D. Proposed Amendment to Section 1983: Appointment of Counsel To Pursue Claims of Disproportionate Force
The decision of whether to appoint counsel should be the responsibility of the district court judge who oversees the criminal prosecution, since he or she will be most familiar with the facts and parties and subsequent inconsistent holdings will not be an issue. The police officer should ideally have to justify his or her actions at some point early in the criminal prosecution. Otherwise, the current deterrent effect of section 1983 actions will likely not be improved.
The following is the author's proposed amendment to 1983:
(1) The criminal defendant files a motion during the preliminary phase of the prosecution to have counsel appointed to pursue a section 1983 action.
(2) The district court will be required to hold a hearing to decide if there are reasonable grounds to conclude that disproportionate force has been used. At the hearing, the police officer will have to justify his or her actions, subject to cross-examination. (3) The judge will then make a finding by a preponderance of the evidence whether disproportionate force has been used (defined by the objective reasonableness standard of Graham). If such a finding is made, counsel is appointed for defendant to pursue a section 1983 action after the conclusion of the criminal proceeding. These rights would only be available for indigent defendants, likely restricted to those represented by public defenders. This amendment is a dramatic change from current practice but is a practical solution to the problem of police brutality. Courts are already accustomed to holding a number of preliminary hearings before trial, and this hearing could be consolidated with a suppression hearing or other preliminary proceeding. This practice will negate the necessity of an entirely separate proceeding and prevent police officers from being at court multiple times for the same incident. This practice also serves the important deterrent effect mentioned previously, because if counsel is not appointed until after the trial, the police officer is essentially in the same position as in the current system--not having to justify his or her actions until well after the criminal prosecution.
Race, Racism and the Law
Vernellia R. Randall
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