Federal, state, and local legislative bodies should adopt effective remedies for violations of common-law, statutory, and constitutional rights by agencies and their officers. In doing so, legislative bodies should ensure that immunities from liability do not vitiate remedial goals.
a. Violations of rights require remedies. A cardinal rule of jurisprudence is that when rights are violated, the law will provide a remedy. The constitutions of nearly three-quarters of the states so provide. Remedies serve critical functions. They provide redress to individuals whose rights have been violated. They serve to punish those who violate rights. They deter the government and its officers from engaging in future violations of those rights. They provide an opportunity to define the scope of rights themselves. When remedial schemes fail, the underlying rights themselves become insecure at best and illusory at worst. It thus is imperative that enforceable remedial schemes exist that are sufficient to deter and prevent violations of constitutional, statutory, and common-law rights by agencies and their officials.
b. Violations of rights as evidence of inadequate remedies. Violations of rights of individuals by policing officials and policing agencies are common. In numerous pattern-and-practice investigations, the U.S. Department of Justice has established that agencies have, as a matter of course, engaged in the excessive use of force, conducted numerous unjustified stops and arrests, and engaged in racially discriminatory practices. The adjudication of private suits also has made clear the scope of constitutional misconduct, such as the overuse of stop-and-frisks in many major metropolitan areas. No system of remedies will achieve perfect deterrence, and it is extremely difficult to assess how well a remedial regime is functioning. Nonetheless, these adjudicated findings of pervasive rights violations suggest a troubling number of rights violations undeterred by existing remedial schemes.
c. Responsibility of legislative bodies. Although judges apply remedies in the course of adjudicating legal disputes, legislative bodies are better suited to structure the overarching terms of a remedial regime. Legislative bodies have the capacity to consider the entire panoply of possible remedies and determine which should be available, and in which circumstances. Legislative bodies have the ability to move beyond the constitutional floor and devise a system of remedies that serves to compensate individuals whose rights were violated, punish offenders, and deter future violations.
d. Inadequacy of existing legislative remedial schemes. The existing legislative remedial terrain around policing involves a mixture of statutory and judicial remedies. There are money-damages remedies against officers, agencies, and jurisdictions that arise under both statutes and the common law. There are equitable remedies against agencies and jurisdictions. There are criminal actions against officers. Under the “exclusionary rule” judges in some circumstances will exclude evidence that is seized unconstitutionally. And there are pattern-and-practice actions for equitable relief, at present brought primarily by the federal government, although some states have followed suit.
No remedy is likely to be without some appropriate constraints, but existing remedial actions have been limited over time by a combination of statutory and judicial restrictions that appear to undercut their intended aims. Legislative bodies, in considering remedial schemes, might have to balance the remedy against competing goals, such as public safety. Commentary on remedies regarding policing, as well as the existing evidence, suggests remedies have been limited too much, and not always in a coherent way so as to suggest an alternative goal. For example, federal damage actions against individual officers are limited by qualified immunity. It can be difficult to find a plaintiff who can bring a claim for equitable relief in federal court in light of decisions like Los Angeles v. Lyons, 461 U.S. 95 (1983), which held that even a person subjected to unconstitutional police conduct lacks Article III standing to obtain injunctive relief absent a showing that the person faces a “real and immediate threat” that they again would be subjected to the same conduct. Municipalities are not liable for money damages unless the challenged action is municipal policy, or falls within one of the narrow exceptions to that rule. The exclusionary remedy is undercut by a host of doctrinal limitations. Some states by statute limit common-law tort remedies that otherwise would be available to challenge officer behavior. Taken together, these restrictions often mean there can be no avenue for redressing clear instances of legal violations. Recently, a few states have begun to address remedial shortcomings, but for the most part these efforts have focused primarily on limiting the qualified immunity of officers. There are other actions that can and should be taken, such as expanding municipal liability, removing standing limitations on challenging policing agencies’ violations of constitutional guarantees, or eliminating judicially imposed or statutory restrictions on tort actions, such that the limitations that exist in law do not obviate the remedies themselves.
e. Forms of remedies and remedial calibration. As Comment d makes clear, remedies can take many forms; what is critical is that, as a whole, they operate in systemic fashion to prevent, to the extent possible, violations. The key word in this Section is “effective.” There always will be some violations of constitutional and statutory rights, and one goal should be to see that those whose rights are violated are compensated. The overall objective, though, is to adopt a regime that achieves systemic deterrence. Each jurisdiction’s legislative body must make choices about what remedies to adopt, but that legislative body should ensure that, as a whole, the goals of remediation, retribution, and fostering lawful policing are furthered, and that policing agencies have sufficient incentive to adhere to statutory and constitutional requirements.
