Judicial restraints on illegal state violence: Israel and the United States.

• Author: Parry, John T.

ABSTRACT

This Article examines the role of courts in controlling state violence in the United States and Israel. The Author considers how U.S. federal courts should respond to illegal state violence by comparing a U.S. Supreme Court case, City of Los Angeles v. Lyons, with a case decided by the Supreme Court of Israel, Public Committee Against Torture in Israel v. Israel. Part II highlights the legal issues that were central to each court in reaching a decision, including standing, the scope of equitable discretion to craft remedies, and baseline attitudes towards illegal government action. Part III examines the doctrines discussed in Part II, and considers whether expanding or altering these doctrines would strengthen the ability of U.S. courts to respond to illegal state violence. In Part IV, the Author examines the differences in the roles and powers of the U.S. and Israeli courts in an effort to address the relationship of U.S. and Israeli courts to state violence. The Author argues that despite the greater formal power enjoyed by the U.S. Supreme Court compared to the Israeli Supreme Court, the U.S. Supreme Court may have less flexibility to enforce civil rights.

1. INTRODUCTION

   Governments are often violent, and one of law's many functions is to regulate the state's use of violence to maintain social order. (1) Sometimes, however, state actors wield unauthorized or illegal violence, with the frequent result that people die or suffer serious injuries. (2)

   The primary responsibility for controlling illegal state violence in this country lies with the legislative and executive branches. When, for example, state and local authorities helped foster violent resistance to desegregation and other advances in civil rights, they were effectively resisted only through the forceful interventions of the Eisenhower and Kennedy administrations. (3) More generally, the willingness of executive officials to restrain themselves and their peers is a crucial component of the effort to manage state violence. (4)

   For its part, Congress enacted 42 U.S.C. [section] 1983 to provide legal and equitable relief for violations of civil rights under color of state law. More recently, Congress enacted 42 U.S.C. [section] 14141, which authorizes the Department of Justice (DOJ) to seek injunctive relief against patterns or practices of law enforcement conduct that violate civil rights. (5) Section 14141 is an important tool, but it leaves individuals dependent upon the energy, resources, and timeliness of the federal executive branch for equitable relief, and perhaps for this reason has been applied in only a few instances since its enactment. (6) While improvements in the statute or its enforcement are possible, (7) [section] 1983 continues to provide the primary vehicle for individual challenges to government action.

   The role of federal courts in controlling state violence consists largely of deciding cases brought under statutes passed by Congress--again, [section] 1983 is the primary example. On occasion, however, federal courts have looked beyond statutes to create remedies for illegal conduct by government officials. For example, the Bivens doctrine creates a cause of action directly under the Constitution for violations by federal officials of constitutional rights. (8) The doctrine of Ex parte Young allows claims for prospective injunctive relief against government officials charged with carrying out allegedly unconstitutional laws or policies. (9)

   In the course of applying [section] 1983, federal courts have had to interpret the words of the statute (10) and in particular have had to determine how it interacts with traditional doctrines of remedies and official immunity, as well as how principles of federalism impact its scope. The Supreme Court has adopted doctrines of absolute and qualified immunity for state officers--and federal officers sued under Bivens--that prevent many injured plaintiffs from obtaining relief. (11) The Court also has limited the scope of equitable remedies because of federalism concerns. One of the central cases in this latter effort is City of Los Angeles v. Lyons, (12) which declared that [section] 1983 plaintiffs must establish standing to seek injunctive relief over and above their standing to seek damages and established that the irreparable injury rule, supported by principles of federalism, bars injunctive relief in most [section] 1983 cases. As a result of Lyons, [section] 1983 plaintiffs cannot obtain injunctions unless they can prove that they or members of a class of similarly situated people are suffering a continuing injury or face a definite, imminent, and personal threat of future injury. (13) The same standing requirements apply to claims against federal officials.

