In his 2014 book, The Civil Rights Revolution, Bruce Ackerman observes that “the sun is setting on the civil rights revolution.” The struggles of the 1960s, the changes they wrought—“All this is ancient history for the rising generation.” Footnote 1 Has there been a generational shift in the “age of Obama?” While there is much evidence to support Ackerman’s claim, recent civil rights activism in the United Sates may lead to renewed attention to the institutional foundations of the rights revolution.
On August 9, 2014, an unarmed eighteen-year-old black man named Michael Brown was fatally shot by Darrell Wilson, a white police officer, in Ferguson, Missouri, sparking unrest in Ferguson and across the country. Footnote 2 Just a few weeks earlier, a widely-viewed videotape showed an NYPD officer using a prohibited chokehold maneuver, causing the death of Eric Garner in Staten Island, New York. The video of Eric Garner’s final words and death left no room for debate about the events surrounding his death. Footnote 3 After the initial Ferguson protests in early August, participants in social media as well as journalists from national news outlets began paying greater attention to these and other recent killings, helping to spark more protests across the country. Footnote 4 Later in November and early December, when grand juries failed to indict the officers involved in the deaths of either Michael Brown or Eric Garner, even larger protests erupted in cities and towns across the United States. The large-scale peaceful protests that continued through the following holiday season represented the highest levels of civil rights activism in years. Footnote 5
Much of the public debate initially focused on the criminal liability of the police officers involved and the role of local grand juries in seemingly shielding these officers from criminal prosecution, but local criminal prosecutions are not the only legal mechanism for holding police officers and other government officials accountable. Footnote 6 Protestors and civil rights leaders also repeatedly called on the Justice Department to pursue federal criminal prosecutions and broader civil rights investigations. Footnote 7 In this article, I examine another mechanism for holding these police officers accountable: civil actions, often referred to as “constitutional tort” lawsuits, for monetary damages under 42 U.S.C. § 1983, the federal statute that provides a civil cause of action in federal courts for constitutional rights violations. Footnote 8 Despite its crucial role in upholding the rule of law in the United States, this category of civil rights litigation targeting governmental constitutional violations has received far less attention from political scientists, perhaps because the law of constitutional torts has been developed exclusively by federal judges into an extremely complicated and technical doctrinal framework. Footnote 9 Section 1983 litigation is, however, a central part of the rights revolution ushered in during the 1960s. Footnote 10
The families of Michael Brown and Eric Garner joined a long list of plaintiffs when they hired attorneys to prepare for civil litigation under Section 1983. Footnote 11 Yet, as leading civil rights scholar Erwin Chemerinsky noted in an August 26, 2014, New York Times op-ed, “How the Supreme Court Protects Bad Cops,” their prospects for success have been hindered by a little-noticed line of recent Supreme Court decisions that have undermined the ability of plaintiffs to hold police officers and other officials responsible for their unconstitutional actions. In this article, I analyze these Rehnquist and Roberts Courts decisions displaying an increasingly hostile view of Section 1983 litigation. I also place these decisions within the context of a number of earlier cases from the 1970s and 1980s that structured Section 1983 doctrine in a way that makes it difficult for plaintiffs to successfully sue the police or other government officials. Footnote 12
A second major goal of this article is to consider the fate of Section 1983 litigation in “the age of Obama.” President Obama has done very little to respond directly to these doctrinal developments. I suggest, instead, that Obama exemplifies an across-the-board lack of enthusiasm with the rights revolution’s reliance on private enforcement and adversarial legalism. Rather than pursue override legislation to help bolster constitutional accountability through Section 1983 litigation, Obama has favored government enforcement through Justice Department actions. I argue that this approach is insufficient, because most civil rights enforcement occurs through private civil rights litigation. I also assert that it is dangerous to rely solely on the stealthier option of federal court appointments. Securing the institutional foundation of the rights revolution—private enforcement litigation—instead requires broader public support and recognition of private enforcement’s importance, efficacy, and legitimacy. The reaction to the recent protests in Ferguson and across the country gives hope that, in the “age of Ferguson,” there will be renewed attention to the need for civil rights litigation under Section 1983.
I address at least four recent lines of inquiry in political science scholarship on law and the courts. First, like many scholars building on the insights of Sean Farhang’s groundbreaking 2010 book The Litigation State, I am interested in the relationship between government and private enforcement and here compare the civil rights enforcement efforts of the Justice Department to private litigation under Section 1983. Footnote 13 Although much of the public’s attention over the past year has focused on the Justice Department’s role, the government typically investigates only a handful of police departments each year. In 2014, private litigants filed over 15,000 cases in federal district courts to enforce civil rights. Footnote 14 Section 1983 litigation is by far the most important vehicle for the enforcement of constitutional rights against police officers and other government officials. Second, by focusing on the constitutional tort cases challenging police brutality, the largest category of Section 1983 litigation, this study engages with recent political science scholarship examining the carceral state, policing, and other criminal justice issues. Footnote 15 Because Section 1983 is invoked most often in the context of policing and incarceration—through lawsuits alleging excessive use of force, race-based patterns of stop and frisk, unconstitutional conditions of confinement, and wrongful convictions—constitutional tort litigation can play a role in deterring and remedying the most egregious sources of governmental wrongdoing in an era of aggressive policing and mass incarceration. Third, by updating the story of private enforcement of civil rights beyond the 1990s, where Farhang ends his account, I consider whether there remains sufficient support for private enforcement to permit the possibility of override legislation to bolster civil rights enforcement by private plaintiffs. Recent political science scholarship on the conservative legal movement and retrenchment of access to the federal courts has emphasized a partisan dimension to these changes. Footnote 16 I seek to add to these accounts by highlighting the growing disenchantment with the litigation state among liberal legal scholars, civil rights leaders, and politicians, including Obama, since the 1990s. Finally, I call attention to aspects of the Obama presidency that have not been examined fully in political science scholarship. While there has been a great deal of work on Obama’s approach to civil rights and race-conscious policies, I highlight here his views regarding the institutional features of the rights revolution and consider the limitations of his preference for governmental enforcement. Footnote 17 Many political scientists have emphasized the structural factors limiting Obama’s options—the constraints imposed by the economic crisis, the political obstacles resulting from strengthened party unity and heightened polarization, and challenges associated with bolstering policies that are part of the “submerged state. Footnote 18 While acknowledging those limits, I here suggest that Obama simply has not considered supporting private enforcement of civil rights as a priority. It remains to be seen whether the calls for change following in the wake of the Ferguson protests will bring renewed attention to the need for a stronger regime of private enforcement of constitutional rights under Section 1983.
