Much of the recent conversation regarding law and police accountability has focused on eliminating or limiting qualified immunity as a defense for officers facing § 1983 lawsuits for using excessive force. Developed during Reconstruction as a way to protect formerly enslaved persons from new forms of racial terror, 42 U.S.C. § 1983 allows private individuals to bring suit against police officers when their use of force goes beyond what the Constitution permits. Qualified immunity provides a way for law enforcement to evade civil suits if officers can show that they did not infringe any constitutional right or they did not violate a clearly established law—concepts that are highly deferential to police. Implicit in the contemporary emphasis on reforming qualified immunity is the idea that but for this concept, § 1983 litigation could effectively fulfill its longstanding goal of holding police officers accountable through civil liability when they beat, maim, or kill without legal justification.
Qualified immunity certainly raises important issues, and reform in this area of law is needed. But deeper problems plague § 1983 claims. In this Article, we examine a key structural deficiency tied to legal doctrine that has largely escaped critique: how the Supreme Court’s 1989 decision in Graham v. Connor radically transformed § 1983 causes of action. Prior to the Graham decision, federal courts used diverse mechanisms, notably Fourteenth Amendment substantive due process, to determine “what counts” as an appropriate use of force. The Graham decision changed this area of law by holding that all claims of police excessive force must be judged against a Fourth Amendment reasonableness standard. This transformation has led to much discussion about what Graham means for understanding which police practices concerning the use of force are constitutionally permissible. However, there has been little conversation about what Graham has specifically meant for federal courts’ conception of civil enforcement mechanisms such as § 1983 that are designed to provide monetary relief when these constitutional rights are violated.
In this Article, we engage in the first empirical assessment of Graham’s impact on federal courts’ understanding and application of this statute. We find that the Graham decision was not only constitutionally transformative in terms of how federal courts understand the legal standard for “what counts” as excessive force, but also correlates with changes in how federal courts think about the overall scope, purpose, and nature of § 1983. Our data analysis of two hundred federal court decisions shows that the Graham decision effectively divorced § 1983 from its anti-subordinative race conscious history and intent, recasting it in individualist terms. This has led to a regime of what we call colorblind constitutional torts in that the Graham decision doctrinally filtered § 1983 use of force claims down a structural path of minimal police accountability by diminishing the central roles of race and racism when federal courts review § 1983 cases. These findings and theoretical framing suggest that the contemporary emphasis on qualified immunity in police reform conversations misunderstand and significantly underestimate the doctrinal and structural depth of the police accountability problem. This Article provides a novel and useful explanation for how and why police use of force persists and offers a roadmap for change and greater police accountability.
Introduction
It is not uncommon for diabetics suffering from hypoglycemia (low blood sugar) to have their symptoms of disorientation and loss of consciousness misunderstood as being under the influence of drugs and alcohol, which can lead to mistreatment by the police.[1] This is what happened to Dethorne Graham one fall afternoon in 1984. Graham and his friend were pulled over by a police officer who thought Graham was “behaving suspiciously” when he quickly entered and exited a local convenience store in search of orange juice to offset his medical condition. The officer called for backup and, within a few short minutes, Graham was handcuffed face down on the sidewalk. When his friend tried to explain to the officers that Graham was a diabetic, one officer replied, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the [motherfucker] but drunk. Lock the [son of a bitch] up.”[2] Another neighborhood friend familiar with Graham’s condition saw the incident and brought orange juice to the scene. Graham begged Officer Matos, saying, “Please give me the orange juice.” She responded: “I’m not giving you shit.”[3] Graham was roughed up by the officers and thrown in the back of a squad car. Eventually, the officers drove him home, threw him on the ground in front of his house, and sped away.
During the altercation, Graham “sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder . . . [along with developing] a loud ringing in his right ear.”[4] Graham brought a federal civil rights suit under 42 U.S.C. § 1983 against the Charlotte, North Carolina, Police Department, alleging that the police violated constitutional rights granted to him under the Fourteenth Amendment. Before this case, plaintiffs sought remedies for excessive use of force by the police through different legal mechanisms, including substantive due process, equal protection, the Fourth Amendment, and even § 1983 as a stand-alone source for making claims.[5] While the district and circuit courts ruled in favor of the officers, the United States Supreme Court made a surprising decision. The Court held that all claims regarding the constitutionality of police use of force should be analyzed under the Fourth Amendment through a standard of “objective reasonableness.”[6] Graham v. Connor (“Graham”) marks an important, though often underappreciated, moment of doctrinal transformation. It synthesized previously divergent strands of use-of-force case law and established a new constitutional standard for all cases that involve claims of police using excessive force in the context of an arrest or investigatory stop.[7] Rather than framing police use of force as a matter concerning equal protection or substantive due process, the Graham decision effectively forced all conversations concerning excessive force to federal courts’ Fourth Amendment jurisprudence.