   Even as federal courts have crafted doctrines that restrict civil rights claims, our federal and state governments have continued to employ illegal violence, all too often against minorities or those who in some way are on the margins of our society. (14) The vast majority of law enforcement officials perform their duties without using unnecessary or illegal violence, and it is a simple fact that the police must use violence to do their jobs properly and effectively. The terrorist attacks of September 11, 2001 on New York City and Washington, D.C. underscore in extreme fashion the risks faced by law enforcement officials and the need to ensure that they have adequate tools to counter violent crime.

   Nonetheless, persistent reports of illegal or questionably legal police violence suggest that it continues at an unacceptably high level. Among the most prominent incidents are:

   * the shooting of an unarmed, fleeing African American man by Cincinnati police; (15)

   * corruption in the Los Angeles Police Department that included the intentional shooting of a man in handcuffs; (16)

   * the Louisville police department's decision to reward two officers who shot an unarmed African American man twenty-two times; (17)

   * corruption in the Miami police department that included the intentional shooting of three unarmed men; (18) and

   * a spate of killings of unarmed or mentally ill individuals by New York City police. (19)

   These examples, while not exhaustive, provide sufficient evidence of the ongoing problem of illegal state violence in the United States. (20) In addition, the September 11 attacks increase the chances that federal officials will engage in illegal or unauthorized violence. For example, federal officials have considered the use of physical force in the interrogation of those suspected of participating in the September 11 attacks. (21) More generally, recent events could lead to vastly increased claims of executive branch discretion and inherent law enforcement authority.

   This Article considers how federal courts could better respond to claims challenging state violence, particularly claims that are linked to the problem of excessive executive discretion. I approach this issue by comparing the decision in Lyons with the Supreme Court of Israel's recent decision--sitting as the High Court of Justice in Public Committee Against Torture in Israel v. Israel, (22) which prohibited the illegal torture of suspected terrorists. I have chosen this comparison because the two cases exhibit different approaches to the problem of controlling illegal state violence. Lyons strongly suggests that individuals have no enforceable right to be free of illegal state violence, while Public Committee takes such a right as a premise and enforces it.

   My focus, therefore, is whether and to what extent Public Committee should serve as a model for doctrinal change in the United States. I do not, however, claim that Israel presents an ideal model for the task of combating illegal state violence in the United States. The Supreme Court of Israel operates within a social and legal context that is different enough from that of the United States to prevent an easy transfer of doctrines--although I argue that U.S. courts should think seriously about some of these doctrines. Moreover, Public Committee is a complex decision, and aspects of it may turn out to be unworkable for U.S. courts. Finally, the realities of state violence legal or illegal--in Israel are far different from those in the United States, even after September 11. Frequent terrorism, the renewed intifada, and the government's responses to these events make clear that the role of Israeli courts in managing state violence of any kind is limited and precarious--although the same is also true to some degree in the United States. Yet even with these caveats, Public Committee suggests methods and doctrines for putting into practice at the most basic level the ideal of law as a constraint on arbitrary government power. (23)

   Part II of this Article describes the decisions in Lyons and Public Committee and highlights the legal issues that were central to each court: standing, the scope of equitable discretion to craft remedies, and the proper baseline attitude toward illegal government action. Part III examines these three doctrines in depth and considers whether expanded standing, greater equitable discretion and reconsideration of the preference for damages, and, most significantly, a rule of no restraints on liberty without explicit legislative authorization would strengthen the ability of U.S. courts to respond to illegal state violence.

   I argue that the federalism and separation of powers concerns that animate much of standing doctrine--and in particular the Lyons doctrine of limited injunction-standing--can be addressed by courts at the remedies stage of litigation. In addition, a fair evaluation of the inadequacies of damages in civil rights cases supports a greater role for injunctions. Injunctions, however, are no panacea, and many of the federalism and separation of powers concerns about overly intrusive federal court injunctions have considerable force. To accommodate these views...