Constitutional Prohibitions of Cruel, Inhumane or Unnecessary Death, Injury or Suffering During Law Enforcement Process (Hastings Constitutional Law Quarterly)

    Constitutional Prohibitions of Cruel, 
Inhumane or Unnecessary Death, 
Injury or Suffering During Law 

Enforcement Process

By Jordan J. Paust*

Introduction
The primary question addressed in this commentary is whether 

conduct and measures that are proscribed under international law are 
also to be prohibited for use in law enforcement under domestic legal 
process. Restated, the question is whether actions that are impermissible 
under general human rights law or in time of war when used against 
armed enemies of the United States may be used against our own people 
in time of peace.

There are three interrelated aspects of domestic law that are of 
primary concern here: (1) Constitutional protections under the Fifth 
and Eighth Amendments to the United States Constitution, (2) the 
relationship between human rights law and the Ninth Amendment, and 
(3) the legal relevance of general international law to domestic deci­
sionmaking. Also germane, are numerous criminal and tort law provi­
sions which regulate excessive and/or cruel uses of force during the law 
enforcement processes by way of criminal prosecutions for murder, man­
slaughter, criminal negligence, assault with a deadly weapon, or other 
crimes and the civil sanctions intertwined with torts of assault and 
battery, false imprisonment, wrongful death and so forth.

Primary attention will be given to the first three aspects, since 
criminal prosecution for illegal law enforcement, in the overall context

* Associate Professor, University of Houston. This commentary substantially 
borrows from a forthcoming work on the illegality of “dum-dum” bullets in consultation 
with the A.C.L.U., entitled: Does Your Police Force Use Illegal Weapons?— An Ap­
proach to Decision-Making About Weapons Regulation [hereinafter dted as Does Your 
Police Force Use Illegal Weapons?].

[873]



S74 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 2

of ongoing legal process, is often merely one form of sanction for rights 
deprivation and one aspect of the overall need for a policy serving 
decision in the public interest. These aspects of sanction also lie behind 
civil suits and the allowance of reparation for injuries sustained. Individ­
ual cases of past criminal prosecutions for excessive and cruel uses of 
force are merely the specific applications of the types of general legal 
policies that are at stake. Here we are more concerned with identifica­
tion of general rights content and the interrelations between internation­
al human rights and United States constitutional norms than with partic­
ular sanction patterns. Trends of decision, and details of those decisions, 
are relevant. However, it is more useful and economic to focus on the 
general legal p>olicies that lie behind such decisions, than upon details of 
each past decision about cruelty and excessive force. It is more useful 
because few court decisions have dealt specifically with the type of issues 
analyzed here, and the policies utilized in making prior decisions seem 
far more important.

Moreover, the legal problems that will occur, for example, with an 
actual criminal prosecution for use of a .357 magnum weapon system 
against a criminal suspect in an excessive, unreasonable and/or cruel 
manner resulting in death or serious injury to the suspect or to others 
will not present any unusual difficulties for legal decision-makers. Ex­
cessive and cruel force are already illegal under state, federal and 
constitutional law. The basic standards and approaches are relatively 
uniform and are well-known by public prosecutors and police alike. 
However, it should be noted that the use of criminal sanctions against 
police officers for an excessive, unreasonable or cruel use of force 
against others is relatively rare and by no means as frequent as civil 
suits for money damages under state tort law or the Federal Civil Rights 
Act. Thus, the seminal questions for this inquiry are whether or not 
there are identifiable legal policies that prohibit excessive and/or cruel 
injury, death or suffering under international law and how they relate to, 
and actually supplement, the domestic legal process. Nevertheless, we 
will consider some of the related aspects of criminal law and tort 
sanctions as we map out generally shared expectations of a constitution­
al import.

I. Constitutional Prohibitions Under the Fifth and EighA
Amendments Against Cruel and Inhumane Treatment, 

Injury, Killing or Punishment
A. General Policies and Trends in United States Decisions

As early as 1641, American settlers in the Massachusetts colony

Fall 1975) CRUEL AND UNUSUAL PUNISHMENT 875

enacted a Body of Liberties which prohibited bodily punishments “that 
are inhumane; Barbarous or cruel.”  ̂ It was even added to the Massa­
chusetts Body of Liberties and the law of the New Haven colony in the 
mid-1600’s that “No Man shall exercise any Tirranny or crueltie to­
wards any bruite Creature which are usuallie kept for man’s use.”® 
Furthermore, it was early recognized that the willful, killing of a fellow 
human being by means of cruelty which was “not in a mans necessarie 
and just defence” would be murder and, itself, punishable by death.* 
Thus, cruelty to animals and cruelty to man were proscribed early in the 
American colonies; and this basic prohibition of cruel treatment, injury, 
killing or punishment continued as a fundamental expectation of the 
Founding Fathers and of subsequent generations of Americans.

Moreover, the Declaration of Independence of 1776 had con­
demned “the works of death, desolation and tyranny” against men that 
were carried out “with circumstances of Cruelty & perfidy . . .” by the 
British, as well as the savage use of Indians against the American 
colonialists; and these expectations had also been proclaimed in the 
Declaration of Causes and Necessity of Taking Arms of 1775. During 
the Virginia debates on ratification of the United States Constitution, 
no less a defender of liberty and due process than Patrick Henry de­
nounced “tortures, or cruel and barbarous punishment” and the pretrial 
tactic “of torturing, to extort a confession of the crime.”  ̂ Actually, by 
this time the Constitution of Virginia of 1776 had already prohibited the 
infliction of “cruel and unusual punishments,”® and this basic expecta­
tion had been reflected in most of the state constitutions.® In fact, these 
prohibitions and the language adopted in Amendment VIH to the Uni­
ted States Constitution were reflections of a fundamental expectation evi­

1. In re Kemmler, 136 U.S. 436, 446 n.l (1890); see Massachusetts Body of Lib­
erties, in Sources of Our Liberties 148, at 153 (R. Perrey & J. Cooper eds. 1959) 
[hereinafter cited as Perry & Cooper].

2. Perry & Cooper, supra note 1, at 158; S. Andrus, The Code of 1650, at 
42 (1972) [hereinafter cited as The Code of 1650].

3. See Perry & Cooper, supra note 1, at 158; The Code of 1650, supra note 2,
at 28.

4. Weems v. United States, 217 U.S. 349, 396 (1910) (White, J., dissenting); see 
Furman v. Georgia, 408 U.S. 238, 320-21 (1972) (Marshall, J., concurring) citing 3 
D ebates in the Several State Conventions on the Adoption of the Federal Con­
stitution 446-48 (J. Elliot ed. 1876).

5. Constitution of Virginia of 1776, § 9, in Perry & Cooper, supra note 1, at 312.
6. Perry & Cooper, supra n.l 339 (Delaware Declaration of Rights), 347-48 

(Const, of Maryland), 355 (Const, of North Carolina), 377 (Const, of Massachusetts), 
384-85 (Const of New Hampshire), 395 (Northwest Ordinance). See also id. at 325 
(Pennsylvania).