Over the past three decades, legal scholars and practitioners have debated the impact that Graham has had on limiting issues concerning the constitutionality of police use of force to a vague and nebulous standard of “objective reasonableness” in light of the broad deference that society and the courts give to law enforcement.[8] This deference and tendency to see almost all police actions as “reasonable” explains, at least in part, how even the most egregious police behavior often goes without penalty—a concern that is at the heart of the contemporary social movement against police violence. But, despite this almost exclusive preoccupation with what Graham has meant for constitutional law, there are other meaningful doctrinal concerns that deserve exploration. Put differently, what other aspects of use-of-force inquiries have been impacted by the shift in constitutional standards brought by Graham?
There are at least two main components to § 1983 litigation concerning police use of force: the enforcement action, which is a statutory mechanism, and the constitutional standard that is being enforced (Fourth Amendment reasonableness, per Graham). The existing scholarship only examines the influence of Graham in regard to how it changed federal courts’ understanding of the constitutional standard for “what counts” as excessive force. But what has Graham meant for how federal courts understand the scope, context, and meaning of civil rights—particularly statutory enforcement mechanisms such as § 1983?
In this Article, we engage in the first empirical assessment that examines Graham’s impact on how federal courts understand the nature and purpose of § 1983. This issue concerning Graham’s impact on § 1983 litigation beyond shaping the constitutional standard for excessive force is important for several reasons. The statute emerged during Reconstruction pursuant to Congress’s Fourteenth Amendment section 5 powers to provide civil remedies such as money damages to claimants when state officials violate constitutional rights while working in their official capacities.[9] Thus, understanding Graham’s impact should not be limited to discursive and doctrinal meditations on reasonableness, which is where the bulk of the discussion on this decision lies. It is also important to explore Graham’s impact on a civil rights statute designed to enforce constitutional rights in terms of how, if at all, the decision affected the way that federal courts read and interpret the history, meaning, and application of § 1983—legislation meant to give claims concerning police excessive force purpose and effect. Clearly, § 1983 as an enforcement mechanism has a close relationship with Fourth Amendment standards on reasonableness in the police use of force context. This Article is an attempt to go beyond existing scholarship on how the Graham decision reshaped the constitutional standard to also understand how it may have impacted the way that federal courts conceptualize the reach and intent of the civil statute meant to enforce these rights.
This research is critically important in light of contemporary social movements and proposed legal reforms responding to growing public awareness of police brutality in marginalized communities. Following the killing of George Floyd in Minneapolis and subsequent global protests against anti-Black violence, the conversation on how law can compel greater accountability with regards to police use of force has focused heavily on qualified immunity. Qualified immunity is a judicially created concept that emerged in the 1960s to allow government officials facing constitutional tort actions to avoid civil suits and the possibility of paying money damages when they can show that they did not violate any constitutional right or that the law they were accused of breaking was not clearly established. Qualified immunity morphed over subsequent decades to largely become a mechanism to shield police officers from enduring § 1983 lawsuits in virtually all but the most egregious instances of force.[10] Federal courts’ deferential posture towards police facing constitutional tort actions has turned qualified immunity into an exculpatory tool for law enforcement who use excessive force. As such, the post-Floyd emphasis on eliminating qualified immunity or restricting its use has become a popular public rallying point. For example, at the federal level, Representatives Justin Amash and Ayanna Pressley introduced the Ending Qualified Immunity Act in the House of Representatives in June 2020,[11] which was followed shortly by a similar bill in the Senate proposed by Senators Edward Markey, Elizabeth Warren, and Bernie Sanders.[12] Other efforts have been pursued to address the use of qualified immunity in state-level legislation. Since George Floyd’s murder in May 2020, “at least 25 states have taken up the issue and considered some form of qualified immunity reform, including Colorado, New Mexico, Connecticut and Massachusetts, which have passed legislation to end or restrict the defense.”[13] The idea behind these and other efforts at ending qualified immunity is that making police officers open to civil lawsuits for using excessive force will increase accountability and prevent officers from engaging in violence that violates constitutional rights.
