Government Immunity

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Monell's Untapped Potential, Columbia L. Rev. (forthcoming)

 

• Among the most powerful barriers to relief under § 1983 is Monell—the Supreme Court decision recognizing municipalities can be responsible for constitutional violations by their officers but setting an exceedingly high standard for such claims. This Essay suggests a litigation strategy that sidesteps several challenges posed by Monell: Plaintiffs should pursue Monell claims based on police departments’ disregard of lawsuits brought against them and their officers.

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Municipal Immunity, 109 Virginia L. Rev. 1181 (2023)

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• This Article reports the findings of the largest and most comprehensive study to date examining and comparing the challenges of qualified immunity and Monell doctrine in almost 1200 police misconduct lawsuits filed in five federal districts across the country. I find that it is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity. In my dataset, local governments challenged Monell claims more often than individual defendants raised qualified immunity - at both the motion to dismiss and summary judgment stages - and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity.

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Backdoor Municipal Immunity, 132 Yale L.J. Forum (Oct. 14, 2022)

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• More than forty years ago, in Owen v. City of Independence, the Supreme Court held that local governments are not entitled to the protections of qualified immunity. Yet four federal circuits have concluded that granting an officer qualified immunity dooms a failure-to-train claim against their employer because local governments cannot train officers about law that is not “clearly established.” In this Essay, I argue that these circuits’ conflation of qualified immunity and municipal liability—what I call backdoor municipal immunity—misunderstands the role court decisions actually play in police policies and training and undermines the deterrence and compensation rationales underpinning the Court’s decision in Owen.

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​Qualified Immunity’s Boldest Lie, 88 U. Chicago L. Rev. 605 (2021)

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• This Article reports the findings of a study, the first of its kind, examining the role that circuit decisions applying Graham and Garner play in police officers’ policies, trainings, and briefings. Having viewed hundreds of police policies, training outlines, and other briefing materials provided to California law enforcement officers, I describe unequivocal proof that officers are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.

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Qualified Immunity and Federalism All the Way Down, 109 Georgetown L.J. 305 (2020)

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• In this Article, I offer an alternative account of the relationship between qualified immunity and federalism that takes federalism all the way down to the local and nongovernmental people, rules, and practices that shape, administer, and constrain § 1983 doctrine on the ground. 

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After Qualified Immunity, 120 Columbia L. Rev. 309 (2020)

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• This Article offers five predictions about how constitutional litigation would function in a world without qualified immunity that should assuage these concerns. 

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Qualified Immunity’s Selection Effects, 114 Northwestern University L. Rev. 1101 (2020)

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• This Article tests this alternative “screening” justification for qualified immunity. Drawing on my prior study of 1,183 Section 1983 cases, as well as qualitative data from ninety-four surveys and thirty-five interviews of attorneys who entered appearances on behalf of plaintiffs in those cases, I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case-selection decisions.

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The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018)

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• In his concurrence in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for bearing little resemblance to the common law at the time the Civil Rights Act of 1871 became law, and for being defined by “precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” Indeed, Justice Thomas recommended that “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.”

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How Qualified Immunity Fails, 127 Yale L.J. 2 (2017)

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• ​This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. Qualified immunity shields government officials from constitutional claims for money damages so long as the officials did not violate clearly established law. The Supreme Court has described the doctrine as incredibly strong—protecting “all but the plainly incompetent or those who knowingly violate the law.”

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Civil Rights Litigation & Police Accountability

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An Even Better Way, 112 Cal. L. Rev. 1083 (2024)​

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• What I know most about is our current system of accountability when police officers violate law and policy. I know that civil rights lawsuits brought under 42 U.S.C. § 1983 are often the best—or only—available means of vindicating people’s rights.[1] And I know that the Supreme Court and state and local governments across the country have created multiple barriers to relief in these cases that make it exceedingly difficult for people to prevail in them, or for them to have any tangible effect on officers or the departments that give them their badges and guns.

 

Constitutional Recalibration: Lessons from New Mexico, 54 New Mexico L. Rev. 345 (2024)

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• On and off over the past several decades, and with particular force and urgency since George Floyd’s murder in May 2020, we have been engaged in a national conversation about the scope of government misconduct and the need for meaningful accountability. Civil lawsuits have long been one of the only means of getting some measure of justice when officials abuse their constitutional authority and they are often, in my view, the best among the available alternatives. But their power has been greatly diminished in recent decades.