E7'5 RASITNGS C O N Sn, ^TJONAL LAW QUARTERLY tVoL 2

dent in the English legal proce' '̂; and that of the American colonies. The 
actual wording of the Eightii Amendment follows closely that of the 
English Bill of Rights of 1689 including a basic expectation that what­
ever coercion was to be utilized must be proportionate to the need (the 
principle of proportionality).''

Since then, it has become clear that cruel and inhumane treatment, 
injur}', killing or punishment inflicted by police officers or other law 
enforcement officials is prohibited under the United States Constitution 
(Amendments V, VIII, DC and XIV), under state constitutions, under 
state penal law and under state tort law. When an impermissible or 
criminal use of force is exercised by a police officer, each of these types 
of conduct or outcome (inhumane treatment, injury, killing, punish­
ment) and each of these kinds of law might well be involved. Each is 
certainly relevant for a rational and comprehensive approach to the 
seiv'ing of legal policy in actual context

Professor Perkins has written, with regard to deadly use of force 
and the overall requirement of “necessity,” that: “No matter how grave 
the felony, or how guilty the particular arrestee, no arrester is authorized 
by law to appoint himself an arbitrary executioner.”® Such an execution 
or summary punishment would, of course, involve a denial of due 
process of law under the Fifth Amendment and a crime of murder 
under state law. If carried out in a cruel, inhumane or unusual manner, 
it would also violate the Eighth Amendment and, in states adopting it.

FaU 1975] CRUEL AND UNUSUAL PUNISHMENT 877

7. Louisiana a  rel. Francis v. Resweber, 329 U.S. 459, 463 (1947). On the 
principle of proportionality in domestic legal process, see E. Corwin & J. Peltason, Un­
derstanding THE OassnruTioN 137 (5th ed. 1970) [hereinafter cited as CoRwm & 
Peltason]; Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original 
Meaning, 57 Calif. L  Rev. 839 (1969); Packer, Making the Punishment Fit the Crime, 
77 Harv. L. Rev. 1071 (1964); Wheeler, Toward a Theory of Limited Punishment: An 
Examination of the Eighth Amendment, 24 Stan. L. Rev. 838 (1972); Note, The Cruel 
and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv. L. Rev. 
635 (1966). This same basic principle of international and domestic law is often 
dressed in other clothing for criminal law purposes as the principle of reasonableness 
or reasonable necessity, see notes 20-29 and text accompanying.

8. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 278 (1940) [hereinafter 
cited as Perkins]; see United States v. Delerme, 457 F.2d 156, 161 (3d Cir. 1972) 
( [W]hen a policeman takes it upon himself to adjudicate guilt and administer punish­
ment . . .  he has deprived that person of due process of law as guaranteed by the Fifth 
Amendment . . .”); 40 A m . Jur. 2d Homicide §§ 134 et seq. (1968); 40 CJ.S. Homi­
cide §§ 100 et seq. (1944). See also Comment, “State Police Arms,” The New Haven 
Chronicle, June 29, 1974, at 6, stating: “There is an entanglement here, not only with 
the policeman’s proper right to defend himself, but with what seems to many to be a 
veiled extension of police power, a strong implication of extending the scope of police 
judgment—through the selection of other equipment—on the right to kill.”

the further crime of a “cruel and unusual” killing.® There are clearly, 
then, possible interconnections in the prohibitions contained in the Fifth 
and Eighth Amendments.

B. Fifth Amendment Prohibitions of Excessive Force
Although the primary prohibitions of cruel, inhumane or unneces­

sary force are often intertwined, it may be useful to focus on Fifth 
Amendment prohibitions of excessive or unnecessary force and then 
explore the interrelated Eighth Amendment prohibitions. The Fifth 
Amendment requirements of “due process” do not merely address the 
illegality of excessive force but also address international legal require­
ments and prohibitions of cruelty.

With regard to excessive use of force, it is generally agreed that a 
police officer may use deadly force in self-defense or to prevent the 
commission of a felony involving an imminent use of deadly or serious 
force “if this is necessary, or reasonably appears to be necessary.” But it 
“must be a case of necessity” and not merely a pretext or a case of useful 
police practice or beneficial effect (i.e., that which would make police 
work easier but which is not necessary).'® It is also agreed that, whether

9. See, e.g.. State v. Knoll, 72 Kan. 237, 83 P. 622 (1905); Tanks v. State. 71 
Ark. 459, 75 S.W. 851 (1903). The latter case decided that death caused by a common, 
ordinary pistol was not “cruel” or “unusual.” See also In re Kemmler, 136 U.S. 436 
(1890); State v. Cunningham, 173 Ore. 25, 144 P.2d 303 (1943) (“brutal”).

10. See Perkins, supra note 8, at 278-80, 283 and cases cited. See also R. 
Perkins, Criminal Law 977-86 (2d ed. 1969); Bivens v. Six Unknown Named 
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 419 (1971) (Burger, CJ., dis­
senting), stating: “I wonder what would be the judicial response to a police order autho­
rizing ‘shoot to kill’ with respect to every fugitive. It is easy to predict our collective 
wrath and outrage. We, in common with all rational minds, would say that the police 
response must relate to the gravity and need (emphasis added). State v. Cun­
ningham, 107 Miss. 140, 65 So. 115 (1914), cited as U.S. Law in United Mexican States 
V. United States Mexican Claims Commission, 4 U.N.R.I.A.A. 119 (1926).

In international law, this would be expressed by the distinction between military 
necessity and military benefit. See M. McDougal & F. F eucuno , Law and Minimum 
World Public Order 520-30 (1961); Aldrich, Blix, Kalshoven, Paust & Rubin, panel 
discussion, 67 Am . J. Int’l L  141-68 (1973); Harris, Modern Weapons and the Law 
of Land Warfare, 12 The Milit. L. & L  War Rev. 141-68 (1973); Paust, Weapons 
Regulation, Military Necessity and Legal Standards: Are Contemporary Department of 
Defense "Practiced’ Inconsistent With Legal Norms?, 4 Denver J. of Int’l L  & PoL. 
229 (1974); Paust, The Nuclear Decision in World War II—Truman’s Ending and 
Avoidance of War, 8 Int’l L. 160 (1974); Paust, My Lai and Vietnam: Norms, Myths 
and Leader Responsibility, 57 Milit. L  Rev. 99 (1972) [hereinafter cited as My Lai 
and Vietnam]. See also Sterling v. Constantin, 287 U.S. 378 (1932) which states: 
“What are the allowable limits of military discretion and whether or not they have been 
overstepped in a particular case, are judicial questions . . . .” Id. at 401. “[Here the 
facts leave] no room for doubt that there was no military necessity . . . .” (Id. at 403);



ST? H.-'iSTIKGS CONSTITUTIONAL LAW QUARTERLY [Vol. 2

in a criminal or civil proceeding involving the question of excessive use 
of force by a police officer, what “amounts to reasonable force depends 
upon the facts of each particular case . . . As an illustration, 
Professor Perkins points out:

fl]t may be necessary for [a police officer] to withhold his fire 
for the safet}’ of innocent bystanders. If an officer shoots at a flee­
ing felon under such circumstances as obviously to create an unrea­
sonable risk of death or great bodily harm to others, he will be 
liable for any injury he may inflict upon an innocent person.^*

Paust, The Seizure and Recovery of the Mayaguez: International Illegality Unfurled, 85 
Yaue L.J. — (1975) (On judicial competence to determine what constitutes military 
necessity [hereinafter cited as The Seizure and Recovery of the Mayaguez].

