Publication Name

Unidentified Government Officials

Abstract

.United States police officers arrest more than ten million people each year. All of these arrests involve some level of force, and many of them involve multiple officers. Victims of excessive force may bring a § 1983 civil rights claim against all of the officers who were present, but too often plaintiffs with meritorious cases lose because they cannot prove causation. It is not enough to show that “the police” violated the constitution; rather, to prevail against a defendant a § 1983 plaintiff must show how that specific defendant “subjected or caused the plaintiff to be subjected” to the deprivation of a constitutional right. Unfortunately, plaintiffs often are not positioned to know what happened, and police officials have strong incentives to stay silent. Not only do police norms, like the blue wall of silence, prevent police officials from “ratting out” their fellow officers, but § 1983 jurisprudence incentivizes silence --- if all officers stay silent, they can all avoid liability. Since George Floyd’s killing, and the arrest and injury of hundreds of protestors, legal scholars and legislators have offered sweeping proposals to make police more accountable for their misconduct. Yet, they have overlooked the subtle solution that tort law theories of res ipsa loquitur and joint liability offer and which this Article advances. This article counteracts the incentives toward police silence by proposing a causa per se theory of liability in § 1983 cases against police officials: when a § 1983 plaintiff offers evidence of a constitutional violation and that an officer was present for the violation, the burden of production shifts to the defendants to exculpate themselves. If the officers cannot or do not explain what happened, they may be jointly liable for the plaintiff’s injury. By redistributing burdens of production in § 1983 causation disputes, courts can expose police misconduct, increase police accountability, and increase the likelihood plaintiffs will be compensated for their injuries.

ISSN

0040-4411

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