Civil Rights Deserts

Fred Smith (Stanford Law) and I wrote an essay for a symposium at Harvard Law School convened to consider threats to democracy and accountability in the second Trump Administration. Smith and I write that such threats are nothing new--indeed they exist throughout our country in what we call "civil rights deserts." We illustrate what we call "accountability deserts" and "enforcement deserts" through harrowing stories of civil rights abuses in Rankin County and Hinds County, Mississippi. We also offer proposals to create oases of sorts through litigation, media scrutiny, community advocacy, sustained judicial oversight, and coordination with supportive government officials. We hope that these case studies can offer important lessons for addressing threats to constitutional accountability and the rule of law wherever they emerge.

If you're Interested, you can take a look here: https://harvardlawreview.org/print/vol-139/civil-rights-deserts/. And the whole symposium issue Is fabulous and available here: https://harvardlawreview.org/.

The Tenacious Power of Constitutional Torts

A few weeks ago, I had the pleasure of giving the Paul M. Van Arsdell Jr. Memorial Lecture at the University of Illinois College of Law. The lecture is intended to "promote thoughtful discussion on litigation and dispute resolution systems and the highest ethical ideals of the legal profession."

I decided to use the opportunity to articulate what suing the government can accomplish, both because I've recently written a book dedicated to explaining just how difficult it is to bring such suits (which might leave readers with the false impression that attempting to do so is a fool's errand), and also because suing the government seems such a critical necessity in this moment, even as it is no silver bullet to cure what ails our democracy.

If you're interested in learning more, the talk is here, the draft paper is here, and a shorter version of the paper, written for the State Court Report, is here.

My New Article: Monell's Quick Fix

One of the most powerful legal barriers to accountability under 42 U.S.C. § 1983 is Monell—the Supreme Court decision that recognized municipalities can be held responsible for constitutional violations by their officers but set an exceedingly high standard for such claims. Many have called for Monell to be replaced with vicarious liability, and some courts and legislators have expressed interest in the idea, but immediate prospects for meaningful reforms are dim.

In this Article, I offer an alternative path around the barriers of Monell that does not require convincing courts or legislators to change the law: Plaintiffs should pursue Monell claims based on police departments’ disregard of allegations and information in lawsuits brought against them and their officers.

Police departments are unquestionably obligated to investigate citizen complaints made against their officers: every circuit recognizes that the failure to do so can be the basis for municipal liability. Lawsuits, like citizen complaints, allege officer wrongdoing—they are, in essence, citizen complaints plus demands for money. Yet I have found many police departments do not investigate allegations in lawsuits brought against them and their officers as they would allegations in citizen complaints. If failing to investigate citizen complaints is sufficient basis for municipal liability, failing to investigate allegations in lawsuits should be as well.

Police departments’ disregard of information unearthed during litigation should also be a basis for municipal liability. Litigation files are chock-full of deposition testimony and other evidence about officers’ conduct and police policies and practices. Yet I have found that many police departments do not review information from lawsuits as part of their internal affairs investigations of officers’ conduct or to inform supervision and training decisions. Courts have ruled that perfunctory internal affairs investigations can be a basis for municipal liability. If a department systematically ignores litigation information relevant to their internal affairs investigations or findings, that failure should be a basis for municipal liability as well.

In the short term, pursuing Monell claims based on departments’ inattention to lawsuits would make it easier to establish municipal liability. In the longer term, effectively requiring police officials to take account of litigation information may improve departments’ internal investigations and supervision of their officers.

You can read the article, forthcoming in Columbia Law Review, here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4745422

This is Appendix A, which is an overview of departments' policies and practices with regard to litigation data:

Appendix A_ Law Enforcement Policies And Practices Regarding Litigation Data.pdf

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This is Appendix B, which sets out thirty lawsuits against the defendants named in a case called Glasper, that I write about in the article:

Appendix B_ Glasper Defendants’ Past Litigation.pdf

Download PDF • 193KB