Tuesday, October 20, 2015

What's missing in the police reform debate? (Part 2)

Guest Blogger

Lynda G. Dodd 

In my first post, I offered an overview of recent policing reform proposals and suggested that the federal judiciary is not likely to take the lead in reforming the framework for Section 1983 litigation. In this post, I consider how policies explicitly designed to strengthen the impact of Section 1983 litigation might be featured more prominently in the police accountability reform debate.

Long-term Public Campaigning for Congressional Reform  

Although no one needs a Ph.D in political science to appreciate the prospects for override legislation are today extremely poor, there may be openings for legislative reform of Section 1983 in the future, and it will only be possible to take advantage of those opportunities if the ground has been laid through a long-term effort to engage in public debates about the need to improve this core mechanism of constitutional accountability in the United States.
Such an effort will require making complex legal doctrines accessible to journalists, activists, and the broader public. A difficult task, yes, but not impossible. It is not hard to find examples of how the current legal framework for Section 1983 litigation produces difficult and often insurmountable hurdles for civil rights plaintiffs:

-        Due to the Court’s increasingly expansive doctrines regarding prosecutors’ “absolute immunity” and its narrow view of municipal liability for failures to train and supervise, John Thompson was denied any compensation under Section 1983 after New Orleans prosecutors repeatedly failed to disclose evidence that would have prevented him from serving eighteen years in prison, most of which he spent on death row. His defense lawyers discovered the exculpatory evidence that eventually led to his exoneration just one month before his scheduled execution.

-        Because of the Court’s holding that states or state agencies cannot be sued under Section 1983, it will be very difficult for Sandra Bland’s family to hold the Texas Department of Public Safety accountable in their Section 1983 case.

-        Many of the police officers in the news this past year, even those involved in the most shocking acts of violence, will never face the prospect of a civil trial to consider whether their actions violated the Constitution, due to a judge-made “qualified immunity” doctrine that in practice commonly shields police officers in police brutality cases.

-        Because of a Roberts Court opinion eliminating the requirement that federal judges evaluate constitutional questions first, qualified immunity permits ending litigation before novel rights claims, including the right to videotape the police, can be “clearly established” in federal courts across the country.
Once these connections are made, won’t the stakes of what at first glance appear to be complex legal technicalities matter to members of the public who care about the injustices they have been hearing so much about in this “age of Ferguson”?  
It is encouraging to see that these sorts of reform proposals are occasionally gaining a public hearing. Law professors Margo Schlanger and Giovanna Shay have called attention to the need to revise the Prison Litigation Reform Act to ensure that prisoners can use Section 1983 to challenge egregious constitutional misconduct. In recent months, Evan Bernick of the Institute for Justice joined calls by Judge Alex Kozinski and retired Supreme Court Justice John Paul Stevens to reform the doctrines giving prosecutors absolute immunity from lawsuits seeking damages under Section 1983. The Director-Counsel of the NAACP LDF, Sherilyn Ifill, has also published a number of essays calling attention to these issues. If congressional reform is ever going to be a possibility, much more of this kind of public advocacy is needed.
Empirical Legal Scholarship on Section 1983 Litigation

Any public campaign to strengthen Section 1983 will require far better data about constitutional tort litigation and its impact. Scholars like Charles Epp and Joanna Schwartz  have produced excellent work using survey data and interviews to evaluate the impact of lawsuits on police departments.
In my Perspectives article, I describe how scholars could use the federal district courts’ PACER data in studies examining police misconduct litigation in various cities across the country. In 1998, Human Rights Watch published a report, Shielded from Justice: Police Brutality and Accountability in the United States, that offered a useful overview of the challenges in a number of large cities, but there is no detailed examination of the use and effects of Section 1983 litigation to address police brutality in the largest cities – including New York, Chicago, and other cities never subject to DOJ oversight.

