“Where There Is a Right (Against Excessive Force), There Is Also a Remedy”: Redress for Police Violence Under the Equal Protection Clause


This Comment argues that the Equal Protection Clause compels the federal courts to create an implied damages remedy in excessive force cases. Implied constitutional remedies are disfavored today. Jurists believe that as tribunals of limited jurisdiction, federal courts may only issue a damages remedy when Congress so provides in the constitutional or statutory text. Further, even when the text provides a remedy, jurists will refuse to create a federal cause of action for damages when the plaintiff has alternative remedies, or when the remedial textual command is “judicially unadministrable” because it is broad and lacks specificity. None of these limitations apply to an equal protection damages remedy for excessive force violations.

The original meaning of the Equal Protection Clause ensures court remediation for police brutality victims. In its common law and Reconstruction-era sense, the equal protection of the laws was one of the primary duties of government, and failure to supply equal protection was just cause for revolution. Moreover, equal protection obliged the state to prevent violence before it occurred, as well as provide judicial remediation after it occurred. The postbellum Southern States steadfastly refused to comply with the mandates of equal protection, and by the early 1870s had acquiesced to untold levels of racial violence and to a systematic deprivation of remedies for racial violence victims. To ensure remediation for Freedmen and thereby salvage the United States’s legitimacy, Congress stretched the contemporary bounds of federalism by vesting the federal courts with the remedial power of a common law tribunal—a power heretofore appropriate only for state courts—through enforcement legislation known today as 42 U.S.C. § 1983. The history of equal protection is strong evidence that, federalism and separation of powers concerns notwithstanding, the Equal Protection Clause originally meant that the state must provide police violence victims a court remedy.

Further, although the Equal Protection Clause’s broad language appears judicially unadministrable at first sight, history and reason demonstrate that some of its aspects are justiciable and enforceable without prior congressional approval. The equal protection guarantee of appropriate remediation for violence victims falls squarely within justiciable territory. The quintessential, historical role of courts is to adjudicate individual rights violations. The right against battery, the common law equivalent of excessive force, is one of the most basic common law rights, and the judiciary has long been in the business of providing redress to battery victims. Courts are therefore well prepared to craft judicial standards for assessing the adequacy of excessive force plaintiff s’ remedies.

Finally, the current remedial scheme for excessive force victims is constitutionally insufficient. For various doctrinal reasons, including most prominently high burdens of proof and official immunities, all alternative remedies fail to provide adequate remediation to all victims of violence. Th e Equal Protection Clause requires that the federal courts rectify this inadequacy by inferring a cause of action for damages that will redress any and all excessive force violations.

About the Author

UCLA School of Law, J.D. 2018

By uclalaw