11. Colorado v. Hutchison, 9 F.2d 275, 276 (8th Cir. 1925). It is precisely at 
this point that a more comprehensive inquiry into permissibility is greatly facilitated by 
the use of a systematic reference to the various aspects of context or social process that 
are relevant for rational, policy-serving decision. The most useful systematic reference 
known to the author is contained in the McDougal-Lasswell methodology in the form 
of a seven facet phase analysis (considering; the participants, their objectives, arenas of 
interaction, base values or resources, strategies utilized, outcomes, effects), and an eight 
category value analysis (power, wealth, well-being, respect, rectitude, enlightenment, 
skill, affection) integrated into five intellectual tasks for decision. See Lasswell & Mc- 
Dougal, Criteria for a Theory About Law, 44 S. Cal. L  Rev. 362 (1971); McDougal, 
Jurisprudence for a Free Society, 1 G a. L  Rev. 1 (1966); McDougal, Lasswell & Reis- 
man. Theories about International Law: Prologue to a Configurative Jurisprudence, 8 
Va. J. Int’l L. 188 (1968); Moore, Prolegomenon to the Jurisprudence of My res Mc­
Dougal and Harold Lasswell, 54 Va. L. Rev. 662 (1968).

12. Perkins, supra note 8, at 280, citing Askay v. Maloney, 85 Ore. 333, 339, 166 
P. 29 (1917), rev'd on other grounds, 92 Ore. 566, 179 P. 899 (1919). See also 
Lentine v. McAvoy, 105 Conn. 528, 532-33, 136 A. 76, 80-83 (1926); McGann v. Allen, 
105 Conn. 177, 134 A. 810 (1926); Dyson v. Schmidt, 260 Minn. 129, 109 N.W.2d 262 
(1961). In criminal law, this could also involve the unlawful risk to others, gross, cupla- 
ble disregard of the consequences and a reasonably foreseeable risk of death or injury to 
others. The question of “excessive” or “unnecessary” use of force if often intertwined; 
see People v. Sam, 71 Cal. 2d 194, 77 Cal. Rptr. 804, 454 P.2d 700 (1969); People v. 
Roe, 189 Cal. 548, 209 P. 560 (1922); People v. Campbell, 30 Cal. 312 (1866); People 
V. Herbert, 228 CaL App. 2d 514, 39 Cal. Rptr. 539 (1964); People v. Lopez, 205 
Cal. App. 2d 807, 23 Cal. Rptr. 532 (1962); State v. Jacowitz, 128 Conn. 40, 20 A.2d 
470 (1941); People v. Gaines, 9 111. App. 3d 589, 292 N.E.2d 500 (1973); Common­
wealth V. Atencio, 345 Mass. 627, 189 N.E.2d 223 (1963); People v. Gonsler, 251 Mich. 
443, 232 N.W. 365 (1930); State v. Fair, 45 N.J. 77, 211 A.2d 359 (1965); Common­
wealth V. Malone, 354 Pa. 180, 47 A.2d 445 (1946); Trimble v. State, 132 Tex. Crim. 
236, 104 S.W.2d 31 (1937); McDonald v. State, 22 S.W.2d 670 (Tex. 1929); AbeU v. 
State, 109 Tex. Crim. 380, 5 S.W.2d 139 (1928); Thomas v. State, 53 Wis. 2d 483, 192 
N.W.2d 864 (1972);McCluskey v. Steinhorst, 45 Wis. 2d 350, 173 N.W.2d 148 (1970); 
40 Am . Jur. 2d Homicide §§ 134 et seq. (1968); 70 Am . Jur. 2d Sheriffs, Police, and 
Constables § 206 (1973); 40 CJ.S. Homicide §§ 100 et seq. (1944); 25 Cal. Jur. 2d 
Homicide § 281 (1955). Some recent articles, which only consider some of the above 
cases, include; McDonald, Use of Force by Police to Effect lawful Arrest, 9 Crim. 
L.Q. 435 (1966-67); Rummel, The Right of Law Enforcement Officers to Use Deadly 
Force to Effect an Arrest, 14 N.Y.L. Forum 749 (1968); Safer, Deadly Weapons in 
the Hands of Police Officers, On Duty and Off Duty, 49 J. Urban L  565 (1971) (mem-

Fall 1975] CRUEL AND UNUSUAL PUNISHMENT 879

Thus, the use of force in any given context must be proportionate to the 
reasonably apparent necessity and must not unduly inflict a risk upon 
others under the circumstances. Excessive or unnecessary force is unlaw­
ful. Similarly, the use of weapon systems that are not proven to be 
necessary under the circumstances can result in criminal or civil liability. 
For example, the use of a .357 magnum hollowpoint bullet in a .357 
magnum pistol can cause a kinetic energy transfer to the human body 
that is eight to ten times greater than the kinetic energy transfer that 
o'ccurs with use of the standard police sidearm, the .38 with a .38 
special round.^® Since wound injury along the permanent wound tract, 
and from temporary cavitational effect, will increase in direct proportion 
to increased kinetic energy transfer to the human body, not to mention 
the increase in suffering and the greater potential for lethality, the 
overall wound injury will be eight to ten times as great in general with 
use of such a magnum weapon system.*  ̂ When there is no demonstra­
tion that such a tremendous increase in wound injury and suffering is 
necessary to enforce the law, the use of such a weapon system is 
excessive. The same prohibitions of excessive force during law enforce­
ment process should apply to proscribe the use of such a weapon system. 
This is so regardless of whether this use is also cruel and inhumane, or 
there is a significant increase in lethality, which makes use of such 
weapon systems suspect under norms prohibiting the summary execu­
tion of criminal suspects or other human beings.^®

In addition to the Fifth Amendment prohibition of excessive force, 
there is significant evidence that court decisions have articulated an

orandum prepared for the A.C.L.U.); Tsimbinos, The Justified Use of Deadly Force, 
4 Crim. L  Bull. 3 (1968); Note, Justification for the Use of Force in the Crimiruil 
Law, 13 Stan. L  Rev. 566 (1961). Trends in expectation and decision for some two 
hundred years with regard to excessive use of force against civilian demonstrators, from 
the Boston Massacre (1770) to Kent State (1970) are also relevant See N.Y. Times, 
July 31, 1975, at 8, col. 6, describing a recent federal decision addressing the illegality 
of excessive use of force by police officers in handling anti-war demonstrators in the 
capital from 1969 to present (Dellums v. Powell).