Without question, qualified immunity presents unjust and unjustifiable barriers to holding police accountable. But there are deeper structural limitations placed on this type of litigation—namely, Graham’s reframing and reorientation of the entire constitutional tort endeavor. The impact of Graham deserves as much or even greater attention to the extent that the reframing of police use of force through Fourth Amendment logics has dislodged constitutional tort litigation from its foundational purpose: protecting the Black community from state violence. Yet, conversations regarding the Graham decision, its transformative impact on policing, and its role in undermining police accountability are largely absent from legal and public discussions regarding police reform. This Article uses empirical evidence to draw attention to this problem and argues for a different focus in efforts to reduce police violence.
To understand the structural limitations on police accountability beyond qualified immunity that were ushered in by the Graham decision, Part I of this Article begins with providing a brief history of § 1983 and explores the constitutional and statutory evolutions that constitute contemporary use-of-force jurisprudence. Part I also shows that legal scholars have mostly discussed the problem of police accountability for using excessive force in terms of qualified immunity. Part II examines the research literature on Graham and how existing scholarship is largely silent on how this doctrinal evolution came to limit constitutional tort actions. The impact of Graham has been discussed in legal scholarship with very little, if any, attention to what the decision to exclusively assess the constitutionality of police use of force through Fourth Amendment frameworks has meant for federal courts’ posture towards civil remedies offered by statute (§ 1983) and sought by plaintiffs. Part III describes our empirical study examining shifts in how federal courts decided § 1983 cases after Graham. We look at two periods: (a) from Monroe v. Pape in 1961 (which marks the beginning of the modern era of § 1983 litigation) through the Graham decision in 1989 and then (b) just after Graham from 1990 to 2016. Part IV discusses the results from our study. We find that there are important changes in how federal courts understand and approach § 1983 that correlate with the Graham decision. In particular, (1) references to § 1983’s descriptive titles—Ku Klux Klan Act, Enforcement Act, etc.—that reflect the racial history tied to this civil rights statute declined substantially after Graham; (2) consistent with Graham’s holding, judicial recognition of § 1983’s tight doctrinal relationship to the Fourteenth Amendment as a more race-conscious constitutional standard for excessive force claims largely ended, diminishing the potential of § 1983 civil remedies by linking them to Fourth Amendment standards of “reasonableness” that largely defer to the police; and (3) mentions of the race of plaintiffs and officers meaningfully decreased after the Graham decision. In Part V, we draw upon these empirical findings to develop a theory of colorblind constitutional torts that can at least partially explain these results as well as the persistence of police violence despite the availability of legal mechanisms designed to prevent and remedy such abuses. We then briefly conclude with a discussion of how these empirical findings and new theoretical framework can help federal courts reimagine constitutional torts in a manner that can produce greater police accountability.
The findings from our research show how the accountability problem regarding police use of force is not simply connected to individual “bad apples” in law enforcement shielded by misguided common law arguments about qualified immunity. More to the point, there are important doctrinal barriers that emerged after the Graham decision’s imposition of a Fourth Amendment framework that infused constitutional tort actions with colorblind sensibilities that undercut the entire historical project of § 1983. The empirical evidence, doctrinal reframing, and theoretical argument provided by this Article open up important new opportunities for change.
The data provided by this study raise important questions about Graham’s significance beyond matters concerning constitutional law. Graham has also had tremendous implications on how federal courts interpret and understand federal civil right statutes, particularly § 1983. By instilling a discourse of colorblindness into excessive-force litigation, Graham disrupts, if not completely undermines the connection between § 1983 and the distinct history of state-sponsored racial terror giving rise to it. By bringing colorblindness through the backdoor into judicial interpretations of this federal statutory remedy, Graham not only fundamentally contradicts the social, political, and historical forces that give meaning to § 1983, but it also frustrates § 1983’s ability to address contemporary abuses under the color of law, such as excessive force by law enforcement.
[1]. The American Diabetes Association offers resources on how to engage with police officers. It notes that this is a particular concern for people with this medical condition, as “[l]aw enforcement officers [can fail] to identify hypoglycemia emergencies, mistaking them for intoxication or noncompliance. This can lead to the individual being seriously injured during the arrest, or even passing away because the need for medical care was not recognized in time.” Discrimination: Law Enforcement, Am. Diabetes Ass’n, https://www.diabetes.org/tools-support/know-your-rights/discrimination/rights-with-law-enforcement [https://perma.cc/RE3M-BXXR].