My argument proceeds as follows. The first section situates President Obama’s views about the rights revolution in the context of the role that Section 1983 litigation has played since the 1960s, as well the more recent concerns about the failures of adversarial legalism. In the next section, I examine the impact of the Court’s “procedural assault” on civil rights litigation and the possible responses to the recent cases regarding police use of force. In the final section, I evaluate the Obama administration’s record on civil rights within the context of these little-known Supreme Court cases and assess the challenges confronting the administration and civil rights leaders in response to these developments.
“A Debt to Pay”: Obama’s Civil Rights Dilemma
On April 10, 2014, President Barack Obama delivered the keynote address at the Civil Rights Summit in Austin, Texas. Part of a three-day conference to mark the fiftieth anniversary of the passage of the Civil Rights Act of 1964, Obama’s address praised the rights revolution that emerged in the wake of its passage. As he often has when paying tribute to the civil rights movement, President Obama acknowledged his place in history as a legacy of that movement:
Because of the Civil Rights movement, because of the laws President Johnson signed, new doors of opportunity and education swung open for everybody—not all at once, but they swung open. Not just blacks and whites, but also women and Latinos; and Asians and Native Americans; and gay Americans and Americans with a disability. They swung open for you, and they swung open for me. And that’s why I’m standing here today—because of those efforts, because of that legacy.
And that means we’ve got a debt to pay. That means we can’t afford to be cynical. Half a century later, the laws LBJ passed are now as fundamental to our conception of ourselves and our democracy as the Constitution and the Bill of Rights. They are foundational; an essential piece of the American character. Footnote 19
Obama’s sense of obligation to the civil rights movement is clearly evident in this speech. There is ample evidence demonstrating that the Great Society laws—not only the Civil Rights Act of 1964, but also the 1965 Voting Rights Act, the 1965 Immigration and Nationality Act, and the 1965 Higher Education Act—transformed the electorate in ways that made his 2008 election victory possible. Footnote 20 Less clear, however, is the precise nature of Obama’s commitments and their effect on his administration’s civil rights agenda. Obama, like many of his generation, faces a new dilemma—supporting civil rights enforcement in a time of growing skepticism about earlier civil rights strategies and goals.
The Rights Revolution and Section 1983
Although it has never received the same sort of public recognition as the Johnson era civil rights statutes, Section 1983 has served as a central pillar of the rights revolution for over half a century. The revival of Section 1983 began in a 1961 Warren Court case, Monroe v. Pape, that involved a shocking instance of police misconduct: a warrantless police invasion of a family’s apartment in the middle of the night, the violent and threatening interrogation of the parents and their six children, and the arrest of the father on open charges. Footnote 21 The Supreme Court upheld James Monroe’s claim for monetary damages under Section 1983 and interpreted the “under color of law” requirement in the statute to include unauthorized actions taken by government officials in excess of their authority, thereby liberating this form of constitutional litigation under Section 1983 from a longstanding doctrinal straightjacket. Footnote 22 Monroe’s introduction of a damages remedy for unauthorized and unconstitutional official actions has been described as “one of the great innovations of modern American law” Footnote 23 and “the case of the century for our rights as citizens.” Footnote 24 By extending the reach of Section 1983 to include official misconduct, Monroe gave new life to a statute that is now the primary vehicle for constitutional litigation in the United States.