13. The argument and documentation of supportive evidence is more fully devel­
oped in Does Your Police Force Use Illegal Weapons?, supra note *.

14. See Di Maio, Jones & Petty, Ammunition For Police: A Comparison of the 
Wounding Effects of Commercially Available Cartridges, 1 J. Police Sci. &  Admin. 
269-70 (1973), adding; “. . . the severity of a wound is directly related to the amount 
of kinetic energy . . . expended by the bullet in the body. That is, the greater the loss 
of kinetic energy, the greater the damage to the tissues, and, therefore, the more severe 
the wound.” See also L.A. Times, Dec. 5, 1974 at 6, pt. II (editorial); The National 
Observer, June 14, 1975, at 1; N.Y. Times, Nov. 11, 1974, at 28, col. 3 (editorial); 
Wash. Post, Dec. 8, 1974, at B4, reprinted at L.A. Times, Dec. 25, 1974; Wash. Post, 
Nov. 21, 1974 (editorial).

15. See notes 13-14 supra.



8S? K -jTin g s  c o n s t it u t io n a l  l a w  q u a r t e r l y [VoL 2 Fall 1975] CRUEL AND UNUSUAL PUNISHMENT 881

accompanying ^ohibition of cruelty or inhumane effects under the 
Fifth Amend utut, although comprehensive exposition of relevant legal 
policies at stake requires integrated awareness of the concomitant Eighth 
Amendment pnAibitions of cruelty and inhumane effect. The United 
States Supreme Court has, throughout our history, demonstrated suffi­
cient concern over cruel and inhumane practices, if not with specific 
reference to these two general criteria, to alert constitutional scholars 
and practitioneis to the fact that where consensus exists, that a particu­
lar practice produces cruel or inhumane effects, the Court is likely to 
declare the practice illegal and unconstitutional.^*

Further, the general requirements of due process during lawful law 
enforcement have been recently supplemented by a federal appellate 
decision addressing violations of international law. In United States v. 
Toscanino, the court utilized the due process clause to sanction deliber­
ate misconduct on the part of federal agents who abducted the defend­
ant, an Italian national, in Uruguay and forcibly brought the accused to 
the United States.”  Addressing what the court found to be a violation of 
the United Nations Charter, abduction by officials of one state of a 
person located within the territory of another state, the court stated that 
it could not “tokrate such an abuse without debasing the processes of 
justice.”** The reasoning of the court is highly applicable to our inquiry 
into prohibitions against excessive use of force, since the court was 
concerned with law enforcement tactics that went beyond what interna­
tional law permitted under the circumstances. The use of force in that 
case, in view of the United Nations Charter, can also be said to have 
been excessive in terms of the rational serving of all relevant legal 
policies at stake. In a sense, force is excessive if it is otherwise prohibited 
by law, regardless of whether or not the conduct would have b ^ n  useful 
in apprehending a lawbreaker. As the court also stressed, law enforce­
ment officials are bound, like the ordinary citizen, to follow the law.**

16. See e.g., Fnnnan v. Georgia, 408 U.S. 238, 270-71 (“human dignity,” “un­
civilized and inhuman” conduct), 279-81 (“excessive” or “unnecessary” punishment) 
(1972) (Brennan, J ,  concurring); Robinson v. California, 370 U.S. 660, 676 (1962) 
(Douglas, J., concurring); Weems v. United States, 217 U.S. 349, 368 (1910). See also 
Spano V . New York, 360 U.S. 315, 320 (1959); Rochin v. California, 342 U.S. 165 
(1952); Louisiana er rel. Francis v. Resweber, 329 U.S. 459, 463-64 (1947); Brov/n v. 
Mississippi, 297 U.S. 278 (1936); Bram v. United States, 168 U.S. 532 (1897); In re 
Kemmler, 136 U.S. 436, 447 (1890).

17. 500 F.2d 2«7 (2d Cir. 1974).
18. Id. at 116.
19. The court also quoted with approval {Id. at 274) the dissenting opinion of Jus­

tice Brandeis in Olmttead v. United States, 277 U.S. 438, 484-85 (1928): “Decency, se­
curity and liberty a lic  demand that government officials shall be subjected to the same

This case is also significant, of course, for its use of international law as 
a standard for decision.

C. Eighth Amendment Prohibitions of Cruelty and 
Inhumane Death, Injury or Suffering
The further question is whether excessive or unnecessary force that 

is impermissible under the Fifth Amendment can also be impermissible 
as cruel, inhumane or unusual force within the ambit of the Eighth 
Amendment to the Constitution. As already noted, excessive force, 
whether cruel, inhumane or not, can violate the Fifth Amendment 
guarantee of due process of law.^“ With regard to the Eighth Amend­
ment, it also has been authoritatively declared that what constitutes a 
cruel, inhumane, or unusual punishment is nowhere laid out with pre­
cision. Actual content or meaning will vary with the generally shared 
expectations of the populace and the circumstances of each case.** 
Indeed, the United States Supreme Court has emphasized in at least two 
opinions that the scope of the Eighth Amendment is not static. In Trap 
V. Dulles, the Court stated: “The Amendment must draw its meaning 
from the evolving standards of decency that mark the progress of a 
maturing society.”** And in Weems v. United States, the Court de­
clared:

The clause of the Constitution in the opinion of the learned com­
mentators may be therefore progressive, and is not fastened to the 
obsolete but may acquire meaning as public opinion becomes en­
lightened by a humane justice.*®
Moreover, it does not seem to be the intent to limit applicability of 

the Eighth Amendment, which contains the word “punishment,” to 
cases of post-trial criminal sanctioning, but to apply the basic policies 
behind the amendment to the pre-trial situations of criminal law en­
forcement. This not only appears as the logical outcome from inquiry 
into inherited expectation concerning the regulation of cruel, inhumane

rules of conduct that are commands to the citizen. In a government of laws, existence of 
the government will be imperilled if it fails to observe the law scrupulously . . . .  Crime 
is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it in­
vites every man to become a law unto himself; it invites anarchy. To declare that in 
the administration of the criminal law the end justifies the means—to declare that the 
government may commit crimes in order to secure the conviction of a private criminal— 
would bring terrible retribution. Against that pernicious doctrine this court should reso­
lutely set its face.”

