Background
People in the United States are guaranteed some civil rights. In that, if a state actor violates one’s constitutional rights, the person may sustain legal action against such state office through a civil rights lawsuit. 42 U.S.C § 1983 provides a civil cause of action against the person responsible. This section applies to correctional officers, police officers, municipal and state officials, and private parties acting under the color of law, and it provides a means of redress for civil rights violations.[1]It states that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For this section’s purposes, any Act of Congress applicable exclusively to the District of Columbia shall be considered a statute of the District of Columbia.
The section relates to a constitutional violation. Should a person’s constitutional rights be violated by a police officer, municipal entities, correctional officers, or state officials, he/she can seek redress for such violation by relying on 42 U.S.C § 1983. The plaintiffs mostly seek injunctions and damages against abusive police tendencies.[2]
Shortcomings
The first major shortcoming of 42 U.S.C § 1983 is that the civil actions are expensive and difficult to pursue.[3] Most victims of these violations are minorities with little or no finances, and as such, they lack attorney fees and costs to pursue legal actions. For example, a typical victim of the excessive police force is a young Hispanic man or a young African- American male who lacks finances because he comes from a poor background. Drunks, transients, criminal arrestees, and gays and lesbians are the major targets of abuse.[4]Furthermore, those who access legal representation face an arduous and long litigation process because police departments rarely settle section 1983 suits.[5]
There are often no witnesses in civil suits, so juries are likely to be convinced by the police officer’s side of the story and the victim. In cases where plaintiffs have witnesses, the witnesses are likely to suffer credibility challenges. The victims of constitutional violations usually come from poor backgrounds. The witnesses are their acquaintances, family, or friends, and because of close relations, they lack the credibility of a disinterested party. Most of those witnesses have criminal records as well; hence the chances of their evidence being admitted is low. Lack of admission of evidence lowers the chances of success for the plaintiffs. For psychological and sociological reasons, juries always want to believe police officers are good people as opposed to being liars or bad people. Due to this belief, victims are more likely to lose unless they have physical evidence. Also, courts have limited victims’ ability to restrain by a judicial order a particular police technique. In Los Angeles v. Lyons[6], the Supreme Court refused to grant an order against the use of chokeholds, although most people have been killed and injured due to police use of chokeholds. The Supreme Court justified its decision by stating the plaintiff had no proof that he is likely to be subjected to chokeholds in the future.
The second shortcoming is that courts tend to protect police officers, especially in excessive force suits. Use of “unreasonable” and “excessive” force requires one to provide evidence of the same. Police officers have been given the authority in the performance of their duties, such as preventing criminal activities, maintaining peace and order, and arresting wrongdoers use force. Therefore, it can be difficult for the plaintiff to prove that the police force was excessive and unreasonable. In Bivens v. Six Unknown Named Agents of Federal Bureau and Narcotics,[7]the Supreme Court held that Bivens had a cause of action against the officers who entered into his home without a search warrant, searched his premises, and arrested him for a narcotic charge. However, Bivens had to provide substantial evidence to show proof of injuries. In most cases where the plaintiff claims excessive force, the police officers always retract that the force applied to prevent criminal activity and was reasonable.
In excessive force suits, police officers often raise immunity defense, alleging that his/her actions were founded on good faith.[8]The invocation of the immunity defense by police officers defeats access to justice for the excessive police force victims. In some states like California, the city provides extra defense for its officers. In cases like these, the police officer’s union will acquire its own counsel to provide additional defense to the officer.[9]Generally, cities defend police officer suits to dissuade litigation. Even in cases where the plaintiff’s evidence is overwhelming, some cities choose to defend their officers or take the courts to trial. Taking the cases to trial results in a long and arduous process for the plaintiff hence delaying access to justice.
Thirdly, discovery battles are another challenge. In most cases, police departments will not submit personnel or disciplinary records of the police officer willingly. The disciplinary and personnel records are immune from disclosure and confidential.[10]Civil attorneys litigating section 1983 suits undergo numerous barriers in the process of obtaining such records. The plaintiff must show ‘good cause’ before obtaining such records. Showing’ good cause’ can be hard; commissioners who hear such discovery motions in most instances deny the motions. Mostly, state commissioners deny the motions that tend to show the police officer’s history of violence.
Fourthly, the code of silence is another shortcoming facing section 1983. The code of silence may make another officer not speak when the other police officer has violated the plaintiff’s constitutional rights. An officer who breaks the code of silence may be subjected to ostracism.[11]As a result of the code of silence, most officers who are witnesses to violations tend to keep quiet to protect their fellow officers instead of exposing such violations. The code of silence can encourage the perpetration of an offense.
Lastly, allowing interlocutory appeals by public entities on dispositive motions can be another shortcoming of section 1983. This is a one-sided advantage usually available to police officers, and hence victims can be deprived of justice.
Remedies
State law should be changed so that police officers pay for their own costs and damages under section 1983, just like the plaintiffs pay for their suit costs. Allowing the officers to cater to their own costs will reduce bias experienced in most cities like California, where police officer unions hire an extra attorney to defend the officer. Further, the police officer’s failure to pay their own costs has reduced the threshold of responsibility among police officers. Allowing them to pay for damages and costs of the defense will increase police responsibility.
State governments should make officers accountable by implementing policies and developing procedures to control police officers’ conduct. Awarding a lot of money in damages and awards will help reduce police brutality and violate people’s rights.
The California Penal Code should be amended to allow attorneys to obtain disciplinary and personnel records of police officers in cases where the police’s conduct is injurious to the plaintiff and access of such record will help the plaintiff obtain substantial evidence hence allowing access to justice to a plaintiff. Release of personnel information should be considered as intrusion into the officer’s privacy.
To overcome the problem of jury bias, state juries should be culturally and ethnically diverse.[12]Juries should be mandated to make fair decisions free of bias. Juries should be encouraged to examine the suits objectively and listen to both sides of the case fairly, allowing each time to present their case, adduce their evidence, and examine their witnesses. Allowing both sides equal chances will increase chances of access to justice.
[1] Section 1983 and Civil Right Lawsuits(2019) accessed at https://criminal.findlaw.com/criminal-rights/42-u-s-code-section-1983.html
[2] David Rudovsky & Michael Avery, Police Misconduct: Law and Litigation, § 2.2 (2nd ed. 1992)
[3] ibid
[4] Report of the Independent Commission of Los Angeles Police Department 168-71 (1991), Warren Christopher et al.
[5] The Endless Cycle of Abuse: Why 42 U.S.C 1983 is Ineffective in Deterring Police Brutality(1993), Hastings Law Journal accessed at https://repository.uchastings.edu/cgi/viewcontent.cgi?article=3108&context=hastings_law_journal
[6] 461 U.S. 95, 111-13
[7] 403 U.S 388(1971)
[8] Barker v. Norman 651 F.2d 1107, 1120-22
[9] Supra n 6
[10] CAL. PENAL CODE § 832.7(a)
[11] Christopher Commission Report
[12] Location of Trial Played Major Role, Henry Weinstein & Paul Lieberman (1992), Los Angeles Times
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