Monroe also made it possible for more plaintiffs to receive compensation for constitutional violations. Before Monroe, injunctions were the typical remedy for those complaining of unauthorized governmental conduct. Because such a remedy was available only for ongoing government programs and practices, many victims of constitutional violations were left without a remedy. By endorsing the alternate remedy of damages and creating a new kind of constitutional tort litigation, the Monroe Court encouraged future plaintiffs to pursue backward-looking claims involving already—completed governmental action that produced constitutional violations. Footnote 25
As more Bill of Rights provisions were incorporated to apply to the states during the Warren Court’s heyday, Section 1983 offered a potentially effective new weapon for plaintiffs seeking to enforce the Constitution in the federal courts. Footnote 26 In 1960, on the eve of the Monroe revolution, a mere 280 suits were filed in federal court under all of the civil rights statutes. Footnote 27 Soon, however, because the Court in Monroe held that plaintiffs need not first exhaust state judicial remedies before pursuing a federal claim, Section 1983 would achieve renown as the “legal bulwark of the ripening civil rights movement.” Footnote 28 Although Congress did not intervene directly in the development of constitutional tort doctrine under Section 1983, it did provide crucial support for this side of the rights revolution when it passed the Civil Rights Attorneys Fees Award Act of 1976. The prospect of attorney’s fees that CRAFAA offered to victorious civil rights plaintiffs greatly increased the attractiveness of this litigation, and the numbers of cases increased. By 1979, the number of nonprisoner filings had risen to 13,168 each year, and prisoners filed an additional 11,195 suits. Footnote 29
As Charles Epp has detailed so superbly in Making Rights Real, this rise in litigation under Section 1983 created pressure for professional reforms in police departments across the country during the 1980s, and, he argues, this growth in “legalized accountability” helped significantly reduce police use of force in the United States. Footnote 30 In the aftermath of the Rodney King beating by the Los Angeles police in 1991, however, leading civil rights litigators such as David Rudovsky began questioning whether Section 1983 could ever sufficiently deter police misconduct. Footnote 31 Civil rights leaders called for new measures that would permit more widespread structural reforms of police departments. Footnote 32
Adversarial Legalism and Its Critics
During this same period, the impact of the Reagan Revolution’s challenge to legal liberalism began to be felt. Private enforcement of civil rights and litigation more generally came under attack. Footnote 33 In part this was due to the impact of the tort reform movement, which has attempted with considerable success to stigmatize litigation as “jackpot justice” and “lawsuit abuse” that is intrinsically unfair to defendants. Footnote 34 Whereas previously citizens who had “the courage of their convictions” to seek justice in the court system and vindicate the rights of all their fellow citizens had often been lauded, over the past three decades civil rights plaintiffs and their lawyers have confronted increasing hostility, in part no doubt due to the rise in anti-litigation rhetoric. Footnote 35
Although support for civil rights litigation remains, the commitment of liberal elites and politicians tends to be a little more lukewarm than in the past, perhaps reflecting a generational shift in perspective. The generation of liberals who witnessed the collapse of the post-New Deal Coalition shared a post-Watergate skepticism of national government, yet believed its responsibilities should expand. The litigation state, by assigning significant responsibilities to liberal legal organizations, was, as Shep Melnick has observed, “particularly well suited to the purposes of these ambivalent activists.” Footnote 36 Today, however, there appears to be less support all around for civil rights litigation. Obama’s skepticism about the effectiveness of litigation is of a piece with the views of a new generation of elites noted by legal scholar David Fontana: “[As] these voices of the Warren Court Generation disappear, their voices are replaced by something murkier. The next generation of elite lawyers, with some exceptions, does not often push the argument that courts interpreting the Constitution can make the world a better place.” Footnote 37 A number of political scientists have offered similarly pessimistic appraisals of a litigation-centered politics. Footnote 38 Other legal scholars on the left, such as Stanford law professor Richard Thompson Ford, have produced sharper critiques of the rights revolution’s legacy and praised Obama for expressing a similar skepticism. Footnote 39
Obama’s stance is thus firmly within those of recent mainstream scholarship embracing a less than celebratory view of the role of courts in the rights revolution. Footnote 40 Although it has received little attention from scholars and pundits, Obama has long rejected a “heroic” role for the Supreme Court and civil rights litigation. In a 1995 television interview, he explained his preference for avoiding excessive reliance on litigation in terms of the increasingly conservative makeup of the federal judiciary, which “these days is not very sympathetic to the cause of civil rights.” “Progress,” he claimed, “is probably not going to come from the courts these days. We’re not going to see a Brown v. Board of Education type of decision anytime soon. What we’re going to have to do is work at the grassroots level and the community level.” Footnote 41 Obama offered an even more skeptical view in a 2001 radio interview, where he described the emphasis on court-centered strategies as “one of the … tragedies of the civil rights movement” because it produced “a tendency to lose track of the political and community organizing activities on the ground that are able to put together the actual coalitions of power.” He further argued that the reliance on litigation is intrinsically problematic, because courts are “poorly equipped” to handle “basic issues of political and economic justice in this society.” Footnote 42 In his 2006 The Audacity of Hope, Obama “wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.” Footnote 43
As the elites on the right and the left increasingly criticized adversarial legalism, federal judges had their own reasons for wanting to tame the rights revolution. The role of constitutional tort litigation, in particular, has not been highly valued by the federal judges in charge of supervising its development. The enormous growth in litigation during the 1960s and 1970s led to charges that Section 1983 litigation was burdening the federal courts. Footnote 44 Except for a brief period of revival following the Monroe decision, much of the history of constitutional tort litigation has been a story of doctrinal trimming. Footnote 45 Since 1978, when the Supreme Court introduced the “policy or custom” requirement for government entity liability in Monell, Footnote 46 the Court has introduced a complex array of doctrines limiting the availability and scope of the constitutional tort remedy. That the number of caseload filings has remained relatively steady since then, however, indicates that something else besides continuously “exploding dockets” is at work. Footnote 47
Whatever its cause, the doctrines adopted by the Rehnquist and Roberts Courts have limited the procedural framework for civil rights litigation. It is through these cases that the conservative legal movement that Steven Teles has described so well has reaped real results, mostly under the public’s radar. Footnote 48 As Melnick observes, “the Supreme Court often leaves its biggest imprint on civil rights policy not in high visibility constitutional rulings, but in a large number of small adjustments in the ‘remedial machinery’ that turns abstract rights into binding norms.” Footnote 49 The recent Court cases introducing obstacles for civil rights litigants—the civil rights procedural “rollback”—provide another example of the role of regime politics in judicial decision-making. Footnote 50 Nonetheless, perhaps because it is a far more stealthy variant than more high-visibility litigation concerning the constitutionality of such issues as affirmative action, campaign finance laws, and gay marriage, this development has been largely ignored in current political science scholarship. Without more attention to these less visible procedural cases, the Supreme Court may appear to be far more moderate than it actually is to scholars focusing on the most prominent constitutional cases. Footnote 51
“To Blush Unseen”: The Procedural Assault on the Rights Revolution
Speaking at a Fourth Circuit conference in 2001, Chief Justice William Rehnquist discussed a handful of cases from the just-ended 2000 term that he believed would have an enormous impact despite receiving little attention from the press or the public. Footnote 52 Quoting from Thomas Gray’s “An Elegy in a Country Churchyard,” Rehnquist lamented that these cases are “like flowers which are born to blush unseen and waste their sweetness on the desert air,” an apt description of the rulings at the core of the Court’s procedural rollback of civil rights laws, a trend that has only strengthened during the Roberts Court. Although the cases in the four areas discussed in this section were closely watched within the legal community, they received less coverage in the mainstream press; as a result, the public is largely unaware of the impact of these cases on civil rights enforcement. Recent political science scholarship has also underestimated the role of judicial doctrine in making—and unmaking—the litigation state. The procedural prerequisites for the private enforcement of civil rights are not as entrenched as scholars have suggested. Footnote 53 They are instead the object of judicial transformation.
