Excessive Force: A Feasible Proximate Cause Approach

Excessive Force: A Feasible Proximate Cause Approach

Latasha M. James, Comment, Excessive Force: A Feasible Proximate Cause Approach, 54 U. Rich. L. Rev. 605 (2020).

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You shot me.

“I don’t have a gun. STOP!”

“I can’t breathe.”

“Officers why do you have your guns out?”[1]

These are the last words of four men whose deaths at the hands of police officers stirred the public and created concern about police use of excessive force and a failure of the justice system to vindicate these civil rights violations. Unfortunately, even in the face of such publicity, excessive force cases continue to surface while the results in the courtroom remain the same.[2] This raises concerns as to both preventing the use of excessive force and ensuring justice is adequately served when such claims arise. There is no question that the substance and enforcement of the law act together to deter unwanted societal behavior. So, why do the laws against excessive force fail to act as deterrents? Many of these concerns stem from the application of the “objective reasonableness” standard used to analyze these types of cases. Some courts use only the moments immediately preceding the use of force to determine if the officer’s actions were reasonable, while other courts may choose to look at actions the officer took leading up to the use of excessive force. This variance in interpretation has led to inconsistent results and a failure to deter.

The Supreme Court provided a potential solution to this issue in its recent decision, County of Los Angeles v. Mendez­­­. In the Mendez case, the Supreme Court struck down one use of the officer’s prior conduct to determine reasonableness while opening the door for an opportunity to use proximate cause to analyze how this behavior may have led to the use of excessive force. This Comment uses the Mendez case to propose a framework for using the tort concept of proximate cause in the objective analysis of excessive force cases.

Consider for a moment the following scenarios:

Scenario A. Officers stop a man walking down the street heading to work. The officers are in full uniform and in their police car. They incorrectly identify the male as a suspected robber. As the officers tell the suspect that he is under arrest and attempt to detain the suspect by grabbing his arm, the suspect decides to run. The officers chase the suspect and tackle him, breaking his collarbone in the process.

Scenario B. Plainclothes officers in an unmarked vehicle spot a robbery suspect running down the street. The officers, with their guns drawn, approach the suspect and try to grab the suspect by the arm to arrest him. At the same time that the officers grab the suspect’s arm, the officers begin to tell the suspect he is under arrest. Before the officers can complete the arrest, the suspect responds by punching one of the officers. The two engage in a scuffle, and one of the officers shoots the suspect.

Scenario C. It is after midnight, and uniformed officers armed with a search warrant knock on a suspect’s door. Unbeknownst to the officers, they are at the wrong house. The homeowner answers the door holding a gun not initially visible to the officers. The homeowner refuses to let the officers in after he surveys the warrant and realizes it is not his address. The officers enter the residence by force and upon seeing that the homeowner has a gun, fatally shoot him.

Scenario D. Undercover officers in an unmarked car, riding through a neighborhood known for drug dealing, see what they believe is a drug sale going on at the door of a home. The officers approach the home, and as they enter the residence, yell “police.” Someone in the home fires at the officers who fire back, wounding a child in the next room. The witnesses in the home later testify that from the front window, they saw two people approaching their home. Per the witnesses, those two people entered the home without knocking, and the homeowner fired shots at the supposed trespassers.

In each of these scenarios, the officers used force in response to the citizen’s actions. As discussed through the cases used in this Comment, courts generally apply the excessive force standard without considering whether law enforcements’ pre-seizure conduct led to the citizen’s response. Because of this failure to consistently use officers’ pre-seizure actions in the excessive force evaluation, court decisions throughout the country have been inconsistent and, at times, unfair. This Comment seeks to provide a standard for determining when a citizen’s response to police action is reasonable and how that correlates to a finding that law enforcement has used excessive force and proximately caused the citizen’s injuries.

Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the Ninth Circuit applied proximate cause in an excessive force case that ultimately held that an officer’s pre-shooting conduct proximately caused the citizen’s injuries. Part II provides a solution for the inconsistent way courts address officers’ pre-shooting behavior by including proximate cause as part of the objective reasonableness analysis in determining whether officers’ pre-shooting conduct proximately caused the use of the excessive force, leading to the citizen’s injuries. The Comment concludes with an application of the suggested standard to the scenarios detailed above.


        *     J.D. Candidate, 2020, University of Richmond School of Law; M.P.A., 2011, Virginia Commonwealth University; B.A., 2001, Valdosta State University. I want to express a sincere thank you to Professor John F. Preis for his direction, guidance, and instrumental feedback. Thank you to the University of Richmond Law Review staff for their irreplaceable assistance in the editing process. I also want to give a wholehearted thank you to my husband and daughter for their continued support and encouragement throughout this entire endeavor.


