Constitutional Rights of Bystanders in the War on Crime

New Mexico Law Review, Vol. 28, 1998

Posted: 1 Jan 1998

See all articles by Roger W. Kirst

Roger W. Kirst

University of Nebraska College of Law

Abstract

For a decade the circuit courts have tried to decide whether bystanders can sue police officers or police departments under section 1983 when they are injured by police efforts to apprehend suspects. Many circuit decisions declared that bystanders could assert a constitutional claim under substantive due process, but differed on whether the standard should be "shocks the conscience" or "deliberate indifference." In 1997 the Supreme Court granted certiorari to review a Ninth Circuit decision which had adopted deliberate indifference or reckless disregard as the standard (Lewis v. Sacramento County). One week earlier the Court denied certiorari in a First Circuit case which had adopted the conscience shocking standard (Evans v. Avery).

It may appear that the stage is set for the Court to resolve a conflict on a question the circuits have properly framed and thoroughly explored. That is not true. All the circuits got started in the wrong direction by assuming that the issue was the standard for a substantive due process claim. This article explains why bystander claims should be governed by the Fourth Amendment only. The article examines how both litigants and the lower courts have given too much weight to language in Brower v. County of Inyo and Hodari D. v. California that seems to suggest bystanders have no Fourth Amendment claim, and how they have given too little weight to the policy of Graham v. Connor and later cases that constitutional claims should be governed by the explicit text where possible. As a result, Lewis may turn out to be a vehicle for the Court to address a much broader issue about the sources of constitutional rights that can be enforced under section 1983.

The police would be governed by a single standard if the claims of both suspects and bystanders were judged by the Fourth Amendment. That means the record in Lewis will not allow the Court to provide a definitive answer about police pursuits. Judging bystander claims under the Fourth Amendment standard requires evidence of what professional police officers should do and how modern police departments should train and supervise their officers; only then can a court or jury decide whether the force used in a specific case was unreasonable. That would be an improvement over the ad hoc appellate fact finding judges currently employ to decide if their consciences were shocked.

JEL Classification: K19

Suggested Citation

Kirst, Roger W., Constitutional Rights of Bystanders in the War on Crime. New Mexico Law Review, Vol. 28, 1998, Available at SSRN: https://ssrn.com/abstract=49857

Roger W. Kirst (Contact Author)

University of Nebraska College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402-472-1249 (Phone)
402-472-5185 (Fax)

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