The challenge is adopting a remedial scheme that achieves the proper level of deterrence. At present, under federal law, both federal and state officers enjoy qualified immunity that can let them escape liability even for serious violations. Although it may make sense to afford officers some limited immunity to avoid over-deterring them in their work and hurting recruitment efforts, the law at present—which often provides a complete shield and looks to settled judicial decisions rather than department policies, best practices, and statutes to determine liability—has been subjected to extensive criticism. Similarly, under federal law, municipal jurisdictions escape liability unless the action of an officer constitutes municipal “policy,” when respondeat superior might be more effective at ensuring sound policing. State governments cannot be sued under 42 U.S.C. § 1983, and state officials cannot be sued in their official capacity for damages under that statute. All this is complicated by present practices that fail to translate the judgments that are obtained into tangible changes to deleterious practices. Officers and other agency personnel including investigators typically are indemnified if they are held responsible at all. Judgments against municipalities and agencies are paid out of general funds, with little or no impact on agency budgets such that agencies would be incentivized to improve their practice. Although striking the correct remedial balance no doubt is complicated, legislative bodies can and should take actions to improve what is at present an unacceptable result. For example, agencies and jurisdictions could be made liable in respondeat superior for the actions of their officers. Jurisdictions should develop means of accountability such that when judgments regularly are paid out for violations by officers and agencies, those agencies are forced to take note and modify practices. Injunctive remedies could be made available to halt open and notorious patterns and practices of violating individual rights.
One of the foundational principles of law is that where there is a right, there is a remedy. The ancient origins of the maxim ubi jus, ibi remedium speaks to the centrality of this principle in law. United States v. Loughrey, 172 U.S. 206, 232 (1898) (“The maxim, ‘ubi jus, ibi remedium,’ lies at the very foundation of all systems of law.”). The principle was at the heart of Chief Justice Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In that case—itself a pillar of the institution of judicial review—he famously asserted the obligation of the judiciary to afford remedies for government violations of legal rights—both by directing executive officials to refrain from unconstitutional conduct and by failing to give effect to unconstitutional statutes. Id. at 137. Almost three-quarters of state constitutions incorporate this maxim. Ala. Const. art. I, § 13; Ark. Const. art. II, § 13; Colo. Const. art. II, § 6 (“a speedy remedy afforded for every injury to person, property or character”); Conn. Const. art. I, § 10; Del. Const. art. I, § 9; Fla. Const. art. I, § 21; Idaho Const. art. 1, § 18; Ill. Const. art. I, § 12 (“Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation); Ind. Const. art. 1, § 12; Kan. Const. Bill of Rights, § 18; Ky. Const. Bill of Rights, § 14; La. Const. art. I, § 22; Me. Const. art. I, § 19; Md. Const. Decl. of Rights, art. 19; Mass. Const. pt. 1, art. 11; Minn. Const. art. 1, § 8; Miss. Const. art. 3, § 24; Mo. Const. art. I, § 14; Mont. Const. art. II, § 16; Neb. Const. art. I, § 13; N.H. Const. pt. 1, art. 14; N.C. Const. art. I, § 18 (“every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law”); N.D. Const. art. I, § 9; Ohio Const. art. I, § 16; Okla. Const. art. II, § 6; Or. Const. art. I, § 10; Pa. Const. art. I, § 11; R.I. Const. art. I, § 5; S.C. Const. art. I, § 9; S.D. Const. art. VI, § 20; Tenn. Const. art. I, § 17; Tex. Const. art. I, § 13; Utah Const. art. I, § 11; Vt. Const. ch. 1, art. 4;W. Va. Const.art. 3, § 17; Wis. Const. art. I, § 9; Wyo. Const. art. I, § 8.
Remedies serve many vital goals. The first is redress for the victim of lawless conduct. The common-law maxim was directed at just this—the idea that a person injured by lawless conduct on the part of the government is entitled to relief. See Better Gov’t Bureau v. McGraw, 106 F.3d 582, 591-592 (4th Cir. 1997) (noting that “it was well recognized at common law that a government official who exceeded his authority enjoyed no immunity”); William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45, 51, 55 (2018).
One of the most important consequences of remedies, though, is that they serve to advance future lawful conduct on the part of the government. They do so in three ways. First, they punish offenders. Second, and even more important, by punishing offenders, they discourage future unlawful conduct. See Rachel Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. Rev. 959-960 (2015) (noting federal remedies “have been and will be essential in promoting lawful, effective, and rights-protective policing”). This deterrence function is essential and is at the heart of common-law remedies in many areas, such as tort law. See Daryl J. Levinson, Making Government Pay: Marks, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 346-347 (2000) (recognizing deterrence to be a primary rationale for imposing remedies on the government); Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1788-1789 (1991) (same); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 889 (1999) (hypothesizing that “raising the ‘price’ of a constitutional violation by enhancing the remedy will, all things being equal, result in fewer violations”); John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 72 (1998) (recognizing the importance of deterrence in the context of qualified immunity). Finally, the decisions that adjudicate present controversies establish legal rules that guide the future by defining the bounds between lawful and unlawful conduct.
The importance of remedies is magnified in the policing space because policing historically has been regulated on the “back end” rather than the front. Barry Friedman, Unwarranted: Policing Without Permission 20 (2017) (“[M]ost of the oversight in policing today is after-the-fact review, when what we need are policies in place before things go wrong.”). One of the central goals of this Principles project, and particularly this Chapter, is to create a regulatory approach that fosters a sound policing regime in which statutes, regulations, and policies set out in advance what is expected of agencies and officers.