 

Civil Rights Without Representation, 64 Wm. & Mary L. Rev. 641 (2023)

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• Civil rights enforcement depends on lawyers’ willingness to bring cases on behalf of people whose rights have been violated. Unless and until more lawyers are willing to take these cases, abolishing qualified immunity and other proposed reforms will not achieve their intended aims. Any plan to restore the power and potential of § 1983 must include a blueprint to expand the number of lawyers who are bringing civil rights cases, expand the types of cases that they are bringing, and expand the locations where they are bringing them.

 

Lexipol's Fight Against Police Reform (with Ingrid V. Eagly), 97 Ind. L.J. 1 (2022)

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• We are in the midst of a critically important moment in police reform. National and local attention is fixed on how to reduce the number of people killed and injured by the police. One approach—which has been recognized for decades to reduce police killings—is to limit police power to use force.

 

New Federalism and Civil Rights Enforcement (with James E. Pfander and Alexander A. Reinert), 116 Nw. U. L. Rev. 737 (2021)

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• This Article evaluates a range of state and local interventions, including the adoption of state law causes of action for constitutional violations, improved local budgeting and indemnification practices, and new litigation strategies that encourage government attorneys charged with defending civil rights litigation to take better account of the significant public interest in enforcing constitutional norms.

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Civil Rights Ecosystems, 114 Michigan L. Rev. 1539 (2020)

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• In this Article, I describe some key elements of civil rights ecosystems and the ways in which these elements interact, wide variation in civil rights ecosystems across the country, and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1,200 police misconduct cases filed in five federal districts around the country and surveys and interviews of dozens of attorneys who represented plaintiffs in these cases.​

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Systems Failures in Policing, 51 Suffolk U. L. Rev. 535 (2018)​​

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• This Essay, an adaptation of my 2018 Donahue Lecture, argues that acts of police violence and overreach should be viewed as systems failures. Researchers who study error in aviation, medicine, and other complex organizations agree that errors are the product of human failings and poorly designed systems. When tragedies occur, human error almost always plays a role — people misperceive information, process it incorrectly, make careless mistakes, and sometimes act recklessly or maliciously. But faulty systems also play a role — technologies can be confusing, rigorous schedules can fatigue workers, organizational culture can stifle productive communication, and policies can put workers in situations where they have to make difficult decisions under conditions of high stress.

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Lexipol: The Privatization of Police Policymaking (with Ingrid V. Eagly), 96 Texas L. Rev. 891 (2018)

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• This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation—Lexipol LLC—in the creation of internal regulations for law enforcement agencies across the United States. Lexipol was founded in 2003 to provide standardized policies and training for law enforcement. Today, more than 3,000 public safety agencies in thirty-five states contract with Lexipol to author the policies that guide their officers on crucial topics such as when to use deadly force, how to avoid engaging in racial profiling, and whether to enforce federal immigration laws. In California, where Lexipol was founded, as many as 95% of law enforcement agencies now rely on Lexipol’s policy manual.

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Who Can Police the Police?, 2016 Chi. Legal F. 437

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• Recent police killings have prompted a national conversation about the need for police reform. Most of the conversation has concerned the types of reforms that might improve policing. Equal consideration should be given to which actors can most effectively pursue these reforms. In this Essay, I suggest three qualities that police reformers need in order to influence police behavior: sufficient leverage such that law enforcement will respond to their pressures, recommendations, or demands; sufficient motivation to engage in their reform efforts; and sufficient resources to do their work. I use this framework to assess the efficacy of those most commonly called upon to reform the police, propose strengthening reformers in the areas in which they are lacking, and suggest ways in which reformers might collaborate to draw on their comparative strengths.

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How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA L. Rev. 1144 (2016)

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• For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything toward settlements and judgments entered against them. But this finding prompts another question: Where does the money come from, if not from individual officers?​

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Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014)

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• This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions—through qualified immunity doctrine, municipal liability standards, and limitations on punitive damages—based in part on this assumption. Scholars disagree about the prevalence of indemnification: Some believe officers almost always satisfy settlements and judgments against them, and others contend indemnification is not a certainty.