Tailoring Copyright to Protect Artists: Why The United States Needs More Elasticity in its Protection for Fashion Designs

Tailoring Copyright to Protect Artists: Why The United States Needs More Elasticity in its Protection for Fashion Designs

Robin M. Nagel*, Comment, Tailoring Copyright to Protect Artists: Why The United States Needs More Elasticity in its Protection for Fashion Designs, 54 U. Rich. L. Rev. 635 (2020).

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For as long as copyright protection has existed in the United States, protection has never expressly extended to fashion designs because copyright law categorizes fashion designs as “useful articles” that do not receive any protection. In the eighteenth century, this policy perhaps made sense—most clothing was generic, non-decorative, and required little creativity for many of the everyday garments people wore. Clothing in the eighteenth century was commonly made up of useful articles that served very little purpose outside of their utility. However, in today’s society, fashion has transformed into an industry that prizes creativity, ingenuity, innovation, and something more than just utility. Copyright laws have not developed alongside the fashion industry. As a result, almost no fashion designs can receive copyright protection, and other areas of intellectual property law provide little to no protection, especially for smaller, less-established designers. This lack of protection has very real and sometimes very detrimental effects on designers who have the misfortune of a third party stealing their work and reproducing it at low cost. The current hierarchy in the fashion industry favors the well-established designer with the ability to reproduce a stolen design en masse and sell to the world, while the small, independent designer enjoys no recognition and is generally unable to collect for what almost anyone would agree is a morally wrong act.

Copyright law in the United States should change to reflect current practices within the fashion industry, which have developed over time to meet the industry’s changing needs. At one time, fashion designs would have been protected under copyright law; early drafts of the Copyright Act of 1976 included protections for fashion designs that were not “staple” articles, and multiple subsequent bills have been introduced in Congress to extend protection to fashion designs that are more than simply generic pieces of clothing. The need for change is also heavily based on the United States’s membership in the Berne Convention for the Protection of Literary and Artistic Works, which includes particularly heavy protection of copyright authors’ moral rights. The Berne Convention is an international agreement that coordinates copyright protections internationally, providing specific rules for when a copyrightable creation begins to exist, setting up terms of protection, and requiring that all parties recognize the copyrights from all other countries party to the agreement. Despite being a party to the Berne Convention since the 1980s, the United States, as a general rule, has declined to adopt any kind of moral-rights-based copyright protection, but clearly seems to be required to do so, not only to provide the reasonable protection that is due to the fashion industry, but also to fulfill its duties as a party to the Berne Convention. The United States needs to grant more protection, through expanded and more elastic copyright laws, to those unique and creative fashion designs that call for greater protections against copying and knockoffs.

The first Part of this Comment will outline basic copyright law and policies in the United States, including the “useful article” doctrine, which dictates that fashion designs are usually classified as useful articles that are not eligible for protection. Part I will also introduce Brazilian bikini maker and vendor Maria Solange Ferrarini and her suit against Kiini, L.L.C. and its owner, Ipek Irgit, to illustrate the need for greater protections for fashion designs and the harms that will occur in the absence of such protections.

The second Part of this Comment will highlight the fashion industry’s unique history of policing copying without legal protections and why those methods no longer work in the industry. Part II will further discuss the development of the fashion industry in the last century and the current attitudes surrounding the creativity and innovation that flow into fashion designs from not only the high-end fashion houses, but also the bikini vendor on the beaches of Brazil.

The third Part of this Comment will outline the various ways in which this law could change, as well as the legal theories behind change in the first place. Part III will also discuss moral rights copyright protection and various European copyright laws which protect authors’ rights beyond simply the economic rights that are recognized in the United States. Part III will also analyze the single moral rights copyright law, as well as other legislation introduced throughout the past decades in Congress that would have provided protection to fashion, all of which failed to pass through Congress and become law.

The fourth and final Part of this Comment returns to reflect on the case study and, after taking all of the possible solutions into account, makes a final recommendation on the best way or ways in which the current copyright regime in the United States should adapt to allow protection for fashion designs.


    *   J.D. Candidate, 2020, University of Richmond School of Law; B.A., 2017, Seton Hall University. I would like to thank Professor Chris Cotropia for his guidance and support throughout this writing process and Professor Christopher Corts for his unending encouragement and for aiding me in my legal writing since the day I entered law school. To my family and friends, I am forever grateful for your love and support, not only while I was working on this Comment, but in life. And, finally, I want to thank Ashley and the rest of the University of Richmond Law Review Volume 54 staff and editors for helping me ensure this Comment was ready for publication.