20. See note 16 supra.
21. See Weems v. United States, 217 U.S. 349, 368 (1910); Wilkerson v. Utah, 

99 U.S. 130,135-36 (1879).
22. 356 U.S. 86, 101 (1958).
23. 217 U.S. 349, 378 (1910).



8£: H.'.SrnNGS CONSTITUTIONAL LAW QUARTERLY [Vol. 2 Fall 1975] CRUEL AND UNUSUAL PUNISHMENT 883

and excessive force, but also as the rational approach to legal decision 
which attempts to effectively implement the interrelated policies behind 
the Fifth and Eighth Amendments throughout the criminal law enforce­
ment process.**

The general policies to be served include:
(a) the protection of life and liberty,
(b) the due process of law application and sanctioning,
(c) freedom from twaimy or “coercive cruelty,” ®̂
(d) prohibitions of cruelty, torture, wantoidy inflicted or “ex­

cessive” pain or injury, barbarous acts, and man’s inhumanity 
to his fellow man.**

As the Court declared in Trap v. Dulles: “The basic concept underlying 
the Eighth Amendment is nothing less than the dignity of man.”*̂  This 
concern for the dignity of man is also reflected in the specific concern 
for individual “human rights” in court opinions that have applied the 
Fifth or Eighth Amendments to the actions of police and correctional 
officers.*® In fact, one federal appellate court has recently stated that 
“quite apart from any ‘specific’ of the Bill of Rights, application of 
undue force by law enforcement officers deprives a suspect of liberty 
without due process of law.”*®

24. This is especially so when the Ninth Amendment guarantee of human rights 
against cmel or inhumane treatment, injury, killing or punishment exists. See notes 28- 
29 infra. See also Perkins, supra note 8; Spano v. New York, 360 U.S. 315, 320 
(1959); Weems v. United States, 217 U.S. 349, 373 (1910); United States v. Toscanino, 
500 F.2d 267 (2d Cir. 1974); United States v. Archer, 486 F.2d 670 (2d Cir. 1973); 
cf. Johnson v. Click, 481 F.2d 1028, 1032 (2d Cir.), cert. den. 414 U.S. 1033 (1973), 
citing Rochin v. Cialifomia, 342 U.S. 165 (1952).

25. Weems v. United States, 217 U.S. 349, 373 (1910). See also Furman v. Geor­
gia, 408 U.S. 238, 253-55 (1971) (Douglas, J., concurring).

26. Cases cited note 16 supra.
27. 356 U.S. 86, 100 (1958). See also Furman v. Georgia, 408 U.S. 238,. 

270-71 (1971) (Brennan, J., concurring).
28. For evidence of the use of “human rights” criteria by Patrick Henry, see Fur­

man V. Georgia, 408 U.S. 238, 320 (1971) (Marshall, J., concurring), citing 3 The De­
bates IN THE SeVEKAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTI­
TUTION 446-48 (J. Elliot ed. 1876). See also, e.g., Rochin v. California, 342 U.S. 165, 
169 (1952); Palmigiano v. Travisono, 317 F. Supp. 776, 785 (D.R.I. 1970) (First 
Amendment).

29. Johnson v. Click, 481 F.2d 1028, 1032 (2d Cir. 1973). This reasoning is cor­
rect, for it does not matter that a “specific” of the Bill of Rights prohibits cruel or inhu­
mane treatment, injury, killing or punishment when a rational maximization of legal pol­
icies contained in the Fifth, Eighth and Ninth Amendments will result in the same deci­
sional outcome and when trends in decision also clearly support that outcome. See also 
Spano V. New York, 360 U.S. 315, 320 (1959), noting the important legal policy at stake 
which is based in “deep rooted feeling that the police must obey the law while enfo.'cing 
the law . . . .” And “undue” force or excessive, unnecessary force can result in criminal 
or civil sanctions against the police officer. See notes 12 and 16 supra.

D. A Test of “Cruel” or “Inhumane” Outcomes and Effects
It has been demonstrated that the test of “cruelty”or “inhumanity” 

cannot be static, but must reflect changing needs and expectations.*® 
Reference is often made to such broad criterial references or indicia of 
content as: standards of decency, humane justice, fundamental instincts 
of civilized man, or conduct that “shocks the conscience.” There has 
also been reference to the traditions and collective conscience of our 
society,** to something “universally thought,”** to a dynamic and 
“universal sense of justice,”** to the unanimity of civilized nations of the 
world,*  ̂ to the international “custom of war,”** and to the norms of 
“human rights” law.**

This utilization of international laws of war and human rights is 
not at all unusual, since a basic expectation of the Founding Fathers had 
been that the rights of man are to be protected under the Constitution.** 
It is a truism that universal rights must necessarily be our own. More­
over, there is often useful detail or specificity under these international 
standards. It is not unlikely that a court seeking guidance and a rational 
approach to the serving of inherited expectations and basic legal policies 
would utilize international legal standards to determine the generally 
shared community expectation about “cruelty” or “inhumanity” which 
can provide legal content to such phrases.*® This seems especially so 
when the same word or phrase is used in both international law and 
domestic legal process, there is a long history of such a usage, and, as in 
this case, the uniform opinion of the world community is quite clear.

Specific examples of articulated international rights, though admit-

30. See notes 21-23 supra.
31. Griswold V . Connecticut, 381 U.S. 479, 487 (1965), citing Snyder v. Massachu­

setts, 291 U.S. 97, 105 (1934).
32. See Robinson v. California, 370 U.S. 660, 666 (1962).
33. See Betts v. Brady, 316 U.S. 455, 462 (1942).
34. See Trop v. Dulles, 356 U.S. 86, 102 (1958).
35. See Wilkerson v. Utah, 99 U.S. 130, 134 (1879). See also Declaration of In­

dependence (1776); Declaration of the Causes and Necessity of Taking Up Arms 
(1775), in Perry & Cooper, supra note 1, at 290.

36. See note 28 supra.
37. See Paust, Human Rights and the Ninth Ameruiment: A New Form of 

Guarantee, 60 Cornell L. Rev. 231 (1975) [hereinafter cited as Human Rights and 
the Ninth Amendment]. See also Z. Chafee, How Human Rights Got into the 
CoNsirrunoN (1952); H. Lauterpacht, International Law and H uman Rights 
(1950).

38. See also Human Rights ar\d the Ninth Amendment, supra note 37. On the 
need for “objective indicators” of “the conscience of mankind” and human dignity val­
ues, see Furman v. Georgia, 408 U.S. 238, 270-71, 277-78 (1971) (Brennan, J., con­
curring).



