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Open Access Publications from the University of California

Disability Law Journal


The Word of the Police Against the Silence of the Dead: Race, Gender, Mental Health, and Excessive Force


It is no secret that there is an issue of police brutality in marginalized communities. While there are many suggestions on how to resolve it—including police training, erasure, or police accountability committees—this Note turns to the role of the court. The court has the power to classify or excuse specific police conduct as unreasonable. Traditionally the court reviews excessive force by looking at the severity of the crime, the immediate threat to the officers or others, if there was resistance to an arrest or flight, and may consider additional factors. It would then balance those factors against the type of forced used. Currently many case outcomes show a lack of consideration for unique variables, causing the excusing of police violence, especially against those living with mental illness. In this note, the author argues the current doctrine of excessive force analysis leaves room for the use of an intersectional lens. An intersectional perspective would allow the court to incorporate factors that considerably address police violence on multi-vulnerable persons, such as people of color living with mental illness. This leaves more room for reprimanding police brutality instead of excusing it.

During the editing of this note, the discussion about ending qualified immunity increased in the midst of nationwide protests against police brutality. The author of this Note supports ending qualified immunity with the goal of no longer shielding law enforcement from the consequences of their bad behavior. In the alternative, this Note suggests that the use of an intersectional lens can also provide a solution by ending the way the court currently analyzes excessive force cases.

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