Attorney’s Fees
One of the important but little-known cases Rehnquist was likely referring to is Buckhannon Board & Care Home v. W. Va. Department of Health and Services (2001), Footnote 54 a case that has been called “a neutron bomb” for civil rights litigation. Footnote 55 In this case, the Rehnquist Court ended the federal courts’ longstanding practice of applying the “catalyst theory” for the determination of attorney fees under the Civil Rights Attorneys Fees Award Act of 1976, Footnote 56 which permitted awarding legal fees to the attorneys of all “prevailing plaintiffs” whose legal challenge produced some beneficial change in the defendant’s behavior. In his majority opinion in Buckhannon, Rehnquist announced that that the “clear” meaning of “prevailing party” was something other than what eleven other circuit courts and four of his colleagues on the Supreme Court believed. Footnote 57 Quoting from an edition of Black’s Law Dictionary that was not yet in existence when the phrase in question was incorporated in many fee-shifting statutory provisions, Rehnquist defined a “prevailing party” as “one in whose favor a judgment is rendered.” Footnote 58 The Buckhannon plaintiffs had not received any judgment in their favor, he argued, so they would not be awarded attorney’s fees. In a concurring opinion, Scalia argued that the catalyst theory rewarded plaintiffs who could pressure defendants to change their behavior simply by “threatening” a lawsuit, leading defendants to alter their actions just to avoid the hassle of litigation, not because they had done anything wrong. Because no legal determination of the merits of the plaintiff’s case had yet been made in such cases, Scalia argued, citizen plaintiffs should not be rewarded for their “extortion.” Footnote 59
Scalia’s characterization echoes the most negative rhetoric of anti-litigation forces. But while rhetoric about frivolous lawsuits may be influential, it is not supported by any systematic empirical evidence. Footnote 60 Even when the catalyst theory was followed, civil rights attorneys still faced the obstacle of Rule 11 sanctions for filing frivolous claims and the typical hurdles of summary judgment motions. Footnote 61 There is in fact some evidence to suggest that fee shifting should be encouraged because it provides a much-needed incentive for otherwise reluctant plaintiffs. Based on the empirical evidence regarding claiming in civil cases more generally, one can reasonably conclude that most victims of constitutional torts never file a claim against the government. Footnote 62 Indeed, it can be argued that in cases involving constitutional torts, there is an especially weighty public interest in encouraging plaintiffs to act as “private attorneys general” to hold the government accountable for unconstitutional actions. Footnote 63 For Scalia, however, the hypothetical possibility that a plaintiff with a “phony claim” could be awarded fees “far outweighs” the harm to the public interest that is caused by abandoning the catalyst theory. Footnote 64
The importance of Buckhannon cannot be overstated: Attorney fees are the fuel sustaining the private enforcement regime. Following Buckhannon, civil rights plaintiffs must find attorneys willing to pursue a case vigorously even after an early settlement offer is on the table. Civil rights attorneys may feel pressured to recommend taking early settlement offers because of the fear that, after investing in the case, defendants will opt to remedy the problem at the eleventh hour and moot the case—what Catherine Albiston and Laura Beth Nielsen call “strategic capitulation.” Footnote 65 One way to prevent that type of scenario is to request monetary damages along with declaratory and injunctive relief to prevent such last-minute maneuvers, but that is not an option in civil rights cases brought against state agencies, as in Buckhannon, because of the Court’s sovereign immunity doctrine and its interpretation of Section 1983 itself, which I discuss next.
Sovereign Immunity and States’ Rights
Of all the cases involved in the Rehnquist Court’s federalism revival, those expanding state sovereign immunity have had the most far-reaching effects on civil rights litigation. In a series of 5–4 rulings, the Court placed obstacles for plaintiffs seeking to sue state governments for their injuries. Footnote 66 Congress can still force a waiver or “abrogate” state sovereign immunity through legislation authorized by the Fourteenth Amendment, as the Court had established earlier in Fitzpatrick v. Bitzer (1976). Because Section 1983 is based on the Civil Rights Act of 1871, which was originally titled “An Act to Enforce the Fourteenth Amendment,” one might assume that it would readily fall within the Fitzpatrick abrogation doctrine. But in a series of cases that have been virtually ignored by scholars, Rehnquist led the way in limiting the liability of states under Section 1983. First, in 1979 the Burger Court concluded in Quern v. Jordan that Section 1983 did not abrogate state sovereign immunity. Footnote 67 Then, in 1989, in Will v. Michigan Department of State Police, the Court held, as a matter of statutory interpretation, that the language in Section 1983 referring to “persons acting under color of law” did not refer to states, state agencies, or state officials acting in their official capacity. Footnote 68 The states’ rights revival led by Rehnquist during the 1970s and 1980s thus had broad and significant results for constitutional litigation against state agencies, including many county sheriffs around the country, who may be categorized as state policymakers according to the approach established by the Rehnquist Court in the 1997 case McMillian v. Monroe County. Footnote 69
For ongoing violations of the Constitution or federal law, it remained an option to sue a state officer for injunctive relief under the Ex Parte Young doctrine, but the only way to seek damages for states’ violations of the Constitution or federal laws would be through lawsuits against individual state officials in their personal capacity. Footnote 70 In such lawsuits, these defendants would benefit from a “qualified immunity” from suit.