[2]. Graham v. Connor, 490 U.S. 386, 389 (1989). The quoted language was originally censored by the Court in its opinion, but it appears uncensored here.
[3]. Direct Examination of DeThorn Graham, Graham v. Connor, No. 87-6571 (W.D.N.C. Oct. 13, 1988).
[4]. Graham, 490 U.S. at 390.
[5]. See generally Osagie K. Obasogie & Zachary Newman, The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor, 112 Nw. U. L. Rev. 1465 (2018) (finding empirical support for that federal courts largely did not use the Fourth Amendment as a constitutional standard in § 1983 excessive-force cases prior to Graham.).
[6]. Graham, 490 U.S. at 388.
[7]. Graham notes that this Fourth Amendment analysis applies when the police intentionally engage in an arrest, investigatory stop, or seizure of a citizen. Instances after Graham where the police cause physical harm without this intent (such as with innocent passersby) may still be analyzed through other constitutional mechanisms. See County of Sacramento v. Lewis, 523 U.S. 833, 854 (1997). This Article only discusses excessive force that occurs in the context of an arrest or investigatory stop.
[8]. For a discussion of how deference to law enforcement shapes the federal courts’ understanding of the constitutional boundaries of excessive force, see Osagie K. Obasogie & Zachary Newman, The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of Excessive Force Become Constitutional Law, 104 Cornell L. Rev. 1281, 1322 (2019). For a broader assessment of the history of judicial deference to police, see Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2052 (2017).
[9]. U.S. Const. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”). As background,
On April 20, 1871, the Forty-Second Congress enacted the third Civil Rights Act known as the Ku Klux Klan Act. The primary purpose of the Act was to enforce the provisions of the Fourteenth Amendment. Section 1 of the Act added civil remedies to the criminal sanctions contained in the Civil Rights Act of 1866 for the deprivation of rights by an officer “under color of law.” Thus, Section 1 of the Ku Klux Klan Act was the precursor of the present day 42 U.S.C. § 1983. . . . On June 22, 1874, the statute became § 1979 of Title 24 of the Revised Statutes of the United States, and upon adoption of the United States Code on June 30, 1926, the statute became § 43 of Title 8 of the United States Code. In 1952 the statute was transferred to § 1983 of Title 42 of the United States Code, where it remains today.
Richard H.W. Maloy, “Under Color of”—What Does It Mean?, 56 Mercer L. Rev. 565, 574 (2005) (citations omitted). Charles Abernathy notes that
we have long recognized that the resurrection of § 1983 converted the fourteenth amendment from a shield into a sword by providing a civil action for vindication of constitutional rights and, to the extent that damages have gradually become the authorized remedy for § 1983 violations, we have easily come to think of such actions as constitutional torts—civil damage remedies for violations of constitutionally defined rights.
Charles Abernathy, Section 1983 and Constitutional Torts, 77 Geo. L.J. 1441, 1441 (1989) (citations omitted).
[10]. See generally Osagie K. Obasogie & Anna Zaret, Plainly Incompetent: How Qualified Immunity Became an Exculpatory Doctrine of Police Excessive Force, 170 U. Pa. L. Rev. 407 (2022).
[11]. H.R. 7085, 116th Cong. (2020).
[12]. S. 492, 117th Cong. (2021).
[13]. Emma Tucker, States Tackling ‘Qualified Immunity’ for Police as Congress Squabbles over the Issue, CNN (Apr. 23, 2021), https://www.cnn.com/2021/04/23/politics/qualified-immunity-police-reform/index.html [https://perma.cc/G8HF-WD6H].
* Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health). B.A. Yale University; J.D. Columbia Law School; Ph.D. University of California, Berkeley. Many thanks to Richard Banks, Laura Gómez, Sonia Katyal, and Gerald López for reviewing early drafts. Comments from participants at the Stanford Law School Race and Law Workshop and UCLA Critical Race Theory Seminar and Workshop were extremely helpful. Sara Jaramillo provided excellent research assistance.
†Senior Attorney, Legal Aid Association of California. B.A. University of California, Santa Cruz; J.D. University of California, Hastings College of the Law.