''.STINGS CONSTITUTIONAL LAW QUARTERLY_______tVd- 2

tedly of a general nature which, although not specifically enumerated in 
our Constitution, are of current interest to scholars and practitioners 
include: the right to privacy;®® freedom from torture;^® freedom from 
cruel, inhumane or degrading treatment;^* rights to equal educational 
and cultural opportunities;^® and, among others, rights to adequate 
“food, clothing, housing and medical care.” *̂

39. See, e.g., article 12 of the 1948 Universal Declaration of Human Rights, G.A. 
Res. 217, U.N. Doc. A/810 at 71 (1948) [hereinafter cited as Universal Declaration 
of Human Rights]. A 1968 meeting of private experts at Montreal, Canada, issued the 
“Montreal Statement” which referred to the 1948 Declaration as an authoritative inter­
pretation of the U.N. Charter of the highest order and of customary international law. 
See J. Carey, UN Protection of Civil and Political Rights 13-14 (1970). See also 
Paust, Human Rights, Human Relations and Overseas Command, 3 Army Law. 1 
(Jan. 1973), in 14 The M ilit. Law & L. of War Rev. (Brussels 1974) [hereinafter dted 
as Human Rights, Human Relations and Overseas Command]-, Paust & Blaustein, The 
Arab Oil Weapon—A Threat to International Peace, 68 A m . J. Int’l L. 410 (1974), 
and references cited; Human Rights and the Ninth Amendment, supra note 37. On the 
right to privacy in California, see White v. Davis, 13 Cal. 3d 757, 120 Cal. Rptr. 94, 
533 P.2d 222 (1975).

40. See, e.g., article 5 of the Universal Declaration of Human Rights, supra note 
39. The article states: “No one shall be subjected to torture or to cruel, inhuman or 
degrading treatment or punishment.” For a historic background on the prohibition of 
torture, see Coursier, The Prohibition of Torture, 126 Int’l Rev. of the Red Cross 
475 (1971). Specific mention of an Eighth Amendment prohibition of torture appears 
in several United States cases. See, e.g., Louisiana ex rel. Francis v. Resweber, 329 U.S. 
459, 473 (1947) (Burton, J., dissenting); Weems v. United States, 217 U.S. 349, 368 
(1910); In re Kemmler, 136 U.S. 436, 447 (1890); Wilkerson v. Utah, 99 U.S. 130, 
134 (1879).

41. See Universal Declaration of Human Rights, supra note 39, art. 5.
42. See id., arts. 18-19, 26-27. Article 18 adds the important supplemental rights to 

freedom of thought: “Everyone has the right to freedom of thought, conscience and 
religion; this right includes freedom to change his religion or belief, and freedom, either 
alone or in community with others and in public or private, to manifest his religion or 
belief in teaching, practice, worship and observance.” Article 19 adds; “Everyone has 
the right to freedom of opinion and expression; this right includes freedom to hold opin­
ions without interference and to seek, receive and impart information and ideas through 
any media and regardless of frontiers.” Along with a basic right to education, article 
26 provides that “higher education shall be equally accessible to all on the basis of mer­
it,” adding: “Education shall be directed to the full development of the human personal­
ity and to the strengthening of respect for human rights and fundamental freedoms. It 
shall promote understanding, tolerance and friendship among all nations, racial or reli­
gious groups, and shall further the activities of the United Nations for the maintenance 
of peace.” It is also significant that article 2 provides: “Everyone is entitled to all the 
righu and freedoms set forth in this Declaration, without distinction of any kind, such 
as race, colour, sex, language, religion, political or other opinion, national or social ori­
gin, property, birth or other status.”

43. See id., a rt 25, adding: “Everyone has the right to a standard of living ade­
quate for the health and well-being of himself and of his family, including food, clothing, 
housing and medical care and necessary social services, and the right to security in the 
event of unemployment, sickness, disability, widowhood, old age or other lack of liveli-

Fall 1975] CRUEL AND UNUSUAL PUNISHMENT 885

n . Human Rights and the Ninth Amendment
It is well-documented that international human rights law prohibits 

cruel or inhumane treatment, injury, killing or punishment, whether in 
time of public emergency, war or relative peace. And it is as self- 
evident now as it was in 1776 that human rights must necessarily be 
our own. Indeed, to Jefferson, Paine, Madison and others, these rights 
were fundamental to the process of authority and “what the people are 
entitled to against every government on earth . . . .” ®̂ But if these 
rights of man (human rights) were not specified with particularity in 
the Constitution, how were they to be incorporated into the constitution­
al framework of powers, rights and fundamental policies? In another 
article,^® this author concluded that human rights law is part of our law 
through specific enumerations of right or policy and through the explicit 
guarantee of retained rights in the Ninth Amendment, which states;

The enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others retained by the people.
As disclosed in the other article, documented human rights are 

sufficiently particularized to give more detailed and useful content to 
expressions that our courts do not hesitate to use, such as “the traditions 
and collective conscience of our people” or a “universal sense of justice.” 
Human rights are not only perceived by many to be among the funda­
mental expectations that the courts should address, but they provide 
greater guidance for rational and policy-responsive decisionmaking. 
Moreover, our society arose under natural law expectations of the 
existence of universal rights of man—rights that could exist even though 
they were not printed somewhere with black and white particularity. 
Today, when there is greater articulation of the nature and content of 
the rights of man, it is far easier for our courts to make empirical 
inquiries into the actual boundaries of rights content and to identify the 
existence of general rights that are nowhere enumerated specifically

hood in circumstances beyond his control . . . .” See also Paust, The Right to Food, 
1975 Proceedings of the Am. Soc. of Int’l Law, 69 Am . J. Int’l L. —  (1975).

44. See notes 10, 13, 37 and 40-41 supra.
45. See IV Writings of T homas Jefferson 477 (Ford ed. 1894). See also Cor­

win & Peltason, supra note 7, at 4 and 132; D. Malone, Jefferson and the Rights 
OF Man (1951); T. Paine, The R ights of Man (1961); Perry & Cooper, supra note 
1; McDougal & Leighton, The Rights of Man in the World Community: Constitutional 
Illusions vs. Rational Action, 59 Yale L. Rev. 60, 110-15 (1949), in M. McDougal & 
Associates, Studies in World Public Order 335 (1960) [hereinafter cited as Mc­
Dougal & Leighton). The Declaration of Independence (1776). See also notes 28 & 37
supra.