Qualified Immunity and Supervisory Liability
The “qualified immunity” doctrine serves as a powerful shield from liability in constitutional tort claims against individual government officials, including police officers, as it holds that any government official sued in their personal capacity under Section 1983 or the Bivens doctrine will not be subject to litigation unless the constitutional right at issue has been “clearly established.” Footnote 71 Because very few cases involving constitutional violations can meet that standard—particularly in cases challenging a police officer’s use of force—qualified immunity is a powerful obstacle to civil right suits. Footnote 72 Police use of force is assessed by the least bright-line legal test of them all—a reasonableness standard. The 1985 case of Tennesee v. Garner was considered at the time to be a significant advance because it rejected the “fleeing felon” rule and replaced it with a requirement that an officer could use deadly force only if there is probable cause that the suspect poses “a significant threat of death or serious injury to the officer or others.” Footnote 73 In Garner, the Court had emphasized that this would be enforced through an “objective reasonableness” standard, and in a 1989 case, Graham v. Connor, the Court clarified some of the factors involved in applying this standard: the severity of the suspected crime, whether the suspect is resisting arrest or attempting to escape, and if the suspect poses an immediate threat to the officers or others. Footnote 74 In applying this standard, the Court has admonished that care must be taken to respect the position of police officers who must make split-second judgments. In practice, this means that the Garner/Graham approach does little to hold police accountable. When the constitutional standard is combined with the qualified immunity doctrine—which will almost certainly find the officer immune unless there is a prior case law clarifying the constitutional standard was not met in nearly identical circumstances—it becomes clear that officers get multiple bites at the apple in these cases. Footnote 75 If the police officer wins on qualified immunity grounds, the case is dismissed by the judge before a jury is ever allowed to consider the case. If the motion to dismiss or a later summary judgment motion is denied, the police officer has the right to an “interlocutory appeal”—to immediately appeal that denial before the case goes to trial. Footnote 76 On the basis of qualified immunity, thousands of plaintiffs each year are thus prevented from challenging even extremely egregious police misconduct in court.
Recent cases have offered some hope that qualified immunity will not be an insurmountable barrier in certain cases involving shocking police violence. A 2014 Second Circuit opinion denied qualified immunity in a case involving a SWAT team invasion that included the use of a battering ram and three stun grenades as part of a warranted search of the home of a suspect thought to possess small amounts of cocaine. Footnote 77 The officers, who waited just five seconds after announcing their presence before deploying grenades, killed the suspect’s houseguest and injured the suspect before collecting 2–6 doses of cocaine. There were no weapons in the residence. That the Second Circuit denied qualified immunity in this case leaves some small hope that in particularly egregious cases federal judges will not allow qualified immunity to shield officers from accountability under Section 1983. Another recent case involved a grenade exploding in a crib during a drug raid in Atlanta, detaching the nose from a two-year old’s face. Footnote 78 These and other cases suggest that a coming line of cases in the lower courts regarding the hurdle of qualified immunity in the context of unnecessarily violent militarized police tactics could put pressure on the Court to consider the viability of its 2002 qualified immunity case Hope v. Pelzer, a rare opinion by the Court rejecting qualified immunity in a context in which there was no clear precedent on point, on the grounds that the conduct was so clearly unconstitutional the officials were fairly put on notice. Footnote 79 Yet another recent Roberts Court ruling that officers can shoot to kill both the driver and passengers of a speeding vehicle does not provide much ground for optimism. Footnote 80
It is also extremely difficult to sue supervisory officials, such as mayors or police commissioners, for either damages or broader injunctive relief. In fact, the reason that a system of structural decrees governing police departments did not emerge, as they did in prison systems during the 1970s and 1980s, is the Court’s holding in one of the least well-known but most important cases from Rehnquist’s tenure as associate justice—the 1976 case Rizzo v. Goode. Footnote 81 In this case, the plaintiffs sought to hold high-ranking city officials in Philadelphia, including Mayor Frank Rizzo and the police commissioner, accountable for inadequate procedures within the police department for handling citizens’ complaints regarding mistreatment. Footnote 82 The plaintiffs sued under Section 1983, with the ultimate goal of placing the entire police department under the receivership of a federal district judge. Footnote 83 The trial judge offered a narrower remedy, ordering the defendants to develop a plan to improve the processing of citizen complaints and reform police training programs and manuals. Footnote 84 After the Third Circuit unanimously affirmed the order, however, the Supreme Court granted certiorari. Rehnquist overturned the district court judge’s grant of equitable relief, arguing that injunctions should be used sparingly, with due consideration of the principles of federalism. Footnote 85
Rehnquist’s opinion in Rizzo also sharply limited supervisory liability by stressing that plaintiffs needed to show an “affirmative link” between the supervisory official’s conduct and the constitutional violations. Beyond that distinction, Rehnquist failed to provide guidelines regarding the causation requirement for cases involving allegations of institutional breakdown or systemic malfunction. Lower federal courts later ruled that supervisory officials can be held liable for their subordinates’ misconduct, even in those instances where the supervisors did not take part in or witness the harmful act itself, but no consensus regarding a more precise legal standard has developed in the lower courts. Footnote 86
The Roberts Court, however, has undermined any use of a more generous standard for supervisory liability by various circuit courts. In an important 2009 case, Iqbal v. Ashcroft, in which the Roberts Court endorsed stricter pleading requirements, Footnote 87 Justice Kennedy’s opinion addressed the theory of supervisory liability for the first time since Rizzo. Section 1983 experts have called this less-discussed part of the Iqbal holding the “knockout blow” for constitutional tort litigation. Footnote 88 Kennedy, rejecting the term “supervisory liability” entirely, held that there is no vicarious liability in constitutional tort doctrine. High-ranking officials can be held liable only for their own unconstitutional conduct. In the Iqbal case, this would have required that the defendants themselves had the requisite discriminatory intent when they adopted the policy or directed action by subordinates. “Lest there be any mistake,” Souter wrote in his dissent, “the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens [and Section 1983] supervisory liability entirely.” Footnote 89
Local Government Liability and the “Failure to Train”
