Officer-Created Jeopardy and Reasonableness Reform: Rebuttable Presumption of Unreasonableness Within 42 U.S.C. § 1983 Police Use of Force Claims

Abstract

This Note analyzes the current state of civil law surrounding police use of excessive force, highlighting the evolution of the “objective reasonableness” test employed in civil police use of force lawsuits brought under 42 U.S.C. § 1983. This Note also discusses the role that social movements and surveillance technologies have played in furthering police accountability and shifting public opinion surrounding police use of force. After detailing this social and technological context, this Note addresses the numerous problems presented by the “objective reasonableness” test employed within civil police use of force cases, analyzing this problematic test from the perspective of both the public and the police. This Note coins the term “officer-created jeopardy liability loophole” and explains how, under the current test, officer-defendants can escape § 1983 liability when they deliberately or recklessly escalate a situation or create the need for force in the first place. To close this liability loophole and resolve other problems presented by the current “objective reasonableness” test, this Note proposes a rebuttable presumption of unreasonableness, in which a § 1983 plaintiff can present evidence to establish a prima facie case of officer-created jeopardy which, if not sufficiently rebutted by an officer-defendant, presumes the officer-defendant’s use of force unreasonable and in violation of § 1983.