The common-law governance of official conduct typically happened by means of tort law, and, around the time of the founding, the law could be quite unforgiving. Baude, supra, at 56 (explaining how the common law’s strict rule of personal liability “was a fixture of the founding era”); Jay R. Schweikert, Qualified Immunity: A Legal, Practical, and Moral Failure 4 (Cato Inst. Pol’y Analysis No. 901, 2020), https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure (explaining how, during the founding era, “government agents were, in general, strictly liable for constitutional violations that gave rise to common‐law torts”). Typical is the case of Little v. Baremme, 6 U.S. (2 Cranch) 170 (1804). In that case, a U.S. naval commander seized a foreign vessel contrary to what the law permitted, but in a way ordered by the President. Chief Justice Marshall stated that he had agonized over upholding the large verdict against the officer, but that the presidential order “cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.” Id. at 170-172, 175-179.
As policing became institutionalized in the late 19th and early 20th centuries, however, the common-law remedial scheme failed to achieve its deterrent purpose. Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827, 1866 (2015). Whatever the reason, courts found it exceedingly difficult as a matter of practice or will to bring policing under control. The U.S. Supreme Court’s decisions in Weeks v. United States, 232 U.S. 383 (1914), Wolf v. Colorado, 338 U.S. 25 (1949), and Mapp v. Ohio, 367 U.S. 643 (1961), catalogue the misconduct of state and federal officials, including wantonly breaking into people’s homes.
The Supreme Court addressed the failure of common-law remedies by fashioning alternatives that define today’s remedial structure. Friedman & Ponomarenko, supra, at 1866. In Monroe v. Pape, 365 U.S. 167, 172 (1961), the Supreme Court held that 42 U.S.C. § 1983 provided an individual damages action for violations of the U.S. Constitution—including the Fourth and Fifth Amendments—occurring “under color of” state authority. In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Court did the same under the common law with regard to the actions of federal officers. In Weeks v. United States, 232 U.S. 383 (1914), the Supreme Court applied the exclusionary remedy against the federal government. In Mapp v. Ohio, 367 U.S. 643 (1961), it did the same against the states. Each of those decisions was built on the notion that absent an effective remedy, the underlying rights were valueless.
Over time, though, judicial decisions have degraded these remedies. See Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape, 78 UMKC L. Rev. 889, 910 (2010) (noting that over “the nearly fifty years that have passed since Monroe, the Supreme Court has issued a series of decisions that have gradually diminished § 1983 in ways that make damages recovery both costly and difficult”); Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 Ohio St. J. Crim. L. 463 (2009) (arguing the Supreme Court’s decisions in Herring v. United States, 555 U.S. 135 (2009), and Hudson v. Michigan, 547 U.S. 586 (2006), diminish the exclusionary rule); Andrew Guthrie Ferguson, The Exclusionary Rule in the Age of Blue Data, 72 Vand. L. Rev. 561, 570-571 (2019) (same). It is not clear what the causes were, whether it was societal controversy over them, judicial opposition, or some sense the remedies went too far. In a long string of cases, the Supreme Court has offered individual officers a “qualified immunity” that imposes no liability unless officers’ conduct was deemed unlawful in a prior judicial decision. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982) (recognizing federal officials are entitled to qualified immunity); Pearson v. Callahan, 555 U.S. 223 (2009) (finding officers who conducted a warrantless search were entitled to qualified immunity); Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1816 (2018) (noting the Supreme Court “repeatedly grants qualified immunity without ruling on the underlying constitutional claim”); see also Stephen Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1245 (2015) (arguing that the Supreme Court’s qualified-immunity doctrine “create[s] such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights”). From the start, the justices were loath to hold municipal bodies liable. Under the doctrine of Monell v. Department of Social Services, 436 U.S. 658, 691-695 (1978), municipalities cannot be held liable under 42 U.S.C. § 1983 using the respondeat superior theory. The Supreme Court has held that 42 U.S.C. § 1983 does not abrogate states’ Eleventh Amendment immunity from suit, see Quern v. Jordan, 440 U.S. 332, 345 (1979) (relying on lack of clear statement of intent to abrogate state immunity), and that states are not persons that can be sued under § 1983, see Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Those judicial decisions themselves have been contested by scholars as both undermining the underlying rights and as being incorrect as a matter of law. The literature on this is vast. See, e.g., Schwartz, The Case Against Qualified Immunity, supra, at 1801-1803 (arguing “qualified immunity has no basis in the common law”); Baude, supra, at 55-61 (explaining why the claim that qualified immunity derives from the common law does not survive historical scrutiny). They question the failure to apply respondeat superior to municipal governments and policing agencies. See, e.g., David Jacks Achtenberg, Taking History Seriously: Municipal Liability under 42 U.S.C. § 1983 and the Debate over Respondeat Superior, 73 Fordham L. Rev. 2183, 2196 (2005) (questioning the historical basis for Monell); Larry Kramer & Alan O. Sykes, Municipal Liability under § 1983: A Legal and Economic Analysis, 1987 Sup. Ct. Rev. 252, 255(arguing that “the Court’s reasons for rejecting the use of respondeat superior under § 1983 [in Monell] were mistaken”); Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 963-964 (2015) (arguing adopting respondeat superior “would eliminate the enormous amount of time and resources spent litigating and adjudicating the qualified immunity defense”); see also Alexander A. Reinert, Measuring Success of Litigation and Its Consequences for the Individual Liability Model, 62 Stan. L. Rev. 809, 849-850 (2010) (proposing a hybrid form of liability that would result in both the individual official and the government being held financially accountable). The legitimacy of the bar on money damages against states under the Eleventh Amendment is also hotly contested. See, e.g., Vicki Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 13 (1988).