This elimination of supervisory liability matters because the structure of the doctrine often prevents plaintiffs from otherwise reaching the cities or police departments that employ abusive police officers. To sue the city or a police department for damages, a plaintiff must meet the requirements of the Court’s complex “policy or custom” doctrine, first developed in the Burger Court’s 1978 Monell opinion. Footnote 90 Although Monell overturned the Court’s earlier rejection of government liability in Monroe, it did not go so far as to endorse the more sweeping approach of respondeat superior liability, which would make local governments liable for their employees’ constitutional violations committed during the course of their duties. Footnote 91 Instead, in Monell and subsequent cases, the Court required plaintiffs to show that the violation was caused by official policy, widespread custom, or deliberate indifference to an “obvious” need to train employees. Footnote 92 Plaintiffs in Section 1983 litigation thus have a far higher hurdle to meet in order to hold the government itself responsible for police misconduct and other violations than they do in Title VII and Americans with Disabilities Act cases, where the business or government entity is typically held responsible for their employees’ misconduct. Section 1983 has long been an outlier when it comes to the form of liability that can best provide incentives for broader organizational reforms. Footnote 93
The Roberts Court has recently indicated that it would hold liability of government entities for “failure to train” to the most stringent requirements. In its 2011 decision in Connick v. Thompson, again in a 5–4 opinion, the Court threw out a $14 million jury verdict in favor of John Thompson against the Orleans Parish District Attorneys’ Office for his wrongful conviction and eighteen years of imprisonment for a crime he did not commit, and for the parish’s violation of its constitutional obligations under Brady v. Maryland to disclose favorable evidence. Footnote 94 In response to the egregious constitutional violation, Justice Thomas concluded that the failure to train category under the Monell policy or custom requirement requires deliberate indifference to an obvious need to train, a requirement that could not be met without a series of known violations. Footnote 95 Few could argue with Thompson’s response to the opinion in a New York Times op-ed piece: “I don't care about the money. I just want to know why the prosecutors—who hid evidence, sent me to prison for something I didn't do and nearly had me killed—are not in jail themselves. There were no ethics charges against them, no criminal charges; no one was fired and now, according to the Supreme Court, no one can be sued.” Footnote 96
All of these doctrines taken together—limits on suits against states and state officials, qualified immunity, supervisory immunity, and the policy or custom requirement—create an interlocking set of hurdles for plaintiffs seeking to hold police officers and other government officials accountable for constitutional violations. If they do not accept a settlement offer first, the lawyers for the families of Michael Brown and Eric Garner will be forced to navigate an extremely complex doctrinal terrain. Given how the qualified immunity doctrine is applied in excessive force cases, it is highly unlikely that the officers themselves will be held liable in their personal capacity. To hold the city of Ferguson or New York City liable for failing to train or supervise these police officers, the plaintiffs’ attorneys will require much more evidence regarding the police departments’ training, supervision, and other practices to show deliberate indifference with respect to safeguarding the constitutional rights of individuals. Footnote 97
Those legal scholars who have drawn attention to these procedural dimensions of the Court’s counterrevolution have termed it a “retrenchment,” Footnote 98 “procedural activism,” Footnote 99 a conservative “assault,” Footnote 100 and a civil rights “rollback.” Footnote 101 Through these actions, Pamela Karlan observes, “the Court leaves the formal right in place but constricts the remedial machinery. At best, this will dilute the value of the right, since some violations will go unremedied. At worst, it may signal potential wrongdoers that they can infringe the right with impunity. Remedial abridgment is a pervasive tool of the contemporary Supreme Court.” Footnote 102 Yet because these developments have occurred in very technical legal opinions, there has been little public awareness or debate regarding the stakes of these procedural doctrines. The stealth of these legal developments has therefore benefited those opposed to private enforcement of the Constitution and civil rights statutes.
Given the importance of these doctrinal hurdles, it is troubling that so little has been done to broaden public support for access to the courts and civil rights litigation. After the 2008 election, it appeared that Obama had the best opportunity in decades to urge Congress to use its override authority to shore up federal civil rights statutes, yet as the following review of his administration’s record suggests, some important opportunities to do so were missed.
“A Relay Swimmer in the Currents of History”: Obama’s Civil Rights Record and the Challenges Ahead
Near the end of his 2014 speech marking the fiftieth anniversary of the 1964 Civil Rights Act, President Obama conceded that his administration had not yet achieved all that he had hoped:
Those of us who have had the singular privilege to hold the office of the presidency know well that progress in this country can be hard, and it can be slow, frustrating, and sometimes you’re stymied . . . The office humbles you. You’re reminded daily that in this great democracy, you are but a relay swimmer in the currents of history, bound by decisions made by those who came before, reliant on the efforts of those who will follow to fully vindicate your vision. Footnote 103
These words display a considerably chastened tone and recognition that there is much left to do. In early 2015, Obama’s speeches continued to elaborate these themes. Footnote 104 In a widely anticipated speech in Selma, Alabama, on March 7, delivered just a few days after the release of the Justice Department’s Ferguson report, Obama reemphasized the “solemn debt” we owe the civil rights protestors of the 1960s, and once again asked “how might we repay that debt?” Obama called on the country to repay the debt by continuing “the march,” to help ensure that the nation lives up to its ideals: “Oh, what a glorious task we are given, to continually try to improve this great nation of ours.” Footnote 105
Obama’s speeches on the legacy of the rights revolution extoll the virtue and impact of direct protest and democratic reform. The institutional framework implementing the rights revolution is left unmentioned. Footnote 106 Indeed, it is not as though Obama has tried but failed to shore up “the litigation state.” Rather, he simply has not made supporting the private enforcement of civil rights a priority in his campaigning or thus far as president. To be sure, he has not been hostile to civil rights litigation, and, as discussed below, his appointees in the Justice Department and other civil rights agencies have pursued progressive civil rights agendas. Nonetheless, his administration has missed some important opportunities to push back against the Court’s counterrevolution, to set the rights revolution’s institutional framework on a surer footing, and to ensure that private enforcement of civil rights claims effectively promotes constitutional accountability.
