Balkinization: What's missing in the police reform debate? (Part 1)

What's missing in the police reform debate? (Part 1)

Guest Blogger

By Lynda G. Dodd

In the September theme issue of Perspectives on Politics on “The American Politics of Policing and Incarceration,” I published an article suggesting that recent debates on policing reform have neglected the role of civil actions against cities and police officers, often referred to as “constitutional tort” lawsuits, for monetary damages under 42 U.S.C. § 1983, the federal statute that provides a civil cause of action in federal courts for constitutional rights violations.

In my first post, I assess recent policing reform proposals and argue that, while the role of Section 1983 lawsuits has not been entirely ignored, few reformers have discussed the need to strengthen the impact of civil rights lawsuits for damages.

Recent Policing Reform Proposals

In August 2015, after the Ferguson protests launched a nationwide debate about police misconduct, the nation’s leading civil rights organizations issued statements listing their reform priorities. On August 18, 2014, the Lawyers’ Committee for Civil Rights Under Law, along with a coalition of leading national civil rights organizations, issued “A Unified Statement of Action to Promote Reform and Stop Police Abuse,” calling for a Justice Department investigation; a comprehensive federal review and reporting of police killings and excessive force; the development of national use of force standards; federal review and reporting of “racially disproportionate policing,” including stop and frisk practices and racial profiling; mandates for police vehicle dashboard cameras and body-worn cameras; efforts to prevent use or misuse of military equipment by local police departments; the elimination of broken windows policing; greater and more effective oversight; and the establishment of a law enforcement commission. This coalition offered a lengthy and admirably thorough list of reform targets, yet there was no mention at all of the challenges associated with Section 1983 lawsuits nor any proposals to strengthen this form of constitutional litigation in order to deter future police misconduct.

As these initial calls for reform evolved into a more sustained investigation of policing reform, particularly through the President’s Task Force on 21st Century Policing, civil rights advocates neglected to consider reforming the framework for Section 1983 lawsuits.

As part of its investigation, the President’s Task Force received testimony from a wide range of civil rights organizations and policing experts. The NAACP LDF was invited to present in-person testimony at a listening session on “Building Trust and Legitimacy” on January 13, 2015 and in its statement called for greater data collection and endorsed the reforms regarding training, supervision, and oversight policies and practices that are typically included in Justice Department consent decrees. In the same session, the ACLU highlighted the need to strengthen federal mandates for data collection and to establish effective civilian oversight bodies. The Center for Constitutional Rights (CCR), one of the nation’s leading civil rights litigation organizations, was invited to present in-person testimony at the “Policy and Oversight” session on January 30, 2015, and focused its recommendations on improving civilian complaint investigative bodies and including greater community involvement in court monitoring resulting from Justice Department § 14141 investigations or Section 1983 class action litigation.

None of these organizations featured in their recommendations the need to reform and strengthen Section 1983 litigation so that it can more effectively deter police misconduct.

When the President’s Task Force issued its final report in May 2015, it included an impressively lengthy list of important recommendations and action items, but it failed to discuss the need to revise Section 1983 liability doctrines in order to strengthen private enforcement of constitutional rights against police misconduct, or , perhaps even more surprisingly, did not address how certain policy reforms could strengthen the deterrent effect of Section 1983 litigation.

These debates will continue. A new generation of civil rights activists has risen to prominence and will undoubtedly influence ongoing debates about policing reform. Most notably, Deray McKesson, Johnetta Elzie, Brittany Packnett (also a member of the President’s Task Force and the Ferguson Commission), and Samuel Sinyangwe (a 2012 Stanford graduate who majored in political science) have introduced a package of proposals for policing reform they call Campaign Zero, which focuses on the goal of ending police misuse of force. They describe the Campaign Zero website to be a “living document,” and they are continually updating on the basis of advice and feedback. Although their current platform does not include reforms to strengthen Section 1983 litigation, they are studying various civil liability reform proposals.