46. See Human Rights and the Ninth Amendment, supra note 37.



88? H.\STIN‘GS CONSTITUTIONAL LAW QUARTERLY [Vol. 2 Fall 1975] CRUEL AND UNUSUAL PUNISHMENT 889

State decisions which stand as a barrier to the fulfillment of our national 
pledge in the United Nations Charter to promote respect for and observ­
ance of human rights and fundamental freedoms for all must be con­
demned and struck down by the courts.®® Moreover, as declared in 
Asakura v. Seattle, the Supreme Court will strike down any state laws or 
municipal ordinances which conflict with international treaty law.®̂  The 
Supreme Court also held that international treaty law “stands on the 
same footing of supremacy as do the provisions of the Constitution and 
laws of the United States. It operates of itself without the aid of any 
legislation, state or national; and it will be applied and given authorita­
tive effect by the courts.”®*

Additionally, human rights norms and international expectations 
necessarily supplement the traditions and collective conscience of our 
own people.®® They are useful for the discovery of the generally shared 
content of constitutional norms whether or not international norms are 
directly “binding” on the Court or other governmental entities. This is 
especially so in this age of noted interdependence with cross-national 
patterns of subjectivity and more detailed manifestation of uniform 
expectacy about human rights content. International trends in decision 
can provide useful criteria for decisional guidance on the prohibition or 
actual use in varied circumstances of different types of weapon systems. 
For, as we have seen, often the same fundamental policies are at stake, if 
not through the same language of legal proscription (e.g., “cruel,” 
“inhumane”). Each of these policies seeks to regulate the use of force in

53. Oyama v. California, 332 U.S. 633, 673 (1948) (Murphy & Rutledge, JJ., con­
curring). See also id. at 649-50 (Black & Douglas, JJ., concurring); cf. Nielson v. John­
son, 279 U.S. 47 (1929); Asakura v. Seattle, 265 U.S. 332 (1924); Missouri v. Holland, 
252 U.S. 416 (1920); Maiorano v. B.&O. R.R., 213 U.S. 268, 272-73 (1909); The Pa- 
quete Habana, 175 U.S. 677 (1900); Hauenstein v. Lynham, 100 U.S. 483 (1879); Fair­
fax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1813); Ware v. Hylton, 3 
U.S. (3 Dali.) 199 (1796). The only case to the contrary was a California decision 
made in an aura of noted racial hysteria. Sei Fujii v. California, 38 Cal. 2d 718, 242 
P.2d 617 (1952). The Sei Fujii decision is not only contrary to every relevant United 
States Supreme Court decision, but is highly controversial and, in the opinion of this 
author, incorrect. See Human Rights and the Ninth Amendment, supra note 37, at 233. 
Further, in direct conflict with the statement in Sei FujU that certain treaty provisions 
are not “self-executing” and require implementing legislation at the federal level before 
they become part of the supreme law of the land was the holding in Asakura v. Seattle. 
Sec note 55 infra and text accompanying. See also note 57 infra.

54. 265 U.S. 332 (1924).
55. W. at 341. See also cases cited note 53 J«pra.
56. See, e.g.. The Impact of International Law Upon National Law, supra note 49; 

Does Your Police Force Use Illegal Weapons, supra note *; Human Rights and the 
Ninth Amendment, supra note 37.

social process against other human beings—to assure the humane treat­
ment of all pi rsons and the serving of other aspects of the basic goal of 
human dignity. This was undoubtedly recognized by the United States 
Supreme Court in The Paquete Habana when it declared:

International law is part of our law, and must be ascertained 
and administered by the courts of justice of appropriate jurisdiction, 
as often as questions of right depending upon it are duly presented 
for their determination. F̂ or this purpose, where there is no treaty, 
and no controlling executive or legislative act or judicial decision, 
resort must be had to the customs and usages of civilized nations; 
and, as evidence of these, to the works of jurists and commentators, 
who by years of labor, research and experience have made them­
selves peculiarly well acquainted with the subjects of which they 
treat. Such works are resorted to by judicial tribunals, not for the 
speculations of their authors concerning what the law ought to be, 
but for trustworthy evidence of what the law really is.®̂
The growing controversy over the adoption of cruel weapons; the 

continuous questioning of the humaneness of city, county and state pre­
trial or post-conviction detention or penal processes; the alarming in­
crease in sophisticated surveillance techniques and cases of invasions of 
privacy and violence in the home and office; the budding use of police 
dossiers in cities such as Houston and Philadelphia to amass data on 
those suspect not of crime but of political opposition or, what is worse, 
nonconformity; and the significant questions raised increasingly about 
assassination and the intentional subversion of the political processes at 
home and abroad, all present such “questions of right.” Conduct that 
would be violative of international standards should be no less pro­
scribed in domestic legal process by the courts and legislatures.

One can only begin to imagine the danger to our society from such 
misuses of public trust and power, not to mention the international 
effects our society and others might suffer from the domestic adoption 
of conduct or weapons that are illegal under international law because of 
the cruel and inhumane impacts which result from their use against 
other human beings. Domestic use of prohibited conduct or weapons 
can only make United States governmental functioning on the interna­
tional level far more difficult. It would open the United States up to

57. 175 U.S. 677, 700 (1900). See also In re Yamashita, 327 U.S. 1, 8 (1946); 
Ex Parte Quinn, 317 U.S. 1, 27-28 passim (1942); Maiorano v. B.&O. R.R., 213 U.S. 
268, 272-73 (1909); Talbot v. Jansen, 3 U.S. (3 Dali.) 133, 160 (1795) (Iredell, J., 
concurring); Res Publica v. De Longchamps, 1 U.S. (1 Dali.) I l l  (1784); Henfield’s 
Case, 11 F. Cas. 1099, 1107-08, 1120 n.6 (No. 6,360) (Pa. 1793); Triquet v. Bath, 96 
Eng. Rep. 273 (K.B. 1764) (necessarily familiar to the framers of the United States 
Constitution); 11 Ops. Att’y Gen. 297, 299-300 (1865); After My Lai, supra note 59; 
My Lai and Vietnam, supra note 10.



(90 M 't.m NGS CONSTITUTIONAL LAW QUARTERLY [Vol. Z rail i;'

crilicism and pretest before international polictical and judicial bodies 
and would provide an easy pretext for propaganda attacks by enemies of 
the United States. Additionally, international problems would be exacer­
bated by widespread domestic police conduct or usage of weapons that 
are illegal under international law if any foreign diplomat, businessman, 
tourist or other person were involved in a shooting incident or other 
situation either as the target, as an innocent bystander or as a hostage of 
an accused criminal.

It could even happen that the adoption of cruel or inhumane 
conduct or weapon systems within the United States would trigger an 
escalation of the use of such methods or w’eapons by police forces or 
others abroad and, thus, increase the risk of cruel and inhumane suffer­
ing for United States diplomats, soldiers, businessmen and tourists in 
foreign countries.®® Because of the fundamental policies and the interre­
lated national and international interests at stake, this matter is clearly 
one of national concern.®*

Conclusion
In this commentary there has been inquiry into the types of rights 

and the boundaries of content which prohibit cruelty, inhumane effects, 
and unnecessary death, injury or suffering. It is clear that an integration 
of human rights law with basic provisions of the Fifth, Eighth and Ninth 
Amendments to the United States Constitution provides sufficiently de­
tailed exposition of relevant rights and content. If the Supreme Court 
has found abhorrent the use of “the rack, the thumbscrew, the iron boot, 
the stretching of limbs and the like, which are attended with acute pain 
and suffering . . . ,”®® then it should be apparent that the Court will 
condemn the type of torture of political detainees allegedly occuring in 
most of the other countries of the world, especially in those under a 
declared state of emergency by executive e l i t e s t h e  type of psychologi­
cal and more sophisticated cruelty that too often occurs in pre-trial or 
post-conviction institutions; or the type of increased pain and suffering 
that occurs with a tremendous increase in kinetic energy transfer to the 
human body, and proportionate increase in wound injury, caused by 
bullets that are illegal under international law.

