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Excerpted From: Madison N. Heckel, No Justice, No Peace: The Need for a State Version of § 1983 in Response to the Movement for Black Lives, 15 DePaul Journal for Social Justice 1 (Winter/Spring, 2021-2022) (201 Footnotes) (Full Document)


MadisonNHeckelOn May 25, 2020, a convenience store employee called the police and reported that a Black man bought cigarettes with a counterfeit $20 bill. Seventeen minutes after officers arrived, the man, George Floyd, was unconscious. Minneapolis Police Officer Derek Chauvin knelt on George Floyd's neck for nine minutes and 29 seconds.

The video of Floyd's death began circulating on the internet the following day, resulting in massive protests across the nation, despite the COVID-19 pandemic. Polls estimate that as many as 21 million adults attended protests related to the Black Lives Matter Movement or police brutality as of mid-June 2020. Before these protests, the largest estimate for any American protest was the Women's March of 2017 at 4.6 million people.

These staggering numbers are understandable when one views the footage of Floyd's death. The footage shows Floyd lying on the ground, repeating over twenty times that he cannot breathe, calling out for his mother, and pleading, “You're going to kill me, man.” Chauvin is seen kneeling on Floyd's neck, his face unphased and his hands casually in his pockets. Even more chilling is that this footage was captured with Chauvin's knowledge--he made eye contact with the camera at one point as one of his fellow officers ensured passersby did not interfere.

The protests after Floyd's death focused on the concept of racial justice. Many participants in these protests held signs reading, “I can't breathe,” which were some of the final words of George Floyd and Eric Garner, both Black men killed at the hands of police. Others held signs in reference to Breonna Taylor, a young Black woman killed a few months prior when police executed a no-knock warrant in the middle of the night.

Approximately a thousand Americans are killed by law enforcement officers each year, but only 121 officers have been arrested for murder or manslaughter in these on-duty killings since 2005. A study by Northeastern University found that while BlackAmericans represented only 12 percent of the population in the states observed, they made up 25 percent of the deaths in police shootings. This racial disparity became more pronounced in cases where the victims were unarmed or offered little to no threat to the police, as was the case in the killing of 12-year-old Tamir Rice.

This racially biased violence is similar to the excessive violence perpetrated against BlackAmericans prior to the Civil Rights Movement. News of police officers killing BlackAmericans has sadly become normalized; these killings occur at a rate of more than one every other day. Today, BlackAmericans injured by the police are often unable to obtain justice through a guilty verdict in the criminal justice system; § 1983 allows civilians the opportunity to achieve justice through a civil claim of constitutional torts. These cases are increasingly difficult for plaintiffs to win due to the Supreme Court's ever-changing standard for a § 1983 claim. Now, over 200 years after the creation of § 1983, states are no longer preventing Americans from receiving their full Constitutional rights; rather, the federal government itself is the obstacle. It is now the states' turn to force equality under the law and create their own versions of § 1983 to protect their Black citizens.

Part I of this paper will go over the history behind § 1983 and how it was established when states did not protect their citizens' rights. Part II will then examine the elements of a § 1983 claim and how the Supreme Court has made these claims more difficult to pursue since Monroe v. Pape first established it as remedy for those whose Constitutional rights were violated. Finally, Part III will discuss how states can expand protections to their citizens by creating a state version of § 1983.

[. . .]

Congress created § 1983 to protect citizens from having their constitutional rights violated by states that either refused to or were not able to sufficiently protect their citizens. Since its enactment and its implementation as a method for civil suits, § 1983 became the main vehicle for citizens to find justice after experiencing abuse at the hands of government officials. The complexities of the federal system, however, have made § 1983 an inadequate method for justice because it often prevents claims of constitutional violations from being heard in court. However, federalism allows states to act on their own and within their own boundaries. States can add their own protections that are greater than what Congress and the federal Constitution can provide. It is time for more states to join Colorado in creating their own versions of § 1983 and to give their citizens the power to achieve the justice that the federal system cannot offer. In doing so, states can follow the example of Reconstruction-era Congress by ensuring their constituents are fully protected.

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