Civil Rights Lawsuits against the Police

Although much of the public’s attention over the past year has focused on the calls for the Justice Department to pursue federal criminal prosecutions and broader civil rights investigations, the federal government typically investigates only a handful of police departments each year. In 2013, private litigants filed over 15,000 cases in federal district courts to enforce civil rights, and prisoners filed well over 30,000 civil rights claims. Section 1983 litigation is by far the most-used vehicle for the enforcement of constitutional rights against police officers and other government officials.

The families of Michael Brown, Eric Garner, John Crawford, Tamir Rice, Ezell Ford, Tony Robinson, Walter Scott, and Sandra Bland joined a long list of plaintiffs when they hired attorneys to prepare for civil litigation under Section 1983. In the months following the Ferguson protests, the role of police misconduct litigation has been addressed in the online media coverage (see here, here, here, and here), and in a series of newspaper investigations offering in-depth accounts of Section 1983 damage awards and settlement amounts in Boston, Philadelphia, Cleveland, Chicago, Baltimore, and Denver. The Wall Street Journal recently featured on its front page a widely-noted analysis showing how the costs of police misconduct claims have “soared” in recent years in the nation’s largest cities. There is also more extensive nationwide media coverage of high-profile settlements, such as the record-breaking amounts offered by New York City and Baltimore to the Garner and Gray families to settle their respective lawsuits. Most recently, on October 8, the lawyers for the family of Walter Scott announced another large settlement.

Yet there are problems with Section 1983 litigation that receive far less public attention. To be sure, leading civil rights scholar Erwin Chemerinsky argued in an August 26, 2014, New York Times op-ed, “How the Supreme Court Protects Bad Cops,” that the prospects for success in Section 1983 litigation has been undermined by the Roberts Court. My article for Perspectives and my forthcoming book seek to evaluate in more detail the Supreme Court’s development of an interconnected, but less well-known set of doctrines—concerning attorneys’ fees, state and municipal entity liability, and immunities—that place obstacles in the path of plaintiffs seeking to hold the government responsible for serious constitutional violations.

Because these doctrines were crafted by the Supreme Court, it may at first seem appropriate to expect any changes will need to come through future appointments to the Supreme Court and federal judiciary. Although it may well turn out to be the path chosen, the history of the development of constitutional tort doctrines suggests that it is a mistake to rely solely on the hope for court-led doctrinal shifts.

Most of these obstacles are rooted in views about the meaning and purpose of a statute – Section 1983 – that can instead be modified by Congress. In 1997, Justice Stephen Breyer endorsed Justice John Paul Stevens’ longstanding critique of Section 1983 doctrine and call for reforming Section 1983. Not only were these calls by Justices Stevens and Breyer ignored in Congress, few legal scholars have since considered legislative reform of Section 1983 to be worthy of extensive commentary. A leading Section 1983 expert, Karen Blum, recently asked constitutional tort scholars for their reform “wish list,” but such proposals have hardly been the topic of a thriving debate in the legal profession and the academy. (One thoughtful exception: an article by law professor Ivan Bodensteiner.) Given the Supreme Court’s overwhelmingly hostile record with respect to constitutional tort cases against federal officials, it would make sense to include a statutory revision that would encompass constitutional misconduct by the federal government as well, yet I have failed to find any proposals by legal scholars elaborating this kind of significant statutory reform.

Law professors, like federal judges and even the current justices, appear in the main to view the essential contours of the constitutional tort doctrinal framework as settled and only subject to future, likely minor, changes from the Supreme Court. Yet, as I argue in my forthcoming book, justices across the ideological spectrum will continue to have many reasons to prioritize the institutional interests of the federal judiciary by favoring doctrinal stability over reform. Other legal scholars like Aziz Huq are also beginning to highlight the impact that federal judges’ institutional interests have had on the development of doctrines concerning constitutional remedies.

In my next post, I argue that many of the most prominent policing reform proposals could strengthen the impact of Section 1983 litigation and that arguments linking these reforms to the need to strengthen constitutional tort litigation as a tool of accountability should be featured more prominently in the police accountability reform debate.

Lynda G. Dodd is the Joseph H. Flom Professor of Legal Studies and Political Science at The City University of New York–City College, and is on Twitter at @CivilRightsProf. She is writing a book examining the Supreme Court’s development of the legal framework for Section 1983 litigation.

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