Whether one agrees or disagrees with those judicial decisions, investigations by the U.S. Department of Justice have revealed constitutional violations in some jurisdictions. See, e.g., C.R. Div., U.S. Dep’t of Just., Investigation of the Chicago Police Department 22-45 (2017), https://www.justice.gov/opa/file/925846/download (detailing the department’s pattern or practice of unconstitutional use of force); C.R. Div., U.S. Dep’t of Just., Investigation of the Ferguson Police Department 2-3 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf (describing a police-department culture that permitted “a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment”); C.R. Div., U.S. Dep’t of Just., Investigation of the Cleveland Division of Police 12 (2014), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2014/12/04/cleveland_division_of_police_findings_letter.pdf (finding “Cleveland police officers use unnecessary and unreasonable force in violation of the Constitution at a significant rate.”). Much other evidence exists. Nicky Woolf, 2,000 Cases May Be Overturned Because Police Used Secret Stingray Surveillance, Guardian (Sept. 4, 2015), https://www.theguardian.com/us-news/2015/sep/04/Baltimore-cases-overturned-police-secret-stingray-surveillance (describing how Baltimore’s police department hid its use of Stingray technology from the public); Spencer Ackerman, The Disappeared: Chicago Police Detain Americans at Abuse-Laden ‘Black Site’, Guardian (Feb. 24, 2015), https://www.theguardian.com/us-news/2015/feb/24/chicago-police-detain-americans-black-site; What Led to LAPD Restricting Neckholds in 1982? A Doctor Remembers, PBS Newshour (Aug. 2, 2020), https://www.pbs.org/newshour/show/what-led-to-lapd-restricting-neckholds-in-1982-a-doctor-remembers (describing how, in the early 1980s, 16 people who were taken into Los Angeles Police Department custody died from chokeholds); Sarah Brayne, Big Data Surveillance: The Case of Policing, 82 Am. Soc. Rev. 977, 986-989 (2017) (detailing how police use surveillance tactics to track individuals); David Rudovsky & Lawrence Rosenthal, Debate, The Constitutionality of Stop-and-Frisk in New York City, 162 U. Pa. L. Rev. Online 117, 123 (2013) (detailing constitutional flaws in New York’s and Philadelphia’s police programs); John Eligon & Shawn Hubler, Throughout Trial Over George Floyd’s Death, Killings by Police Mount, N.Y. Times (Apr. 17, 2021), https://www.nytimes.com/2021/04/17/us/police-shootings-killings.html (explaining that, partly as a result of our system’s deferential nature, just one percent of officers who kill civilians are ever charged with murder or manslaughter); Frank Edwards et al., Risk of Being Killed by Police Use of Force in the United States by Age, Race-Ethnicity, and Sex, 116 PNAS 16793, 16973 (2019) (explaining that police killings are far more than common in the United States than other advanced democracies).
In fairness to judges, though, policing is a complex endeavor, the sound regulation of which often will stand well outside constitutional law. There are serious structural impediments to using adjudication as the means to develop rules of police behavior. For example, most of the cases judges see are exclusionary-rule cases in which the very fact that the police obtained evidence of guilt suggests that the tactic used by police was effective. What judges do not and cannot see are the many times the tactic may have been used unsuccessfully. See Friedman, Unwarranted, supra, at 82 (“[I]n exclusionary rule cases, judges see a biased sample . . . [and] see only an instance in which the cops’ tactic worked.”). Similarly, a ruling that something is unconstitutional bars the police from using the tactic in a way that understandably leads to judicial reluctance to impose this remedy. This is especially the case because judges simply lack the knowledge or experience to know what is efficacious or not around policing. See Rachel Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 776 (2012) (“Courts lack the institutional capacity to regulate the police without substantial assistance from institutions designed to amass context-specific expertise and undertake complex, ongoing empirical analysis.”). And policing in the 21st century is an intricate and complex business; policing agencies are bureaucracies, and often large ones. Robert E. Worden & Sarah J. McLean, Mirage of Police Reform 14-17 (2017) (describing police departments as complex “street-level bureaucracies”); Maria Ponomarenko, Rethinking Police Rulemaking, 114 Nw. U. L. Rev. 1, 16-18 (2019) (describing “the difficulty of writing and enforcing rules for the police”). It is difficult to think of another area in which constitutional principles are used as the primary means of governance.
The fact is that there is far too little legislative guidance about how police are to perform their jobs, and what remedies are available when rights are violated. State and local remedial regimes rarely extend protections beyond the federal 42 U.S.C. § 1983 standard. See Alexander Reinert, Joanna C. Schwartz & James E. Pfander, New Federalism and Civil Rights Enforcement, 116 Nw. L. Rev. 737, 759 (2021) (finding that “only eight states have conferred a statutory right analogous to Section 1983 to pursue constitutional tort litigation” while the remainder “appear to rely on garden-variety tort liability to secure government accountability”). For state statute examples, see Ark. Stat. Ann. § 16-123-105 (1996) (mirroring § 1983); Me. Rev. Stat. Ann. tit. 5, § 4862 (1991) (mirroring § 1983); Mass. Gen. Laws ch. 12, § 11H (2020) (placing cap on damages); Neb. Rev. Stat. § 20-148 (1977) (mirroring § 1983). Equally problematically, some states have statutes that limit the availability or scope of common-law remedies as applied to police.