The University of Richmond Law Review is proud to present the thirty-fourth issue of the Annual Survey of Virginia Law. Since 1985, the Annual Survey has striven to provide a comprehensive resource detailing recent legislative, judicial, and administrative changes in Virginia. Today, the Annual Survey is the most widely read publication of the University of Richmond Law Review, reaching lawyers, judges, legislators, and students in every corner of the Commonwealth. In continuing the Annual Survey tradition, we have selected pieces we believe are timely, compelling, and useful to staying informed of relevant legal and social issues.

The University of Richmond School of Law is heavily associated with the legal community of Richmond; many alumni begin their careers right here in town, and some spend most, if not all, of their careers in Richmond. This year, the Richmond legal community lost a distinguished defense attorney and University of Richmond School of Law alumnus Michael Morchower. We are proud to help preserve his legacy with an In Memoriam.

This issue of the Annual Survey of Virginia Law further contains seven articles, each providing summaries of changes in the last year to substantive areas of the law. The topics of these updates include Civil Practice and Procedure; Criminal Law and Procedure; Corporate and Business Law; Employment Law; Taxation; Wills, Trusts, and Estates; and Local Government. Additionally, this issue contains two essays focused on narrower topics in the law, including both an analysis of the downfall of Virginia’s Incumbent Protection Act and an exploration of emotional distress claims in the Virginia workplace. Finally, the Law Review is proud to also include a student comment written by a University of Richmond Law Review staff member, which sheds light on a foster-care-to-prison pipeline in Virginia.

The enduring Annual Survey tradition is made possible only by the commitment and talent of our authors, many of whom contribute to the Annual Survey each year. Each unique piece is the culmination of diligence, resounding expertise, and sacrificed time, all in the name of legal scholarship. I am grateful for these authors’ continued dedication to our publication and the furtherance of the Virginia legal community.

I would also like to extend sincerest thanks to the Law Review staff for their careful editing and commitment to our organization, especially by balancing editing duties with associate positions and internships throughout the summer. In particular, the efforts of our Editor-in-Chief, Ashley Phillips; our Executive Editor, Thomas Dorsey; and my fellow executive board members Athena Dufour, Allison Bohan, Jon Roellke, Kellen Shearin, and Grace Nichols have been invaluable over the last several months. I know that no matter what Bluebook problem keeps me up at night, one of you always has the answer.

I also cannot give enough thanks to both Glenice Coombs and Emily Palombo. Glenice, your enduring commitment and sharp wit keep the wind in our sails, and we would surely be lost without you. Emily, your guidance and continued devotion to the Annual Survey tradition has helped me time and time again, something I am ever grateful for.

Finally, thank you to my wonderful and supportive friends and family, especially my parents, Mark and Connie, and my two older brothers, Jacob and Lucas. Thank you all for your unwavering love and encouragement, and especially to Lucas for allowing me the privilege of featuring your work in our publication. And of course, thank you to Marina Batalias for your steadfast support throughout law school, which helped make all of this possible.

We hope you find the 2019 Annual Survey of Virginia Law valuable, helpful, and thought-provoking. As a lifelong Virginia resident, it has been an honor to serve as the Editor of the 2019 Annual Survey of Virginia Law, and I thank you for your continued readership and patronage.

Matthew L. Pangle

Annual Survey Editor

In Memoriam Michael Morchower

John W. Luxton, In Memoriam Michael Morchower, 54 U. Rich. L. Rev. 1 (2019).

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In Memoriam Michael Morchower

John W. Luxton*

Magic Mike was programmed by his experiences to be successful. He fought hard but left his fight in the courtroom. He was innovative, daring, and loved his occupation. Although he retired over seven years ago and recently died, we still get calls from potential clients who want to hire Magic Mike. Now that is a legacy.

*J.D., 1974, University of Richmond School of Law; B.A., 1971, Hampden-Sydney College.

Civil Practice and Procedure

Civil Practice and Procedure

Christopher S. Dadak, Annual Survey of Virginia Law Civil Practice and Procedure, 54 U. Rich. L. Rev. 7 (2019)

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Christopher S. Dadak*


This Article’s focus and analysis encompasses the past year of Supreme Court of Virginia opinions, legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure. This Article is not meant to be all-encompassing, but does endeavor to capture the highlights of changes or analysis regarding Virginia civil procedure. The opinions discussed throughout this Article do not all reflect changes in Virginia jurisprudence on civil procedure, but also address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The Article first addresses opinions of the supreme court, then new legislation enacted during the 2018 General Assembly Session, and finally approved revisions to the Rules of the Supreme Court of Virginia.


* Associate, Guynn, Waddell, Carroll, & Lockaby, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University. A heartfelt thanks to the University of Richmond Law Review editors and staff for their diligent efforts (and significant patience) on this Article and the entire University of Richmond Annual Survey of Virginia Law.

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