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What Police Learn from Lawsuits, 33 Cardozo L. Rev. 841 (2012)

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• This Article asks what we can learn from the vast amount of information generated by modern civil litigation. One answer lies in the practices of a small but growing number of law enforcement agencies that pay careful attention to suits brought against them and their officers. These departments gather information from initial complaints, discovery, and case resolutions and use that information to identify personnel and policy weaknesses. Lawsuit data has proven valuable to these departments’ performance improvement efforts: Suits have alerted departments to incidents of misconduct, and the information developed during the course of discovery and trial has been found to be more comprehensive than that generated through internal channels.

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​Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decision making, 57 UCLA L. Rev. 1023 (2010)

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• Judicial and scholarly descriptions of the deterrent power of civil rights damages actions rely heavily on the assumption that government officials have enough information about lawsuits alleging police officer misconduct that they can weigh the costs and benefits of maintaining the status quo. But no one has looked to see if that assumption is true.

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Bivens

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Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims (with James E. Pfander and Alexander A. Reinert), 96 Notre Dame L. Rev. 1835 (2021)

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• In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

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​The Myth of Personal Liability: Who Pays When Bivens Claims Succeed (with James E. Pfander and Alexander A. Reinert), 72 Stanford L. Rev. 561 (2020)

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• This Article studies the financial threat that successful Bivens claims pose to federal officers and their employing federal agency. Information supplied by the Federal Bureau of Prisons in response to a Freedom of Information Act request identified successful Bivens actions over a ten-year period; in the vast majority of cases (over 95%), individual defendants contributed no personal resources to the resolution of the claims. Nor did the responsible federal agency pay the claims through indemnification. The data suggest, in short, that recent hostility to Bivens litigation rests on a perceived threat of personal liability that is much more theoretical than real. The data also raise important questions about the adequacy of existing constitutional remedies and the manner in which the Department of Justice exercises its settlement authority under the Federal Tort Claims Act and the Judgment Fund.

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Civil Litigation & Procedure

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The Cost of Suing Business, 65 DePaul L. Rev. 655 (2016)

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• To listen to the U.S. Chamber of Commerce, one would think that class actions are the most significant scourge on business ever conjured up by man. In brief after brief to the U.S. Supreme Court, the Chamber of Commerce and other business amici tell the same story: Meritless class actions, filed by rapacious plaintiffs’ attorneys for the ostensible benefit of consumers, employees, and shareholders, are so devastatingly expensive to defend against, and threaten such financial devastation if plaintiffs prevail, that corporate defendants cannot help but accept “blackmail settlements” that harm both businesses’ bottom lines and society at large.

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Introspection through Litigation, 90 Notre Dame L. Rev. 1055 (2015)

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• This Article considers the information generated by litigation, the gaps lawsuit data can fill in the information otherwise available to organizations, and possible reasons some organizations may gather and analyze litigation data more frequently than others. To illustrate these concepts, I draw on original research of police departments and hospitals and evidence from other organizational settings.

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A Dose of Reality for Medical Malpractice Reform, 88 N.Y.U. L. Rev. 1224 (2013)

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• Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disability, and healthcare expenses. In recent years, hospitals have implemented multiple systems to gather information about medical errors, understand the causes of these errors, and change policies and practices to improve patient safety. The effect of malpractice lawsuits on these patient safety efforts is hotly contested. Some believe that the fear of malpractice liability inhibits the kind of openness and transparency needed to identify and address the root causes of medical error. Others believe that malpractice litigation brings crucial information about medical error to the surface and creates financial, political, and institutional pressures to improve. Yet neither side in this debate offers much evidence to support its claims.

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Gateways and Pathways in Civil Procedure, 60 UCLA L. Rev. 1652 (2013)

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• This Article offers a unified framework with which to understand the Rules’ two contrasting strategies to achieve just and efficient outcomes and examines available evidence measuring gateways’ and pathways’ relative effectiveness at achieving their shared goals. Stepping back, this Article asks how best to understand the roles of gateways and pathways in civil process and considers new, hybrid rules that draw on characteristics of gateways and pathways and may improve on current design.​​

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