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WHEN IS POLICE VIOLENCE JUSTIFIED?

Rachel A. Harmon, University of Virginia School of Law

Article comments

forthcoming: 102 Northwestern University Law Review (2008)

Abstract

The Supreme Court’s Fourth Amendment doctrine regulating police violence, including its recent decision in Scott v. Harris, is unprincipled and indeterminate. The common law of justification defenses, by contrast, pro-vides a well-established legal structure for determining when one person may justly use force against another. In this Article, I argue that this struc-ture should be imported and adapted to the constitutional doctrine govern-ing police uses of force. Following the structure of justification defenses, I contend first that police uses of force can be constitutionally justified only if they are in pursuit of legitimate state interests. In particular, police uses of force are justified only if they assist the mechanisms of criminal justice (e.g., arrests), preserve public order, or protect officers from harm. Con-tinuing the analogy to justification doctrine, I also maintain that even when used to pursue one of these legitimate ends, police uses of force are consti-tutionally justified only if they (1) respond to an imminent threat to one of these ends; (2) reasonably appear to be necessary in degree and kind to de-fend against that threat; and (3) create a risk of harm that is not substan-tially disproportionate to the interest they serve. These concepts of imminence, necessity, and proportionality cannot be imported wholesale from justification law, however. Instead, they must be tailored to accom-modate important differences between the police and ordinary civilian de-fenders and refined over time by courts in the context of cases alleging excessive force. Suitably modified, the justification framework can operate within the Fourth Amendment jurisprudence to provide a more reasoned, predictable, and just assessment of police violence, one that takes police of-ficers seriously both as state actors and as vulnerable and limited human beings.

Subject Area

Criminal Law and Procedure, Law Enforcement and Corrections, Public Law and Legal Theory

Recommended Citation

Rachel A. Harmon, "WHEN IS POLICE VIOLENCE JUSTIFIED?" (June 2008). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 89.
http://law.bepress.com/uvalwps/uva_publiclaw/art89

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