united-states federal-courts case-law law-enforcement qualified-immunity
Why couldn’t declaratory reliefs in U.S. courts be used as a way forward to stop law-enforcement violence and overturn “qualified immunity”?
<p>Summary of judgement is easier to achieve for civil remedies against claims against the law enforcement since a very narrow construction is used for a wrong having to match the facts of a previously ruled case. Therefore, challenging qualified immunity on a case by case basis is probably not very effective that way.</p>
<p>But if a case is considered on the merits, and cannot be thrown out, a judge may get a chance to reach a finding that a certain action would be in violation of the law and/or the constitution, and next time, that declaratory relief could be used (by an estoppel, or as case law if on appeals).</p>
<p><strong>Questions:</strong></p>
<p>Is this a valid strategy to set get decisions on undecided cases to prevent them from reoccurring?</p>
<p>If not, is it because non-appellate courts decisions may only have an (judicial, collateral etc.) estoppel effect and won’t become binding law, and law enforcement agencies would rather not challenge district courts decision?</p>
<p>If not this, what is the reason? Or has a strategy like this been used to draw the boundaries of law enforcement operatives?</p>
<p><strong>Law enforcement violence</strong> as used in this question should be read as the willful use of unnecessary or excessive violence or force under for e.g. such that would be in violation of the International Covenant on Civil and Political Rights (the &quot;ICCPR&quot;) as understood by customary international law or binding precedent of international courts.</p>
<p>From the Wikipedia on the compliance of the U.S. with the ICCPR:</p>
<blockquote>
<p>&quot;In 1994, the [UN]'s Human Rights Committee expressed concerns with compliance [by the U.S.]:</p>
<p>Of particular concern are widely formulated reservations which essentially render ineffective all Covenant […] rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. […]</p>
<p>Indeed, the [U.S.] has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant. Its citizens are not permitted to sue to enforce their basic human rights under the Covenant. It has not ratified the Optional Protocol to the Convention against Torture (OPCAT). As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials' insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its citizens of the &quot;effective remedy&quot; under law the Covenant is intended to guarantee.</p>
</blockquote>

<p>We can start <a href="https://www.law.cornell.edu/wex/declaratory_judgment" rel="nofollow noreferrer">here</a>, with the fact that &quot;A declaratory judgment is a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court&quot;. It is a means for parties to resolve an actual controversy, so it precedes the proposed action. The scenario that eventually develops into Jones v. State involves law enforcement officers preventing Jones from acting unlawfully, and the question that the officer must consider is whether the statutory authorization of force that he contemplates using is &quot;allowed&quot; in the relevant legal sense. Unless Jones and the officers seek to make a court case out of a certain action and response, this can't be decided before the fact, and a declaratory judgment is inappropriate (indeed, inconceivable).</p>
<p>Whether or not a particular level of force is legal in law enforcement is determined by whether or not the government enforcers have been put on notice that an action is illegal. See <a href="https://en.wikipedia.org/wiki/Pierson_v._Ray" rel="nofollow noreferrer">Pierson v. Ray</a> and subsequent rulings. A challenge to the doctrine of qualified immunity is certainly a possibility (<a href="https://www.cato.org/qualified-immunity" rel="nofollow noreferrer">Cato</a> has a campaign), but it is the law of the land at least right now. <a href="https://en.wikipedia.org/wiki/Qualified_immunity#Challenges_to_qualified_immunity" rel="nofollow noreferrer">Various cases</a> have tuned up the perimeters of qualified immunity, but I don't see any serious prospects for simply &quot;cancelling&quot; QI.</p>
<p>As you presumably know, the position of the various levels of government in the US which might be accused of allowing excess force dispute that claim, instead holding that the level of force use <em>is</em> necessary and in conformity with international law (or: the enforcer does not have qualified immunity). However, an appeal to foreign rulings <em>could</em> interact with the doctrine of <a href="https://www.law.cornell.edu/wex/qualified_immunity" rel="nofollow noreferrer">qualified immunity.</a> A suit would be allowed if an action violates a clearly established statutory or constitutional right – limiting the scope of inquiry to determination of US constitutional rights. To connect judgment under international law to qualified immunity, the courts would simply have to expand the set of rights determiners, to include &quot;customary international law&quot; and &quot;binding precedent of international courts&quot;. Of course, that takes us vastly beyond the realm of the imaginable under US law.
Use of force in the US <em>is</em>, abstractly, limited to that which is objectively reasonable and necessary in the circumstances confronting the officer. As a starter, though, you could propose a change in the use of firearms, such that firearms cannot be used to effect an arrest, and can only be used in self defense or defense of others against imminent death or injury. I believe that that standard exists &quot;elsewhere&quot;, but not in the US. This is a standard that could in principle be adopted by the various legislatures.</p>