Legislative Overrides
The first major piece of legislation that Obama signed into law was the Lily Ledbetter Fair Pay Act of 2009, which overrode the Court’s 2007 ruling in Ledbetter to ensure that Title VII could address longstanding equal pay claims. Footnote 107 Despite his very public support of the Ledbetter bill, however, Obama did not attempt to reintroduce and push through a more comprehensive civil rights bill, such as the Civil Rights Act of 2008. Footnote 108 That bill was sponsored in the House by Representative John Lewis, who argued, “We cannot allow recent court decisions to turn back the clock . … We want to be able to say that on our watch, we did all we could as members of Congress to ensure the protection of civil rights in this country.” Footnote 109 The Senate version of the bill included a short list of Democratic co-sponsors, including then-Senator Obama. The Civil Rights Act of 2008 would have responded to a series of Supreme Court decisions limiting civil rights claims under Title VI, Title IX, the Rehabilitation Act, the ADA, and the Age Discrimination and Employment Act and restored the prevailing party standard undermined in the Court’s 2001 Buckhannon case, discussed above. Although Obama signed on as a sponsor of this bill in the 110th Congress, he did not feature its provisions—other than the Equal Remedies Act—in his campaign materials, nor did he work with congressional Democrats to move the bill in the 111th Congress. Given the closeness of the votes for the Ledbetter Fair Pay Act, the administration and Democratic sponsors may have decided there was insufficient support to pass the bill.
Although the Civil Rights Act of 2008 would have done much to protect the private enforcement of civil rights, none of its provisions addressed the Court’s liability framework in Section 1983 litigation. Indeed, Congress has never successfully altered any of the major components of the Court’s substantive liability framework under Section 1983 since the Civil Rights Attorneys Fees Awards Act of 1976 incentivized Section 1983 litigation by extending a fee-shifting provision to constitutional tort claims. Footnote 110 The last major push for federal legislation on this issue was in 1977, before the Court’s decision in Monell. Footnote 111 Since then, no major civil rights bill has addressed litigation under Section 1983 other than the Prison Litigation Reform Act of 1996 that actually severely limited prisoners’ ability to file civil rights claims under Section 1983. Footnote 112 Although numerous organizing efforts are underway nationwide to address mass incarceration and unfair sentencing practices Footnote 113 and the Lawyers’ Committee has led a coalition of civil rights organizations to issue a call for reforms in response to the Ferguson protests, Footnote 114 there has been no organizing by these same civil rights organizations—or even any public discussion or awareness—of the current challenges presented by the legal framework for constitutional tort claims against abusive police officers. Footnote 115
Justice Department Enforcement
Obama, it must be acknowledged, has taken seriously the role of governmental enforcement of civil rights. Footnote 116 Eric Holder, the first African American to hold the office of Attorney General, has presided over a number of significant civil rights developments concerning voting rights and has revitalized the Civil Rights Division, which had experienced a great deal of turmoil in the Bush Administration. Footnote 117 In recent months, many scholars, pundits, civil rights activists, and members of the public have called for the Justice Department to take the lead in holding the police officers responsible. Footnote 118 But although the Justice Department does have some authority to hold local police officers accountable for constitutional violations, it is important to recognize that the scope of its enforcement activity is miniscule compared to private enforcement through constitutional tort litigation. Because the Justice Department handles so few civil rights investigations, its role should not be considered an adequate substitute for or an alternative to private enforcement under Section 1983. As Sean Farhang has shown in the context of employment discrimination litigation, private enforcement is the institutional foundation of the rights revolution. Footnote 119
One of the enforcement tools available to the Justice Department is the Civil Rights Division’s responsibility for bringing federal criminal civil rights charges against state and local officials. Two of the officers involved in the Rodney King beating, for instance, were successfully prosecuted under 18 U.S.C. § 242, the criminal civil rights provision derived from Reconstruction-era civil rights statutes. Because the Court has since its 1944 opinion in Screws v. United States required the government to prove willful intent to violate civil rights, this statute sets a high standard for prosecution and for that reason is not widely used. Footnote 120 Only a handful of prosecutions involving police officers under § 242 occur each year, compared to the thousands of private cases annually brought against the police and corrections officers. Footnote 121
Since 1994, the Justice Department has used § 14141 to conduct investigations and enter into federal consent decrees or settlement agreements with police departments across the country, including Cincinnati, Los Angeles, New Orleans, Pittsburgh, Seattle, Detroit, Oakland, Albuquerque, and Washington, D.C. Footnote 122 These Department of Justice “pattern or practice” interventions almost always include a similar package of reforms that have, once fully implemented, produced impressive results. Footnote 123 The remaining challenge involves leveraging incentives for nationwide reforms. Footnote 124 Each year the Justice Department typically investigates no more than three departments, out of the 18,000 local law enforcement agencies nationwide. Although there are advantages to a structural reform approach, the Justice Department does not have enough capacity to handle oversight nationwide. Footnote 125 Section 1983 remains the essential tool for holding the police and other government officials accountable.
