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:
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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.
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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.
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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.
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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.