Ilan Wurman


Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases—now under the Fourth Amendment and 42 U.S.C. § 1983—inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next. This Article examines the evolution of excessive force cases in the federal courts, along with the evolution of qualified immunity doctrine. This Article makes the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive force actions—an approach that would also be far more judicially workable than the current doctrine.