Originally uploaded at SSRN.

Abstract

Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where it ruled that a police officer acts reasonably when he rams a suspect's car in order to end a high speed chase. But the Court did not explain why it preferred judge over jury, nor even identify the judge-jury choice as an important issue in the case. This article argues that, whatever the merit of the substantive holding in Scott, the Court was right to favor judge over jury on the reasonableness-of-force issue. The key difference between constitutional torts and common law torts is that the defendant in a section 1983 suit can win even if he has violated the plaintiff's constitutional rights. This is so because the defendant enjoys official immunity from liability for damages so long as those rights were not 'clearly established' at the time he acted. Juries cannot lay down rules. As a result, a regime in which juries decide Fourth Amendment reasonableness on a case by case basis will necessarily thwart plaintiffs' efforts to recover damages. The aims of section 1983 - to deter constitutional violations and vindicate constitutional rights - would be better served by a body of law that consists of bright-line rules, which can only be made by judges.

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