R. Wilson Freyermuth

Rethinking Excessive Force

Each year claimants file thousands of section 1983 actions against law enforcement or prison officials. Many of these claimants allege that officials used excessive force against them in violation of their constitutional rights. Despite the large number of excessive force cases in the federal courts, however, the Supreme Court has decided only two excessive force cases brought under section 1983. In Whitley v. Albers, the Court elaborated the appropriate standard for determining whether the shooting of a prisoner violated the eighth amendment. In Tennessee v. Garner, 2 the Court applied the fourth amendment to strike down a Tennessee statute that authorized the use of deadly force to apprehend a nondangerous fleeing suspect. In each case, the Court recognized that the application of force implicated a specific fourth or eighth amendment right and applied the standard developed to protect that right. Against this background, let us pose a hypothetical. Suppose that the police see a man and his companion exit a grocery store. Because the man is in a highly agitated state, the police stop the two to investigate. The companion informs the police that the man is an epileptic and is suffering a mild seizure. A brief investigation by one officer reveals that the man has committed no crime and possesses no weapon. Another officer, however, mistakes the mans erratic behavior for a reaction to hallucinogenic drugs. This officer proceeds to push the man to the ground, handcuff him, and throw him against the police car. Upon checking the mans wallet, the officer discovers a medical identification card that confirms the mans epilepsy. The officer then shoves the man into the backseat of the police car and drives him home, ignoring his pleas for medical assistance. During the incident, the man suffers several broken bones and moderately severe head injuries. He then files a section 1983 action claiming that the officer used excessive force. If this mans attorneys read only Supreme Court decisions, they would advise him that Garner requires a court to apply the fourth