m590

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Disciplining the Judicial Imagination: The Rhetoric of Fourth Amendment Qualified Immunity Jurisprudence

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Systems of accountability for police who violate the U.S. Constitution are broken. Among other mechanisms of accountability, the judicial system should provide a path for victims to obtain a remedy when their constitutional rights are violated. Yet unless the law is clearly established beyond debate, the doctrine of qualified immunity blocks civil suits against police officers and other state actors who violate someone’s constitutional rights. This is the first study to examine this doctrine’s rhetorical obligations, difficulties, and constraints. Fourth Amendment cases present unique opportunities to analyze the Supreme Court’s constraints on definition and analogy and how judges navigate those constraints. Judges must identify the boundary between acceptable and excessive force, a fact-specific inquiry that requires the construction and comparison of events to justify conclusions about whether the law was clearly established. This dissertation argues that determinations about clearly established law rest upon layers of subjective definition and framing, and creative analogical arguments. These rhetorical acts are incompatible with the Supreme Court’s requirement that decisions against law enforcement be beyond debate. I first argue that the doctrinal rules and instructional dimensions of the Court’s decisions force courts to select frames and definitions designed to protect the officer and presume reasonableness while skirting constitutional questions about the rights and remedies for those injured. I then turn to analogical argument, exposing the doctrine’s core contradiction. By requiring denials of immunity to be justified analogically and beyond debate, the Court virtually guarantees that immunity will be granted. Finally, I evaluate the rhetorical tools available to judges in the wake of this collapse and the Court’s erasure of protections and remedies against uses of excessive force by police. The Court’s rules and discourse attempt to discipline and instruct the judicial imagination to produce decisions that are beyond debate. But definition and analogy are inherently imaginative, creative practices composed of subjective framing and choices. By examining the justificatory language of representative qualified immunity opinions, this study develops a theory of the doctrine’s application which ultimately guides recommendations for reform. This rhetorical study of the layers of value-laden decisions involved in definition and analogical justification clears a path for accepting the subjective nature of law.

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