B. Section 1983, Unamended, Does Not Adequately Deter Police Brutality
Supreme Court precedent continues to recognize a constitutional violation under the Fourth Amendment any time a police officer uses more force than is objectively reasonable under the circumstances. While the Court has weakened the practical enforceability of such a right, a sound legal basis exists to bring a section 1983 action any time an officer uses more force than is objectively reasonable under the circumstances. Therefore, the question in most disproportionate force cases is not whether a cause of action exists; there is generally a cause of action any time a police officer uses more force than is reasonably necessary. The real question is whether a plaintiff will bring a lawsuit given the economic and procedural difficulties that a section 1983 plaintiff must overcome. Adequate and reliable statistics about the number of section 1983 lawsuits filed against police are not available, but it is clear that aggrieved plaintiffs bring hundreds of such cases each year in federal courts. Despite this large number of cases, victims rarely bring such actions when police brutality occurs, and police generally do not fear that individuals will subject them to a lawsuit in the course of their duties.
Despite the failure of section 1983 actions to deter police misconduct on a consistent basis, civil rights lawsuits can be a vital tool to deter disproportionate force and provide compensation to victims. Judgments in such cases vindicate personal rights to physical autonomy, and adverse judgments often result in substantial embarrassment both for the officers involved and the police department. Section 1983 is therefore a tool that should be modified--not abandoned all together.
Race, Racism and the Law
Vernellia R. Randall
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