Although these Principles call for front-end substantive legislation to regulate policing, one of the most critical areas for legislative intervention is around remedies. Legislative bodies at the federal, state, and local level should put in place workable, specific, and (most importantly) effective remedial schemes to hold policing agencies and officials liable for misconduct and unlawful conduct, and to meet the goals of remediation. Absent this, individuals will not be compensated for harm done to them, agencies and officials will not be deterred from misconduct, and policing will not improve. It is that simple.
The first and most pressing area that needs attention is the liability of municipal governments and agencies. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 896 (2014) (noting that current standards for establishing municipal liability are “exceedingly difficult to satisfy”). Although there are circumstances that may call out for holding individual officers liable, the sensible place to begin with liability is governments and governmental bodies themselves. Placing liability on individuals while obscuring focus on their employers fosters a “bad apples” narrative that ignores the structural and systemic problems with policing. See, e.g., Reinert, Schwartz & Pfander, New Federalism, supra (“[M]aking clear the entity’s responsibility for the tortious conduct of its employees might . . . help shift discourse away from a ‘bad apples’ narrative towards an appreciation of the systemic nature of unconstitutional conduct.”); Myriam E. Gilles, Breaking the Code of Silence: Rediscovering Custom in Section 1983 Municipal Liability, 80 B.U. L. Rev. 17, 31-32 (2000) (“The ‘bad apple theory’ is essentially an institutionalized belief system ensuring that fault for unconstitutional conduct . . . will never be localized in the culture of the municipal agency itself.”); Christy E. Lopez, Limiting Police Officers’ Qualified Immunity Isn’t the Only Change Needed to Achieve Real Police Reform, Wash. Post (May 4, 2021), https://www.washingtonpost.com/opinions/2021/05/04/limiting-police-officers-qualified-immunity-isnt-only-change-needed-achieve-real-police-reform. Respondeat superior is the rule almost everywhere but in policing, and that should change. See Oklahoma City v. Tuttle, 471 U.S. 808, 843 (1985) (Stevens, J., dissenting) (emphasizing that “all of the policy considerations that support the application of the doctrine of respondeat superior in normal tort litigation against municipal corporations apply with special force [in § 1983 cases] because of the special quality of the interests at stake”); David Jacks Achtenberg, Taking History Seriously: Municipal Liability under 42 U.S.C § 1983 and the Debate over Respondeat Superior, 73 Fordham L. Rev. 2183, 2191 (2005) (asserting Monell “confines entity liability in a manner that is unique to 1983 and exists in no other area of the law”); Catherine Fisk & Erwin Chemerinsky, Civil Rights Without Remedies: Vicarious Liability Under Title VII, Section 1983, and Title XI, 7 Wm. & Mary Bill Rts. J. 755, 791 (1999) (arguing respondeat superiorliability should be imposed in 42 U.S.C. § 1983 cases like it is for other civil-rights violations). Legislative bodies should impose liability on policing agencies and governments for the actions of, and harm done by, their employees.
Second, legislative bodies should consider whether qualified immunity, as currently implemented by courts with regard to the actions of police officials, serves remedial goals. Much of the difficulty arises because under governing U.S. Supreme Court precedent, officer violations of rights are excused if there is not a circuit-court judicial decision on point making clear that what the officer did violated the Constitution. See United States v. Lanier, 520 U.S. 259, 268-272 (1997) (noting that a circuit court decision can establish the scope of a constitutional right if it provides “fair warning” that the conduct is prohibited). (In a decision without briefing or argument, the Supreme Court suggested even this may not be enough. See Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (“Even assuming that controlling Circuit precedent clearly establishes law for purposes of § 1983, [an earlier Ninth Circuit decision] did not give fair notice to [the defendant in this case].”).) This requirement of a circuit court ruling on point has to be an exercise of matching the facts of a given policing case to prior precedents. The smallest factual difference can lead to a finding of nonliability. See Baxter v. Bracey, 751 F. App’x 869, 872 (6th Cir. 2018) (distinguishing two fact patterns in which officers unleashed police dogs on unarmed, surrendering individuals because in one case the surrendering individual put their hands up, while in the other case they did not); Allah v. Milling, 876 F.3d 48 (2d Cir. 2017) (finding qualified immunity shielded prison officials who placed an inmate in solitary confinement for 23 hours a day for almost seven months and forced him to shower in leg irons, despite there being a Supreme Court precedent that stated that a detainee being held in shackles and chains and thrown in a dungeon would be too punitive, because that precedent did not put these officials on notice that this “particular practice” was unconstitutional); Latits v. Phillips, 878 F.3d 541, 553 (6th Cir. 2017) (distinguishing prior cases because they involved officers shooting at a nonviolent driver “as he attempted to initiate flight” while, in this case, the police only shot after the nonviolent driver already began fleeing). Police who stole money while executing a search warrant have escaped liability because no previous case existed saying this violated the Constitution. Jessop v. City of Fresno, 140 S. Ct. 2793 (2020). Police who harassed an individual filming them beating up a suspect escaped liability. Frasier v. Evans, 992 F.3d 1003 (10th Cir. 2021), cert. denied, 211 L. Ed. 2d 251 (2021). Police who chased a suspect into a yard populated with six playing children, ordered the children to lie on the ground at gunpoint, shot at the family’s pet dog, missed twice and struck a 10-year-old child’s knee escaped liability. Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019), cert. denied, 141 S. Ct. 110 (2020). Police who threw a flashbang device into a quiet, dark bedroom and caused a woman to suffer severe burns escaped liability. Dukes v. Deaton, 852 F.3d 1035 (11th Cir. 2017). This case-matching approach has been criticized as failing to further the remedial purposes of 42 U.S.C. § 1983. See Jamison v. McClendon, 476 F. Supp. 3d 386, 404 (S.D. Miss. 2020) (“If Section 1983 was created to make the courts ‘guardians of the people’s federal rights,’ what kind of guardians have the courts become?”) (quoting Haywood v. Drown, 556 U.S. 729, 735 (2009)). Also, officers typically are guided by statutes and department policies, and can be unaware of judicial decisions. Joanna Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 358-359 (2020); Manzanares v. Roosevelt Cnty. Adult Det. Ctr., 331 F. Supp. 3d 1260, 1294 n.10 (D.N.M. 2018) (“It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: ‘Are the facts here anything like the facts in York v. City of Las Cruces?’”); Michael D. White, Hitting the Target (or not): Comparing Characteristics of Fatal, Injurious, and Noninjurious Police Shootings, 9 Police Q. 303, 306 (2006) (noting research has found that criminal law and judicial interventions rarely impact police shooting behavior “if not accompanied by support within the police department”). Some justices and lower-court judges have called upon the Supreme Court to reconsider its approach to qualified immunity. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (arguing the Court’s recent approach to qualified immunity “transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1870-1872 (2017) (Thomas, J., concurring in part and concurring in judgment) (calling on the Supreme Court to “reconsider our qualified immunity jurisprudence” after detailing how the Court “diverged from the historical inquiry mandated by [§ 1983]”); Cole v. Carson, 935 F.3d 444, 470-471 (5th Cir. 2019) (Willett, J., dissenting) (“By insulating incaution, the doctrine formalizes a rights−remedies gap through which untold constitutional violations slip unchecked.”); Rivera v. City of Pasadena, 2021 WL 3620281, at *1 (S.D. Tex. Aug. 16, 2021) (Rosenthal, J.) (commenting that the case’s police-misconduct claims “present issues that have led some judges to question whether ‘the judge-made immunity regime ought not be immune from thoughtful reappraisal’”) (quoting Zadeh v. Robinson, 928 F.3d 457, 474 (5th Cir. 2019) (Willett, J., concurring in part)); Thompson v. Clark, 2018 WL 3128975, at *11 (E.D.N.Y. June 26, 2018) (Weinstein, J.) (“The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress . . . .”); Jamison, 476 F. Supp. 3d at 423-424 (Reeves, J.) (describing the doctrine as “extraordinary and unsustainable,” and pleading with the Supreme Court to “waste no time in righting this wrong”). In the meantime, a few jurisdictions, such as Colorado, New Mexico, and New York City, have begun to impose limitations on qualified immunity at least insofar as cases proceed in state court under state or local statutes. Colo. Rev. Stat. Ann. § 13-21-131 (2020); N.M. Stat. Ann. § 41-4A-4 (2021); N.Y.C. Admin. Code § 8-804 (2021).
Third, legislative bodies should consider modifying statutory and common-law provisions that deliberately block accountability for (what are in principle) common-law rights violations by police officers. Although every state has some statutory law partially waiving some form of sovereign immunity (for state political entities), see Dan B. Dobbs, Paul T. Hayden & Ellen Bublick, The Law of Torts § 342 (2d ed. 2016), and many states have similar statutes partially waiving governmental immunity (for local and municipal entities), see id. at § 343, such statutes consistently retain high levels of immunity (and “public duty rule” based nonliability) for tortious police conduct. Id. at §§ 342 to 344, 346. Additionally, many state courts simply assume that police conduct that does not cross constitutional-law boundaries is legally permissible under state law. Restatement of the Law Third, Torts: Intentional Torts to Persons § 39, Comment b (Am. L. Inst., Tentative Draft No. 6, 2021). Through broad readings of the “discretionary function exception,” an archaic immunity for “governmental functions,” see Dan B. Dobbs, Paul T. Hayden & Ellen Bublick, The Law of Torts § 344 (2d ed. 2016), and the heightened state-of-mind standard of “willful” or “malicious” for official immunity, see id. § 350, tort law for police misconduct in most states retains a de facto form of nearly complete immunity.