There is so much we still don’t know. Samuel Walker, a leading scholar of policing reform, has highlighted the need for more empirical studies regarding the effectiveness of various policing accountability proposals. Legal scholars have argued that the deterrent effect of Section 1983 litigation is hampered by police collective bargaining agreements, police officer bills of rights, and other protections, yet, as law professor Rachel Harmon has argued, these issues are rarely discussed in legal scholarship.
My hope is that the renewed sense of urgency about policing reform will lead to a more focused, interdisciplinary empirical research agenda about the role Section 1983 litigation can play in deterring future misconduct. Future studies by political science and empirical legal scholars examining the impact of litigation, the relationship between public and private enforcement, and how courts’ constitutional rulings are implemented by the government, could join the already rich lines of empirical work by criminology, sociology, psychology and public administration scholars who study policing (for a useful overview, see here), as well as the work under way by important interdisciplinary groups like The Justice Collaboratory at Yale Law School and the legal reform initiative, the American Law Institute Project on Police Investigations. The ALI project was formed last year under the direction of NYU Law Professor Barry Friedman and will produce recommendations concerning remedies, including constitutional torts. 

State and Local Reforms Supporting Section 1983 Litigation

Even if reforms in Congress are a long way off, there are a wide range of reforms that could be implemented at the state and local level. The state and local reforms endorsed by the President’s Task Force and Campaign Zero should not be considered to be alternatives to reforming Section 1983. Far from it. Many of these reforms can support Section 1983 litigation, and these connections should be highlighted as the debates continue.
In an important 2014 study , Joanna Schwartz showed that the vast majority of police officers in the U.S. are indemnified by their employers. These indemnification policies shield police officers from paying for their attorney fees or monetary damages when they are successfully sued for constitutional violations under Section 1983. Although it is not in the self-interest of lawyers to push for ending this practice (because police officers who do not benefit from indemnification policies will more often be judgment proof), principled advocates concerned about preventing future police misconduct have argued in favor of limiting these policies in order to strengthen deterrence.

In response to concerns that policies allowing damage awards and settlements to be paid from general municipal budgets do not sufficiently deter,  a few proponents of reform have argued that they should instead be taken from police department budgets. Law professor Joanna Schwartz suggests that other reforms could help incentivize deterrence. In other work Schwartz discusses policies that a number of cities have introduced to help them learn and respond effectively to the claims alleged in Section 1983 suits.

A number of developments in New York City attest to the need to improve data collection in order to strengthen accountability. In New York City, very little is done to rein in repeat offenders in the NYPD. The current NYC Comptroller, Scott Stringer, introduced CLAIMSTAT in 2014, in order to track lawsuits and help increase accountability. It remains to be seen how CLAIMSTAT reports will be used by the NYPD. Members of the City Council are proposing new methods of tracking misconduct claims. The NYCLU has also called for a public database for all use of force incidents.

These reforms targeting data collection will, in my view, do the most to strengthen the deterrent effect of constitutional tort litigation. The lesson of the recent stop-and-frisk litigation (brought under Section 1983) is that these kinds of public records are necessary for policing accountability: sunlight is an excellent disinfectant.  When the data is available, it might support new lawsuits. But, more crucially, these disclosures can open up possibilities for democratic accountability and the passage of new reforms that will deter future misconduct. The Obama administration’s Police Data Initiative seeks to develop best practices for data collection and dissemination in more cities across the country, yet at the same time the Justice Department has recently awarded federal funding for body-worn camera program without requiring that these local jurisdictions develop policies ensuring the data collected is subject to public oversight. Much more remains to be done, especially to address the powerful role of police unions and special protections limiting access to policing data.

Right now it is the worst of both worlds: Very few civil rights plaintiffs have a chance to win at trial, and while a small group of plaintiffs may win settlements, occasionally extremely large settlements, cities tend to disclaim any responsibility for reform. As a result, especially in many of the largest cities with the most claims of police misconduct, despite the high costs to taxpayers, very little is done to deter future violations.

For civil rights advocates, the way forward is to achieve the best of both worlds: It should be far less difficult to prevail in a Section 1983 case, but also far less necessary to file Section 1983 cases to begin with, because the policies strengthening deterrence of future police misconduct will be implemented across the country. Only then will we have a system of constitutional accountability that works.

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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