Reconstructing the Right Against Excessive Force


Avidan Y. Cover


Police brutality has captured public and political attention, garnering protests, investigations, and proposed reforms. But judicial relief for excessive force victims is invariably doubtful. The judicial doctrine of qualified immunity, which favors government interests over those of private citizens, impedes civil rights litigation against abusive police officers under 42 U.S.C. § 1983. In particular, the doctrine forecloses lawsuits unless the law is clearly established that the force would be unlawful, requiring a high level of specificity and precedent that is difficult to satisfy. Further tilting the balance against excessive force victims, Fourth Amendment case law privileges the police perspective, incorporating and fostering police biases and racial stereotypes, and prohibiting inquiry into an officer’s state of mind. Examining recent Supreme Court opinions on excessive force and qualified immunity, this Article finds that the two strands of law continue to endorse the “shoot first, think later” police culture of today. Moreover, they obstruct victim compensation and hinder the development of constitutional law defining the limitations on excessive force.

This Article makes an important contribution to the current literature by arguing that the current state of the law cannot be reconciled with the Reconstruction origins of civil rights legislation, which sought to eradicate post-Civil War state violence targeting African-Americans and to implement the Fourteenth Amendment’s due process protections. This Article proposes that the Court reconstruct qualified immunity doctrine by recognizing a more generalized right against excessive force in determining whether the law is clearly established. The approach would more properly reflect the remedial purposes of § 1983. This Article further argues that substantive due process supports a general right against excessive force—an approach previously rejected by the Court in favor of an exclusively Fourth Amendment-protected right—that addresses the officer’s intent. Similarly guided by the remedial purposes of § 1983, this Article proposes that courts consider statutes, government regulations, and “use of force” policies in determining whether officers knew or should have known that their actions violated the citizen’s right to be free from excessive force.

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