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58 Fordham L. Rev. 739 (1989-1990)
Excessive Force Claims: Is Significant Bodily Injury the Sine Qua Non to Proving a Fourth Amendment Violation

handle is hein.journals/flr58 and id is 747 raw text is: EXCESSIVE FORCE CLAIMS: IS SIGNIFICANT BODILY
Before the Supreme Court's recent decision in Graham v. Connor,' fed-
eral courts were divided2 regarding the specific constitutional right impli-
cated when a plaintiff alleged that a police officer used excessive force3
during arrest. The Graham Court resolved that uncertainty. It held that
all claims' alleging that law enforcement officials5 used excessive force in
the course of arrest, investigatory stop or other seizure should be ana-
l. 109 S. Ct. 1865 (1989).
2. Before Graham, most federal courts looked to the fourteenth amendment, analyz-
ing excessive force claims under a substantive due process standard. See Rinker v.
County of Napa, 831 F.2d 829, 831-32 (9th Cir. 1987); Dale v. Janklow, 828 F.2d 481,
484-85 (8th Cir. 1987), cert. denied 485 U.S. 1014 (1988); McRorie v. Shimoda, 795 F.2d
780, 785-86 (9th Cir. 1986); Hewett v. Jarrard, 786 F.2d 1080, 1084-85 (1lth Cir. 1986);
Rutherford v. City of Berkeley, 780 F.2d 1444, 1446 (9th Cir. 1986); Fundiller v. City of
Cooper City, 777 F.2d 1436, 1441 (11th Cir. 1985); Gilmere v. City of Atlanta, 774 F.2d
1495, 1500-01 (11th Cir. 1985), cert. denied, 476 U.S. 1115 (1986); Putman v. Gerloff,
639 F.2d 415, 420-22 (8th Cir. 1981); Eng v. Coughlin, 684 F. Supp. 56, 63 (S.D.N.Y.
Other courts analyzed excessive force claims applying fourth amendment principles.
See Martin v. Gentile, 849 F.2d 863, 867-69 (4th Cir. 1988); Martin v. Malhoyt, 830 F.2d
237, 261-62 (D.C. Cir. 1987); Lester v. City of Chicago, 830 F.2d 706, 713-14 (7th Cir.
1987); Spell v. McDaniel, 824 F.2d 1380, 1384 n.3 (4th Cir. 1987), cert. denied, 484 U.S.
1027 (1988); Dugan v. Brooks, 818 F.2d 513, 516-17 (6th Cir. 1987); Jenkins v. Averett,
424 F.2d 1228, 1232 (4th Cir. 1970); see also Freyermuth, Rethinking Excessive Force,
1987 Duke L.J. 692, 694-701 (examining disparate approaches to excessive force claims);
Note, The ReasonableApproach to Excessive Force Cases Under Section 1983, 64 Notre
Dame L. Rev. 136, 140-47 (1989) (discussing divergence of constitutional standards uti-
lized by federal courts in excessive force claims); Comment, Excessive Force Claims: Re-
moving the Double Standard, 53 U. Chi. L. Rev. 1369, 1370-81 (1986) (same).
3. See, eg., Miller v. Lovett, 879 F.2d 1066, 1068 (2d Cir. 1989) (officers beat un-
resisting plaintiff during arrest causing multiple bruises and lacerations); Calamia v. City
of New York, 879 F.2d 1025, 1029 (2d Cir. 1989) (police officer applied handcuffs tightly
and kept plaintiff in an unreasonable position for hours); Brown v. Glossip, 878 F.2d 871,
872 (5th Cir. 1989) (officer forcibly twisted arrestee's arm, which later required surgery);
Johnson v. Morel, 876 F.2d 477, 478 (5th Cir. 1989) (en banc) (per curiam) (plaintiff
alleged that after he peacefully submitted to arrest, officer verbally abused him, treated
him roughly and applied handcuffs so tightly that his wrists had permanent scars); Hen-
son v. Thezan, 717 F. Supp. 992, 994-95 (S.D.N.Y. 1989) (state trooper struck quiescent
plaintiff in groin while he was lying on the ground before being handcuffed).
4. These claims are brought under Section 1983 of Title 42 (section 1983) which
Every person who, under the color of any statute, ordinance, regulation, cus-
tom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immuni-
ties secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1982).
5. Typically, excessive force claims are brought against police officers or other law
enforcement officials in their individual and official capacities. See, e.g., Miller v. Lovett,

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