Remaking the Federal Judiciary
If new civil rights legislation is not in the offing and Justice Department enforcement cannot serve as a full substitute for private enforcement, the final option for improvement may be Obama’s appointments to the federal judiciary. Within the first twenty months of his presidency, Obama was given the opportunity to appoint two new Supreme Court justices, whose performance on the Court thus far indicates that they will be strong progressive voices in the years to come. Less clear, however, is what their appointments mean for the future of Section 1983 doctrine, given that they replaced justices who had both supported reforming Section 1983 doctrine to be more supportive of civil rights plaintiffs and that they have supported recent qualified immunity decisions favoring the government. Footnote 126
Obama was criticized for early delays in nominating lower federal court judges, Footnote 127 and those he did submit faced a far lower confirmation rate than Clinton and Bush nominees. Footnote 128 In response to Republicans’ unprecedented use of the filibuster in the Senate and their opposition to filling the remaining open seats on the D.C. Circuit Court of Appeals, the decision of Democrats to exercise the so-called “nuclear option” in November 2013 has helped Obama play catch up with the lower federal court seats and to nominate stronger progressives, which will perhaps constitute an important part of his legacy. Footnote 129 By December 2014, he had managed to get 96 federal court judges through the confirmation process in the 113th Congress, but the number of vacancies in 2015 increased in the Republican-led 114th Congress. Footnote 130
Much of Obama’s broader legacy regarding civil rights will depend on the performance of his appointments to the lower federal courts. Although the Obama administration has touted the diversity of these new judges, some progressives have criticized the president for selecting too many nominees with corporate law or prosecutor backgrounds, which account for more than 85 percent of his nominees; fewer than 4 percent have worked in public interest organizations. Footnote 131 Although political scientists have rated the ideology of his district court and appellate judicial nominees as similarly liberal to those of Carter and Clinton, it remains to be seen how Obama’s nominees perform with respect to constitutional tort doctrines. Footnote 132
The federal courts and the Supreme Court will almost certainly experience turnover after the 2016 election, and it is possible that they will shift in a direction slightly more favorable to plaintiffs seeking to hold government officials accountable under Section 1983. Yet, I would argue, something as important as the mechanisms to hold government officials, including police officers, accountable for serious misconduct and constitutional violations should not be left to the courts alone. Title VII has been subject to repeated congressional overrides, as in the Civil Rights Act of 1991 and the Lily Ledbetter Act of 2009. Each time, there involved a fairly extensive public debate and a broad base of support for the legislative reforms, which is sorely needed at both the local and national level if we are to successfully deal with the problem of police brutality. In particular, there needs to be greater public awareness of the obstacles to civil liability under Section 1983, the major vehicle for enforcing constitutional rights in the United States. If there is an opportunity for a “national conversation” about the limits of the government liability framework, high-profile cases like those of Michael Brown and Eric Garner will provide it. As of early May 2015, there continue to be organized protests online and in the streets in response to incidents of police brutality. Footnote 133 It appears that the pressure will continue. The next step will be to organize around a set of reforms in response—including those that can help ensure constitutional accountability under Section 1983.
Implications: The Empirical Turn in Section 1983 Scholarship
A national conversation about civil rights litigation reform will depend on high quality data about Section 1983 litigation’s strengths and weaknesses, yet there is so much left to learn. To conclude, I briefly consider some of the most promising avenues for future scholarly research on the private enforcement of constitutional rights.
Scholarship examining trends in Section 1983 litigation over time has made extensive use of the filing data provided by the Administrative Office of the United States Courts. Footnote 134 An important source for future empirical work may be the computerized federal court data available through PACER, which most federal districts have used since the mid-2000s. Footnote 135 David Engstrom has provided a useful overview of the types of data that can be easily obtained from PACER records, which raises a number of possibilities for future Section 1983 research, including scanning for attorney names to collect a database of the most active civil rights practitioners, compiling a database of the charges alleged in Section 1983 complaints, examining dismissal and summary judgment rates, and tracking individual officers named as defendants. Footnote 136
Scholars like Joanna Schwartz, Charles Epp, Laura Beth Nielsen, and Catherine Albiston have successfully used large-scale survey data to advance empirical scholarship on civil rights litigation. Footnote 137 To supplement this scholarship, it would be useful to develop case studies of the use of Section 1983 litigation, particularly for police brutality cases, in key jurisdictions across the country, including New York City, Philadelphia, Chicago, Oakland, and Los Angeles. By examining the networks of civil rights attorneys, the practices of municipal law departments, and the case management practices of local federal district courts, it will be possible to develop more fine-grained portrayals of how Section 1983 litigation currently works in the largest cities in the country. Footnote 138
These studies could provide more insight into the ongoing issues hindering the effectiveness of Section 1983 litigation. Legal scholars have identified a number of obstacles that prevent Section 1983 litigation from serving as an optimal deterrent in litigation against police departments, including the indemnification of individual officers, the use of general municipal budgets to pay awards and settlements, the quality and litigation strategy of local law departments, state-level protections for police officers, police union bargaining agreements, and a lack of coordination between city law departments and police departments. Footnote 139 Even if some of the doctrinal obstacles discussed here are eventually altered, many other features of Section 1983 litigation remain to be more fully explored and evaluated. These kinds of empirical studies are crucial, because federal judges have thus far developed Section 1983 doctrine using inaccurate empirical assumptions, and there is a danger they will continue to do without better and more thorough data to support judicial and public deliberation about civil rights enforcement.
In 1888, the poet James Russell Lowell warned that the Constitution is not a “machine that would go of itself.” Footnote 140 Neither is the rights revolution. The infrastructure of the rights revolution—the remarkable system of private enforcement of civil rights—will require a new generation of political leaders and civil rights activists to work together to build broader popular support for protecting the civil rights of all citizens, including those who have been harmed by police officers and other government officials. That is the way forward if the rights revolution is to survive, and possibly flourish, in the twenty-first century.