As a legal and constitutional matter, state legislatures have full authority to treat batteries by police officers and acts of wrongful liberty invasion as actionable torts, regardless of whether they fall within constitutional boundaries. Restatement of the Law Third, Torts: Intentional Torts to Persons § 39, Comment b (Am. L. Inst., Tentative Draft No. 6, 2021). Even assuming the existence of reasons for shielding government employees who act in good faith, there is plenty of room for legal regimes in the states that take police tort accountability more seriously than currently is the case. States could move toward such regimes by passing statutes that eliminate or narrow the discretionary-function exception, the immunity for governmental functions, and the state-of-mind requirements for individual official immunity. For example, moving from “willful or malicious” to “unreasonableness,” “negligence,” or even “gross negligence” for individual official immunity would itself generate a more balanced framework. Insofar as states fear for the financial security of their employees, broad use of respondeat superior and indemnification can address such concerns. Joanna C. Schwartz, Police Indemnification, supra (documenting that overwhelmingly tort awards against police officers are fully indemnified).
Fourth, legislative bodies need to find a way to ensure that liability gives rise to change when the practices that led to liability are misguided, wrong, or harmful. At present, awards against municipalities and policing agencies come out of general funds, and all too often do nothing to advance the cause of sound policing. Schwartz, Police Indemnification, supra, at 957 n.341. Similarly, even in the rare instances in which officers are held liable, they almost never pay because they are indemnified. Id. at 939; Devon W. Carbado, Blue-on-Black Violence, a Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1522-1523 (2016). This is the case even when indemnification is inappropriate under state law. See Schwartz, Police Indemnification, supra, at 921-923 (detailing how officers in jurisdictions across the country avoided paying punitive-damage judgments despite state or local prohibitions on indemnification).
Change in this area is necessary. Officers who commit bad-faith violations should pay at least some portion of those judgments themselves. See, e.g., Colo. Rev. Stat. Ann. § 13-21-131(4) (2020) (requiring officers who did not act in good faith to personally pay up to five percent or $25,000 of any judgment or settlement—whichever is less—unless they are financially unable). Policing agencies should be cognizant of the harm they do, and remedies should spur change. Legislative bodies should experiment with mechanisms to make sure liability leads to improvement, whether it is auditing of awards and mandatory process changes or some other structure.
Fifth, legislative bodies should consider instantiating in statutory language the proper use of the exclusionary remedy. Exclusionary remedies are common, not only in the United States but elsewhere, as a response to unlawful conduct. See Yue Ma, The American Exclusionary Rule: Is There a Lesson to Learn from Others?, 22 Int’l Crim. Just. Rev. 309 (2012). But the nature of those remedies varies in other places. See id. at 310, 313-317 (discussing exclusionary remedies in England, Canada, France, and Germany, and noting that no other country has adopted a “generally applicable mandatory [exclusionary] rule or rested the rule on its effect as a deterrent against police illegality”). The U.S. Supreme Court has limited the application of the federal constitutional exclusionary remedy in many ways. See, e.g., Utah v. Strieff, 579 U.S. 232, 239 (2016) (limiting application of exclusionary rule even when officer stops individual unlawfully, if there was a warrant for the person’s arrest of which the officer was unaware at the time of the stop); Herring v. United States, 555 U.S. 135, 144 (2009) (finding exclusion inappropriate if unlawful seizure was result of erroneous police record); United States v. Leon, 468 U.S. 897, 922 (1984) (limiting exclusion if officer acted in “good faith” despite violating constitutional rights); Nix v. Williams, 467 U.S. 431 (1984) (finding the exclusionary rule should not apply when “the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means”). Many state high courts have rejected aspects of the Supreme Court’s doctrine. See, e.g., State v. Cline, 617 N.W.2d 277, 288-293 (Iowa 2000) (rejecting the good-faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984), and citing other state courts’ rejection of the doctrine). Legislative bodies could draft exclusionary remedies and, at the same time, tailor them in ways the courts simply cannot. Legislatures in other countries have done exactly that. See Ma, The American Exclusionary Rule, supra, at 320 (explaining how, unlike the United States, other countries’ “rules of criminal procedure usually are spelled out in statutes or a comprehensive code of criminal procedure”). For example, the Parliament of the United Kingdom enacted legislation that codified and expanded an existing common-law exclusionary rule. See Yue Ma, Comparative Analysis of Exclusionary Rules in the United States, England, France, Germany, and Italy, 22 Policing: Int’l J. Police Strategy & Mgmt. 280, 285 (1999) (describing how Parliament’s Police and Criminal Evidence Act of 1984 “armed [courts] with [a] new statutory authority” to exclude evidence). And Germany’s legislature adopted a statutory provision that automatically excludes evidence obtained through physical abuse or coercion. Id. at 294. Legislative action in the United States would give courts applying the exclusionary remedy greater legitimacy and possibly greater fortitude.
