CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, May 12, 2022

Owens on Violence Everywhere

David B. Owens (University of Washington - School of Law) has posted Violence Everywhere: How the Current Spectacle of Black Suffering, Police Violence, and The violence of Judicial Intepretation Undermine the Rule of Law (Stanford Journal of Civil Rights and Civil Liberties, Vol. 17, No. 475, 2022) on SSRN. Here is the abstract:
 
This essay explores the consequences of ubiquitous police violence in American culture as it relates to the law. To start, the paper compares the current Spectacle of Black Suffering---which we see on TV, Youtube, and all sorts of media---by first examining its antecedents in monarchical torture and then lynching following the Civil War. In each instance, spectacle violence by the state confers a political message, and the violence is often disproportionate to the alleged "offense." The same is true in many instances of police violence we see again and again against Black people. These acts of violence are also frequently unconstitutional, but many go injured folks are left without or with inadequate remedies.
The paper then considers the consequences of this new spectacle for the law itself, particularly where the Courts have gone from providing that rights violations require remedies to now erecting barriers (like qualified immunity) to prevent even the opportunity for the aggrieved to have their day in court; the absence not only of a remedy but even the opportunity to pursue one before a jury. These problems, I argue, contribute to the degradation of the rule of law, and evidence that such consequences already exists. Finally, I propose a modest tweak for adjudication that seeks to return the question of constitutional determination to a more democratic, community oriented form of adjudication than un-elected federal judges---the jury. While juries are imperfect, from a rule of law perspective, ensuring that questions of whether police violence are constitutional or not are decided by juries rather than some abstract question about whether a right is "clearly established" under an immunity doctrine is a step in the right direction.

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