58. And this interchange of people across our national borders must number in the 
millions each year.

59. See, e.g., Missouri v. Holland, 252 U.S. 416 (1920).
60. See, e.g., O’Neil v. Vermont, 144 U.S. 323, 339 (1892) (Field, J., dissenting).
61. See, e.g.. The Fraser Report, supra note 49; Amnesty International, Report 

ON Torture (1974).

Adoption of illegal practices or weapon systems will only increase 
the risks of civil and criminal liability to the police officer using them. In 
addition to the criminal sanctions disclosed above, there are criminal 
sanctions for certain violations of the free exercise or enjoyment of any 
right or privilege secured to another “by the Constitution or laws of the 
United States.”®* Such rights, as disclosed above, include the freedom 
from cruel or inhumane treatment, injury, killing or punishment, and 
the deprivation of life or liberty without due process of law. Civil suits 
can also be brought for money damages against police officers who 
exercise an excessive amount or type of force and deprive a person of 
basic civil and human rights under the Fifth, Eighth or Ninth Amend­
ments.®® Alternatively, they can be brought under state tort law.®*

62. 18 U.S.C. §§ 241 et seq. (1948). See also 10 U.S.C. §§ 818, 821 (1970); 
After My Lai, supra note 50. For cases under 18 U.S.C. §§ 241-42, see, e.g.. United 
States V . Guest, 383 U.S. 745, 753-54 (1966); United States v. Price, 383 U.S. 787, 805- 
06 (1966); Williams v. United States, 341 U.S. 97 (1951); United States v. Delerme, 
457 F.2d 156 (3d Cir. 1972); Pool v. United States, 260 F.2d 57 (9th Cir. 1958); Lynch 
V. United States, 189 F.2d 476 (5th Cir.), cert, denied, 342 U.S. 831 (1951); Crews 
V. United States, 160 F.2d 746 (5th Cir. 1947).

63. Civil Rights Act, 42 U.S.C. § 1981 et seq. See also Parker v. McKeithen, 488 
F.2d 553, 556 (5th Cir.), cert, denied, 419 U.S. 838 (1974); Clark v. Ziedonis, 368 F. 
Supp. 544 (E.D. Wis. 1973), and cases cited; Byrd v. Brishke, 466 F.2d 6 (7th Cir. 
1972); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972); Williams v. Liberty, 461 F.2d 
325 (7th Cir. 1972); Sauls v. Hutto, 304 F. Supp. 124 (E.D. La. 1969) (denying reUef 
under the federal act for a police officer’s violation of state law, refusing to decide the 
issue of deprivation of due process under the United States Constitution because the 
claim was “pretermitted,” but affirming relief to the mother under state wrongful death 
statute for wrongful death of her son, who had been shot in the hack), discussed in Ru­
bin & Miller, The Law Enforcement Officer’s Use of Deadly Force: Two Approaches, 
8 Am . Crim. L.Q. 27 (1969). Injunctive relief is also possible. Gomez v. Layton, 394 
F.2d 764, 766 (D.C. Cir. 1968), citing Lankford v. Gelston, 364 F.2d 197 (4th <3r. 
1966).

64. See note 12 supra; Sauls v. Hutto, 304 F. Supp. 124 (E.D. La. 1969); Wall 
V . Zeeb, 153 N.W.2d 779 (N.D. 1967); 6 Am . J ur. 2d Assault and Battery §§ 125, 158 
et seq. (1963); Foote, Tort Remedies for Police Violations of Individual Rights, 39 
Minn. L. Rev. 493 (1955); Greenstone, Liability of Police Officers for Misuse of their 
Weapons, Symposium, Police Tort Liability, 16 Clev. Mar. L  Rev. 397, 400-07 (1967), 
and cases cited; Note, The Civil Liability of Police Officers for Wounding or Killing, 
28 U. CiNC. L. Rev. 488 (1959); Comment, Tort Liability of Law Enforcement Offi­
cers: State Remedies, 29 La. L. Rev. 130 (1968). It should also be noted that a law­
suit has already been brought for the wrongful death of a black man by two police 
officers when one of the officers used “unauthorized dumdum style bullets’’ to kill the 
victim. L.A. T imes, July 13, 1974, pt. 2, at 12, col. 1. The bullets actually used were 
158 grain .357 magnums, semi-jacketed, “hollow point or soft point,” and possibly some 
.38 specials. The weapon was a .357 magnum Smith and Wesson. And a portion of 
the jacket and a portion of the lead core of the same bullet shattered off of the bullet



892 HACTINGS CX)NSTmmONAL LAW QUARTERLY fVol. 2

It is significant to recall the United States Supreme Court’s realiza­
tion of the fact that, with the Eighth Amendment, there is “more to be 
considered than the ordinary criminal laws. Cruelty might become an 
instrument of tyranny; of zeal for a purpose, either honest or sinister.”*® 
TTiere is more to be considered indeed, for can a free society long endure 
with cruel and inhumane conduct or weapons in wide and uncontrolled 
use? Can we afford to allow excessive use of force during otherwise 
lawful law enforcement? Hopefully, the author is only one of many who 
feel that we cannot.

In this year, nearly two hundred years after the Declaration of 
Independence, it would seem most appropriate to re-read that declara­
tion and to rededicate ourselves to principles of freedom under law and 
human dignity which our forefathers shared and understood as compris­
ing the rights of man.

within the body. See Los Angeles Grand Jury transcript. Mar. 21, 1974, 2:25 P.M., 
at 79, 81-86 and 230. Some of the bullets also appeared to have been “home-loaded” 
as opposed to factory loaded. Other suits brought by the A.C.L.U. or the N.A.A.C.P. 
are pending in federal courts in Boston and Memphis: Evans v. Heggblod (Mass.); Gar­
ner V. Memphis Police Dept. (Memphis). In the case of an injury to a foreign national, 
the same basic remedies are available to foreign plaintiffs. And it should be noted that 
the Fourteenth Amendment applies to aliens as well as United States citizens. Yick Wo 
v. Hopkins, 118 U.S. 356 (1886). It is even possible that claims might be brought 
against the United States government for violations of international law with respect to 
the injury or death of a foreign national (i.e., diplomat, soldier, businessman, tourist) 
from an illegal weapon. See also 28 U.S.C. § 1350 (1970); Asakura v. Seattle, 265 
U.S. 332 (1924); Ware v. Hylton, 3 U.S. (3 Dali.) 199 (1796).

65. Weems v. United States, 217 U.S. 349, 373 (1910),