Sixth, the law regarding injunctive remedies should allow for injunctive suits when policing agencies engage in a pattern and practice of ill-conceived and often unlawful or unconstitutional conduct. In City of Los Angeles v. Lyons, 461 U.S. 95, 105-110 (1983), the Supreme Court held that a Black man who had been wrongly subjected to a chokehold could not sue to stop the practice because he could not say to a certainty it would happen to him again. Chokeholds were recognized at the time to be dangerous and poor policing procedure. See id. at 116 (Marshall, J., dissenting) (“It is undisputed that chokeholds pose a high and unpredictable risk of serious injury or death.”); Monika Evstatieva & Tim Mak, How Decades of Bans on Police Chokeholds Have Fallen Short, NPR (June 16, 2020), https://www.npr.org/2020/06/16/877527974/how-decades-of-bans-on-police-chokeholds-have-fallen-short (noting the Los Angeles Police Department banned “bar-arm chokeholds” in 1982); Jeremy Gorner & William Lee, After George Floyd’s Death, Where Does Chicago Draw the Line on Police Chokeholds?, Chi. Trib. (July 22, 2020), https://www.chicagotribune.com/news/breaking/ct-chicago-police-use-of-force-20200622-2twwuh3otjc2fbwtpnmkfa3z3i-story.html (explaining how Chicago began restricting officers’ use of chokeholds in the 1980s). Yet, it took nearly 40 years, and many unnecessary deaths, until finally legislative bodies are addressing what policing agencies would not. See Farnoush Amiri, Colleen Slevin & Camille Fassett, In Year since George Floyd’s Death, Some States Ban or Limit Police Chokeholds, L.A. Times (May 24, 2021) (“At least 17 states [since Floyd’s death] . . . have enacted legislation to ban or restrict [chokeholds] . . . . Before Floyd was killed, only two states, Tennessee and Illinois, had bans.”). Courts in some cases have distinguished Lyons and found standing on the part of plaintiffs seeking systemic relief with respect to policing practices. See, e.g., Floyd v. City of New York, 283 F.R.D. 153, 169-170 (S.D.N.Y. 2012) (stressing that a named plaintiff had been stopped by police four times; that the plaintiff’s risk of future stops didn’t depend on whether he engaged in illegal conduct; and that the documented frequency of the challenged practices helped show the likelihood of future injury to that plaintiff).” Yet, the fact is that Lyons has been and remains an obstacle to bringing lawsuits to ensure sound policing. See Erwin Chemerinsky, Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights 12 (2021) (“In the almost four decades since Lyons, the Supreme Court and the lower courts have repeatedly dismissed suits brought by citizens for injunctive relief against police departments because the plaintiff could not demonstrate a likelihood of future personal injury and therefore lacked standing.”).
As an alternative, and at a minimum, legislative bodies should empower the appropriate state officials to bring pattern-and-practice lawsuits against policing agencies and give them the resources to do this successfully. See Press Release, Xavier Becerra, Attorney General, State of California, Attorney General Becerra Launches Civil Rights Investigation of the Los Angeles County Sheriff’s Department (Jan. 22, 2021), https://oag.ca.gov/news/press-releases/attorney-general-becerra-launches-civil-rights-investigation-los-angeles-county (describing the California Attorney General’s lawsuit against the Los Angeles Police Department brought pursuant to the California Constitution and California Civil Code § 52.3); Press Release, Letitia James, Attorney General, State of New York, Attorney General James Files Lawsuit Against the NYPD for Excessive Use of Force (Jan. 14, 2021), https://ag.ny.gov/press-release/2021/attorney-general-james-files-lawsuit-against-nypd-excessive-use-force (describing the New York Attorney General’s lawsuit against the New York Police Department brought pursuant to New York Executive Law § 63). At the state level, this should be state attorneys general. At the local level, some other solution is needed. It is further worth considering whether one remedy available to the federal and state attorneys general should be to have courts put errant policing agencies into receivership. Some agencies have proven simply unable to address their own ills, whether it is because of leadership, the failure of the jurisdiction to fund them properly, or some other cause. See Simone Weischelbaum, The Problems with Policing the Police, Time, https://time.com/police-shootings-justice-department-civil-rights-investigations (recounting how police departments in Cleveland, Miami, New Orleans, and New Jersey all failed to implement meaningful reform following U.S. Department of Justice investigations); see also Barbara Armacost, The Organizational Reasons Police Departments Don’t Change, Harv. Bus. Rev. (Aug. 19, 2016), https://hbr.org/2016/08/the-organizational-reasons-police-departments-dont-change. At present, the remedy for agencies found culpable in pattern-and-practice investigations has been a monitorship supervised by the courts. See generally C.R. Div., U.S. Dep’t of Just., The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994–Present (2017) (overviewing the Department of Justice’s pattern-and-practice process and recent investigations). But monitorships often are criticized for being slow and expensive. Jacob Schulz & Tia Sewell, Pattern-or-Practice Investigations and Police Reform, Lawfare (Apr. 30, 2021), https://www.lawfareblog.com/pattern-or-practice-investigations-and-police-reform (explaining that “consent decree monitoring is expensive and can sometimes last more than a decade”); see also Weischelbaum, supra (describing how local officials “have railed at the high cost of the Justice Department’s reform plans”); Memorandum from Merrick Garland, U.S. Att’y Gen., to Heads of Civ. Litigating Components, U.S. Att’ys (Sept. 13, 2021), https://www.justice.gov/ag/page/file/1432236/download (recognizing complaints about monitorships, and adopting procedures to address them). In other areas, failed entities are placed into competent hands, be it receivership or trusteeship. See Ziwei Hu, Comment, Equity’s New Frontier: Receiverships in Indian Country, 101 Cal. L. Rev. 1387, 1420 (2013) (detailing how courts have used receiverships in other contexts, such as railroads, municipalities, civil rights, and housing); Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. Rev. 550, 555, 561-562 (2006) (discussing the value of receiverships in the context of prison litigation). That approach should be explored for policing agencies.