Wisc. Supreme Court Holds that 1983 Burden of Proof "Substantive" and Thus Applicable to State Tort Claim against Police

Per Prof. Steven H. Steinglass at Cleveland-Marshall College of Law:

On December 6, 2005, the Supreme Court of Wisconsin unanimously held in Shaw v. Leatherberry, 2005 WI 163 (Wis. Dec. 6, 2005), that the middle burden of proof (clear and convincing) does not as a matter of federal law apply to a sec. 1983 excessive force claim against police officers. Wisconsin applies this middle burden to state tort claims against police officers, and the trial court, following the state pattern jury instructions, applied it to a sec. 1983 claim. The Court of Appeals certified the question to the state supreme court.

The Wisconsin Supreme Court found that the burden of proof is "substantive" and that state courts entertaining sec. 1983 cases were required to follow federal substantive law (the preponderance of the evidence standard). Alternatively, the court held that even if the
burden was not substantive federal law preempted state law because the higher burden of proof is inconsistent with sec. 1983's purposes of compensation and deterrence. Finally, the court found that the higher burden was outcome-determinative in that it disrupted the federal interest in uniformity.

For the full opinion click here.