CrimProf Blog

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

Tuesday, January 24, 2023

Lindvall on The Jury's Role in Excessive-Force Cases

Alexander Lindvall has posted The Jury's Role in Excessive-Force Cases (Kansas Law Review, Vol. 71, No. 1, 2022) on SSRN. Here is the abstract:

There is a problem with § 1983 excessive-force litigation: courts are routinely allowing juries to decided issues of constitutional law. The Ninth Circuit’s model jury instructions, for example, ask jurors to determine whether an officer had probable cause, whether a person was searched or seized within the meaning of the Fourth Amendment, whether an exception to the warrant requirement applies, and whether an officer’s actions were “unreasonable” or “excessive” within the meaning of the Fourth Amendment. This trend appears to be widespread among the federal courts.

Other than violating the well-established “juries decide facts, judges decide law” principle, this trend is troublesome for several reasons. It invites inconsistent and unpredictable results. It undermines the qualified immunity doctrine. It leaves the police without knowable, ex ante rules to follow. It is remarkably inefficient. And it unnecessarily complicates procedural issues at the trial level and on appeal. This article argues that judges, not juries, should be deciding all issues of constitutional law in § 1983 excessive-force cases.

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