Administrative Risk and Public Safety: the adherence of the São Paulo State Court of Justice to the doctrine of strict State liability in civil actions for damages arising from police conduct

Abstract

Due to the danger inherent to the State’s duty to safeguard public safety, overt policing imposes significant risk upon the administration. When legal interests are not properly balanced, this risk materializes as police brutality, a persistent reality in Brazil, particularly against black people living in poverty in urban peripheries. Given Article 37, paragraph 6, of the 1988 Constitution, which enshrines the strict liability of legal entities under public law, and considering the social urgency of victimization by police brutality, this article seeks to assess the degree to which the São Paulo State Court of Justice adheres to this liability regime in civil claims regarding damages arising from police conduct. Accordingly, a documentary analysis of the Court’s recent jurisprudence was conducted, with a qualitative review of decisions issued over the past five years, in order to identify the main debates and controversies regarding the application of strict state liability. Results indicate that the public liability's strict modality remains underutilized in the state's jurisprudence, with subjective logics sometimes prevailing, in contradiction to the constitutional framework. Such an approach reinforces conditions of institutional neglect already experienced by marginalized populations and further demonstrates their lack of protection, even through the judicial avenue of redress.